T.P. Mukherji, J.
1. These two matters were heard together as the same question of law is involved in both of them. In the case out of which arises Criminal Revision Case No. 987 of 1965 certain categories of goods including mostly ball bearing and steel files of foreign origin, which were believed to be smuggled property, were seized by the police from the custody of opposite party No. 1. In the case out of which Criminal Revision Case No. 988 of 1965 has arisen the police seized a lorry loaded with bundles of cinnamon and cloves of foreign origin from the custody of opposite parties Nos. 1, 2 and 3. The opposite party No. 1 was the driver of the lorry and opposite party No. 5 in that case was the owner thereof. The seizure in both the cases were made by the police under Sections 54 Cr. P. C./411 I. P. C. While the case was pending for investigation by the police the Customs authorities made an application to the Chief Presidency Magistrate praying for a direction on the Invetigating Officers concerned to hand over the seized goods to them at the conclusion of the investigation or trial to facilitate proceedings under the Customs law against the offenders concerned. This petition was ordered to be put up at the conclusion of the police investigation.
2. The police ultimately submitted final reports in both the cases and the learned Chief Presidency Magistrate then heard parties on the prayer of the Customs Authorities that the goods seized may be handed over to them. The learned Magistrate came to the finding that it would not be proper for the Court to pass any order in favour of the Customs Authorities as prayed for and the proper order would be to return the goods to the accused and the Customs Authorities may, if necessary, thereafter make their own independent seizure obviously from the person who takes delivery of the goods, without further reference to the Court. It is the propriety of the order passed in both the cases to the above effect which is the subject matter of the present Rules.
3. Mr. Banerjee, appearing in support of the Rules, draws my attention to the provisions of Section 180 of the old Sea Customs Act whereunder the police was under a statutory obligation to inform the nearest Customs House about the seizure of contraband goods and also to convey the same and deposit It at the nearest Customs House after the dismissal of the complaint or the conclusion of the enquiry or trial arising out of that seizure. It is argued that the Customs Act of 1862 contains no provision analogous to the above provision in the old Sea Customs Act and that the new provision made in Sections 110 and 151 of the Customs Act fall short of the situation that prevailed under the old Sea Customs Act. Under the new Act according to Mr. Banerjee, an order of the Court under Section 516A or 517 or 523 in favour of the Customs Authorities is required to be passed for the purpose of giving effect to the provision of the Customs Act.
4. Section 110 of the Customs Act gives the Customs Authorities a very wide power of seizure of goods, documents and things. Section 151 of the Customs Act imposes a statutory duty amongst others on officers of police to assist the Customs Authorities in the execution of this Act.
5. The learned Chief Presidency Magistrate has stated in his order passed in the case out of which has arisen Criminal Revision in the case No. 987 of 1965 that in order to pass an order under Section 523 Cr. P. C. in favour of the Customs Authorities, the Court will have to be satisfied about the propriety or sufficiency of the belief of the Customs Authorities that the goods concerned are contraband and that even if the Customs Department were prepared to submit to the jurisdiction of the Court in that regard, the Court should not prematurely convert itself in a forum for adjudicating the point as to whether the goods concerned are liable to seizure and confiscation under the Customs Act. According to the learned Chief Presidency Magistrate, further to direct delivery of the Moods to the Customs Authorities on the basis of their belief as above would be to surrender his discretion to the opinion of the Customs Authorities and that is a position which he was not prepared to accept.
6. In my view, the position need not be looked at from that angle at all. Here the Customs Authorities under Section 110 of the Customs Act have the unfettered power of seizure of the goods. By virtue of that power they went to make the seizure but as the goods concerned are in the custody of the Court they cannot or they do not want to seize the same without the Court's order. All that the Court need see if it wants to make an order in favour of the Customs Authorities is whether the power that they want to exercise is vested in them by law and if it is so vested, the Court need not enter into the question of the merits of the materials which may provide the basis for the belief that the goods concerned are contraband. That is a matter which the Customs Authorities would have to prove by evidence in the proceeding that they would have to start if they want to make an order of confiscation. There is also no question of surrendering the Court's discretion to the opinion of the Customs Authorities because all that the Court has to see in the matter of disposal of property under Section 523 Cr. P. C. is that the order that is passed is an appropriate order in the facts and circumstances of the case. If the Customs Authorities have the power of seizure and if they want to exercise that power and if it is in the power of the Court to grant that prayer for the purpose of giving effect to the purpose of the Act, there is no reason why an order in their favour should not be an appropriate order. There are practical difficulties in the matter of refusing to act up to the prayer which is made in the exercise of powers granted to the Customs Authorities under the Act, as the orders passed in these cases clearly show. Under the Magistrate's order the Investigating Officers are required to make over the goods concerned to the persons from whom these were seized. Under the Customs Act itself, the Customs Authorities would have the power given to them in Section 110 to seize the goods from the custody of the police and there may be a conflict between the Customs Authorities eager to exercise their powers and the police authorities anxious to carry out the orders of the Court. Then again if under the orders of the learned Chief Presidency Magistrate the Customs people have to make the seizure from the parties concerned after they have got back their goods from the police, it may as well be that they will never come to get black their goods and to face the consequences thereof and that again would frustrate the purposes of the Act.
7. As I have already stated, under Section 523 Cr. P. C. all that the learned Magistrate has to see is that an appropriate order in the facts and circumstances is made. Here there is a case where in view of the final reports submitted by the police the properties seized should normally be made over to the person from whom those were seized. Before that order is passed by the Court the Customs Authorities intervene and make the prayer permitting them to seize the goods under Section 110 of the Customs Act. The Magistrate, on being satisfied prima facie that Section 110 of the Customs Act would be attracted to the case, may very well direct the seized goods to be made over to the Customs Authorities for being dealt with by them in accordance with law. That would avoid a conflict between the Customs Authorities and the police and also a conflict between an order of the Magistrate and the statutory powers of the Customs Authorities under the Customs Act. In view of the above, I find that the learned Magistrate was not correct in rejecting the prayer of the Customs Authorities in the two cases.
8. There is a lorry seized in the case out of which Criminal Revision Case No. 988 of 1965 has arisen. It may or may not be liable to confiscation under Section 115 of the Customs Act The Customs Authorities will have to initiate a proceeding if they want to confiscate the lorry. There is no reason why pending disposal of the proceeding the lorry should be detained. It may be returned to the registered owner on a bond and on terms.
9. The two Rules are accordingly made absolute. The orders passed by the learned Chief Presidency Magistrate are set aside. The cases are sent back to the learned Magistrate for the purpose of dealing with the petition of the Customs Authorities in accordance with law and in the light of my observation above. So far as the lorry seized is concerned it should be made over to the registered owner thereof on a bond for an amount to be fixed bv the learned Chief Presidency Magistrate and on an undertaking being furnished by the registered owner to the Chief Presidency Magistrate that the lorry will never again be used for any illegal purpose.
10. Let the records be sent down as expeditiously as possible.