Bhat, J.:— Petitioners in these cases are Keratites working in west Asia. They returned to Kerala on short leave and arrived at Trivandrum Air Port on different dates. It is reported that substantial quantities of primary gold were seized from them by the Customs Authorities under Section 110 of the Customs Act, 1962 (for short ‘the Act’) and they were duly arrested and produced before the Additional Chief Judicial Magistrate (Economic Offences), Ernakulam and were remanded initially but were released on bail subsequently. Their passports and return air tickets were seized as documents which in the opinion of the Customs Authorities will be “useful or relevant to proceedings under the Act.” Petitioners filed separate petitions before the Court of Additional Chief Judicial Magistrate (E.O), Ernakulam requesting the court to direct the Customs Authorities to release the passports and return air tickets. Petitions were dismissed on the ground that the Magistrate had no Jurisdiction to issue such direction. Petitioners have filed these petitions under Section 482 of the Code of Criminal Procedure (for short ‘the Code’) seeking direction to the Customs Authorities to return the passports and the return air tickets.
2. In Crl. M.C Nos. 386/1989 and 393/1989 interim orders have been passed to release the passports and air tickets of the petitioners on execution of bond for Rs. 50,000/- with two solvent sureties for the like sum to the satisfaction of the Collector of Customs, Cochin with the condition that the petitioners shall return to India within five weeks from the date of release of the passport and report before the Collector of Central Excise and Customs. The learned single Judge before whom these cases came up for consideration adjourned the cases to be heard by a Division Bench in view of the importance of the questions involved.
3. According to learned counsel for the petitioners the Magistrate has jurisdiction to direct release of the passport and he failed to exercise the jurisdiction vested in him, and this court, in exercise of its inherent power should issue such direction. Learned counsel submitted that petitioners are employed abroad and they cams to India on short leave and unless they appear before their employers within a reasonable time they will lose their jobs. Learned counsel further submitted that adjudication proceedings under the Act can proceed in their absence as they are represented by counsel and complained that Customs Authorities are dragging on the matter and have refrained from filing complaints before the competent court against the petitioners for offences under the Act and this is an attempt to harass the petitioners. These averments are denied by learned Central Government Standing Counsel appearing for the respondent.
4. The seizures and arrests have been made under the provisions of the Act which has been enacted to preserve and protect the economic safety and well-being of the country by preventing illegal import, illegal export and illegal possession of notified goods and to ensure collection of customs duty.
5. Section 100 confers on proper officer power to search any person if he has reason to believe that the person has secreted about his person, any goods liable to confiscation or any documents relating thereto. The categories of persons who could be so searched are enumerated in sub-section (2) Power to search suspected persons in certain other cases is conferred by Section 101. Power to screen and X-ray bodies of suspected persons for detecting secreted goods is dealt with in Section 103. By virtue of Section 104, if any duly empowered customs officer has reason to believe that person in India or within the Indian Customs waters has been guilty of an offence punishable under Section 135, be may arrest such person and shall as soon as maybe, inform him of the grounds of such arrest and every person so arrested shall be taken to a Magistrate without unnecessary delay. The Customs Officer has power to release such persons on bail. But an offence under the Act is not cognizable. Section 105 deals with power to search premises. Section 106 deals with power to stop and search conveyance. Section 106-A deals with power to inspect. Power to examine persons is dealt with by Section 107. Section 108 confers upon any gazetted officer of customs power to summon any person to give evidence and produce documents.
6. Section 110 states that if the proper officer has reason to believe that any goods are liable to confiscation under the Act, he may seize such goods. In respect of the goods so seized where no notice is given under Section 124 clause (a) within six months of the seizure of the goods, the goods shall be returned to the person from whose possession they were seized. The proper officer may also seize any documents or things which in his opinion, “will be useful or relevant to” any proceeding under the Act.
7. Chapter XIV deals with confiscation of goods and conveyances and imposition of penalty by means of adjudication proceedings which are required to commence with show cause notice under Section 124. Adjudication of confiscation and penalties are dealt with in Section 122. Chapter XIV deals with provisions for appeals and further appeals, against the order on adjudication.
8. Chapter XVI of the Act deals with offences and prosecution. Evasion of duty or prohibition is rendered punishable by Section 135. The conspectus of the various provisions of the Act make it clear that the Act is almost a complete Code in itself
9. According to the Customs Authorities, petitioners had in their custody primary gold whose import is prohibited otherwise than as permitted by law, when they arrived at Trivandrum Airport from West Asia and, therefore, such gold is liable to confiscation in adjudication proceedings and they have incurred the liability to penalty and also prosecution. Prosecution has to be launched on complaint by the appropriate officer in the Customs Department.
10. While seizing primary gold the proper officer also seized passports and return air tickets of the petitioners. The proper officer seized primary gold having reason to believe that the goods are liable to confiscation. The proper officer seized passports and return air tickets on the ground that they will be useful for or relevant to adjudication proceedings under the Act. The seizures were made with justification. Any doubt as to whether passport is a “document” for the purpose of Section 110 has been set at rest by the decision in Devadasan Dayalal v. Collector of Customs (1986 KLT 884) which has been approved by a Division Bench of this court in Writ Appeal No. 542 of 1989.
11. The contention that passport is not useful for or relevant to any proceeding under the Act does not appeal to us. Adjudication proceedings have been commenced with show cause notices The arrival of the petitioners from towns in West Asia by Air flights at Trivandrum Air Port on different dates is a matter relevant to adjudication proceedings. So also the contents of the passports This applies also to the return air tickets. Petitioners have no case that they want to cancel the return air tickets. These documents are useful for adjudication proceedings under Section 110(3) of the Act and the seizure of the same is valid.
12. A customs officer acting under the provisions of the Act is not a police officer or an officer in charge of a police station for the purpose of the Code. This is well established by the decisions of the Supreme Court in State of Punjab v. Barkat Ram (AIR 1962 SC 276) and Badaku Joti Svant v. State Of Mysore (AIR 1966 S.C 1746). See also Superintendent of, Customs v. Ummerkutty (1984 K.L.T 1). A customs officer therefore, cannot initiate action under Section 190(1)(b) of the Code. He cannot send “a police report of such facts” to the court. However, he is entitled to submit “a complaint of facts which constitute an offence” contemplated in Section 190(1)(a) of the Code. An officer acting under the Act has power to arrest without a warrant though he is bound without unnecessary delay to take the arrested person to a magistrate. He himself has power to release an arrested person on bail or otherwise. The magistrate before whom such a person arrested is produced can grant bail or remand him to custody though the Act itself is silent in this regard. One of us (Bhat, J.) in Superintendent of Customs v. Ummerkufty (1984 K.L.T 1) held that Section 437 of the Code is the respository of magisterial power to grant bail in such cases and power of granting bail necessarily implies that the magistrate can refuse to release such person on bail and remand him to custody.
13. The Code does not vest in any magistrate power to issue direction regarding release of goods or documents except by virtue of the provisions in Chapter XXXIV of the Code dealing with disposal of property. Section 451 deals with property produced before any criminal court during any inquiry or trial. Section 452 deals with order for disposal of property at the conclusion of trial. In the present case customs authorities have not preferred a complaint under Section 190(1)(a) of the Code, by means of which alone a criminal proceeding can be said to be initiated. Mere production of the arrested person before the magistrate does not result in initiation of criminal proceeding. The only other relevant provision is the one contained in Section 457 of the Code. According to Section 457 whenever seizure of property by any police officer is reported to a magistrate under the Code and such property is not produced before court during an inquiry or trial, the magistrate may 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. In these cases seizure of the gold and documents was not by any police officer; nor was the seizure reported to a magistrate under the provisions of the Code. The seizure was made by a customs officer acting under Section 110 of the Act and neither the provisions of the Act nor the provisions of the Code require such customs officer to report the seizure to a magistrate at any stage preceding the complaint. Hence magistrate has power to pass an order regarding custody or disposal of the property only after a complaint is preferred under Section 190(1)(a) of the Code by the Customs Officer and not at any antecedent stage. We are fortified in this view by several decisions of various High Courts. See Asst. Collector of Customs v. Tilak Rajshiv Dayal (A.I.R 1969 Del. 301). In re Mohanlal (1973) 87 I.T.R 253 Mad.). Susantha Kumar Adhikari v. State of west Bengal (1983 Crl. L.J 772 (Cal.). Sarat Kumar Malu v. State of Orissa (1984 Crl. L.J 984) (Ori.). The same principle is inherent in the decisions of this court in Bavajee v. State of Kerala (1966 K.L.T 977). Sukumar v. Enforcement Officer (1968 K.L.T 944) and Enforcement Officer v. S.I of Police (1971 K.L.T Sh. N. 8). Our attention is invited to the decision of a learned single judge of this court in Choyi v. Abdulla Bafakki Thangal (1972 K.L.T 1076), but the case is clearly distinguishable on facts.
14. A magistrate can have power to pass an order regarding disposal or custody of property only if the property is with a police officer or is produced in court or if the seizure is reported to the court. This is the principle which can be distitled from Sections 451, 452 and 457 of the Code. For the above reasons we hold that in these cases the magistrate has no power to direct customs authorities to return passports or return air tickets.
15. Alternatively it is contended by learned counsel for the petitioners that the High Court in exercise of its inherent power should direct the customs authorities to return the passports and return air tickets to the petitioners. Section 482 does not confer any new power on the court. It only recognizes the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under the Code or to prevent abuse of process of any court or otherwise to secure the ends of justice. In other words, inherent power of the High Court is geared to proceedings pending before or disposed of by criminal courts. Inherent power cannot ordinarily be exercised in relation to the conduct of an authority not functioning under the Code or to proceedings which are not criminal proceedings in court. As observed by the Privy Council in Emperor v. Nasir Ahmad (AIR 1945 PC 18) “the court's functions begin when a charge is preferred before it and not until then”. This observation has been quoted with approval by the Supreme Court State Of West Bengal v. S.N Basak. (AIR 1963 S.C 447). Of course in regard to disposal of property in accordance with Section 457 of the Code, criminal court may have jurisdiction even at an antecedent stage, subject to the provisions contained therein. The magistrate who dismissed the petitions seeking issue of direction to the customs authorities was justified in doing so since he has no power to issue such direction. In such a case it is not for the High Court in exercise of inherent power to issue a direction of the nature sought, particularly when the direction sought is not to a criminal court but to a customs officer functioning under the provisions of the Act. Customs Officer is not a criminal court by any stretch of imagination. Govinda Menon, J. dealt with an analogous situation in P.M Mukundan v. The State (I.L.R) 1960 Ker. 1137). In that case Police Superintendent directed the petitioner to appear before him in connection with some inquiry into the allegations made against him. Petition was filed before the High Court invoking its inherent power under Section 561-A of the old Code. The learned judge observed:
“A reading of Section 561-A would show that Section 561-A comes into operation when the order impugned is passed by a court acting judicially. If the order in question is one passed by an executive officer of a State in his administrative capacity, Section 561-A according to me will have no application.”
16. With respect we agree with the above view. We notice a similar view, has been taken by other High Courts. See Sandal Singh v. Dist. Magistrate & Superintendent Dehra Dun (AIR 1934 All. 148), Emperor v. Jharihag…Opposite Party. (AIR 1939 All. 541), Kula Chandra Dutt v. Emperor (AIR 1946 Patna 191), Ahmad Din v. Rijha Singh (AIR 1950 All. 652) and Habib Ahmed Rizvi v. The Crown (AIR 1950 Nagapur 161). Hence inherent power of the High Court cannot be invoked in this case. In answer to the statement of the learned counsel for the petitioners that the adjudication proceedings are delayed indefinitely and the initiation of criminal prosecution is being postponed indefinitely, learned Central Government Standing Counsel submitted that if the petitioners appear in person or through counsel in the adjudication proceedings, the proceedings can be expedited and immediately on the termination of such proceedings, criminal complaint will be lodged Once the criminal complaint is filed the magistrate dealing with the same certainly has jurisdiction to pass appropriate orders. We do not think the argument of hardship to petitioners can be countenanced, at any rate at this stage, since the acts attributed to them are of very grave nature which affect the economy and well being of the country. These observations shall not stand in the way of petitioners raising appropriate defences in the adjudication proceedings or the criminal proceedings. We also notice that a Division Bench of this court in W.A No. 542/89 declined to interfere in a similar matter. We also decline to interfere. The Crl. M.Cs are therefore dismissed.