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IN THE HIGH COURT OF BOMBAY
M.C. Shah and N.M. Miabhoy, JJ.
Appellants: A.J. Butler
Vs.
Respondent: Mohanlal and Co. and Ors.
Criminal Ref. No. 4 of 1956
Decided On: 03.04.1957
Counsels:
For State: B.R. Sompura, Special Govt. Pleader
For Respondents/Defendant: C.R. Maniar, Adv.
SEA CUSTOMS ACT - SECTION 172 - SEARCH WARRANT - COMPETENCY OF SUPERINTENDENT OF CENTRAL EXCISE AND CUSTOMS (PREVENTIVE BRANCH) TO APPLY FOR SEARCH WARRANT - INTERPRETATION OF DEFINITION OF CUSTOMS COLLECTOR - VALIDITY OF WARRANTS ISSUED BY MAGISTRATE - CANCELLATION OF WARRANTS - SEIZURE OF GOLD ORNAMENTS AND ACCOUNT BOOKS - JURISDICTION OF MAGISTRATE TO DECIDE ON PROHIBITED OR DUTIABLE NATURE OF ARTICLES SEIZED.
Fact of the Case:
The Superintendent of Central Excise and Customs (Preventive Branch), Baroda, applied for search warrants under Section 172 of the Sea Customs Act, 1878, as amended by Section 13 of the Sea Customs (Amendment) Act, 1955, against six shop premises belonging to the opponents and the State Deposit Vault in the State Bank of Saurashtra belonging to opponent No. 1. The Magistrate issued the warrants, and a large quantity of gold and account books were seized. The opponents applied to the Magistrate for the return of the articles and account books, contending that only prohibited goods could be searched under the warrants, that the account books could not be attached, that the Superintendent was not competent to apply for the warrants, and that the warrants had not been properly and legally issued. The Magistrate canceled the warrants and ordered the return of the goods and account books. The Superintendent went in revision to the Sessions Court, which agreed that the Superintendent was competent to make an application under Section 172 but held that the warrants were void ab initio. The Sessions Court recommended that the Magistrate's order be set aside.
Finding of the Court:
1. The Superintendent of Central Excise and Customs (Preventive Branch), Baroda, was a Customs Collector within the meaning of Section 3(c) of the Indian Sea Customs Act, 1878, as he was an officer of Customs duly authorized to perform all or any special duties of an officer in separate charge of a custom house. 2. The Superintendent had the authority to make an application under Section 172 of the Sea Customs Act, as the duties conferred upon him under Notification No. 67-Cus., dated 23-12-1952, included the duties exercisable by a Customs Collector under the Act. 3. The warrants issued by the Magistrate were not void ab initio, as the Magistrate had interpreted the Superintendent's letter as expressing a belief that prohibited or dutiable goods were secreted, even though the letter did not explicitly state such belief. 4. The Magistrate did not have the authority to cancel the warrants, as they were not void ab initio and the irregularity in the Superintendent's letter did not affect the authority of the person executing the warrants. 5. The Magistrate did not have the jurisdiction to decide whether the articles seized under the warrants were prohibited or dutiable, as that matter should be left to the authorities constituted under the Sea Customs Act. 6. The seizure of gold ornaments and account books under the warrants was valid, as the definition of gold in the Foreign Exchange Regulation Act, 1947, was inclusive and not exhaustive, and the account books were documents relating to prohibited or dutiable articles.
Issues: 1. Whether the Superintendent of Central Excise and Customs (Preventive Branch), Baroda, was a Customs Collector within the meaning of Section 3(c) of the Indian Sea Customs Act, 1878. 2. Whether the Superintendent had the authority to make an application under Section 172 of the Sea Customs Act. 3. Whether the warrants issued by the Magistrate were void ab initio. 4. Whether the Magistrate had the authority to cancel the warrants. 5. Whether the Magistrate had the jurisdiction to decide whether the articles seized under the warrants were prohibited or dutiable. 6. Whether the seizure of gold ornaments and account books under the warrants was valid.
Ratio Decidendi: 1. The definition of Customs Collector in Section 3(c) of the Indian Sea Customs Act, 1878, is inclusive and includes two categories of persons: (a) an officer of Customs for the time being in separate charge of a custom house, and (b) an officer of Customs duly authorized to perform all or any special duties of an officer in separate charge of a custom house. 2. The Superintendent of Central Excise and Customs (Preventive Branch), Baroda, fell within the second category of the definition, as he was an officer of Customs duly authorized to perform all or any special duties of an officer in separate charge of a custom house under Notification No. 67-Cus., dated 23-12-1952. 3. Section 172 of the Sea Customs Act empowers any Magistrate, on application by a Customs Collector stating his belief that dutiable or prohibited goods are secreted in any place within the local limits of the jurisdiction of such Magistrate, to issue a warrant to search for such goods. 4. The Superintendent of Central Excise and Customs (Preventive Branch), Baroda, was a Customs Collector within the meaning of Section 3(c) of the Act and therefore had the authority to make an application under Section 172. 5. The warrants issued by the Magistrate were not void ab initio, as the Magistrate had interpreted the Superintendent's letter as expressing a belief that prohibited or dutiable goods were secreted, even though the letter did not explicitly state such belief. 6. The Magistrate did not have the authority to cancel the warrants, as they were not void ab initio and the irregularity in the Superintendent's letter did not affect the authority of the person executing the warrants. 7. The Magistrate did not have the jurisdiction to decide whether the articles seized under the warrants were prohibited or dutiable, as that matter should be left to the authorities constituted under the Sea Customs Act. 8. The seizure of gold ornaments and account books under the warrants was valid, as the definition of gold in the Foreign Exchange Regulation Act, 1947, was inclusive and not exhaustive, and the account books were documents relating to prohibited or dutiable articles.
Final Decision: The reference was disposed of by setting aside the Magistrate's order dated 13-10-1958.
1. This is a reference made by the learned Sessions Judge, Gohilwad Division, requesting us to quash the order, dated 13-10-56, made by the learned judicial First Class Magistrate, Bhavnagar. The impugned order came to be made by the learned Magistrate in the following circumstances. Shri Butler, the Superintendent of Central Excise and Customs (Preventive Branch), Baroda, wrote a letter, dated 6-9-56, to the aforesaid Magistrate requesting for search warrants to be issued under Section 172, Sea Customs Act, 1878, as amended by Section 13 of the Sea Customs (Amendment) Act, 1955. The search warrants were intended to be directed against six shop premises belonging to the six opponents. The seventh warrant was intended for searching the Sate Deposit Vault, in the State Bank of Saurashtra, belonging to opponent No. 1. The learned Magistrate acted on the aforesaid letter and issued the warrants as prayed for. These warrants were executed on the same day, and, in the course of the searches, a large quantity of gold was seized by the persons, to whom the warrants were addressed. The account books of the opponents were also seized in the course of the execution of the warrants. Thereafter, on 7-9-56, _ the opponents made an application to the learned Magistrate, praying, on the grounds mentioned therein, that the articles and account books seized under the warrants may be returned to them. The opponents made two further applications before the learned Magistrate on 10-9-56 and 15-9-56. Their further contentions in these applications were that only search of prohibited goods can be made under the warrants, that the account books could not be attached, that Shri Butler was not the competent authority to apply for the warrants and that the warrants had not been properly and legally issued. On 12-9-56, the learned Magistrate called upon Shri Butler to satisfy him that he was competent to apply for the warrants, and the matter was adjourned to 20-9-56 for the purpose. On the latter date, Shri Butler appeared and asked for an adjournment. On that date, the learned Magistrate framed three issues for decision and fixed the matter for hearing on 29-9-56. The three issues were (1) whether the warrants were issued irregularly, (2) whether Mr. Butler was empowered to apply for and obtain the warrants, and (3) whether the authority under the law was exceeded by seizure of ornaments and books. The learned Magistrate, then, on the date of the hearing, heard the arguments on the aforesaid three points and took his decision on 13-10-56 by the impugned order. The findings which he arrived at were that the warrants were irregularly issued and Shri sutler was not a competent authority to apply for the warrants. As a result of these two findings, the learned Magistrate came to the conclusion that it was not necessary to record a finding on the third issue. As a result, the learned Magistrate cancelled the warrants and ordered the return of the goods and account books seized by the Customs Department. Aggrieved by the aforesaid order, the applicant Shri Butler went in revision to the Sessions Court, Gohilwad. The learned Sessions Judge did not agree with the finding or the learned Magistrate that Shri Butler was not a competent authority. He came to the conclusion that Shri Butler was competent to make an application under Section 172, Sea Customs Act. However, he came to the conclusion that the warrants issued by the Magistrate were void ab initio. The learned Sessions Judge also further came to the conclusion that, though this was so, In his view, the learned Magistrate was not competent to cancel the warrants which he had issued. Consequently, the learned Sessions Judge has made a recommendation to this Court that the impugned order should be set aside. However, the learned Sessions Judge has pointed out certain circumstances, which, in his opinion require to be considered by us before quashing the impugned order of the lear
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