N.M. Miabhoy, J.
1. This is a reference made by the learned Sessions Judge, Gohilwad Division, requesting us to quash the order, dated 13-10-56, made by the learned judicial First Class Magistrate, Bhavnagar. The impugned order came to be made by the learned Magistrate in the following circumstances. Shri Butler, the Superintendent of Central Excise and Customs (Preventive Branch), Baroda, wrote a letter, dated 6-9-56, to the aforesaid Magistrate requesting for search warrants to be issued under Section 172, Sea Customs Act, 1878, as amended by Section 13 of the Sea Customs (Amendment) Act, 1955. The search warrants were intended to be directed against six shop premises belonging to the six opponents. The seventh warrant was intended for searching the Sate Deposit Vault, in the State Bank of Saurashtra, belonging to opponent No. 1. The learned Magistrate acted on the aforesaid letter and issued the warrants as prayed for. These warrants were executed on the same day, and, in the course of the searches, a large quantity of gold was seized by the persons, to whom the warrants were addressed. The account books of the opponents were also seized in the course of the execution of the warrants. Thereafter, on 7-9-56, _ the opponents made an application to the learned Magistrate, praying, on the grounds mentioned therein, that the articles and account books seized under the warrants may be returned to them. The opponents made two further applications before the learned Magistrate on 10-9-56 and 15-9-56. Their further contentions in these applications were that only search of prohibited goods can be made under the warrants, that the account books could not be attached, that Shri Butler was not the competent authority to apply for the warrants and that the warrants had not been properly and legally issued. On 12-9-56, the learned Magistrate called upon Shri Butler to satisfy him that he was competent to apply for the warrants, and the matter was adjourned to 20-9-56 for the purpose. On the latter date, Shri Butler appeared and asked for an adjournment. On that date, the learned Magistrate framed three issues for decision and fixed the matter for hearing on 29-9-56. The three issues were (1) whether the warrants were issued irregularly, (2) whether Mr. Butler was empowered to apply for and obtain the warrants, and (3) whether the authority under the law was exceeded by seizure of ornaments and books. The learned Magistrate, then, on the date of the hearing, heard the arguments on the aforesaid three points and took his decision on 13-10-56 by the impugned order. The findings which he arrived at were that the warrants were irregularly issued and Shri sutler was not a competent authority to apply for the warrants. As a result of these two findings, the learned Magistrate came to the conclusion that it was not necessary to record a finding on the third issue. As a result, the learned Magistrate cancelled the warrants and ordered the return of the goods and account books seized by the Customs Department. Aggrieved by the aforesaid order, the applicant Shri Butler went in revision to the Sessions Court, Gohilwad. The learned Sessions Judge did not agree with the finding or the learned Magistrate that Shri Butler was not a competent authority. He came to the conclusion that Shri Butler was competent to make an application under Section 172, Sea Customs Act. However, he came to the conclusion that the warrants issued by the Magistrate were void ab initio. The learned Sessions Judge also further came to the conclusion that, though this was so, In his view, the learned Magistrate was not competent to cancel the warrants which he had issued. Consequently, the learned Sessions Judge has made a recommendation to this Court that the impugned order should be set aside. However, the learned Sessions Judge has pointed out certain circumstances, which, in his opinion require to be considered by us before quashing the impugned order of the learned Magistrate dated 13-10-56. He has pointed out that some hardship is likely to be caused to the opponents by quashing the aforesaid order and that, therefore, it would be proper for us to put the applicant on terms before quashing the impugned order.
2. The first point which was canvassed before us was regarding the competency of Shri Butler to make the application under Section 172, Sea Customs Act. That Section reads as follows:
'Any Magistrate may, on application by a Customs Collector, stating his belief that dutiable or prohibited goods are secreted in any place within the local limits of the jurisdiction of such Magistrate, issue a warrant to search for such goods.
Such warrant shall be executed in the same way, and shall have the same effect, as a search-warrant issued under the law relating to Criminal Procedure.'
It is not and cannot be disputed that a Customs Collector has the authority to make an application under the Section. Therefore, the question for our consideration is whether Shri Butler, the applicant, was a Customs Collector within the meaning of Section 172. It is not disputed that, on the relevant date, Shri Butler was not a Customs Collector per se, i.e., the position which he occupied in the Department on the relevant date was not that of a Customs collector eo nomine. It is an admitted fact that, on the relevant date. Shri Butler was only a Superintendent of Central Excise & Customs (Preventive Branch), Baroda, The contention of the applicant, however, is that though he was not a Customs Collector eo nomine, he comes within the purview of the definition of the words 'Customs Collector' as given in Section 3 (c) of the Indian Sea Customs Act. Therefore, the question for our consideration is whether Shri Butler comes within the purview of the aforesaid definition. That definition is an inclusive definition and in that definition are included two categories of persons. The definition is as follows:
' 'Customs Collector' includes every officer of Customs for the time being in separate charge of a custom-house, or duly authorised to perform all, or any special, duties of an officer so in charge.' In the first category is mentioned, an officer of customs for the time being in separate charge of a custom-house. It is not contended before us that Shri Butler comes within the purview of this part of the definition. Therefore, the matter need not be considered any further. The second category, which is mentioned in the aforesaid definition, is that of an officer of customs duly authorised to perform all or any special duties of an officer in separate charge of a custom house. Such an officer is also a Customs Collector within the meaning of the aforesaid definition. Therefore, the main question which has been mooted and which is to be decided in the present proceedings is whether Shri Butler does or does not come within the purview of the aforesaid part of the definition. In order that the aforesaid part of the definition may come into play, the applicant has first to establish that he is an Officer of Customs. That he was so is not disputed before us. The second thing which the applicant has to establish is that he has been duly authorised to perform all or any special duties of an officer in separate charge of a Custom-house, in considering this question it is necessary to bear in mind that the definition does not speak of the conferment of any powers, it speaks only of the investment of duties. It is also necessary to bear in mind that, in order that this part of the definition may apply, it is not necessary that the officer concerned should be invested with all the duties of an officer in separate charge of a custom house. Even if an officer of Customs is invested with any of the duties of a person in separate charge of a custom house, he would come within the purview of the definition. The word 'special' used in this particular definition does not appear to have been used in contradistinction to the word 'ordinary'. It was not contended before us that the Act divides the duties of an officer in separate charge of a custom house into ordinary and special duties and that only the imposition of the latter duties on the officer would bring him within the purview of the aforesaid definition. It was admitted that the duties mentioned in the Act are all ordinary duties of a customs officer or an officer in separate charge of a custom house. It is admitted by both the sides that the word 'special' here has reference only to the duties mentioned in particular sections of the Act. Therefore, the matter was not, argued from the point of view of the duties being 'special' in the aforesaid sense of its being in contradistinction to 'ordinary'. The case of the applicant is that he has been invested with special duties of an officer in separate charge of a custom house. Therefore, the point we have got to consider is whether this contention of the applicant is justified. For this purpose, the applicant relies upon the notification No. 67-Cus., dated 23-12-1952 reproduced in the Addendum to the Indian Sea Customs Manual, Fifth Edition, page 4. The relevant portion, which is relied upon, is para 4 of the Notification. That paragraph is in the following terms: 'All Superintendents, Deputy Superintendents and Inspectors shall in respect of all ports within their respective jurisdictions and the officers in charge of customs at minor ports shall in respect of their respective ports exercise the powers conferred, and perform the duties imposed, on a Customs Collector under Sections 24, 29, 55, 57, 58, 61, 62, 63, 65, 86, 137, 141, 143 158, 159, 160, 161, 195, 200 and 201 of the said Act.'
Reading this paragraph, it is quite clear that all Superintendents have been invested with the duties mentioned in the aforesaid paragraph within their respective jurisdictions. The aforesaid Notification was issued by the Chief Customs Authority under Section 9 of the Act. It is not disputed before us that he has authority to invest officers with duties under the Act and that the investment of such duties would be a due investment so that officers can be said to have been duly authorised to exercise the duties under the Act. Therefore, we have no doubt whatsoever that Shri Butler, being a Superintendent, was duly invested with such of the duties as are mentioned in the Sections specified to the aforesaid paragraph to be exercised within his jurisdiction. It is not disputed that the jurisdiction of Shri Butler is co-extensive with the jurisdiction of the Customs Collector, Baroda, and that that of the latter includes the port of Bhavnagar within the territorial limits of which the learned Magistrate issued the warrants, it appears to have been contended in the Sessions Court that the aforesaid paragraph conferred jurisdiction only upon the officers working in the Port of Bhavnagar. We cannot agree with this contention. The meaning of the aforesaid paragraph 4 appears to us to be quite clear that Shri Butler, under the aforesaid paragraph, is entitled to exercise the duties specified in that paragraph, within the whole of his jurisdiction including the port of Bhavnagar. Therefore, under the aforesaid paragraph, it is quite clear to us that Shri Butler was invested with some of the duties exercisable by a Customs Collector under the Indian Sea Customs Act. However, turning back to the definition in Section 3 (c), we find that what that definition states is that, in order that an officer of customs may be a Customs Collector, the duties with which he must be invested must be those which are exercisable by an officer of customs in separate charge of a custom-house. The aforesaid paragraph does not state in terms that the duties which are exercisable by Shri Butler are those which are exercisable by a person in separate charge of a customhouse. Therefore, in order to decide the point in hand, we have got to discover what are the duties which are exercisable by a person in separate charge of a custom-house. The learned advocate, appearing on both the sides, are agreed that, so far as the Indian Sea Customs Act is concerned, it does not impose in terms any duties upon an officer in separate charge of a custom-house as such. The various sections of the Indian Sea Customs Act deal only with the duties exercisable by a Customs Collector. However, it is conceded before us that the duties which are exercisable by a person in separate charge of a custom-house are the same or identical duties which are exercisable by a Customs Collector. This result follows from the fact that the first part of the definition of Section 3 (c) specifically mentions that a person in separate charge of a custom-house is a Customs Collector within the meaning of the Act itself. Therefore, from this point of view, we get the following result. The duties exercisable by Shri Butler under paragraph 4 of the aforesaid Notification are the duties which are performable under the Act by a Customs Collector appointed as such and also by a person in separate charge of a custom house. Therefore, we have no doubt whatsoever that the result is that Shri Butler is invested with special duties which are performable by an officer of Customs in separate charge of a custom-house. Therefore, for the aforesaid reasons, we have come to the conclusion that Shri Butler comes within the purview of the second part of the inclusive definition of 'Customs Collector' aforesaid, and as such he would be a Customs Collector within the meaning of Indian Sea Customs Act. Therefore, we disagree with the view taken by the learned Judicial Magistrate and agree with the conclusion arrived at by the learned Sessions Judge on the first point in controversy between the parties.
3. The second point which arises for our consideration is whether Shri Butler has the authority to make an application under Section 172 of the Indian Sea customs Act or not. The contention raised by the learned advocate for the opponents was that even if we construe that Shri Butler was a Customs Collector within the meaning of Section 3 (c) aforesaid, still, Shri Butler had not the authority to make the application under Section 172 aforesaid. The contention was raised in the following form It was contended that the mere fact that a person is a Customs Collector within the meaning of the aforesaid definition does not necessarily mean that he has a right to exercise all the duties which are mentioned in all the sections of the Indian Sea Customs Act. It was contended that still the powers and the duties of the persons concerned would be circumscribed by the original document which is the source of the authority of the person concerned. In so far as this submission states that an officer of customs can exercise only such of the powers or the duties which are mentioned in the aforesaid Notification, the sub-mission is correct. But before we can give effect to the aforesaid submission, we must first of all satisfy ourselves that Section 172 aforesaid deals with either the exercise of a power or the exercise of a duty. It is only when we come to the conclusion that Section 172 deals with any of these two matters, that we can come to the conclusion that Shri Butler was not competent on account of the fact that in para 4 of the aforesaid Notification, Section 172 has not been specifically mentioned. Reading Section 172 as a whole we have no doubt whatsoever that it does not confer any power upon a Customs Collector. The power, which is conferred by the aforesaid section, is upon the Judicial Magistrate and not upon the Customs Collector. This is clear both from the wording of the section and the marginal note. We are also not satisfied that Section 172 deals with the exercise of any duty on the part of a Customs Collector, when a person makes an application to a Court of law, he does not exercise a duty. All that he does is that he asks for a relief or a remedy. In our opinion, the Customs Collector has been given a right to make an application and this right he derives by virtue of the fact that he is a Customs Collector within the meaning of the aforesaid Act Therefore, in our opinion, as Shri Butler comes within the definition of Customs Collector, the conclusion is inevitable that he is also competent to make the application under Section 172 of the Sea Customs Act. Therefore, we agree with the conclusion of the learned Sessions Judge that Shri Butler had the right to make the application under Section 172 aforesaid.
4. The next point which was urged before us was about the validity of the warrants issued by the learned Magistrate. This point has a reference to the letter which Shri Butler addressed to the learned Magistrate. Before we proceed further in this respect, we may mention that the practice which appears to have been developed by the Customs Department of moving judicial Courts by addressing letters is not a proper practice and should be discouraged. All Judicial Officers must be approached by the persons concerned by making applications in proper forms and not by addressing letters. However, this is a side point and nothing turns on the same. The letter of Shri Butler is in the following terms : -
'I learn that dutiable and prohibited articles viz, gold has been smuggled into India and has been secreted along with the documents in the trading premises (shop) of ..........'
In this letter, Shri Butler has not stated that he entertained the belief that dutiable or prohibited goods were secreted as mentioned in his letter What he has stated is that he had learnt or had information on the subject. Section 172, however, requires that the application must state the belief of the Customs Collector that dutiable and prohibited goods were secreted in any place. The contention of the learned Special Government Pleader was that though Shri Butler had not stated in terms that he entertained the belief, the actual effect of his letter was that he had stated his belief. We cannot agree with this contention. In our opinion, there is a clear distinction between learning and belief. A person may learn or get information which he may not believe to be correct. Therefore, we are in agreement with the submission made by the learned advocate for the opponents that the letter of Shri Butler, as lit stood, did not comply with the provisions of Section 172 in terms. However, the question for our consideration is whether the aforesaid defect in the letter necessarily leads to the conclusion that the warrants were illegal or irregular of such a character that the warrants should necessarily be cancelled by the learned Magistrate on that ground. The contention of the learned advocate for the opponents was that the entertainment of the belief by the Customs Collector was the foundation of the order issuing the warrants. In other words, that such belief was a condition precedent for the issue of the warrants. We do not propose to express any opinion on this subject for the following reasons. In our opinion, the matter is not governed merely by recording a finding at a later stage, whether the application did or did not in terms comply with the provisions of Section 172. Indian Sea Customs Act. The point has to be considered with reference to the conditions obtaining at the time when actually the order was made for issuing the warrants. At this stage when we look to the warrants themselves, we find that the learned Magistrate has stated in the body of the warrants that Shri Butler had expressed a belief that prohibited or dutiable goods were secreted at some place. Therefore, in our opinion, what has happened in the present case is this. On reading the aforesaid letter of Shri Butler, the learned Magistrate came to the conclusion that Shri Butler had expressed the belief on the particular subject. In our opinion, therefore, though we agree that Shri Butler has not expressed any belief, this is a case in which the learned Magistrate has committed an error of judgment in interpreting the letter of Shri Butler. Actually, at the time when the war-rants were issued, the learned Magistrate did not realise that there was no expression of belief. It is in the context of the aforesaid circumstance that we have got to decide the legality or otherwise of the impugned order. It is true that the learned Magistrate has in his impugned order, stated that Shri Butler had not expressed such a belief, but, in our opinion, that is a later finding which the learned Magistrate arrived at after he had the benefit of hearing the arguments of the learned pleader for the opponents. The view taken by the learned Magistrate, at the time when the aforesaid warrants were actually ordered to be issued, has an important relevance on the subject of the validity or otherwise of the aforesaid letter and especially on the subject whether the warrants should be held void ab initio or should be cancelled by a subsequent order. The Question that we have got to consider in the present case is whether, when the warrante them-selves state, in terms, that the applicant had expressed a belief, as required by Section 172 aforesaid, the warrants could be held to be illegal or irregular on the strength of a subsequent finding which the same Court records with this consequence that the warrants should he held either to be void ab initio or that they should be cancelled by the order of the learned Magistrate. Having given our best consideration on the subject, we are of the opinion that such a result does not and ought not to necessarily follow, in our opinion, if the warrants on the face of them are valid it would be wrong for the same Magistrate to hold that the warrants were illegal much less void ab initio, simply because he holds, later on, that the warrants were issued on account of an error of judgment. It is just an irregularity which does not affect the power of the officer who executes warrants. In our opinion, the warrants at the time when they were issued were valid warrants and the aforesaid irregularity does not in any way affect the authority of the person, who has given the power to execute the warrants, under the circumstances, We are not satisfied that the warrants were such warrants as justified their cancellation at a subsequent stage.
5. Another point, which was urged in the Sessions Court and which was repeated before us was that, before the warrants could be issued under Section 172, it was necessary for the learned Magistrate to hold an inquiry on the subject. We| are unable to agree with this contention. In our opinion, the section does not require that the learned Magistrate should necessarily hold an inquiry into the matter. Of course, if for some reasons, the learned Magistrate is inclined to hold an inquiry before exercising his power under Section 172, Indian Sea Customs Act, he has the authority to make such an inquiry; but if he does not feel that he should make an inquiry and is prima facie satisfied with the expression of the belief of the Customs Collector, in our opinion, there is nothing in the aforesaid Section which would make it obligatory upon the learned Magistrate to hold an inquiry on the subject.
6. In view of our conclusion that the warrants are not, of such a nature that they should necessarily be cancelled, it is not necessary for us to consider the further question as to whether the learned Magistrate has or has not the power to cancel warrants in a proper case, i.e. when he comes to the conclusion that the warrants were void ab initio or that the illegality or irregularity committed with reference to those warrants was such that the persons against whom the warrants were issued were necessarily prejudiced. On this important subject, our attention was drawn to the observations made by a Division Bench consisting of Mr. Justice Rajadhyaksha and Mr. Justice Chainani in Criminal Revision Application No. 989 of 1954 in the case of the petitioner Ramachandram v. Ghanasyam K. Inamdar (Bom) (A). We had the benefit of looking into a certified copy of the judgment which was delivered by the aforesaid Bench. Very weighty observations have been made by Their Lordships in the aforesaid case, in which they have pointed out that, once a warrant is issued under Section 172 of the Indian Sea Customs Act, the Magistrate has no power to recall the warrant or to cancel it. But it is not necessary for us to decide in the present case whether the observations were obiter dicta or constitute a decision of the Division Bench. Apparently, haying regard to the fact that the final order of disposal of that Criminal Revision Application was based upon the consent of the counsel appearing in the case, it is open for one to contend that the aforesaid observations were obiter dicta.
7. However, before we part, it is necessary for us to refer to two more contentions, which were raised by the learned pleader for the opponents. As already stated, under the warrants not only gold but also gold ornaments and account books were seized. The contention of the learned advocate for the opponents was that the officers concerned had no authority to seize gold ornaments. The contention was based upon Section 8(1) of the Foreign Exchange Regulation Act. In the present case, the warrants were obtained on the basis that gold had been imported or smuggled into India in contravention of the provisions of Section 8(1) aforesaid. The contention was that gold ornaments are not included within the meaning of the word 'gold' as used in the Sub-section (1). The term 'gold' has been defined in the Foreign Exchange Regulation Act itself. The definition is as follows :
''Gold' includes gold in the form of coin, whether legal tender or not, or in the form of bullion or ingot, whether refined or not.'
However, it is noteworthy that the definition is inclusive and not exhaustive. The contention of the learned Special Government Pleader was that an article does not cease to be gold merely because it is converted into an ornament. He contended that the article would continue to be gold in spite of the fact that the shape of gold is changed into that of an ornament. Before we proceed to discuss this aspect of the case, we must note that, once we come to the conclusion that the warrants were valid and were not such as should have been cancelled, then the further question would arise as to whether the Magistrate has or has not jurisdiction to consider whether the articles seized under the warrants were prohibited or dutiable or not. We do not want to express any opinion on the subject also. The Matter was considered in the aforesaid Division Bench, and it will have to be considered later on whether the observations made therein were obiter dicta or constituted a decision of the Division Bench. But, in our opinion, even if we assume that in a suitable case, where a Magistrate has authority to investigate into the aforesaid question, we have no doubt whatsoever that, in normal circumstances, when a warrant is valid, the question as to whether the articles seized are or are not prohibited or dutiable articles should be left to be decided by the authorities constituted under the Indian Sea Customs Act. In this connection, it is useful to turn to the provisions contained in Section 178 of the Indian Sea Customs Act. Under this Section, power is conferred not merely upon the Customs Collectors but also upon every officer of Customs and even upon a person duly employed for the prevention of smuggling to seize all things which are likely to be confiscated under the Act. The officers or persons concerned can exercise this power anywhere and everywhere and do not require the aid of a warrant to do so. Therefore, before answering the question, in each case, it will have to be decided whether the seizure of articles was by virtue of the powers which the officer possessed under Section 178 aforesaid or whether the seizure was as a result of the warrants issued by the learned Magistrate. It is only when the learned Magistrate can come to the conclusion that the things seized were under his own warrants, then, in a suitable case, where the learned Magistrate comes to the conclusion that the warrants were illegal or were void ab initio and were such as required to be recalled or cancelled, he can put the parties on proper terms and restore the status quo. However, these conditions do not obtain in the present proceedings. We have already held that the warrants are not such as should be cancelled. There is no clear evidence or finding that the articles were seized only under the warrants and not under Section 178, Sea Customs Act. Moreover, it is noteworthy that Section 172 of the Sea Customs Act only speaks about issue of search warrant and not of seizure of prohibited or dutiable articles. In the circumstances, in our opinion, having regard to the provisions contained in Section 178 of the Indian Sea Customs Act and having regard to the fact that the Act itself provides for a hierarchy of tribunals for deciding the question of prohibit-ed or dutiable nature of the articles seized, the matter should not be decided by us, specially in a reference and should be left to be dealt with under the normal law and procedure. In our opinion, this is just a normal case and there is no special circumstance for holding that the power of seizure was exercised under the warrants and not under Section 178 of the Act. Therefore we do not propose to interfere with the action taken by the officers concerned after the issue of the warrants by the learned Magistrate and do not take a definite decision on the subject whether the gold ornaments do or do not come within the purview of the aforesaid Foreign Exchange Regulation Act.
8. The next contention was that the account books could not have been seized under the warrants. This contention appears to have been made in ignorance of the amendment which was introduced by the Sea Customs (Amendment) Act, 1955, No. 21 of 1955. By this Act, Section 172 has been amended in such a way as to confer a power upon the Magistrate to issue warrants not only for searching prohibited and dutiable articles but also for searching documents relating to such articles. It cannot be disputed that account' books come within the purview of the word 'document' as used in the amended section. The warrants specifically mention that the officers executing the warrants shall search for and seize documents relating to the prohibited or dutiable articles. After the amendment was brought to the notice of the opponents the contention was not pressed further that the aforesaid part of the warrants was invalid or illegal. There are no materials on the record which would show that the account books which were seized in pursuance of the aforesaid warrants have no relation with the prohibited or dutiable articles. In the absence of this, in our opinion, it would be improper to interfere with the seizure of the aforesaid account books. However, we do perceive in the present case that the opponents are likely to undergo hardships especially on account of the fact that the account books are current. As a result of the various proceedings, the result now is that the account books have been in the possession of the Customs authorities for a period of about seven months. We do not feel Quite happy about this. Having regard to the fact that Section 178, Indian Sea Customs Act, does not empower the officers of Customs to seize the account books or documents, the authority of the officers concerned in seizing the aforesaid account books must necessarily have been derived from the warrants issued by the learned Magistrate. Therefore, we leave the question open and do not decide for the present whether the account books can or cannot be returned as a result of the order of the learned Magistrate. If the opponents find that the Customs authorities are not behaving in a reasonable manner vis-a-vis these documents or they have reasonable ground for believing that the Customs authorities are abusing the powers, which had been conferred upon them by the issue of the aforesaid warrants, the opponents shall be at liberty to make a proper application after two months (the period which the learned Special Government Pleader says will be required to dispose of the cases), before the learned Magistrate, which would be disposed of according to its own merits, or if so advised, the opponents might invoke the jurisdiction of this Court under Section 561-A of the Code of Criminal Procedure.
9. We dispose of the reference by setting aside the order of the learned Magistrate dated 13-10-1958.
10. Order set aside.