1. This is a reference made under Section 438 of the Criminal P.C. by learned Sessions Judge, Bulsar at Navsari, Mr. R. K. Soonavala 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 Lakhmashi Shah on confirmation of his producing an ownership registration certificate and on his depositing Rs. 15,000/- in cash in the Court along with a bond in the sum of Rs. 60,000/- on a condition to produce the truck in the Court in the same condition whenever so ordered be set aside.
2. The facts giving rise to this reference, briefly stated, are as under:-
Raichand Lakhmashi 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 good, filed an application on 28th February, 1969, under Section 523 of the Criminal P.C. it was stated therein that the aforesaid truck was stopped near Bhilad Checkpost 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 Harischandra Transport Company. He knew nothing about this offence. He was quite innocent. He, therefore, prayed that the Custom Superintendent be directed to hand over 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 Navasari, 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 Section 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, Section 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 Section 523 of the Criminal P.C., 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 Section 110 of the Act, even if those goods or the vehicle were formerly seized or was seized as the case may be, by a police officer.
7. It is submitted by Mr. C. G. Mehta, that the learned Magistrate had jurisdiction to pass this order as the goods were originally seized by Police Officer Pant. According to him, in view of the provisions of Section 550 of the Criminal P.C. (which will be hereinafter referred to as the Code) a police officer had powers to seize any property which may be found under the circumstances which create suspicion of the commission of any offence.
8. The word 'offence' has been defined in Section 4(0) of the Code under :-
' Offence' means any act or omission made punishable by any law for the time being in force; it also includes any act in respect of which a complaint may be made under Secton 20 of the Cattle Tresspass Act, 1871.'
In view of this definition of the word 'offence' given in the Code. It was submitted by Mr. Mehta that even if a police seized this vehicle and the goods alleged to be smuggled, which were being transported in this vehicle. On suspicion the offence committed was an offence punishable under the Act. In view of the provisions of Section 550 of the Code. He had legal power to seize them. Section 550 of the Coce reads.
Any police -officer may seize any property which may be alleged or suspected to have been stolen, or which may be found under circumstances which creates suspicion of the cmmission of any offence. Such police -officer, if subordinate to the officer in charge of a police-station, shall forthwith report submitted by Mr. Mehta. It was further submitted by Mr. Mehta that the wording of Section 523 of the that the wording of Section 523 of the Code indicated that when such seizure is made by a police officer in exercise of his powers under Section 550 of the Code, it is the Court which can pass an order contemplated by that Section. The material part of that section for our purposes, reads:
'(1) The seizure by any police-officer of property taken under Section 51, or alleged or suspected to have been stolen, or found under circumstances which create suspicion of the commission of any offence, shall be forthwith reported to a Magistrate, who shall make such order as he thinks fits respecting the disposal of such property or the delivery of such property to the person entitled to the possession thereof, or, if such person cannot be ascertained, respecting the custody and production of such property.'
It was urged that in this section also, the words used are:
'property seized by a police officer which was found under the circumstances which create suspicion of the commission of any offence.'
It was, therefore, obligatory upon the police officer who does such seizure to report forthwith to a Magistrate and the Magistrate is empowered to make such order as he thinks fit, requesting the disposal of such propety or the delivery of possession thereof, or, if such person cannot be ascertained, respecting the custody and production of such property. It was submitted by him further that a police officer who is required to make such a report, fails to make a report, the circumstance, that there was failure in making the report, will not take away the jurisdiction of the Court to make proper order regarding disposal. In short, the submission made by him was, that the Magistrate did not get such jurisdiction to make order of such disposal of property only on receipt of such a report from a police officer. In support of his arguments, he invited my attention to the decision of this Court in Suraj Mohan v. State of Gujarat : AIR1967Guj126 . The relevant observations made by N. G. Shelat, J., are:
'Section 523 of the Criminal P.C. provides a certain procedure to be followed by the police and the Magistrate with regard to any property seized by the police. Section 523(1) firstly gives a clear direction to the police making it obligatory to report the seizure of any property to the Magistrate and, secondly, it directs that it shall be reported forthwith. The idea behind the use the word 'forthwith' appears to be that no inconvenience or hardship should be caused to any bona fide owner of any such property. A power to call for the report on the information given to the Magistrate is implicit in the power given to the Magistrate to deal with property seized by the police. No power is given to the police to deal with such property. The power is conferred to the police to seize the property and it extends no further to deal with it and Section 52 immediately comes into effect and requires the police officers to report forthwith about such seizure and then the Magistrate becomes entitled to deal with it. Therefore, there is no question of usurpation of powers of the police, as none are given to the police for disposal of the property after seizure. The Magistrate immediately gets the jurisdiction and authority when he was informed that a property is seized by the police and his jurisdiction is not dependent on the police report.
The duty is cast upon the Magistrate to call for a report from the Police Officer or any inquiry to be made regarding the ownership or the possession of the seized property.'
It is significant to note that in that case, the seizure was made admittedly under Section 523 of the Code. The truck was seized in connection with the prohibition offence which was registered as C.R. 997 of 1965 at the police station. In respect of such seizure, an application was made by the truck owner to pass an order under Section 523 of the Code. The Magistrate declined to exercise the powers as no report was received from a plice officer. It was in relation to those facts that the aforesaid observations have been made. Admittedly, the truck was in custody of a police officer which was seized in relation to a prohibition offence. The argument advanced in that case was that as no report was received from a police officer, the Court had no jurisdiction to pass any order contemplated by Section 523 of the Code. In that connection, the observations are made at page 978 (of Guj LR) = (at p. 129 of AIR) by Shelat, J., after referring to the observations made by the Lahore High Court in Ghulam Ali v. Emperor, AIR 1945 Lah 47, which were relied upon by the learned Government Pleader for the State. They are:
'With respect, I am unable to agree with that view if it is taken to hold that it is only on a police report and not on any application of any party affected by seizure of any such property, that the Court can pass the order under Section 523 of the Criminal P.C. Apart from there being any such specific limitaion imposed on the Magistrate exercising his powers on being moved by any such party, - a power to call for a report, on such information given to him, is implicit in the power given to him to deal with such property, seized by the police. If that were not so, the effect of section 523 would be meaningless, and even the provisions contained therein may be turned nugatory, if the police officer so took in his head not to report about any such seizure for any length of time. No power is given to the polive to deal with such property. A liberal construction has to be given to a provision like this and the spirit and substance behind such a provision has to be considered, so as not to frustrate the purpose behind it.'
In the instant case, what has happened is that the P.S.I. Mobile Anti-smuggling Squad, Bulsar, on receipt of the information, stopped the truck in question which came from Bhillad while going towards Nandigam and the panchnama was ordered to be made as there were smuggled goods and the panchnama came to be made, wherein several transistors, lighters of foreign make, and other smuggled goods are alleged to have been found. They were found in 14 pacckets.
9. In the first part of the panchanma, those smuggled goods and the truck in question were taken into custody for further inquiry, as mentioned in the panchanama, which finds place at pages 59 to 62 in the recod of the Judicial Magistrate. The words in Gujarat used are:
* * * * * * *
The correct rendering of it in English will be:
'In this truck smuggled goods of foreign make were found. There were 50 packed bales of cotton and the said truck was used for transporting such articles and hence the police had taken possession of these aritcles and the truck for making further inquiry.'
In the latter part of that very panchnama, the recital made is about the search of the person of the driver and about finding of some money and also finding of some opium weighing about 15 grms. It is also further recited therein that the driver had no pass or permit to keep that opium in his possession. Money found and the plastic bag from which that opium was found and the opium were attached by the plice. It also recites about taking of search of other persons. This panchnama was drawn up on 8th February, 1969, Commencement of the drawing of that panchnama started at 7.15 a.m. and was completed at 11.15 a.m.
10. There is another panchnama in that very record at page 65. It is dated 8-2-1969. It was completed at 4.30 p.m. on that very day. That panchnama reads that in the customs house, staff people of Mobile Anti-Smuggling Squad, A.C.B. Bulsar Branch, had come with smuggled goods in a truck. They had come also with a report and a panchnama. Panchas were given over that document to read and it was read by the panchas. It is recited therein that 14 packets were found which contained smuggled goods along with 50 bales of cotton. Those packets were opened and shown to panchas. After referring to the contents of those packages, it is recited that all those goods were of foreign make and the truck in question had been utilised for transporting such smuggled goods. It is further recited therein in clear terms - 'these smuggled goods and the truck are seized and taken into possession under the Customs Act.' It is further recited therein that opium which was also found on the person of driver Jitsingh, had been handed over to the Court at Umbergaon and had not been handed over to the customs officer. It is, therefore, evident by reading these two panchnamas that after the first panchnama was made by the said police officer, the smuggled goods and the truck were taken to the customs house and the customs officer seized the smuggled goods and the truck in exercise of his power under the Customs Act. This happened on that very day. Opium which was also seized by the Police in this very transaction of seizure was not seized by the Customs Officer, but it was sent to the Court at Umbergaon. This happened on 8th February, 1969. It was thereafter that petitioner Raichand made an application to the customs authorities to release the truck and the order came to be passed that it will be released on compliance with certain terms imposed. After that order was passed, the petitioner made the present application to the Judicial Magistrate First Class to exercise his powers under Section 523 of the Code. In that application, he did state that the truck in question was in the custody of the Customs Superintendent, but he did not state therein that he had moved that authority and that authority had made an order to release the truck on compliance with certain terms imposed. It is significiant to note that on making the panchnama of the seizure of these articles by the police officer, he has nowhere stated that he had seized these articles in exercise of his powers under Section 550 of the Code. He has not made any report to his superior officer as contemplated by Section 550 of the Code. He has also not made any report to the Magistrate as contemplated by Section 523 of the Code. What he had done, on the contrary, on that very day, is that he had taken these goods to the customs house and the customs officer had seized these articles in exercise of his power under Section 110 of the Act.
11. The question, therefore, that is posed before me is as to whether in these circumstances, this impugned order can be passed by the Judicial Magistrate. First Class, in exercise of his power under Section 523 of the Code.
12. Mr. Mehta submitted that in view of the provisions of Section 550 of the Code, the plice officer was empowered to make such seizure even though the truck was found in the circumstances, suggesting the commission of an offence punishable under the Act. It should, therefore, be presumed that this order must have been passed by him in exercise of that power of his. If that was the correct position it was his bounden duty to report to his superior officer as contemplated by Section 550 of the Code and to report forthwith to the Magistrate as contemplated by Section 523 of the Code. The Magistrate had, therefore, power to make an order regarding disposal of such property in view of the provisions of Section 523 of the Code and it was not necessary for the conferment of jurisdiction on him to have received a report from the police officer.
13. It was further submitted by him that the circumstance that on that very day, these goods were seized by the customs officer in exercise of his power under Section 110 of the Act, did not make any difference and it was the Court alone whih could pass such an order regarding disposal, in view of provisions of Section 523 of the Code and hence, the order passed by the learned Judicial Magistrate was a proper and legal order and that order should not be set aside and the reference should be rejected.
14. In support of his argument Mr. Mehta invited my attention to the decision of Judicial Commr. In Namichand v. Supdt., Central Excise, 1963(2) Cri LJ 288, (equivalent to AIR 1963 Mani 35). To appreciate the ratio of that decision, it is necessary to refer to the facts of that case, mentioned in para 2 at page 289 in the report (Cri LJ = (at p. 36 of AIR). They are:-
'The petitioner was travelling by bus on 11-3-1957 from Imphal to Dimapur. When the bus reached Mao on the way, P.W. 4, Shri P.Bhattacharjee, Sepoy of the Land Customs and P.W. 6 the Assistant Sub-Inspector of Police searched the luggage of the petitioenr and P.W. 6 seized therefrom 96 gross lead pencils made in Japan and he prepared the seizure list Ex. A/10. The seizure was stated to be made under Section 96 (?) Cr. P.C. Ext A/10 shows that the seizure was only of the pencils but it now turns out that other items like bedding, trunk, blanket, wearing apparel, etc., of the petitioner were also seized for which no seizure list was prepared.
It appears that on that date, the Preventive Officer of Land Customs posted at Mao who had the power to seize the goods was out of station and that P.W. 4, Shri Bhattacharjee, who was only a sepoy was not authorised to seize the articles. Hence, they were caused to be seized by the Assistant Sub-Inspector (P.W. 6) under Section 550, Cr. P.C.
Subsequently, by the order of the Inspector-General of Police,dated 25-5-1957, the seized articles were directed to be handed over to the Customs Authorities and P.W. 1, the Deputy Superintendent of Central Excise formally seized them and he made the seizure report Ex. A/3 on 12-6-1957. From Ext. A./3, we find it stated that as the Preventive Officer of Land Customs at Mao was out of station on 11-3-1957, the goods were formally caused to be seized by the police as suspicious property.
An inquiry by the Land Customs Department followed and the Collector of Central Excise and Land Customs passed the order Ext. A/7, confiscated the pencils and also the other articles seized, and imposed a penalty of Rs. 1,000/- on 20-3-1958. Subsequently, on 14-11-1958, P.W. 5, the Superintendent of Central Excise and Land Customs, Silchar filed a complaint for the prosecution of the petitioner under Section 7(3) of the Land Customs Act, 1924, Section 5 of the imports and Exports (Control) Act, 1947, and Section 167(81) of the Sea Customs Act on the ground that the penalty imposed on the petitioner was inadequate. The learned Additional District Magistrate framed charges under Section 167(81) of the Sea Customs Act and Section 5 of the Imports and Exports Control Act. In the course of the trial he dropped the charge under Section 167(81) of the Sea Customs Act on the ground that P.W. 5 was not competent to file the complaint.'
The order of conviction was recorded which was confirmed in the appeal by the Sessions Judge. That order of conviction was challenged and that order was set aside by the learned Judicial Commissioner. In this context, certain observations have been made at pages 292 and 293 on which reliance has been placed by Mr. Mehta in support of his arguments. It has been observed at page 292 (of Cri LJ) = (at p. 38 of AIR):
'The goods were formally got seized as suspicious property by the Assistant Sub-Inspector, under Section 550, Cr. P.C. when we turned to Ext A/6, the notice to show cause issued by the Assistant Collector, Central Excise, to the petitioner, it will be seen that the goods were by the Sepoy Shri Bhattacharjee (P.W. 4). Thus it was Shri Bhattacharjee the sepoy, who caused the A.S.I. to seize the goods under Section 550 Cr. P.C., evidently because, the peon himself had no power of seizure under the provisions of the Sea Customs or Land Customs Acts. Section 550, Cr.P.C., gives the Police the power of seizure of any property which may be alleged or suspected to have been stolen, or which may be found under circumstances which create suspicion of the commission of any offence. Neither P.W. 6, the A.S.I. who seized the property nor P.W. 4, Bhattacharjee stated that the property was alleged or suspected to be stolen. Nor was there any evidence that any complaint connected with stealing or receiving such property had been made or that any enquiry connected with such stealing or receiving was in progress. Thus, this was a clear case where P.W. 4 Bhattacharjee caused the A.S.I. to seize the property on the ground that it was found under circumstances which created suspicion of the commission of an offence. This offence in this case can only be an offence under the Sea Customs Act, the Land Customs Act or the Imports and Exports (Control) Act.'
In para 17, it is observed:
'Again, when a Police Officer seized property under Section 550, Cr. P.C., it is his duty to report the matter forthwith to a Magistrate under Section 523, Cr. P.C. and the disposal of such property has to be in accordance with the order of the Magistrate. It is clear from the records in this case that the seizure of these articles was not reported to a Magistrate and no order of a Magistrate was obtained regarding their disposal Ext A/3 shows that the articles were handed over to the Customs Authorities on the orders of the Inspector General of Police. When the articles are seized by the police under Section 550, it is only a Magistrate who can pass orders regarding their disposal and the I.G.P. had no power to order their disposal. I am aware of the provision in Section 180 of the Sea Customs Act, which is as follows:
'180. Procedure in respect of things seized on suspicion - When any things liable to confiscation under this Act are seized by any Police Officer on suspicion that they have been stolen, he may carry them to any Police Station or Court at which a complaint connected with the stealing or receiving of such things has been made, or an enquiry connected with such stealing or receiving is in progress, and there detain such things until the dismissal of such complaint or the conclusion of such enquiry or of any trial thence resulting.
In every such case the Police Officer seizing the things shall send written notice of their seizure and detention to the nearest customs house; and immediately after the dismissal of the complaint or the conclusion of the enquiry or trial, he shall cause such things to be conveyed to, and deposited at, the nearest customs-house, to be there proceeded against according to law.'
It will be seen from a reading of the said section that it will not apply to a case of goods seized under Section 550, Cr. P.C. on suspicion of the commission of any offence, but only when any things liable to confiscation under the Sea Customs Act are seized by any Police Officer on suspicion that they have been stolen. I have pointed out that the articles were not seized on suspicion that they were stolen, but on suspicion of the commission of an offence under the Customs Law. In such a case, Section 180 of the Sea Customs Act will not apply and the articles can be disposed of only by the Magistrate to whom it is the duty of the Police Officer who seized them to report the seizure forthwith. In any case, when a Police Officer seized any articles under Section 550, Cr. P.C. he must report the seizure forthwith to a Magistrate and even if Section 180 of the Sea Customs Act applies to the case, he can only apply to the Magistrate to have the goods conveyed to the Customs Authorities. Section 180 of the Sea Customs Act directs a Police Officer to cause such things to be conveyed to the nearest Customs house and he can cause them to be so conveyed only by applying to the Magistrate for it, by bringing Section 180 of the Sea Customs Act to the notice of the Magistrate.'
It thus appears from the facts of that case that the seizure was undoubtedly made by a Police Officer in exercise of his power under Section 550 of the Code and that had got to be done, as Sepoy Bhattacharjee belonging to the Customs department, had no power to seize those articles and the Customs Officer who had such powers, was out of sation. The goods remained with the Police Officer for a long time. It was only on the receipt of instructions from the Inspector-General of Police that the goods came to be handed over to the Customs authorities and it was only thereafter they were formally seized by the Customs authorities. In the instant case, there is nothing in the panchnama to show that this Police Officer had seized these articles and the vehicle in exercise of his power under Section 550 of the Code. On the contrary, his conduct indicates to the contrary. He did not make his report to his superior officer. He did not make his report to the Magistrate, as contemplated by Sections 550 and 523 of the Code. He belonged to a Mobile Anti-Smuggling Squad. He received the information about transporting of such smuggled goods and stopped the truck and seized. He took that truck after seizure to the Customs-house. The customs officer, as said earlier, specifically mentioning that the seizure was being made under the Customs Act, seized this truck and the goods alleged to be smuggled.
15. Furthermore, in this very report, the learned Judicial Commissioner has observed in para 18, at pages 292 and 293 (of Cri LJ) = (at p. 39 of AIR):
'It is better that the Customs Authorities understand that they cannot make use of a Police Officer to seize articles under Section 550, Cr. P.C. on suspicion or commission of an offence under the Customs Law. The Customs Authorities have themselves been given vast powers of seizure under the Customs Law and it is their duty to have such seizure made by officers of Customs who have been empowered to do so. Police Officers can seize properties under Section 550, Cr.P.C. only in cases where they can investigate into the offence under the Cr. P.C. or under any other law. In the caes of offences under the Customs Law. Police Officers do not investigate, and Magistrates can take cognizance of such offence only on complaint by officers of Customs. Officers of Customs and officers of Police must themselves act within the law and cannot transgress it and cause harassment to the citizens. It is necessary that the irregularities committed by the Customs Authorities and the Police should be brought to their notice and for that purpose, I have made these observations.'
These observations may indicate that in the opinion of the learned Judicial Magistrate, Police Officer cannot make such seizure in cases where the offence suspected to be committed wasan offence punishable under the Sea Customs Act. He can exercise powers only if the offence suspected to be committed was an offence which he could investigate in exercise of his powers. It is not necessary for me to decide in this case whether that opinion of the Judicial Commissioner is correct or not. In my opinion, this decision cannot be pressed into service for supporting the argument advanced by Mr. Mehta. It is significant to note that in that decision. Sections 178 and 178-A of Sea Customs Act, 1878 which have got materla bearing, were not considered at all. Only Section 180 was considered.
16. Another decision on which reliance was placed by Mr. Mehta was a decision of a single Judge of Calcutta High Court in Thandulal Dhanuka v. State : AIR1964Cal490 , Amaresh Roy, J., after referring to the decision of the Supreme Court in Mohammad Serajuddin v. R. C. Misra, : 1983(13)ELT1370(SC) , quoted the following observations of the Supreme Court in that decision:
'After the warrant is issued, it is on order of the Magistrate enabling the Customs authorities to take action, for without warrant they cannot enter any house or premises. The warrant of the Magistrate, so to speak, opens the door for entry into a house or premises, and the authority to do so, is based upon the Magistrate's order. The forms prescribed under the Code require that articles seized as a result of the warrant should be brought into court and the Magistrate, who issues a search warrant, is entitled to see that his warrant is not abused, and has been properly executed. In a suitable case, of course, a Magistrate may amend the warrant dispensing with the production of the goods or documents before him. That, however, would be in a clear case only but if the Magistrate so desires, he need not amend the forms, and may keep the control of the goods or documents in himself. This he may find necessary to do, so that the warrant issued by him is not abused or made the instrument of harassment. A condition, therefore, in the warrant that the goods or documents should be produced before the Magistrate must be complied with, and once the goods or documents have been produced before the Magistrate, it is for him to decide, in the circumstances of each case whether he would make them over to the Customs authorities or not.' After referring to these observations, relevant observations made at pages 493 and 494 are:-
'It is clear, therefore, that while the view of Sen, J., (in : AIR1956Cal609 ) on the extent and nature of control of the Magistrate flowing from Section 172 was approved by the Supreme Court, the view of that learned Judge of Section 179 regarding the goods seized was not approved by the Supreme Court by holding that not only documents but also goods seized remain under the control of the Magistrate on whose search warrant they are seized. That is for the Magistrate to decide what goods or documents are not liable to confiscation under Section 168 of the Sea Customs Act either for the purpose of seizure or for the purpose of being given to the care of the Customs authorities has been expressed by their Lordships of the Supreme Court by saying at the end of paragraph 12 at page 763 of the Report:
'Where the Customs authorities have been somewhat indiscriminate in their seizure, the Magistrate may find it necessary to have the goods or documents scrutinised under his control so that goods or documents not really subject to the Sea Customs Act are not retained for an unduly long period.' That being the law stated by the Supreme Court, the learned Chief Presidency Magistrate, in the present case, was grossly in error in declining to exercise the power which he has under the law and in thinking that only authority to exercise such power was the Customs authorities. He is not right also about his own records when he says in the impugned order that Customs authorities have assumed control of the watches and money seized under Section 178 and 179 of the Sea Customs Act, because it was by his order only that the Customs Authorities have been allowed to hold the watches and money for specified period. It is also to be notied that in the search warrant that was issued by the learned Chief Presidency Magistrate on September 17, 1962, there was no amendment of the form made and that warrant required that the articles seized should be produced before the Magistrate. That an adjudication proceeding under Section 182 has been commenced does not take any difference nor bring about any deficiency in the powers of the learned Magistrate to decide what articles are really subject to Sea Customs Act, that are liable to be confiscated under S. 168, or what is a 'package' within the meaning of that section or what are the goods that are seized on the ground that they are liable to confiscation for the purpose of section 179 to be given to the care of the Customs authorities. For making decision on these points, the statement of the belief in the application under Section 172 that induced the learned Chief Presidency Magistrate to issue the search warrant and also the terms of the search warrant may be dependable guides for deciding what was seized on the ground that they are liable to confiscation. That is so, because without the authority of the search warrant of the Magistrate, the goods could not have been seized at all. If the particular articles were seized on the ground that they are liable to confiscation as those were in the same 'package' with goods for seizure of which search warrant was issued, then what is a 'package' within the menaing of Section 168 need also be decided by the Magistrate.'
It is significant to note that in that case, the goods were not seized by a Customs Officer in exercise of his power under Section 172 of the Sea Customs Act. The reason was that the goods were lying in a locker in a Bank. The Customs Officer had no legal authority to seize them. He, therefore, made an application to the Chief City Magistrate under Section 172 of the Sea Customs Act and it was on the strength of the search warrant obtained from the Magistrate that that locker was opened and those articles were found. Those articles had got to be produced before the Court. In that connection, these observations have been made and it was that Court which can decide finally, whether the 'locker' can be said to be a 'package' or not, within the meaning of Section 168 of the Sea Customs Act, and whether the goods were liable to be confiscated. That decision, therefore, does not help us in deciding the question, as in the present case, the Customs Officer had seized the goods in exercise of his power under Section 110 of the Act.
17. The Supreme Court decision, referred to in that Calcutta decision, is the caseof : 1983(13)ELT1370(SC) . The ratio of the Supreme court decision is:
'A Magistrate has jurisdiction the moment an application for warrant under Section 172, Sea Customs Act, is made before him, and proceedings on that application can be said to have started under the Criminal P.C. section 172 of the Sea Customs Act by its second paragraph brings into operation the provisions of the Criminal P.C., and therefore, the Magistrate's jurisdiction is both under Section 172 of the Sea Customs Act and the Criminal Procedure Code. There can be no doubt also that, unlike Section 96, Criminal Procedure Code, the Magistrate is to be guided by the belief of the Customs authorities, though he may prevent undue harassment in cases, where it can be said that the belief is not entertained by the Customs Officer or his action is mala fide. The Magistrate is entitled to satisfy himself about the belief of the Customs Officer, but is not required to make up his own mind independently of that belief. To this extent only is the matter in the control of the Magistrate, before he issues the warrant.
After the warrant is issued, it is an order of the Magistrate enabling the Customs authorities to take action, for without warrant, they cannot enter any house or premises. The warrant of the Magistrate so to speak, opens the door for entry into a house or premises, and the authority to do so is based upon the magistrate's order. The forms prescribed under the Code require that articles seized as a result of the warrant should be brought into Court, and a Magistrate who issues a search warrant is entitled to see that his warrant is not abused, and has been properly executed. In a suitable case, of course, a Magistrate may amend the warrant dispensing with the production of the goods or documents before him. That however, would be in a clear case only, but if the Magistrate so desires, he need not amend the form, and may keep the control of the goods or documents in himself. This he may find necessary to do, so that the warrant issued by him is not abused or made the instrument of harassment. A condition, therefore, in the warrant that the goods or documents should be produced before the Magistrate must be complied with, and once the goods or documents have been produced before the Magistrate, it is for him to decide, in the circumstances of each case, whether he should make them over to the Customs authorities or not.'
18. I will now refer to the definition of the words 'proper officer' given in Section 2(34) of the Act. It reads:-
' 'Proper Officer', in relation to any functions to be performed under this Act, means the Officer of customs who is assigned those functions by the Board or the Collector of Customs.'
19. 'Smuggling' has been defined to Section 2(39) of the Act. Chapter XIII of the Act deals with - 'Searches, seizure and arrest'. A few of those sections deal with searches of persons and powers to arrest. Section 105 of the Act deals with - 'Power to search premises'. Under this Act, now, in certain higher authorities of Customs Department have been given powers to search premises. They have not to go to the Magistrate for getting the search warrants as was the case in Sea Customs Act, 1878. The material part of that section 105 reads:-
'(1) If the Assistant Collector of Customs or in any area adjoining the land frontier or the coast of India an Officer of Customs specially empowered by name in this behalf by the Board, has reason to believe that any goods liable to confiscation, or any documents or things which in his opinion will be useful for or relevant to any proceeding under this Act, are secreted in any place, he may authorise any officer of customs to search or may himself search for such goods, documents or things........'
20. Section 106 of the Act deals with 'power to stop and search conveyances.' That power has been given to a proper officer.
21. Section 110 of the Act which is material for our purposes, reads:
'(1) If the proper officer has reason to believe that any goods are liable to confiscation under this Act, he may seize such goods: Provided that where it is not practicable to seize any such goods, the proper officer may serve on the owner of the goods an order that he shall not remove, part with, or otherwise deal with the goods except with the previous permission of such officer.'
A plain reading of this Section 110 of the Act indicates that the proper officer has got power to seize the goods, if he has reason to believe that any goods are liable to confiscation under this Act.
22. Section 111 of the Act, which falls in Chapter XIV deals with, 'confiscation of improperly imported goods, etc.' Section 112 of the Act deals with, 'penalty for improper importation of goods, etc.', and Section 113 of the Act deals with 'confiscation of goods attempted to be improperly exported goods, etc.' Section 115 of the Act deals with, 'confiscation of conveyances'. Sub-section (2) of it, which is material for our purposes, reads:-
'(2) Any conveyance or animal used as a means of transport in the smuggling of any goods or in the carriage of any smuggled goods shall be liable to confiscation, unless the owner of the conveyance or animal proves that it was so used without the knowledge or connivance of the owner himself, his agent, if any, and the person in charge of the conveyance or animal and that each of them had taken all such precaustions against such use as are for the time being specified in the rules.'
That section indicates that such a conveyance can also be confiscated if it is used as a means of transport in the smuggling of any goods or in the carriage of any smuggled goods. Section 110 of the Act does not indicate that such seizure can be made by a proper officer if the goods liable to confiscation under the Act are in the custody of the owner himeslf. There is general power vested in him to seize the goods wherever they may be if he has reason to believe that the goods are liable to confiscation under this Act. In the instant case, this power has been exercised by the Customs Officer and the goods had come to be seized on the very day. The goods were initially seized by the Police Officer. Admittedly when the application came to be made by the petitioner to the Magistrate under Section 523 of the Code, these goods were already seized by the Customs Authorities in exercise of power under Section 110 of the Act.
23. Before I advert to the relevant authorities relied upon by Mr. Chhaya, I will like to refer to Section 151 of the Act. The material part of it, for our purposes, reads:-
'The following officers are hereby empowered and required to assist officers of customs in the executionof this Act, namely:
(a) officers of the Central Excise Department;
(b) Officers of the Navy;
(c) Officers of Police..........'
The wording of that section indicates that the officers specified therein including officers of police, are empowered and required to assist officers of customs in the execution of this Act. It is, therefore, quite possible that the police officers in question in view of wrong understainding of this section, might have taken these goods in his possession under the panchnama, under a belief that as he is empowered to assist officers of customs in the execution of this Act, he is empowered to seize those articles and after the seizure, take them to the Customs house and the customs officer will seize them in exercise of hispower under section 110 of the Act. His conduct is consistent with that aspect of the case, as he had not made a report to his superior officer as required by Section 550 of the Code and has also not made a report to the Magistrate as required by Section 523 of the Code. Apart from his negative conduct, there is positive conduct of his customs officer and the customs officer seized those articles in exercise of his power under the panchnama.
24. Another important circumstance to be borne in mind is that though opium found was attached under this very panchnama, the opium was not handed over to the Customs officer. The Customs Officer neither seized it. Opium was sent to the Court. The reason was that the opium was attached as a prohibition offence was committed in that behalf by the driver of the truck in question.
25. In Vasantlal v. Union of India, AIR 1967 Bom 138, a Division Bench of the Bombay High Court, had to deal with a similar question. The facts in that case were:
'On 23rd July, 1964, the Assistant Enforcement Officer, Enforcement Directorate, obtained a search warrant from the Chief Presidency Magistrate, Bombay under Section 19 of the Foreign Exchange Regulation Act, authorising him to search shop NO. 157 situated at Mumbadevi Road, Bombay and seize incriminating documents, foreign exchange, instruments, account books, correspondence and passport, if any for the purpose of the enquiry into offence under Sections 4, 5 and 9 of the said Act. In pursuance of this warrant, the Assistant Enforcement Officer, respondent No. 3, accompained by some other officers of the Enforcement Branch, searched the said premises on the same day. No incriminating documents or other materials were found. One V.R. Patel, who is the appellant in appeal No. 2 of 1965, was then present in the shop. He was searched in the presence of panchas and four packets containing diamonds, believed to be foreign cut diamonds, were found on his person. They were, therefore, seized. There was a safe in the shop the key of which was with the proprietor who was not present then. The safe was, therefore, sealed. One of the enforcement officers then telephoned to a Customs Officer about the seizure of the diamonds. Two Customs Officers then went there, but as the panchnama had been already made and as the diamonds had been already taken charge of and also sealed, they did not themselves seize them. They, however, started holding investigation in regard to these diamonds.
All the packets of diamonds remained in the custody of the Enforcement Directorate till 4th September. On that date, two Customs Officers took charge of the diamonds from the Enforcement Directorate and seized them under Section 110 of the Customs Act. A receipt for the diamonds taken charge of was passed in favour of the Assistant Director of the Enforcement Directorate. It appears that, thereafter, in November, 1964, the three appellants as well as the proprietor of the shop Motiwalla were called by the Customs and in the presence of Motiwalla and the appellants in appeals Nos. 2 and 3 of 1965, the Customs Officers removed the seals placed on the packets by the Enforcement Directorate and re-sealed them by putting the seals of the Customs Department.
The appellants then applied to the Chief Presidency Magistrate for orders directing the officers of the Enforcement Directorate to return the diamonds to them. It was urged on behalf of the Enforcement Directorate that the diamonds had not been seized in pursuance of the search warrant issued by the Chief Presidency Magistrate but that they had been seized under Section 151 of the Customs Act, 1962 read with the notification issed by the Central Government on 23rd May, 1964, and that on 4th September they had been taken charge of by the Customs Authorities. This contention was accepted by the Chief Presidency Magistrate, who held that as the Customs Authorities had taken charge of the diamonds according to law, he could not order their return to the appellants.'
That order was challenged before the High Court by the persons affected by that order. It has been observed by the High Court.
'Section 151 of the Customs Act empowers the officers mentioned in the section to assist officers of the customs in the execution of this Act. The officers of the Enforcement Directorate acted under this section read with the notification issued by the Central Government on 23rd May, 1964, when they seized the diamonds claimed by the appellants on 23rd and 24th July, 1964. Mr. Sorabjee the leaned Counsel for the respondents has however, fairly conceded before us that he is unable to justify the seizure of the diamonds under the provisions of Section 151. No other provision of law has been pointed to us under which the diamonds could have been seized or taken charge of by the officers of the Enforcement Directorate. The seizure of the diamonds on 23rd and 24th July, 1964, therefore, apepars to have been without authority of law. The diamonds are now in the custody of the Customs Authorities. I will deal separately with the question whether they could lawfully have taken possession of these diamonds. Mr. Poonawalla has conended that as the appellants were deprived of their property without authority of law by the officers of the Enforcement Directorate they are entitled to orders directing respondents Nos. 2 and 3 to return the diamonds to them. The diamonds are, however, no longer in the custody of the Enforcement Directorate and we cannot give directions to respondents Nos. 2 and 3, which they are not in a position to comply with and which will consequently be infructuous.
The next question to be considered is whether the customs officers could have seized the diamonds on 4th September, 1964 as stated by them. The section under which they could have seized the diamonds is Section 110. Sub-section (1) of this section states that if the proper officers has reason to believe that any goods are liable to confiscation under this Act, he may seize such goods. Sub-section (2) of this section reads as follows:
'(2) Where any goods are seized under sub-section (1) and no notice in respect thereof is given under clause (a) of Secton 124 within six months of the seizure of the goods, the goods shall be returned to the person from whose possession they were seized.' Before any action can be taken under this section, it is, therefore, necessary that the proper officer should entertain belief that the goods are liable to confiscation under this Act.'
Same argument was advanced before a Division Bench of the Bombay High Court, relying upon the decision of the Supreme Court in Gianchand v. State of Punjab, AIR 1962 SC 496, on which the learned Judicial Magistrate has also relied upon. In that connection, the relevant observations made at page 141 are:
'The Supreme Court held that a seizure under the Act is one for which the authority to seize is conferred by the Act and as a seizure under Section 178, which corresponds to Section 110 of the new Customs Act, 1962. The Supreme Court further held that the transfer of the possession of the goods to the Customs Authorities by virtue of the provisions contained in Section 180 of the Sea Customs Act did not constitute a fresh seizure or seizure within the meaning of Section 178-A of the Act so as to shift the burden of proof on the appellants. Under Section 178-A the burden of proving that goods are not smuggled goods can be placed on a person only if the goods are seized from his possession. The burden will not shift if the goods are not seized from his possession. In Gian Chand's case, AIR 1962 SC 496, the Customs Authorities had not seized the goods from the possession of the appellants. The Supreme Court held that they could not, therefore, be called upon to prove that the goods were not smuggled goods. This decision of the Supeme Court must be read in the context of the facts of that case. It cannot be regarded as an authority for the proposition that if an officer not competent to do so, wrongfully seizes goods, they cannot subsequently be seized by an officer who is lawfully empowered to seize them. In this connection, Mr. Sorabjee has rightly pointed out that Section 110 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. If there is reasonable ground to believe that the goods are liable to confiscation, they can be seized from any person who has custody of them, even if he has obtained such custody unlawfully. We are, therefore, unable to accept Mr. Poonawalla's argument that the taking over of possession of the diamonds by proper customs officers on 4th September, 1964, from the officers of the Enforcement Directorate did not constitute seizure within the meaning of Section 119 of the Act.'
This decision lends support to the conclusion that I propose to arrive at. I rely upon that decision only for the purpose upon that decision only for the purpose that Customs Officer has power to seize the goods if he has reason to believe that those goods are liable to confiscation under the Customs Act, 1962, even though the goods might have been unlawfully seized by some other authorities, like a Police Officer.
26. The decision of the Supreme Court in : 1983(13)ELT1365(SC) , relied upon by the learned Judicial Magistrate, has in my opinion, no application. Their Lordships had to decide the question whether presumption under Section 178-A of the Sea Customs Act, could be raised or not, namely, that the goods were smuggled goods. If that presumption could be raised the onus was on the accused to show that the goods were not smuggled goods. In that connection, the following observations have been made:-
'Sections 178, 178-A and 180, which have to be read together, draw distinction between seizure under the Act and a seizure under provisions of other laws. A seizure under the Act is one for which the authority to seize is conferred by the Act and in the context it could be referred to, as a seizure under Section 178. The seizure from the owner of the property under Section 180 is not a seizure under the Act but by a police officer effecting the seizure under other provisions of the law, for instance the criminal P.C. The last part of sub-section (1) of Section 178-A lays the burden of proving that the goods are not smuggled on 'the person from whose possession the goods are taken'. When the goods are delivered to the Customs authorities by the Magistrate under Section 180 they are not taken from the possession of the persons accused in criminal case so as to throw the burden of proof on them and it would lead to an absurdity to hold that the section contemplated 'proof to the contrary' by the Magistrate under whose orders the delivery is effected. Hence, the possession obtained by the Customs department by goods being 'conveyed to and deposited at the nearest Custom house' within the last words of second paragraph of Section 180 are not goods which have been seized under the Act within the opening words of Section 178-A. And in such a circumstance the terms of Section 178-A which require a seizure under the Act are not satisfied and consequently that provision cannot be availed of to throw the burden of proving that the goods were not smuggled on the accused.
The expression 'seized' in the context in which it is used in the Act in Section 178-A means 'take possession of, contrary to the wishes of the owner of the property'. No doubt, in cases where a delivery is effected by an owner of the goodsin pursuance of a demand under legal right, whether oral or backed by a warrant,it will be a case of seizue but the idea that it is the unilateral act of the person seizing is the very essence of the concept.'
Their Lordships were called upon to decide the question whether the seizure was as contemplated by Section 178-A of the Act to enable the Court to raise a presumption that the goods were smuggled. It was only in relation to these facts of the case that the aforesaid observations were made. In that case, it has not been laid down that the Customs Officer has no power to seize such goods, if he has reason to believe that those goods are liable to confiscation if the goods are not in the custody of the owner and the goods have been seized by somebody lawfully and unlawfully in exercise of some powers under other provisions of the Act. The Division Bench of the Bombay High Court has in my opinion, rightly distinsuighed that Supreme Court decision and has rightly come to the conclusion that a Customs Officer has got power to seize such goods if he has reasons to believe that those goods are liable to confiscation, wherever those goods are
27. As said earlier, this is not the case where a Customs Officer is entitled to seize articles or goods, on the strength of the search warrant obtained from the Magistrate. Under the Act, they have been given power to seize these articles and these articles have been seized. In the instance case, we are no doubt, not concerned with the seizure of other smuggled goods. We are concerned with the seizure of the truck which has been alleged to have been used for transporting or carrying the smuggled goods. As such a seizure was made in exercise of the power vested under this Act in the Customs authorities and the vehicle was in custody of that authority when this application came to be given by the petitioner Raichand to the Judicial Magistrate had no authority or power to pass the impugned order. At any rate, it could be said on consideration of the propriety that the order is not proper. On both these grounds, this order requires to be set aside.
28. The reference is, therefore, accepted and the impugned order, dated 5th April, 1969 is set aside. The Judicial Magistrate, First Class, Umbergaon is directed to pass consequential orders in vew of the undertaking given by the petitioner in miscallaneous given by the petitioner in miscellaneous Criminal Application No. 111 of 1969 decided by this Court on 9th May, 1969.
29. Mr. Mehta, who appears for the petitioner, states at the Bar that his client will comply with the undertaking given by him. Orders accordingly.
30. Reference accepted.