IMPORTANT POINT
A magistrate has no jurisdiction to make orders with respect to the goods seized by the Custom officers and liable to be confiscated at least before the launching of the Criminal Proceedings.

JUDGMENT

J.N. Hore, J. - This is an application under Section 482 of the Code of Criminal Procedure alternatively under Article 227 of the Constitution of India for quashing the impugned proceeding being No. C 79 of 1992 pending before the learned Sub-divisional Judicial Magistrate, Basirhat and also for setting aside the order dated 7.2.1992 passed by the learned Sub-Divisional Judicial magistrate, Basirhat in the said case and for return of the seized articles along with the seized fishing trawler named 'M.V. Mina' to the petitioners.

2. Petitioner NO.7 is the owner of the seized trawler 'M.V. Mina'. On 18.1.1992 at about 6 p.m. the Patrol party of Shamser Nagar B.O.P. in course of their patrolling duty in the Jammu Deep area intercepted the disputed fishing trawler 'M.V. Mina' which was proceeding towards Jammu Deep from the near Khal, namely, Narayan Tala. On suspicion the Patrol party apprehended six Bangladeshi nationals along with the trawlar and other goods and forwarded the same to the Customs Officer at Hasnabad on 24.12.1 992. The Customs Officer arrested those occupants and seized the fishing trawler including a portion of the fishing net and other articles like oil drum, water drum and wrist watch etc. The petitioners were produced before the learned Sub-Divisional Judicial Magistrate at Basirhat and they were granted bail. Petitioner No.7, owner of the seized trawler, filed an application under Section 457 of the Criminal Procedure Code before the learned Sub-Divisional Judicial Magistrate, Basirhat for return of the seized trawler together with other articles. The learned Sub-Divisional Judicial Magistrate rejected the prayer for release of the seized trawler at this stage as no complaint was filed by the Customs Authority. Hence this application.

3. It may be mentioned at the out set that Mr. Bapuli, learned Advocate for the petitioner has not pressed the prayer for quashing the impugned proceeding. The only point that has been raised before me is that the learned Sub-Divisional Judicial Magistrate erred in law in not considering the application of petitioner No.7 for return of the seized trawler before complaint was filed. It has been contended that under Section 457 of the Criminal Procedure Code the Magistrate has jurisdiction to deal with the custody of the seized article even during investigation and the prayer of the petitioner No.7 could not be rejected simply because no complaint was filed. Mr. D.K. Sengupta, learned Advocate for the O.P. No.1, the Collector of Customs, has contended on the other hand, that a Magistrate has no jurisdiction to make orders with respect to the goods seized by the Customs Officers and liable to confiscation under the provisions of the Customs Act at least before the launching of the criminal proceeding and as such the learned Sub-Divisional Judicial Magistrate has rightly refused to entertain the petition for return of the seized trawler at this stage before launching of the prosecution.

4. The contention raised on behalf of the O.P. No.1 appears to have force. In Assistant Collector of Customs v. Tilak Raj Shibdoyal1, the contention on behalf of the petitioner was that the Sub-Divisional Judicial Magistrate has no jurisdiction to order the return of the car on Superdari to the respondent under the provision of Section 523 (new Section 457), Criminal Procedure Code. The argument was that the Customs Officers were not Police Officers within the meaning of that Section and the provisions of that Section, were, therefore, not applicable to the properties seized by the Customs Officers under sections 110 and 115 of the Customs Act. This contention was accepted. It was held that the expression "police officer" used in Section 523 (Sec. 457, new), Criminal Procedure Code, is to be construed strictly and to include only police officers properly so called. The expression is not to be construed liberally so as to include officers of other departments on whom certain powers of police