B. S. Rawat, Asstt. Collector of Customs, Bombay vs Shaikh Abdul Karim & another

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1989 Supreme(Bom) 32

IN THE HIGH COURT OF BOMBAY
H. Suresh. J.
B.S. Rawant. Asst. Collector of Customs, Bombay .... Applicant.
Versus
Shaikh Abdul Karim another .... Respondents.
Criminal Revision Application No. 114 of 1988, decided on 2-2-1989.
Advocates appeared :
A.R. Gupte, for appellant,
A.G. Sabnis with P.M. Khanna, for respondent No. 1.
Mrs. S.S. Keluskar, P.P., for respondent No. 2.

Headnote:Sections 451, 457 (1)-Interim custody - It is on discretion of Magistrate to pass order granting interim custody of seized property or to decline if-Discretion bas to be exercised judicially.
       Under Section 457 (1) Cr. P. Code, the Magistrate bas a discretion to pass an order granting interim custody or to decline. But in either case, the discretion has to be exercised judicially, and not in a cavalier fashion. It is in this sense, the order deserves to be set aside. It is true that the present petition bas been styled as criminal revision application. But I do find that the petitioner bas sought to invoke the inherent jurisdiction of the Court under Section 432 Cr. P. Code. In such circumstances the title of the petition becomes immaterial. Sections 451, 457 (1)
       See Narcotic Drugs and Psychotropic Substances Act, 1985, Sections 42,
       43, 51, 55, 60, 63.
       Sections 42, 43, 51, 55, 60, 63 Criminal Procedure Code, 1973, Sections 451, 457 (1)-Seizure of vehicle used for offence-Interim custody under Section 45 or 457 (1) Cr. P. C. pending trial-Section 451 or Section 457 (1) applies only when vehicle is seized-Held, it cannot be said that Section 451 or 457 (1) Cr. P. C. is not in any way inconsistent with Scheme of the Act.
       It might be that a vehicle belonging to an innocent owner is stolen by the accused and in that event later on, if the vehicles intercepted and seized by the officer it does not mean that such an owner has to wait till the trial is completed for the purpose of getting an order of return of the vehicle from the Magistrate. In such cases, subject to a guarantee that the vehicle becomes available for the purpose of confiscating, if any, the Court has necessarily the jurisdiction to pass an order for interim custody either under Section 451 or 457 (1) of the Cr. P. C. may be An order under Section 451 or 457 (l) of the Cr. P. C. guarantees return of the vehicle at the time of the final hearing of the matter, or as and when called upon by the court. It secures, subject to certain terms and conditions the interim custody of the vehicle pending the trial. In fact, the operation of Section 451 or 457 (1) of the Criminal Procedure Code come into existence only after the vehicle is seized and brought into safe custody, as provided under Section 55 of the Act. If that is so, it cannot be said that Section 451 or 457 (1) of the Criminal Procedure Code is not any way in consistent with the scheme of the Act.

JUDGMENT - H. SURESH, J.:---On August 31, 1987 the Bombay Customs, intercepted a taxi bearing registration No. MMO 2649 at the junction of Keshavji Naik Path and S.V. Road, Bombay -400 009. One Taj Mohd. Jan Mohd. Pathan was the driver and the sole occupant of the taxi at the time of interception. It was found that the taxi was being used for carrying six packages weighing about 76 kgs. containing brown powder purported to be brown sugar and 18 kgs. of white powder purported to be Heroin. The said person was arrested and the taxi was seized under a panchanama. The accused has been charged under the provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the "NDPS Act") and the case is pending.

2. In the meanwhile on January 29, 1988 the present respondent No. 1 made an application before the learned Additional Chief Metropolitan Magistrate, 8th Court, Esplanade, Bombay, for return of the said taxi, on the basis that he is the owner of the said taxi, and that he has a taxi permit and a valid motor driving licence, and that the taxi is lying at the Customs House unattended and its machinery is getting rusted since last several months, and that no useful purpose would be served by keeping the abovementioned taxi in the custody of the Customs authorities. On this application, the learned Magistrate issued a notice to the Customs Authorities, and after hearing both the parties, the learned Magistrate passed the following order :

"Taxi to be returned to applicant on his executing bond of Rs. 90,000/- with one surety in the like amount."

Taxi being a mechanically propelled vehicle is likely to be damaged if not in use and therefore it is expedient in the interest of justice to return the taxi to the registered owner (Applicant). Accused has given his no objection and under the N.D.P.S Act Court has power to pass order regarding disposal of vehicle."

3. It appears that Mr. Gupte, who appeared for the prosecution, brought to the notice of the learned Magistrate various documents and material indicating how respondent No. 1 could not claim the taxi on the basis of ownership rights. However, there was no affidavit before the learned Magistrate in this behalf. So also the order is absolutely silent on all these aspects argued by Mr. Gupte, of which argument, I have no doubt whatsoever.

4. It is against this order, the Customs Authorities have filed the present criminal revision application.

5. Mr. Gupte advanced several propositions. Firstly, he contended that the learned Magistrate could have had no jurisdiction to pass any order for return of the taxi inasmuch as, the case is to be tried by the learned Sessions Judge and he alone has the jurisdiction to pass such an order. Secondly, he submitted that if one has regard for the scheme of the NDPS Act, 1985, there is no question of passing any interim order of handing over to any person, any conveyance, or vehicle pending the trial, which vehicle is liable to be confiscated ultimately. He further submitted that section 451 of the Cri. P. Code or for that matter section 457 of the Cr. P. Code will have no application whatsoever in view of certain provisions of the said NDPS Act, 1985.

6. The relevant provisions which provide for disposal and confiscation of the properties or the conveyance used for the purpose of committing any offence under the said Act are as follows:

Section 60. Liability of illicit drugs, substances, plants, articles and conveyances to confiscation-

(1)...........

(2)...........

(3) Any animal or conveyance used in carrying any narcotic drug or phychotropic substance or any article liable to confiscation under sub-section (1) or sub-section (2) shall be liable to confiscation, unless the owner of the animal or conveyance proves that it was so used without the knowledge or connivance of the owner himself, his agent, if any, and the person-in-charge of the animal or conveyance and that each of them had taken all reasonable

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