A criminal Court has the power and jurisdiction to make a proper order under section 516A of the Code of Criminal Procedure for the return of property seized by the Customs authorities, notwithstanding the fact that independent powers are vested in the Customs authorities under the Customs Act, 1962.

Headnote:
CRIMINAL PROCEDURE CODE - SECTION 516A - CUSTOMS ACT, 1962 - SECTIONS 110, 115, 124 - CONFISCATION OF GOODS AND CONVEYANCES - JURISDICTION OF CRIMINAL COURT TO ORDER RETURN OF PROPERTY SEIZED BY CUSTOMS AUTHORITIES - APPLICABILITY OF SECTION 110(2) TO CONVEYANCES - INDEPENDENT PROCEEDING UNDER SECTION 115 - DISCRETION OF COURT UNDER SECTION 516A.
Fact of the Case:

The applicant's truck was seized by the Customs authorities for being used to transport illegally exported silver. The applicant filed an application under section 516A of the Code of Criminal Procedure for the return of his truck pending the criminal proceedings against him. The trial Magistrate and the Sessions Judge dismissed the application, holding that the applicant had a remedy under the Customs Act and that the criminal Court could not exercise its powers under section 516A to deprive the Customs authorities of their powers in independent proceedings for confiscation.
Finding of the Court:

The High Court held that the orders passed by the lower Courts were erroneous. The criminal Court had the power and jurisdiction to make a proper order under section 516A of the Code of Criminal Procedure notwithstanding the fact that independent powers were vested in the Customs authorities under the Customs Act, 1962. In a proper case, the criminal Court should exercise its powers under section 516A notwithstanding the powers conferred on the Customs authorities under the Customs Act, 1962.
Issues: 1. Whether the criminal Court had jurisdiction to make an order under section 516A of the Code of Criminal Procedure for the return of property seized by the Customs authorities. 2. Whether the provisions of section 110(2) of the Customs Act, 1962, requiring a show cause notice to be served within six months of seizure, applied to conveyances.
Ratio Decidendi: 1. The criminal Court had jurisdiction to make an order under section 516A of the Code of Criminal Procedure for the return of property seized by the Customs authorities, notwithstanding the fact that independent powers were vested in the Customs authorities under the Customs Act, 1962. 2. The provisions of section 110(2) of the Customs Act, 1962, requiring a show cause notice to be served within six months of seizure, did not apply to conveyances. Conveyances were governed by the specific provision relating to the confiscation of conveyances contained in section 115 of the Act.
Final Decision: The High Court set aside the orders of the lower Courts and remanded the matter to the trial Magistrate to dispose of the application made by the applicant in accordance with law on such facts as may be placed before him. If the Customs Authorities did not conclude their adjudication proceedings and confiscate the said motor-truck on or before December 31, 1972, the learned Magistrate must dispose of the application made to him by the present applicant in accordance with law on such facts as may be placed before him. In the event of an order for confiscation being made by the Customs Authorities on or before December 31, 1972, the learned Magistrate must, of course dismiss that application.

JUDGMENT-This is an application to revise the order passed by the Sessions Judge of Kolaba, on December 15,1971, confirming the order passed by the Judicial Magistrate (First Class), Uran, at Panvel, on November 6.1971, dismissing the application made by the present applicant for an order for return of his motor-truck under section 516A of the Code of Criminal Procedure.

2. The facts of the case are that on December 18, 1970, the Customs authorities seized silver worth more than Rs.6,00,000 dumped at Dassakushi in Uran for being illegally transported out of India, and in the course of their investigation, it was found that the present applicants truck No. MHS. 1217 had been used for the transport of that silver, and they, therefore, seized the truck. It appears that the truck had been seized earlier, but had been returned to the present applicant, and was seized again on September 26, 1971. A notice to show cause why the said truck should not be confiscated under section 115(2) of the Customs ·Act, 1962, was thereafter served on the present applicant on November 6, 1971.

3. The present applicant and some other persons were prosecuted for offences under sections 109 and 120 of the Indian Penal Code, section 135 of the Customs Act, and section 5, read with section 12 (1) of the Export and Import Control Act, and in the criminal proceedings that ensued in the Court of the Judicial Magistrate (First Class) Uran, being Criminal Case No. 40 of 1970, the said truck was produced and exhibited as exh. 61. The present applicant thereafter filed an application under section 516A of the Code of Criminal Procedure un October 27, 1971 praying that the said truck be handed over to him pending the hearing and final disposal of those criminal proceedings. That application was opposed on behalf of the State and was dismissed by the trial Magistrate on November 6, 1971 6n the ground that the present applicant had the remedy under sub-section (2) of section 115 of the Customs Act available to him, of proving that the said truck was not liable to confiscation on the ground that it had been used for transport of the goods confiscated without his knowledge or connivance, and it would not, therefore, be proper for him to make an order under section 516A of the Code of Criminal Procedure.

4. That order of the trial Magistrate was confirmed in revision by the Sessions Judge of Kolaba on December 15, 1971, but the learned Sessions Judge appears to have gone farther than the trial Magistrate, insofar as he held that the discretion which the Court had under section 516A of the Code of Criminal Procedure cannot be exercised so as to deprive of the property any competent authority which is competent to hold-an independent proceeding in respect of the said property. He took the view that the only remedy of the applicant was to take proper steps under the relevant provisions of the Customs Act for getting his truck released.

5. It is from that order that the applicant has approached this Court in revision.

6. I have no doubt that the orders passed by both the Courts below are erroneous. The trial Magistrate has refused to exercise jurisdiction, which, according to him he had under section 516A of the Code of Criminal Procedure, on the ground that the applicant had a remedy under sub-section (2) of section 115 of the Customs Act. The Sessions Judge, on the other hand, took the view that the only remedy of the applicant was to take proper proceedings under the Customs Act for getting his truck released and that the criminal Court could not exercise its powers under section 516A of the Code of Criminal Procedure so as to deprive the Customs authorities of their powers in independent proceedings for confiscation, thereby, in effect, holding that he had no jurisdiction to make the order applied for. There is nothing either in the Customs Act or in the Code of Criminal Procedure, to justify the view taken by either of the Courts below. I have no doubt whatsoever th

Click Here to Read the rest of this document

1972 Supreme(Bom) 125

IN THE HIGH COURT OF BOMBAY(J. R. Vimadalal J.) NAZIR GUUM SAHBB BADDI -Applicant. v. D. G. MUGWB - Respondent. Advocate Appeared For appellant - G. A. Merchant and T. M. Menon. For State - V. H. Gumaste, Government Pleader. For respondent No.1 - G. V. Limaye.

IN THE HIGH COURT OF BOMBAY
(J. R. Vimadalal J.)
NAZIR GUUM SAHBB BADDI -Applicant.
v.
D. G. MUGWB - Respondent.
Advocate Appeared
For appellant - G. A. Merchant and T. M. Menon.
For State - V. H. Gumaste, Government Pleader.
For respondent No.1 - G. V. Limaye.