Judgment

GUPTA, J. - This appeal is by special leave, from a judgment of the Calcutta High Court, this Court in granting special leave limited the appeal to only one ground, whether the trial court had power to order confiscation of the goods found in appellants possession while convicting him under S. 135 of the Customs Act.

2. The facts relevant for the purpose of the appeal are these. The appellant is a foreigner who arrived at Calcutta by air from Bangkok on June 28, 1975. On a search of his room in the hotel where he was staying in Calcutta, the Customs authorities found in his possession 1701 U. S. dollars and 4400 Canadian dollars which they seized as smuggled goods. On September 23, 1975 an Assistant Collector of Customs filed a petition of complaint in the court of the Chief Metropolitan Magistrate, Calcutta, alleging, inter alia, that the appellant had brought in the foreign currency seized from his possession in violation of S. 13 (1) of the Foreign Exchange Regulation Act, 1973 and was therefore liable to be convicted under S. 135 of the Customs Act, 1962. Section 13 (1) of the Foreign Exchange Regulation Act, 1973 imposes restrictions on bringing or sending into India any gold or silver or any foreign exchange or any Indian currency, S. 67 of that Act provides:

"Application of the Customs Act, 1962. The restrictions imposed by or under S. 13, Cl. (a) of sub-s. (1) of S. 18 and Cl. (a) of sub-s. (1) of S. 19 shall be deemed to have been imposed under S. 11 of the Customs Act, 1962, and all the provisions of that Act shall have effect accordingly."

Section 11 of the Customs Act, 1962, to which S. 67 of the Foreign Exchange Regulation Act, 1973 refers, authorises the Central Government to prohibit the import or export of goods of specified description for purposes mentioned in the section; one of the purposes mentioned in Cl. (u) of S. 11 (2) is the prevention of the contravention of any law for the time being in force. Section 111 of the Customs Act lists the various goods brought in from any place outside India which "shall be liable to confiscation", Cl. (d) of the section mentions inter alia goods which are imported contrary to any prohibition imposed by or under the Customs Act or any other law for the time being in force. Section 135 of the Customs Act provides the punishment for fraudulent evasion of duty or prohibition imposed in relation to any goods under the Customs Act or any other law for the time being in force, and also for acquiring possession or in any way dealing with goods which the person concerned knows are liable to confiscation under S. 111.

3. The Metropolitan Magistrate convicted the appellant under S. 135 of the Customs Act and sentenced him to pay a fine of Rs. 2,000/-, in default to suffer rigorous imprisonment for six months. The Magistrate further ordered that the "goods involved in this case are confiscated to the State if not already confiscated". The Calcutta High Court in revision affirmed the appellants conviction but reduced the sentence of fine to Rs.500/-, and affirmed the order of confiscation of the dolars. It is contended that the Magistrate had no power to order confiscation of the currency and the High Court was in error in affirming that order.

4. The order of confiscation was presumably made under S. 452 (1) of the Cr. P. C., 1973. Section 452 (1) provides :

"Order for disposal of property at conclusion of trial - When an inquiry or trial in any Criminal Court is concluded the Court may make such order as it thinks fit for the disposal, by destruction, confiscation or delivery to any person claiming to be entitled to possession thereof or otherwise, of any property or document produced before it or in its custody, or regarding which any offence appears to have been committed, or which has been used for the commission of any offence."

Confiscation under S. 452 (1) is one of the modes of disposal of property after an inquiry or trial in a criminal court is concluded. The contention