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V. Govindaswami Vs. the Collector of Central Excise - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai High Court
Decided On
Judge
Reported in1973CriLJ293
AppellantV. Govindaswami
RespondentThe Collector of Central Excise
Cases ReferredIn Sircar v. Lakshmi Narayan
Excerpt:
- .....goods, documents and other things. sections 111 to 121 confer upon them powers to confiscate the goods seized under section 110 of the act. once goods or documents are seized under section 110(2) the collector has powers to retain the goods and documents for a period of six months, but this period is capable of being further extended by him. thus, when a collector of customs seizes and retains any goods he does so in exercise of a statutory authority conferred on him by the act. the proceedings before him are not criminal in nature. it has been so held in thomas dana v. state of punjab : 1959crilj392 and maqbool hussain v. state of bombay : 1983ecr1598d(sc) . the court can take cognizance of the offence under the customs act when a complaint is actually filed before it by the officers.....
Judgment:
ORDER

Somasundaram, J.

1. The petitioner's car MDO 6861 was seized by the Central Excise Department at Madras on the 22nd of February, 1971 Diamonds : Jewellery and Ornaments Worth Rs. 1,46,888/- were found in this car. The Collector of Central Excise has issued a show cause notice to the petitioner asking him to state as to why the car should not be confiscated Adjudication proceedings are now pending before him. The petitioner applied to the Collector of Central Excise for the return of the car. The latter did not pass any orders on his application. With these allegations the petitioner has filed this application requesting this Court to direct the Collector of Central Excise to release the car to him. The Collector in his counter contends that adjudication proceedings are now pending before him, that no criminal proceedings as such have commenced, that the matter is not before any criminal Court and that as such the petitioner cannot invoke Section 561-A of the Criminal Procedure Code for the issue of any directions for the release of the car as prayed for by him.

2. Section 533 Cr.P.C. does not apply because this is not a case of seizure by a police officer. The Customs Act is a self-contained code containing provisions regarding the search, seizure, confiscation, etc. Section 106 of the Customs Act empowers the Officers to stop and search conveyances used for smuggling of goods. Section 115 enables them to confiscate such conveyances. Section 110 relates to the seizure of goods, documents and other things. Sections 111 to 121 confer upon them powers to confiscate the goods seized under Section 110 of the Act. Once goods or documents are seized under Section 110(2) the Collector has powers to retain the goods and documents for a period of six months, but this period is capable of being further extended by him. Thus, when a Collector of Customs seizes and retains any goods he does so in exercise of a statutory authority conferred on him by the Act. The proceedings before him are not criminal in nature. It has been so held in Thomas Dana v. State of Punjab : 1959CriLJ392 and Maqbool Hussain v. State of Bombay : 1983ECR1598D(SC) . The Court can take cognizance of the offence under the Customs Act when a complaint is actually filed before it by the officers with the previous sanction of the Collector under Section 137 of the Customs Act. If there is no criminal proceeding this Section 561-A, Cr.P.C. could not be invoked.

3. Further, when a statutory authority is exercising his powers conferred on him by the statute Section 561-A Cr.P.C. cannot be invoked so as to prevent him from exercising those powers. In State of West Bengal v. Basak : [1963]2SCR52 the High Court of Calcutta quashed the investigation started against Basak for offences under Sections 420 and 120-B of the Indian Penal Code On the date when he moved the High Court the police had merely filed a written report in the Court. Investigation had started. Observing that there was no case pending against Basak at that time excepting that he had appeared before the Court and was admitted to bail, their Lordships of the Supreme Court held that Section 561-A Cr.P.C. could not be invoked to prevent a statutory authority exercising powers conferred upon him under the statute. Their Lordships observe as below:

Section 156 confers powers upon the police officers to investigate offences. They have a statutory right to investigate into the circumstances of any alleged cognisable offence without authority from a Magistrate, and this statutory power of the police to investigate cannot be interfered with by the exercise of powers under Section 439 or under the inherent powers of the Court under Section 561-A of the Criminal Procedure Code.

Their Lordships of the Privy Council have also held to the very same effect in Emperor v Nazir Ahmed in the following words:

The functions of the judiciary and the police are complementary, not overlapping and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always of course, subject to the right of the Court to intervene in an appropriate case, when moved under Section 491 of the Criminal Procedure Code, to give directions in the nature of habeas corpus. The Court's functions begin when a charge is preferred before it and not until then, and therefore the High Court can interfere under Section 561-A only when a charge has been preferred and not before.

See also S.N. Sharma v. Bipen Kumar Tiwari : 1970CriLJ764 .

4. In Assistant Collector of Customs v. Tilak Rai : AIR1969Delhi301 a car containing smuggled gold was seized by the Customs Preventive staff. Criminal Proceedings were not launched before the Court. The Petitioner moved the Court for the return of the car under Section 523 Cr.P.C It was held that the Magistrate had no jurisdiction to return the car under Section 523. They observe that the customs officer is not a police officer, within the ambit of Section 523. The officials of the other departments on whom certain powers of seizure have been conferred cannot come within that purview. The cumulative effect of all the various provisions of the Customs Act shows that a Magistrate has no jurisdiction to make orders in respect to goods seized by the Customs Officer and liable to confiscation at least before the launching of the Criminal Prosecution.

In Sircar v. Lakshmi Narayan : 1965CriLJ100 certain articles were seized under Section 19 of the Foreign Exchange Regulation Act. It was held that : The Magistrate cannot exercise his powers under the Criminal Procedure Code in connection with the properties seized under Sub-section (3) of Section 19 of the Act. He has a right to retain the articles seized. What course is to be adopted by the person aggrieved when the Enforcement Officer contravenes the provisions of Section 19A is a different matter. The director can justifiably retain the documents seized till the final disposal of the proceedings taken by him. The High Court cannot order return of the property to the party.

5. Thus the car in question was seized by the Central Excise staff by virtue of the powers conferred on them under Section 106 of the Customs Act. Under Section 115 of the said Act the Collector has powers to confiscate the car if it is established that it was used for smuggling. When a statutory authority is exercising his powers conferred on him by the statute, Section 561-A of the Criminal Procedure Code could not be invoked so as to prevent him from exercising such powers. Adjudication proceedings are now pending before the Collector. These proceedings are not criminal in nature. The Collector has not filed any complaint in Court and no proceeding is now pending before any such Court. The cumulative effect of the provisions of the Customs Act shows that a Magistrate has no jurisdiction to make orders with respect to goods seized by the Customs Officers and liable to confiscation at least before the launching of the criminal prosecution in the Court by them. The Collector of Central Excise therefore cannot be directed to release the car to the petitioner as prayed for by him.

6. The petition fails and the same is dismissed.


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