Assistant Collector Of Customs Petitioner v. Shri Tilak Raj

Om Parkash, J.:— The facts, out of which this revision petition against an order of the learned Additional Sessions Judge, has arisen are as follows :—

The Customs Preventive Staff, New Delhi, had, on the 29th August, 1968 intercepted a car No. MHJ-1116, near Jamuna Bridge. Bal Kishan Khanna and other persons were travelling in that car. On the personal search of Bal Kishan Khanna, 13 bars of gold weighing 130 tolas with foreign markings were recovered. The Customs Preventive Staff believed that the 13 bars of gold had been imported into India without a permit as required under law and were liable to be confiscated and that the car was also liable to be confiscated. The Customs Preventive Staff, had therefore, taken the 13 bars of gold and the car into possession.

On the 4th September, 1968, Tilak Raj respondent, brother of Bal Kishan Khanna, made an application, in the Court of the Sub-Divisional Magistrate, praying that the car seized may be returned to him. The application was opposed on behalf of the Customs Preventive Department. It was pleaded that as the car was liable to be confiscated under section 115(2) of the Customs Act, only Customs Officers had jurisdiction to take proceedings with respect to the car and that as no criminal proceedings had been launched in the Court with respect of the smuggling of the 13 bars of gold, the Magistrate had no jurisdiction to return the car. That application was dismissed on the 10th September, 1968, on the ground of non-prosecution as Tilak Raj respondent had failed to put in appearance. On the 13th September, 1968, Tilak Raj, respondent made another application for the return of the car on spurdari. That application was opposed by the Customs Preventive Department on the same grounds on which the earlier application had been opposed. The learned Sub-Divisional Magistrate allowed the application of Tilak Raj respondent and returned the car to him on spurdari. He held that as the application was for the return of the car on spurdari only, it did not debar the Customs Preventive Department to confiscate the car under the law.

The Assistant Collector Customs went up in revision to the Court of Session against the order of the Sub-Divisional Magistrate. The revision petition was heard and disposed of by the learned Additional Sessions Judge. The learned Additional Sessions Judge held that the order of the Sub-Divisional Magistrate could not be sustained either under section 516(A) or under section 517, Criminal Procedure Code, but could be sustained under section 523 of the code. He, therefore, dismissed the revision petition.

The Assistant Collector Customs has come up in revision to this Court.

The finding of the learned Additional Sessions Judge that the car could not have been returned either under section 516(A) or under section 517, Criminal Procedure Code, has not been challenged before me. The only point canvassed was whether the Magistrate had jurisdiction under section 523, Criminal Procedure Code, to order the return of the car on spurdari. Section 523 aforesaid 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 fit 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.

(2) If the person so entitled is known, the Magistrate may order the property to be delivered to him on such conditions (if any) as the Magistrate thinks fit. If such person is unknown, the Magistrate may detain it and shall, in such case, issue a proclamation specifying the articles of which such property consists, and requiring any person who may have a claim thereto, to appear before him and establish his claim within six months from the date of such proclamation.”

The contention, on behalf of the petitioner, was that the Sub-Division Magistrate had no jurisdiction to order the return of the car on spurdari to Tilak Raj respondent under the provisions of section 523, Criminal Procedure Code. The argument was that the Customs Officers were not police Officers within the meaning of that section and the provisions of that section were, therefore, not applicable to the property seized by the Customs Officers under section 110 and 115 of the Customs Act. The contention raised on behalf of the petitioner, appears to have force. The expression “police officer” used in section 523, Criminal Procedure Code, is to be construed strictly and is to include only police officers properly so called. The expression is not to be construed liberally so as to include officers of other departments on whom certain powers of a police officer may have been conferred for certain purposes. In Badaku Joti Svant v. State Of Mysore,(1) the expression “police officer” used in clause (b) of section 190, Criminal Procedure Code, was interpreted to mean, on the scheme of that Code, only a police officer properly so called. The ratio of the decision applies to interpretation of the expression “Police officer” used in section 523, Criminal Procedure Code. That expression will mean only a police officer properly so called. The expression will not include Customs Officers though the latter have been invested with some powers of a police officer.

A Customs Officer will not come within ambit of the expression “police officer” as used in section 523, Criminal Procedure Code, even if the expression be interpreted in a broad way so as to include officers other than police officers properly so called. The powers which the police officers enjoy are powers for the effective prevention and detection of crime in order to maintain law and order. The powers of Customs Officers are really not for such purpose. Their powers are for the purpose of checking the smuggling of goods and the due realization of Customs duties and to determine the action to be taken in the interests of the revenues of the country by way of confiscation of goods on which no duty had been paid and by imposing penalties and fines, vide The State Of Punjab v. Barkat Ram (2). It was held by their Lordship, that a Customs Officer was not a police officer within the meaning of section 25, Evidence Act. The reasons, given by their Lordships, for holding that a Customs Officer was not a police officer under section 25, Evidence Act, will apply with equal force to the present case. In A.I.R 1966 Supreme Court 1746 Supra, the question was whether the Central Excise Officer under the Central Excise and Salt Act was a police officer within the meaning of that expression in section 25, Evidence Act. Their Lordships held that a Central Excise Officer was not a police officer, as he had no power to submit a charge-sheet under section 173, Criminal Procedure Code, though he was empowered to arrest a person and to enquire the charge against him and for that purpose to exercise the same powers as the officer incharge of a Police station may exercise. The ratio of the decision fully applies to the present case. A Customs Officer cannot be regarded as a police officer within the meaning of that expression in section 523, Criminal Procedure Code, as he has no power under the Customs Act to submit a charge-sheet under section 173 of the Code, though he is invested with the powers of a police officer regarding arrest and search.

The question whether a Customs Officer can be considered as a police officer within the meaning of section 25, Evidence Act, was again considered by their Lordships of the Supreme Court in Criminal Appeal No. 27 of 1967 and other connected appeals. Their Lordships reviewed their previous decisions and came to the conclusion that a Customs Officer was not a police officer within the meaning of that section as he has no power to submit a report under section 173, Criminal Procedure Code.

It follows that a Customs Officer, under the Customs Act, is not a police officer within the meaning of that expression as used in section 523, Criminal Procedure Code, whether that expression is construed strictly or liberally and the provisions of that section are not applicable to the property seized by a Customs Officer under the Customs Act, at least before criminal proceedings are launched with respect to the property seized. In the present case, admittedly criminal proceedings have not been launched. The Sub-Divisional Magistrate had, therefore, no jurisdiction to order the return of the car seized under the provisions of the customs act to Tilak Raj relied upon by the respondent. The order is liable to be set aside.

The case Deputy Superintendent Customs v. Sita Ram,(3) learned counsel for Tilak Raj respondent, is not at all applicable to the facts of the present case. In the Calcutta case, the property had been seized by the police and not by the Customs Preventive Staff. The police had put up a challan in the Court. The Customs authorities wanted to seize the property but as the goods concerned were in the custody of the Court, they wanted the order of the Court to seize the goods. As the goods had been seized by the police and a challan had been put up in Court, the Court had jurisdiction to make appropriate orders with respect to the property in that case. In the present case, the goods had been seized by the Customs Preventive Staff and not by the police. No criminal proceedings have as yet been started with respect to the smuggling of goods.

The matter can be looked at from another angle, so far as the jurisdiction of the Magistrate to make an order for the disposal of the property seized by the Customs Officer under the provisions of the customs act, is concerned. Sub-section (1) of section 104 of the Customs Act empowers certain Customs Officers to arrest a person under certain circumstances. sub-section (2) of that section provides that every person arrested under sub-section (1) shall without unnecessary delay be taken to a Magistrate. But there is no such obligation on a Customs Officer to produce the property, seized by him, under the provisions of the customs act, before a Magistrate. The Customs Act provides procedure for the confiscation of the property seized by Customs Officers. Section 122 of the Act lays down the powers of various Customs Officers to make adjudication about confiscation and penalties. Section 124 provides that a show cause notice should issue to the owner of the goods seized and that he shall be given an opportunity of making a representation in writing within a reasonable time as may be specified in the notice. Section 125 authorises a Customs Officer who adjudges confiscation under the Act to give to the owner of the goods an option to pay in lieu of confiscation such fine as the said officer thinks fit. Section 110(2) provides that where any goods are seized under sub-section (1) and no notice in respect thereof is given under clause (a) of section 124 within six months of the seizure of the goods, the goods shall be returned to the person from whose possession they were seized. The cummulative effect of the above provisions appears to be that a Magistrate has no jurisdiction to make orders with respect to goods seized by the Customs Officers and liable to confiscation under the provisions of the customs act, at least before the launching of the criminal proceedings.

The question whether after the launching of criminal proceedings, the Magistrate has jurisdiction to make orders with respect to the disposal of goods, seized and liable to confiscation under the provisions of the customs act, does not arise in this case and no opinion is expressed on this question.

The learned cousel for Tilak Raj respondent had submitted that this Court may, in exercise of its inherent powers under section 561A, Criminal Procedure Code, order the return of the car on spurdari to Tilak Raj respondent as the car was deteriorating. The extraordinary inherent powers of the Court are to be exercised sparingly and in exceptional cases only. The present case is not such an exceptional case.

The result is that the revision petition is allowed. The order of the Sub-Divisional Magistrate is set aside.

ANK Revision allowed.