The Judgment of the Court was delivered by

Mack, J.:— This petition has been placed before us for disposal on a reference made by Somasundaram, J., in revision in the following circumstances.

2. Petitioner is the Assistant Collector of Customs and Central Excise, Kandamangalam. He sought to set aside in revision an order of the District Magistrate of South Arcot dated 31-7-1954 directing the return of two bars of gold weighing 307-7/8 tolas to one Krishna Pillai from whose possession they were seized by the Customs authorities on 23-3-1952 at about 1 a.m On the very next day, 24-3-1952, Krishna Pillai was convicted under S. 7(1)(b) read with Section 7(3) of the Land Customs Act, and sentenced to rigorous imprisonment for a period of four months. The Sub-Magistrate ordered the confiscation of the gold bars. In appeal the District Magistrate, Cuddalore, confirmed the conviction and also the order of confiscation.

3. Krishna Pillai pleaded guilty and in his statement under Section 242 of the Cr PC, said that some one gave him the blocks at the border to take across the Indian Union. In revision Somasundaram, J., acquitted Krishna Pillai but confirmed the “order of confiscating the gold blocks”. There were two accused in the case, the case against one of whom was withdrawn on Krishna Pillai's plea of guilty. The learned Judge in revision took the view that it was not proper to try Krishna Pillai without letting him on bail and giving him an opportunity to consult an Advocate, and that those circumstances have given rise to the contention that he was kept in duress and that he had no independent legal advice and that he may have confessed out of fear.

4. On 25-11-1953, in appeal on special leave granted by the Supreme Court, the order of confiscation was set aside as being passed illegally and without jurisdiction in view of Section 7(3) of the Land Customs Act. Their Lordships observed as follows.

“It is clear from a perusal of this section that the only jurisdiction and power which the Court has got under this section is to confiscate the goods in respect of which the offence has been committed upon conviction and not otherwise”.

5. On 16-12-1953, the Collector of Customs and Central Excise, Madras, issued a notice to Krishna Pillai to show cause under Section 5 of the Land Customs Act, and Section 19 of the Sea Customs Act, read with Section 3(1) of the Foreign Exchange Regulations Act, why these gold bars should not be confiscated under Section 5(3) of the Land Customs Act, and Section 167(3) of the Sea Customs Act.

6. Krishna Pillai was called upon to produce all the evidence on which he intended to rely. He then filed a claim challenging the legality of the enquiry held by the Collector of Central Excise on the strength of his acquittal, and the setting aside of the order of confiscation by the Supreme Court and said he was taking appropriate judicial proceedings “for the recovery of my gold”.

7. On 15-1-1954 the Collector confiscated the bars of gold under Section 5(3) of the Land Customs Act, and Section 167(8) of the Sea Customs Act, read with Section 8(1) of the Foreign Exchange Regulations Act, 1947. Then Krishna Pillai filed a simple memo under no specific provision of law before the Sub-Magistrate asking for return to him of these gold bars, which it may be said were handed back to the Customs authorities on 24-3-1952, the date of his conviction.

8. The Stationary Sub-Magistrate dismissed this memo in an elaborate order in which he stated that the gold had been returned to the Customs Inspector as it was required by him for further action under law. He took the view that the prosecution for a contravention of Section 8(2) of the Foreign Exchange Regulations Act, was not barred by the acquittal of the petitioner of an offence under Section 7(1)(b) of the Land Customs Act.

9. He held that he was not the Court competent to stay or quash any proceedings before the Central Excise Officers. In revision the learned District Magistrate interpreted the order of the Supreme Court setting aside the order of confiscation as meaning that the State was no longer entitled to the gold bars which should be returned to Krishna Pillai.

10. He also took the view that the customs authorities to whom the gold was handed over were legally entitled to hold the gold only subject to the further orders of the Court because they were in possession by virtue of the gold being handed over to them by the Court, and that till the final decision of the case the customs authorities had no right to deal with the gold in any way, and were bound to keep the gold bars so that they can be disposed of according to the final orders passed by the Supreme Court.

11. I am unable to see anything in the Supreme Court order which even suggests the return of these gold bars to Krishna Pillai. The order of the Supreme Court, as I understand it, merely sets aside the order of confiscation passed after an acquittal of Krishna Pillai as being illegal and without jurisdiction under Section 7(3) of the Land Customs Act.

12. Mr. Sivakaminathan for Krishna Pillai has merely asked us to confirm the Dt. Magistrate's order directing the return of the blocks to Krishna Pillai solely on the basis of the Supreme Court judement setting aside the order of confiscation. He urged that Krishna Pillai did not apply to the Magistrate for an order under Section 517 of the Cr PC, a provision which does not apply. The legal position as I understand it, that he has taken is simply that in the case of an acquittal on a charge in relation to property, the property must, in any event, be returned by the Court to the person from whose possession it was recovered.

13. The only section governing the disposal of property in criminal cases in Section 517 of the Cr PC, which gives a wide discretion to a Court when an enquiry or trial in a criminal Court is concluded to make an order as it thinks fit for the disposal by destruction, confiscation or delivery to any person claiming to be entitled to possession thereof or otherwise of any property or document produced before it or in its custody or regarding which any ortence appears to have been committed. This is a very wide discretionary power which has been exercised on fairly well settled principles.

14. Under this section a criminal Court can even order confiscation of the property; but in the present case no order of confiscation could, in any event have been passed by the criminal Court except after conviction u/s. 7(3), Land Customs Act. Though Section 517 of the Cr PC, would give a criminal court a discretion to confiscate in cases of either acquittal or conviction after the conclusion of the enquiry or trial, I do not think we need embark on any wide discussion as to the concurrent and separate powers of the customs authorities and criminal Courts in relation to contraband property seized.

15. In the present case it was quite open to the customs authorities to have themselves proceeded in this case under S. 5(3). Section 19 of the Sea Customs Act, and S. 167(8) which are admittedly applicable to the present case give the Collector of Customs a wide discretion to confiscate goods imported or exported contrary to prohibitions or restrictions and also make any person concerned in any such offence liable to a penalty not exceeding three times the value of the goods or not exceeding one thousand rupees.

16. It was therefore open to the customs authorities to have proceeded independently without laying a complaint before the Magistrate, and they doubtless thought that this was a serious offence which required a punishment of imprisonment. It is only necessary to refer to two other sections of the Sea Customs Act, namely, Ss. 183 and 186. Under S. 183.

“Whenever confiscation is authorised by this Act, the officer adjudging it shall give the owner of the goods an option to pay in lieu of confiscation such fine as the officer thinks fit.”

Under S. 186:

“The award of any confiscation, penalty or increased rate of duty under this Act by an officer or Customs shall not prevent the infliction of any punishment to which the person affected thereby is liable under any other law.”

17. The Customs authorities have, therefore, very wide discretionary powers of confiscation and fine in regard to property they seize which is illegally imported or exported. The fact that they instituted prosecution in the Magistrate's Court against a particular person in relation to such property does not mean that it must in any event be handed over to him in the event of his acquittal.

18. The property itself is legally and rightly held by the Customs authorities until duty and discretionary penalty are paid by the claimant, that is, if confiscation is not ordered. I am unable to see how merely because a prosecution against one person launched by the Customs authorities in relation to valuable property, obviously smuggled across the border fails, it is incumbent on the Magistrate to return it to this person on acquittal.

19. I think that the learned Sub-Magistrate in the first instance rightly returned the blocks of gold to the Customs authorities after the conviction. It is urged that the gold bars were handed over to the Customs authorities solely with a view to work out the order of confiscation. This is not, in my opinion, a correct view of that order. I have also found it very difficult to appreciate the real basis on which Krishna Pillai asks for the return of these gold blocks in view of his plea at the trial Court that they were given to him by somebody to take across the frontier.

20. I am satisfied that in any event he is not the real owner. I am not prepared to say that in special circumstances the Magistrate cannot act under S. 517 and order return of the property alleged to be contraband to the real owner if it is proved at the trial not to have been contraband. I say nothing here to detract from the powers of criminal Courts acting under Section 517 of the Cr PC. On the facts of this case, however, I have no hesitation in holding that the Sub-Magistrate rightly dismissed Krishna Pillai's claim to the return of the two blocks of the gold. The District Magistrate's order is set aside and this revision petition allowed.

Krishnaswami Nayudu, J.:— I had the advantage of reading my learned brother's judgment and as this reference raises a question of some importance, I have preferred to write a separate judgment. A fuller statement of the facts and events leading to the order which the State requires to be revised is necessary before the legal issues involved can be appreciated.

21. The respondent Krishna Pillai was found in possession of two gold blocks at Madalapet Bench between French Nallavadu village and French Pannithattu village. The gold was seized by the Inspector of Customs, Cuddalore, on 23-3-1952 and he was charged before the Sub-Magistrate, Cuddalore, on 24-3-1952 with an offence punishable under S. 7(3) read with Section 7(1)(b) of the Land Customs Act, 19 of 1924, in C.C No. 493 of 1952.

22. On his pleading guilty, he was convicted of the offence and sentenced to undergo rigorous imprisonment for four months and the gold blocks were directed to be confiscated to the Government of India and handed over to the Customs Inspector for effecting the confiscation. The penknife and cork screw seized from the respondent were directed to be returned to him. The respondent preferred an appeal against his conviction in C.A No. 31 of 1952 on the file of the District Magistrate, South Arcot.

23. The appeal was dismissed and the order of confiscation was confirmed. The respondent came up to the High Court in Crl. R.C No. 471 of 1952. Somasundaram, J., who heard the revision was of the opinion that the circumstances of the case undoubtedly threw suspicion as to the genuine and voluntary nature of the confession made by the respondent. But a re-trial was considered not necessary, as the respondent had already then been in jail for 17 days. The conviction and sentence were set aside and the respondent was acquitted; but the order as to confiscation was allowed to stand.

24. The respondent filed an appeal in the Supreme Court in Crl. Appeal No. 51 of 1953, questioning the order regarding the confiscation of the goods. The Supreme Court held that the order made by the High Court in regard to the confiscation of the two blocks of gold was manifestly illegal and without jurisdiction, taking the view that, since the accused was acquitted, the Court had no jurisdiction under Section 7(3) of the Land Customs Act, as the jurisdiction to confiscate the goods would arise only upon the conviction of the accused and not otherwise. By its order dated 25-11-1953, the Supreme Court set aside the order of confiscation of the two blocks of gold.

25. After the order of the Supreme Court, the Collector of Central Excise, Madras, issued a notice to the respondent on 16-12-1953 called the show cause memo, wherein it is stated that the respondent had contravened the provision of Section 5 of the Land Customs Act, and Section 19 of the Sea Customs Act, read with Section 8(1) of the Foreign Exchange Regulations Act, and the Government of India, Ministry of Finance Notification No. 12 (1D-F-I/48 dated 25-8-1948 inasmuch as he (the respondent) had on. 23-3-1952 at about 1 a.m imported into the Indian Union territory by land from Pondicherry 2 blocks of gold weighing 307-7/8 total in all without a permit and that the respondent admitted in the-Court of the Stationary Sub-Magistrate, Cuddafore, on 24-3-1952 that the gold was given to him by some person and it was not his property.

26. The respondent was directed by that notice to state as to who the owner of the gold was and-he was also required to show cause to the Collector why the gold in respect of which the offence-had been committed should not be confiscated under Section 5(3) of the Land Customs Act, and Section 167(8) of the Sea Customs Act, and, if no cause was shown within one week, he was informed that the matter would be decided ‘ex parte’. The respondent replied on 2-1-1954 stating that his counsel Mr. K. Rajah Ayyar was not in the station and he would send a suitable reply after consulting him.

27. In his final reply to the Collector dated 5-1-1954, he referred to the order of the High Court acquitting him and the order of the Supreme-Court setting aside the order of confiscation and pointed out that any further enquiry after the order of the Supreme Court setting aside the order of confiscation was illegal and asked for stay for a month & further intimated that he was taking necessary proceedings for the recovery of the gold.

28. The Collector of Central Excise, Madras, by his order dated 15-1-1954 stated that he was satisfied that the respondent was in possession of gold liable to confiscation under the Land Customs Act & that the import of gold without a permit from the Reserve Bank of India was also an offence under Section 19 of the Sea Customs Act, read with Section 8(1) of the Foreign Exchange Regulations Act, 1947, and was-punishable under Section 167(8) of the Sea Customs Act and accordingly ordered confiscation of the 307-7/8 total of gold seized under S. 5(3), Land Customs-Act and Section 167(8) of the Sea Customs Act read with Section 8(1) of the Foreign Exchange Regulations Act, 1947.

29. It is after this order that the respondent filed a petition for the return of the two gold blocks in Crl. M.P No. 25 of 1954 on the file of the Stationary Sub-Magistrate, Cuddalore. The Inspector of Customs opposed the application and wanted the gold blocks to be returned to him for further action against the respondent for other offences in respect of the same matter.

30. The Sty. Sub-Magistrate, while observing that it was not disputed by the Inspector of Customs-that the further action taken or contemplated to be taken was only with reference to the same act of the respondent for which he was acquitted by the High Court, took the view that a second prosecution was not barred either under Article 203 of the Constitution or under Section 403 of the Cr PC, and that a departmental proceeding of the Central Excise Department was not equally barred and found that there was nothing illegal in the-proceedings of the Customs authorities culminating in the order of confiscation dated 15-1-195 and made the return order to the Customs Inspector in C.C No. 493 of 1952 absolute, observing that the Customs Authorities might deal with it according to law and leaving the respondent to take appropriate action before the competent authorities for recovery of the gold. In the result, he dismissed the petition for return.

31. The respondent filed an appeal, Cri. M.P No. 123 of 1954, in the District Magistrate's Court, South Arcot. The District Magistrate, on an interpretation of the order of the Supreme Court, was of the view that the Supreme Court decision was that the gold which was seized from the respondent and which was confiscated to the State under a wrong order passed by the lower Courts should be returned to the respondent, and as the Customs authorities, to whom the gold was handed over in C.C No. 493 of 1952, were entitled to hold the gold only subject to the further orders of the Court, they had no right to deal with it in any way and were bound to keep the gold bars so that they could be disposed of according to the final orders passed by the Supreme Court.

32. On the view taken by him as to the meaning of the order of the Supreme Court as implying that the gold which was seized from the respondent which was wrongfully confiscated should be returned to the respondent, he directed the Sub-Magistrate to get back the gold from the customs authorities and hand it over to the respondent from whom it was seized. The present Cri. M.P is filed by the state against the said order of the District Magistrate, Cuddalore.

33. In my view, the manner of approach adopted by both the Stationary Sub-Magistrate and the learned Dt. Magistrate is erroneous. The gold after being seized by the customs authorities came under the control of the Court in C.C No. 493 of 1952, when the respondent was prosecuted before the Sty. Sub-Magistrate. He was convicted by the Sub-Magistrate. By the same order of the Sub-Magistrate, the gold bars were directed to be confiscated to the Government of India and they were handed over to the Customs Inspector for effecting the confiscation.

34. The customs authorities therefore came into possession of the gold by virtue of the order of the Stationary Sub-Magistrate and for the specific purpose of effecting the confiscation directed to be made. That order of confiscation was eventually set aside by the judgment of the Supreme Court and the gold therefore handed over to the customs authorities for the purpose of confiscation must be held subject to any further orders passed by Court.

35. The petition of the respondent for return of the gold was based on the final order of the Supreme Court that there could be no confiscation and it was for the Stationary Sub-Magistrate then to proceed to consider as to what suitable orders might be passed as regards the disposal of the property. The Court has got this power by virtue of Section 517 of the Cr PC, where it is provided that:

“When an inquiry or a trial in any Criminal Court is concluded, the Court may make such order as it thinks fit for the disposal by destruction, confiscation, or clelivery to any person claiming to be entitled to the possession thereof or otherwise, of any property or document produced before it or in its custody or regarding which any offence appears to have been committed, or which has been used for the commission of any offence.”

36. As the gold in this case is property in respect of which the offence is stated to have been committed, the Sty. Sub-Magistrate had therefore to dispose of the property suitably and hand over the same to such person as, in his opinion, would be entitled to the possession thereof.

37. The learned Sub-Magistrate erroneously embarked on the powers of the customs authorities under Section 8(2) of the Foreign Exchange Regulations Act, to proceed on a further charge for violation of that provision, and eventually took the view that there was nothing illegal in the further proceeding pending or contemplated against the respondent for a contravention of Section 8(1) of the Foreign Exchange Regulations Act, and that the gold was returned to the Customs Inspector and it was required by him for further action according to law.

38. It is not necessary to examine in these proceedings the power of the customs authorities under Section 5(3) of the Land Customs Act, whereby, even without a prosecution, the Chief Customs authority has the power to detain and confiscate any goods, which have been imported or about to be exported by land from, or to, any foreign territory without a permit, if such goods be dutiable.

39. Nor is it necessary to examine similarly the powers of the authority under Section 19 of the Sea Customs Act, or Section 8(1) of the Foreign Exchange Regulations Act. The simple point that arose for consideration before the Sty. Sub-Magistrate was whether the respondent was the person claiming to be en-tided to the possession of the property under Section 517 of the Cr PC.

40. Equally, the learned Dt. Magistrate took an incorrect view, which was based on his interpretation of the decision of the Supreme Court. The learned District Magistrate held that by reason of the Supreme Court's order setting aside of the order of confiscation passed by the lower Courts, though there was no specific direction in the Supreme Court's order that the gold bars should be returned to the respondent, that was the natural and necessary inference of the order of the Supreme Court.

41. The learned District Magistrate has taken the proper view as regards the right in which the customs authorities held the gold, that being only subject to the further orders of the Court, which handed it over, that is the Stationary Sub-Magistrate's Court, and that, till the final decision of the case, the customs authorities have no right to deal with it in any way and are bound to keep it so that it could be disposed of according to the final orders passed by the Supreme Court.

42. But I am unable to agree with the learned District Magistrate that the order of the Supreme Court could be construed as extending its scope so as to imply a direction that the gold should be returned to the respondent, the Supreme Court having differed from the High Court as regards the confiscation, since, on an acquittal under Section 7(3) of the Land Customs Act, there could be no confiscation. Here again, the learned Magistrate has ignored the existence of Section 517 of the Cr PC, and has failed to deal with the matter with reference to that provision.

43. Since neither the Stationary Sub-Magistrate nor the District Magistrate dealt with the matter bearing in mind the proper provision of law applicable, it would be ordinarily necessary and advisable to remit the petition to the Stationary. Sub-Magistrate with a direction that he should proceed to deal with the application and dispose of the property in accordance with the provision of Section 517 of the Cr PC.

44. I was greatly inclined to remit the petition back to the Sty. Sub-Magistrate and to direct him to deal with it in the light of our observations. But after careful consideration of the other provisions of the Cr. P.C in Chap. 43 relating to disposal of property, I am satisfied that the High Court is competent to deal with the petition and pass final orders, as, on the material available, the matter could be disposed of by this Court itself.

45. Section 520 of the Code provides that Any Court of appeal, confirmation, reference or revision may direct any order under S. 517, S. 513, or S. 519, passed by a Court subordinate thereto, to be stayed, pending consideration by the former Court, and may modify, alter or annul such order and make any further orders that may be just.”

46. The High Court being in any event a Court of revision and the Stationary Sub-Magistrate and the Dt. Magistrate being subordinate thereto, jurisdiction is vested in the High Court under Section 520 of the Cr PC, to modify alter or annul any order and also make any further order that may be just.

47. The question arose whether the power under S. 520 could be exercised only when an appeal or a reference or revision arises from the order passed under S. 517 and also as to whether the exercise of the power under S. 520 would depend on the availability of an appeal, reference or revision to the Court exercising that power. But all these questions have been settled and the view that now prevails is that the power under S. 520 can be exercised even when the substantive case was not before the Court, and that an application to a Court of appeal or revision is in no sense an application by way of appeal or revision against any order as to disposal of property, but an independent and substantive application and that so long as the Court that exercised the power is subordinate to the Court to which any right of appeal, reference or revision generally lies, it will be competent to the Court to pass orders regarding disposal of the property irrespective of there being an appeal or otherwise.

48. In — ‘Walchand v. Hari Anant’, AIR 1932 Bom 534 (PB) (A) a Full Bench of the Bombay High Court overruling the earlier Bench decision of that Court in — ‘Khima Rukhad, In re’, AIR 1918 Bom 186 (B) held that S. 520 means that any Court, which has powers of appeal, confirmation, reference or revision in respect of the trial Court can make any substantive order it thinks fit in respect of property dealt with by the trial Court under S. 517. In that case the Sessions Court being the Court having powers of revision in respect of the trial Court was held to have power under S. 520 to make a proper order relating to property and it was considered necessary to refer the matter to the High Court.

49. Beaumont, C.J followed the decision of the Full Bench of the Rangoon High Court in — ‘U Po Hla v. Ko Po Shein’, AIR 1929 Rang 97 (FB) (C) which took the same view. Both the Bombay and the Rangoon High Courts preferred to follow an early decision of the Madras High Court in — ‘Queen Empress v. Ahmed’, 9 Mad 448 (D) and the decisions in — ‘Empress of India v. Nilambur Babu’, 2 All 276 (E) and — ‘Empress v. Joggessur Mochi’, 3 Cal 379 (F). In 9 Mad 448 (D) it was held that an order passed under Section 517 of the Cr PC may be revised by a Court of apnea although no appeal has been preferred in the case in which such order was passed and that the words “Court of Appeal” in S. 520 are not to be read as restricted to “A Court of Appeal before which an appeal is pending”.

50. In — ‘K. Srinivasamoorthi v. Narasimhalu Naidu’, AIR 1927 Mad 797 (G) an appeal against the order directing the return of stolen currency notes to the complainant was held to be barred by limitation by the District Magistrate.

51. In revision the matter came up to the High Court and in construing S. 520, Curgenven, J. took the view that it was doubtful whether an application made under S. 520 to a “Court of appeal, confirmation, reference or revision” was in the nature of an appeal, and that the phrase “Court of appeal, confirmation, reference or revision” seemed only to designate the Courts which could “modify, alter or annul” an order passed under the preceding sections, and not to specify the nature of the application which had to be made to them and that it seemed to him that in all these cases the Court designated had been given special jurisdiction to pass orders it thought fit, and it was not necessary to read into the section the provisions regarding appeals.

52. The powers of a High Court or any other Court as a Court of appeals, or revision in respect of any order of disposal of property passed by a subordinate Court under S. 517 do not therefore depend for their exercise on the availability or pendency of any appeal or revision in the substantive case or on the appeal ability or a right of revision against the order complained of; but it is an independent and substantive jurisdiction by which it will be open not only to modify, cancel or alter the order but make such other order for the proper disposal of the property as the justice of the case may require.

53. Since the matter as to the way in which the lower Courts have dealt with the disposal of this gold has come before us, though not by way of revision but in a criminal miscellaneous petition, it is open to us to consider and pass such orders as the justice of the case may require.

54. It is urged on behalf of the respondent that in exercising the discretion under S. 517 the Court, has to deliver the property to any person claiming to be entitled to the possession thereof and ordinarily Courts will not launch themselves into an enquiry as to the title of the persons entitled to the property, but in the case of an acquittal ordinarily the property should be returned to the person from whose possession it was taken. There is no doubt large body of case law laying down the principle that ‘prima facie’ the person from whose possession the property was taken will be entitled to the return.

55. But, on the facts of the present case, that principle is not capable of application, as the respondent in his statement before the Sty. Sub-Magistrate, while pleading guilty, stated that “some person brought (the gold) and gave it at the French boundary asking that it might be brought into the Indian Union.” He therefore never claimed that the gold belonged to him and that he was in possession of it as owner.

56. Obviously, the gold was in his custody for the specific purpose of taking it from one territory into another territory, the same having been entrusted to him by some one whose name he has, not chosen to disclose. The respondent cannot, therefore be entitled to the possession of the gold and it is not necessary to pass any further order as regards this gold, since the Court has been asked only to consider and pass orders as to whether the gold should be returned to the respondent. The order of the District Magistrate directing the return cannot therefore stand and is set aside. As we are of opinion that the respondent is not entitled to the gold, the dismissal of his application by the Stationary Sub-Magistrate will stand, though on different grounds.

H.G.P

57. Order accordingly.