( 1 ) THIS is a reference made under sec. 438 of the Criminal Procedure Code by learned Sessions Judge Bulsar at Navsari Mr. R. K. Sonawala in Criminal Revision Application No. 4 of 1969 recommending that the order of learned Judicial Magistrate First Class Umbergaon Mr. K. V. Mehta dated 5th April 1969 to return the truck bearing No. GTD 3842 to the petitioner Raichand Lakshmi Shah on confirmation of his producing an ownership registration certificate and on his depositing Rs. 15 0 in cash in the Court along with a bond in the sum of Rs. 60 0 on a condition to produce the truck in the Court in the same condition whenever so ordered be set aside.

( 2 ) THE facts leading rise to this reference briefly stated are as under :- Raichand Lakshmi who claims to be an owner of the truck bearing No. GTD 3842 which was seized originally by the Mobile Anti Smuggling Staff A. C. B. Bulsar under the panchnama dated 8th February 1969 with other goods alleged to be smuggled goods filed an application on 28 February 1969 under sec. 523 of the Criminal Procedure Code. It was stated therein that the aforesaid truck was stopped near Bhilad Check-post while it was going towards Bombay side for checking. It was stated therein that the applicant was residing at Bombay and the accused was Jitsingh. That Jitsingh was driving that truck. On checking opium was found from the person of that driver and in the truck were found the goods in relation to which the offence under the Customs Act was suspected to be committed. That truck and goods were seized under the panchnama and that truck is in the custody of the Custom Superintendent. This truck is the only means of his livelihood. The driver was not his own driver but was a driver of one Harishchandra Transport Company. He knew nothing about this offence. He was quite innocent. He therefore prayed that the Custom Superintendent be directed to handover the truck to him. He is prepared to abide by the terms that be imposed on him by the Court.

( 3 ) THE Police Prosecutor endorsed on this application that the truck does not seem to have been attached under the Prohibition Act but it was attached under the Customs Act. After hearing the petitioner and the Superintendent Customs Vapi the learned Magistrate passed the impugned order directing the Superintendent Customs and Central Excise Vapi to return the truck to the petitioner on the conditions referred to above.

( 4 ) BEING dissatisfied with that order the Superintendent Customs and Central Excise Vapi preferred Criminal Revision Application No. 4 of 1969 in the Court of Sessions Judge Bulsar at Navsari and in this Revision petition this reference is made.

( 5 ) THE learned Sessions Judge has found that this order passed by the learned Magistrate is without jurisdiction. The Customs Officer has got powers to seize such vehicle when smuggled goods are being transported in exercise of his powers under sec. 110 of the Customs Act 1962 (which will be hereinafter referred to as the Act ). He has powers to seize them if there is reasonable ground to believe that the goods are liable to confiscation and they can be seized from any person who is in custody of them even though he has obtained such custody unlawfully. According to him sec. 110 of the Act does not place any limitation as to the person from whose possession or the time and the place at which the goods believed to be liable to confiscation can be seized In view of this position he has made the aforesaid reference.

( 6 ) A short but very interesting question arises in this reference. The question that is really posed before me for consideration is whether the Magistrate in exercise of his powers under sec. 523 of the Criminal Procedure Code can pass such an order like the impugned order when such a vehicle or goods which are believed to be smuggled goods and are liable to confiscation are seized by a Customs Officer in exercise of his powers under sec. 110 of the Act even if those goods or