M.R. Sharma, J.
1. On September 17, 1970, a case Under Section 9 of the Opium Act and Under Section 113 of the Customs Act, was registered against the petitioner. At the time of his arrest, he was found in possession of Rupees 12,480/- which, according to the prosecution, represented the price of six bars of foreign gold weighing 60 tolas alleged to have been sold by the petitioner. On December 31, 1970, the police submitted a report for the cancellation of this case. Earlier on November 24, 1970, Inspector of Customs (Preventive) Abohar had made an application before the learned Judicial Magistrate that this amount should be handed over to the Customs Authorities because proceeds of smuggled gold were liable to be confiscated Under Section 121 of the Customs Act, 1962. The learned Judicial Magistrate, after hearing the parties, acceded to the prayer made in the application and ordered on August 17, 1971, that the above said amount be handed over to the Customs Authorities. Admittedly, this was done after he had acceded to the prayer made on be half of the investigating agency regarding the cancellation of the case.
The petitioner filed a revision petition against the order of the learned Judicial Magistrate which came up for hearing before the learned Additional Sessions Judge, Ferozepore, on April 7, 1973, and was dismissed on the authority of Dy. Supdt. Customs, Preventive, West Bengal v. Sitaram Navsaria : AIR1968Cal274 .
The petitioner has again come up in revision before me.
It is submitted on behalf of the petitioner that the learned Judicial Magistrate had no jurisdiction to pass an order regarding the disposal of property seized by the police during the course of investigation unless and until that property is actually produced before him. In support of this proposition, reliance is placed on Yousoof Marakair v. State of Mysore AIR 1969 Mys 203 : 1969 Cri LJ 757 in which it has been laid down that Section 516-A, Criminal Procedure Code, 1898, applies only if property is produced before the Court during enquiry or trial. If the matter is still under investigation and no charge-sheet has been filed, the section is not attracted, This case is distinguishable on the short ground that the claimants of the stolen property were putting forth their claim on the basis of their comparative title. No statutory authority had intervened to claim the property under the provisions of a special statute.
2. I am of the considered opinion that the learned Courts below were well advised in disposing of this case on the basis of Sitaram Navsaria's case (1968 Cri LJ 744) (Cal) (supra). In that case also, the Customs Authorities had applied, during the pendency of the investigation, to the Judicial Magistrate having jurisdiction to try the case, for a direction that the property seized should be handed over to them. The learned Magistrate, on being satisfied that Section 110 of the Customs Act would be attracted, ordered that the property be handed over to the Customs Authorities. Though it is not clear whether, in that case, report for cancellation was made by the investigating agency or not, yet this can be inferred from the fact that the learned Chief Judicial Magistrate had Ordered the property to be returned to the person from whose possession it was seized, and it is a matter of common knowledge that property which is not perishable is usually not returned to the person from whom it is seized during the pendency of a criminal trial. Presumably, the Calcutta High Court was also concerned with a case in which the police had submitted a report for the cancellation of the case. That Court held that a Magistrate was concerned with only this fact whether the Customs Authorities were competent to exercise jurisdiction in respect of the seized property or not and if it comes to the conclusion that they were so, then, to order the handing over of the seized property to them. I am in respectful agreement with the view expressed by the Calcutta High Court in that case.
3. Sections 100 to 110 of the Customs Act confer special jurisdiction on the Customs Authorities to search suspected persons and to seize certain goods and documents etc. Section 102 of the Customs Act lays down that where a person is to be searched, he should be taken before a Gazetted Officer of Customs or a Magistrate and in case a Gazetted Officer of the Customs or a Magistrate is not available, the person who is to be searched can be detained by the Customs Authorities. Since the money had been seized from the person of the petitioner by the police in connection with the investigation of the criminal case, even if the same had been returned to the petitioner, the Customs Authorities could again have stepped in and seized the money from him. The entire objection of the learned Counsel for the petitioner is one of form as against substance. It is not a fit case in which I should exercise my revisional jurisdiction. The petition is, therefore, dismissed.