A Magistrate has no jurisdiction under section 523, Criminal Procedure Code, to order the return of a car seized by Customs Officers under the Customs Act on spurdari, at least before the launching of criminal proceedings.

( 1 ) THE facts, out of which this revision petition against an order of the learned Additional Sessions Judge, has arisen are as follows :-

THE Customs Preventive Staff, New Delhi, had, on the 29th August, 1968 intercepted a car No. MHJ-1116, near Jamuna Bridge. Bal Kishan Khanna and other persons were travelling in that car. On the personal search of Bal Kishan Khanna, 13 bars of gold weighing 130 tolas with foreign markings were recovered. The Customs Preventive Staff believed that the 13 bars of gold had been imported into India without a permit as required under law and were liable to be confiscated and that the car was also liable to be confiscated. The Customs Preventive Staff, had therefore, taken the 13 bars of gold and the car into possession.

( 2 ) ON the 4th September, 1968, Tilak Raj respondent, brother of Bal Kishan Khanna, made an application, in the Court of the Sub-Divisional Magistrate, praying that the car seized may be returned to him. The application was opposed on behalf of the Customs Preventive Department. It was pleaded that as the car was liable to be confiscated under section 115 (2) of the Customs Act, only Customs Officers had jurisdiction to take proceedings with respect to the car and that as no criminal proceedings had been launched in the Court with respect of the smuggling of the 13 bars of gold, the Magistrate had no jurisdiction to return the car. That application was dismissed on the 10th September, 1968, on the ground of non-prosecution as Tilak Raj respondent had failed to put in appearance. On the 13th September, 1968, Tilak Raj, respondent made another application for the return of the car on spurdari. That applica- tion was opposed by the Customs Preventive Department on the same grounds on which the earlier application had been opposed. The learned Sub-Divisional Magistrate allowed the application of Tilak Raj respondent and returned the car to him on spurdari. He held that as the application was for the return of the car on spurdari only, it did not debar the Customs Preventive Depart- ment to confiscate the car under the law.

( 3 ) THE Assistant Collector Customs went up in revision to the Court of Session against the order of the Sub-Divisional Magistrate. The revision petition was heard and disposed of by the learned Additional Sessions Judge. The learned Additional Sessions Judge held that the order of the Sub-Divisional Magistrate could not be sustained either under section 516 (A) or under section 517, Criminal Procedure Code, but could be sustained under section 523 of the Code. He, therefore, dismissed the revision petition.

( 4 ) THE Assistant Collector Customs has come up in revision to this Court. The finding of the learned Additional Sessions Judge that the car could not have been returned either under section 516 (A) or under section 517, Criminal Procedure Code, has not been challenged before me. The only point canvassed was whether the Magistrate had jurisdiction under section 523. Criminal Procedure Code, to order the return of the car on spurdari.

( 5 ) SECTION 523 aforesaid reads :-

(1) The seizure by any police officer of property taken under section 51, or alleged or suspected to have been stolen, or found under circumstances which create suspicion of the commission of any offence, shall be forthwith reported to a Magistrate, who shall make such order as he thinks fit respecting the disposal of such property or the delivery of such property to the person entitled to the possession thereof, or, if such person cannot be ascertained, respecting the custody and production of such property. (2) If the person so entitled is known, the Magistrate may order the property to be delivered to him on such conditions (if any) as the Magistrate thinks fit. If such person is unknown, the Magistrate may detain it and shall, in such case, issue a proclamation specifying the articles of which such property consists, and requiring any person who may have a claim theret