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1954 Supreme(Mad) 495
MADRAS HIGH COURT
MACK,KRISHNASWAMI NAYUDU
Asst.Collector of Customs Central Excise, Kandamangalam
Versus
Krishna Pillai
Criminal Misc. Petn. No. 1184 of 1954
Decided On : 26 November, 1954
Public Prosecutor, for Petitioner; A.S. Sivakaminathan, for Respondent.
The Magistrate has no jurisdiction to order the return of gold bars to the accused after the Supreme Court set aside the order of confiscation. The accused is not entitled to the possession of the gold bars under S. 517, Criminal P.C.
Headnote:
LAND CUSTOMS ACT - S. 7(3) - SEA CUSTOMS ACT - S. 167(8) - FOREIGN EXCHANGE REGULATIONS ACT - S. 8(1) - CONFISCATION OF GOLD BARS - ORDER OF CONFISCATION SET ASIDE BY SUPREME COURT - JURISDICTION OF MAGISTRATE TO ORDER RETURN OF GOLD BARS TO ACCUSED - S. 517, CRIMINAL P.C. - DISCRETION OF COURT - PERSON ENTITLED TO POSSESSION OF PROPERTY.
Fact of the Case:
The accused was convicted under S. 7(1)(a) read with S. 7(3), Land Customs Act, and sentenced to rigorous imprisonment for four months. The Sub-Magistrate ordered the confiscation of the gold bars. In appeal, the District Magistrate confirmed the conviction and the order of confiscation. The accused pleaded guilty and in his statement under S. 242, Criminal P.C., said that someone gave him the blocks at the border to take across the Indian Union. In revision, the High Court acquitted the accused but confirmed the "order of confiscating the gold blocks". On appeal to the Supreme Court, the order of confiscation was set aside as being passed illegally and without jurisdiction in view of S. 7(3), Land Customs Act.
Finding of the Court:
The Supreme Court order merely sets aside the order of confiscation passed after an acquittal of Krishna Pillai as being illegal and without jurisdiction under S. 7(3), Land Customs Act. The customs authorities have very wide discretionary powers of confiscation and fine in regard to property they seize which is illegally imported or exported. The fact that they instituted prosecution in the Magistrates Court against a particular person in relation to such property does not mean that it must in any event be handed over to him in the event of his acquittal. The property itself is legally and rightly held by the Customs authorities until duty and discretionary penalty are paid by the claimant, that is, if confiscation is not ordered. The Magistrate rightly dismissed Krishna Pillai's claim to the return of the two blocks of the gold.
Issues: 1. Whether the Magistrate has jurisdiction to order the return of gold bars to the accused after the Supreme Court set aside the order of confiscation? 2. Whether the accused is entitled to the possession of the gold bars under S. 517, Criminal P.C.?
Ratio Decidendi: 1. The Magistrate has no jurisdiction to order the return of gold bars to the accused after the Supreme Court set aside the order of confiscation. The Supreme Court order merely sets aside the order of confiscation as being illegal and without jurisdiction under S. 7(3), Land Customs Act. It does not direct the return of the gold bars to the accused. 2. The accused is not entitled to the possession of the gold bars under S. 517, Criminal P.C. He never claimed that the gold belonged to him and that he was in possession of it as owner. He stated that "some person brought (the gold) and gave it at the French boundary asking that it might be brought into the Indian Union." He was in custody of the gold for the specific purpose of taking it from one territory into another territory.
Final Decision: The order of the District Magistrate directing the return of the gold bars is set aside. The dismissal of the accused's application by the Stationary Sub-Magistrate is upheld.
MACK, J. :- This petition has been placed before us for disposal on a reference made by Somasundaram, J., in revision in the following circumstances.
2. Petitioner is the Assistant Collector of Customs and Central Excise, Kandamangalam. He sought to set aside in revision an order of the District Magistrate of South Arcot dated 31-7-1954 directing the return of two bars of gold weighing 307-7/8 tolas to one Krishna Filial from whose possession they were seized by the Customs authorities on 23-3-1952 at about 1 a.m.
On the very next day, 24-3-1952, Krishna Filial was convicted under, S. 7(1)(a) read with S. 7(3), Land Customs Act, and sentenced to rigorous imprisonment for a period of four months. The Sub-Magistrate ordered the confiscation of the gold bars. In appeal the District Magistrate, Cuddalore confirmed the conviction and also the order of confiscation.
Krishna Pillai pleaded guilty and in his statement under S. 242, Criminal P.C., said that some one gave him the blocks at the border to take across the Indian Union. In revision Somasundaram, J., acquitted Krishna Pillai but confirmed the "order of confiscating the gold blocks". There were two accused in the case, the case against one of whom was withdrawn on Krishna Pillais plea of guilty. The learned Judge in revision took the view that it was not proper to try Krishna Pillai without letting him on bail and giving him an opportunity to consult an Advocate, and that those circumstances have given rise to the contention that he was kept in duress and that he had no independent legal advice and that he may have confessed out of fear.
On 25-11-1953, in appeal on special leave granted by the Supreme Court, the order of confiscation was set aside as being passed illegally and without jurisdiction in view of S. 7(3), Land Customs Act. Their Lordships observed as follows :
"It is clear from a perusal of this section that the only jurisdiction and power which the Court has got under this section is to confiscate the goods in respect of which the offence has been committed upon conviction and not otherwise".
3. On 16-12-1953, the Collector of Customs and Central Excise, Madras, issued a notice to Krishna Pillai to show cause under S. 5, Land Customs Act, and S. 19, Sea Customs Act, read with S. 8(1), Foreign Exchange Regulations Act, why these gold bars should not be confiscated under S. 5(3), Land Customs Act, and S. 167(8), Sea Customs Act.
Krishna Pillai was called upon to produce all the evidence on which he intended to rely. He then filed a claim challenging the legality of the enquiry held by the Collector of Central Excise on the strength of his acquittal, and the setting aside of the order of confiscation by the Supreme Court and said he was taking appropriate judicial proceedings "for the recovery of my gold".
On 15-1-1954 the Collector confiscated the bars of gold under S. 5(3), Land Customs Act, and S. 167(8), Sea Customs Act, read with S. 8(1), Foreign Exchange Regulations Act, 1947. Then Krishna Filial filed a simple memo under no specific provision of law before the Sub-Magistrate asking for return to him of these gold bars, which it may be said were handed back to the Customs authorities on 24-3-1952, the date of his conviction.
4. The Stationary Sub-Magistrate dismissed this memo in an elaborate order in which he stated that the gold had been returned to the Customs Inspector as it was required by him for further action under law. He took the view that the prosecution for a contravention of S. 8(2), Foreign Exchange Regulations Act, was not barred by the acquittal of the petitioner of an offence under S. 7(1)(b). Land Customs Act.
He held that he was not the Court competent to stay or quash any proceedings before the Central Excise Officers. In revision the learned District Magistrate interpreted the order of the Supreme Court setting aside the order of confiscation as meaning that the State was no longer entitled to the gold bars which should be returned to Kri
