The Customs Act, being a special law, overrides the provisions of the Code of Criminal Procedure, 1973 (Cr.PC.) in regard to the disposal of properties seized and liable to confiscation under the Customs Act.

Headnote:
CUSTOMS ACT - SEIZURE OF PROPERTY - MAGISTRATE'S DISCRETIONARY POWER UNDER SECTION 457 CR.PC. - APPLICABILITY TO PROPERTY LIABLE TO CONFISCATION UNDER CUSTOMS ACT - INTERPRETATION OF RELEVANT PROVISIONS - MAIN LEGAL POINT
Fact of the Case:

The issue in these petitions was whether a Magistrate has the discretionary power under section 457 Cr.PC. to release a property liable to confiscation under the Customs Act, 1962 (Customs Act) when such property is initially seized by a police officer but subsequently delivered to the proper officer (a Customs Officer) under the Customs Act.
Finding of the Court:

The court held that a Magistrate does not have the discretionary power under section 457 Cr.PC. to release a property liable to confiscation under the Customs Act when such property is initially seized by a police officer but subsequently delivered to the proper officer (a Customs Officer) under the Customs Act.
Issues: 1. Whether the Customs Act overrides the provisions of the Code of Criminal Procedure, 1973 (Cr.PC.) in regard to the disposal of properties seized and liable to confiscation. 2. Whether a Magistrate has the power to entrust the supardgi of a property liable to confiscation under the Customs Act under sections 457, 451 & 452 Cr.PC.
Ratio Decidendi: 1. The Customs Act is a 'Special Law' within the meaning of the then defined in S. 41 IPC and for the purposes of S. 5 of the Cr.PC. It was brought on the Statute Book with the object of preventing smuggling activities by facilitating the detection and confiscation of goods being smuggled into and out of the country. 2. The scheme of the Customs Act makes specific and exhaustive provisions to deal with certain aspects of the subject which fall within its purview. It, being a special law, is saved by Section 5 Cr.PC. in its operation and execution in relation to these matters for which specific and quite exhaustive provisions are made therein and, therefore, on such matters it would exclude the application and operation of the relevant provisions in the general law namely the Code of Criminal Procedure, 1973. 3. A police officer does not have much role to play, with his powers under Cr.PC., in the execution of the Customs Act. If he unknowingly comes to seize a property which is later found liable to confiscation the seizure by him would be under section 102 Cr.PC. and the provisions relating to the disposal of such property like those mentioned in Sections 457, 451, 452 Cr.PC. would come into play. But if he has the information that an offence against the Customs Act is likely to be committed and if he seizes such property with such knowledge of the same being liable to confiscation under Customs Act, then the police officer would be simply assisting the officers of Customs as directed by Section 151 of that Act. Under such circumstances the provisions of Customs Act relating to the disposal of the seized property, which may be by way of adjudication proceedings, would come into play and a Magistrate would not be justified in making orders under section 457 Cr.PC. with regard to the interim supardgi of the seized property.
Final Decision: The court set aside the impugned orders passed by the learned Magistrate in the cases of all the three respondents namely, Sukhdev Singh, Ayub Ali and Satya Narain Soni & which have been challenged by them in SB Cr. Misc. Pet. Nos. 703/95, 195/96 & 557/96 respectively and allowed all the above-mentioned petitions.

JUDGMENT

1. -The common question involved in ail these four petitions under section 482 Cr.PC. is whether a Magistrate has the discretionary power under section 457 Cr.PC. to release a property which is "liable to confiscation" under the provisions of the Customs Act, 1962 (the "Customs Act") when such property is initially seized by a police officer but the custody, control and possession thereof has subsequently been delivered by such police officer to the proper officer (a Customs Officer) under the Customs Act.

2. The learned counsel for the Union of India and the Customs Department have vehemently urged that the Customs Act which makes provisions for the arrest and detention of the offenders against that Act and search and seizure of properties, liable to confiscation, being a special law over rides the provisions of the Code Criminal Procedure, 1973 (Cr.PC ), which is a general law, in regard to the disposal of properties seized and liable to confiscation. The learned counsel placed reliance on a number of decisions of this Court as well as of other High Courts and the Apex Court namely :

1. Asstt. Customs Collector v. Tilak Raj, AIR 1969 Delhi 301

2. Superintendent, Customs & Central Excise v. Ram Chand, AIR 1970 SC 1065

3. lllias v. Collector of Customs, Madras, AIR 1970 SC 1065

4. Susanta Kumar Adhikari & others v. State of West Bengal, 1983 Cr.LJ 772 (Cal.)

5. RO. Thomas & Ors. v. U.O.I., 1990 Cr.LJ 1028 (Ker.)

6. Sup. of Customs & Central Excise Nagercoil v. R. Sunder, 1993 Cr.LJ 956 (Mad.)

7. Bhana Bhai Khalpa Bhai v. Collector of Customs & Anr., 1994(1) Crimes 941 (SC)

8. Asstt. Collector, Customs v. Surajmal, 1974 RLW 15 (Raj.)

9. Ghanshyam Soni v. V/s. U.O.I., (S.B. Cr. Misc. Pet. No. 614/91) Raj. decided on 12.7.91.

3. The learned counsel for Sukhdev Singh Ayub Ali and Satyanarain Respondents, on the other hand, urged with same industry and vehemence that once a property, may be it is liable to confiscation under the provisions of the Customs Act, has been seized by the police in accordance with the provisions of the Cr.PC. and, for that matter, even by a Customs Officer under the provisions of the Customs Act, a Magistrate has the power to entrust its supardgi under section 457 Cr.PC. for the period prior to inquiry or trial and under section 451 Cr.PC. during the period of the pendency of the inquiry or trial and the final disposal thereof under section 452 Cr.PC. at conclusion of trial. The learned counsel submitted that the provisions of the Customs Act do not at all come in the way of the Magistrate in the exercise of his discretionary powers under sections 457, 451 & 452 Cr.PC. and since the learned Magistrate had, in the present cases, exercised his discretionary power under section 457 Cr.PC. in a judicial manner this court should not interfere with his order. In support of their arguments the learned counsel relied upon several decisions including the followings :

1. Gyan Chand v. State of Punjab, AIR 1962 SC 496

2. Asstt. Collector Customs v. M. Ibrahim Peerzada, 1970 Cr.LJ 1305 (Guj.)

3. Misrimal Hans Raj v. U.O.I., 1975 Cr.LJ 1617 (Mad.)

4. Union of India v. Karambhai Umer Bhai Qureshi, 1979 Cr.LJ 1172 (Goa, Daman & Dieu)

5. Asstt. Collector Customs v. Sheikh Abdul Karim, 1990(47) ELT 505 (Bom.)

6. Directorate of Enforcement v. Deepak Mahajan. 1994(70) E.L.T. 12 (SC)

7. Ganeshi Bhai Soni v. State of Raj. & Ors. (afore- mentioned)

8 Rahim Khan v. U.O.I (SB Cri. Misc. Pet. No. 169/91 decided by Raj. High Court on 14.2.91)

9. Ramzan Khan v. State of Raj. & Ors., (SB Cri. Misc. Pet. No. 282/92 decided by Raj. High Court on 10.4.92)

10. Ramzan Khan v. State of Raj. & Ors., (SB Cr. Misc. Pet No. 744/92 decided by Raj. High Court on 4.6.92 in SB Cr. Misc. Pet. No. 282/92).
I studied the cases, cited at Bar before me, in the light of the relevant provisions in the Customs Act and the Code of Criminal Procedure, 1973.

4. On examination of the material placed before me it was noticed that in Ay

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1997 Supreme(Raj) 1331

RAJASTHAN HIGH COURTM.A.A.Khan, J.Inspector, Central Excise and Customs, Barmer - AppellantVersusSukhdev Singh and others - RespondentS.B. Cri. Misc. Petition No. 703 of 1995, 195 of 1996, 140 of 1997, 557 of 1996.Decided On : 29-08-1997

The Customs Act, being a special law, overrides the provisions of the Code of Criminal Procedure, 1973 (Cr.PC.) in regard to the disposal of properties seized and liable to confiscation under the Customs Act.

Cases Referred (4)

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RAJASTHAN HIGH COURT
M.A.A.Khan, J.
Inspector, Central Excise and Customs, Barmer - Appellant
Versus
Sukhdev Singh and others - Respondent
S.B. Cri. Misc. Petition No. 703 of 1995, 195 of 1996, 140 of 1997, 557 of 1996.
Decided On : 29-08-1997