TMI Blog1979 (12) TMI 73X X X X Extracts X X X X X X X X Extracts X X X X ..... on 135(b)(ii) of the Customs Act, a complaint was filed by the Assistant Collector of Central Excise, Vellore division, before the Judicial First Class Magistrate, Tiruttani. 3. Nine witnesses were examined on the side of the prosecution. PW1 is the Police officer, who intercepted the accused and seized the watches from him as aforesaid. PW2 is the Station Master, who was present when the accused was intercepted and the suit case he was carrying was searched and 216 wrist watches of foreign origin were found therein. PW4 was present when the accused gave a confessional statement Ex. P. 5 to P.W. 3 (Inspector of Central Excise and Customs) at his office at Vellore. It is not necessary to notice the evidence of the other witnesses for the purpose of this appeal. 4. After questioning the accused, the learned Magistrate, who was of the opinion that there was a prima facie case against the accused, framed a charge under Section 135(b)(ii) of the Customs Act, against the accused, over the same and called upon the accused whether he pleaded guilty or not. The accused pleaded not guilty. At the time of his further examination, the accused stated that one Jeevanlal, a person known to hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for enhancement of the sentence by the Assistant Collector of Central Excise is not competent in view of the provisions of Sec. 377 of Crl. P.C. which lays down in sub-sec. (1) that - "Save as otherwise provided in sub-sec. (2), the State Government may, in any case of conviction on a trial held by any court other than a High Court, direct the Public Prosecutor to present an appeal to the High Court against the sentence on the grouted of its inadequacy." Prior to the amendment by Central Act 45 of 1978, when the appeal was filed, Sec. 377 (2) of Crl. P.C., was to the effect that - "If such conviction is in a case in which the offence has been investigated by the Delhi Special Police establishment constituted under the Delhi Special Police Establishment Act, 1946, or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, the Central Government may direct the Public Prosecutor to present an appeal to the High Court against the sentence on the ground of its inadequacy." By Central Act 45 of 1978, Sec. 377 Crl P.C., has been amended by substituting in sub-sec. (2) the words `the Central Government may also direct' for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o any proceedings under this Act, are secreted in any place, he may authorise any officer of customs to search or may himself search for such goods, documents or things. (2) The provisions of the Code of Criminal Procedure, 1973 (2 of 1974) relating to searches - shall, so far as may be, apply to searches under this section subject to the modification that sub-sec. (5) of Sec. 165 of the said Code shall have effect as if the word 'Magistrate', wherever it occurs, the words 'Collector of Customs' were substituted." Sec. 106 of the Customs Act reads as follows - "106. (1) Where the proper officer has reason to believe that any aircraft, vehicle or animal in India or any vessel in India or within the Indian customs waters has been, is being, or is about to be, used in the smuggling of any goods or in the carriage of any goods which have been smuggled, he may at any time stop any such vehicle, animal or vessel or, in the case of an aircraft, compel it to land, and (a) rummage and search any part of the aircraft, vehicle or vessel; (b) examine and search any goods in the aircraft, vehicle or vessel or on the animal; (c) break open the lock of any door or package for exercis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovided that the exemption under Sec. 132 C.P.C., 1908, shall be applicable to any requisition for attendance under this section." Sub-sec. (4) of Sec. 108 lays down that, "Every such enquiry as aforesaid shall be deemed to be a judicial proceeding within the meaning of Sec. 193 and Sec. 228. I.P.C. " Sec. 110 of the Customs Act lays down that - "1. If the proper officer has reason to believe that any goods are liable to confiscation under this Act, he may seize such goods : Provided that where it is not practicable to seize any such goods, the proper officer may serve on the owner of the goods an order that he shall not remove, part with, or otherwise deal with the goods except with the previous permission of such officer. 2. Where any goods are seized under sub-sec. (1) and no notice in respect thereof is given under clause (a) of Sec. 124 within six months of the seizure of the goods, the goods shall be returned to the person from whose possession they were seized : Provided that the aforesaid period of six months may, on sufficient cause being shown, be extended by the Collector of Customs for a period not exceeding six months. 3. The proper officer may seize a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficer under the Police Act and any Act for regulating criminal procedure. The authority given to police officers must naturally be to enable them to discharge their duties efficiently. Of the various duties mentioned in Sec. 23, the more important duties are to collect and communicate intelligence effecting the public peace, to prevent the commission of offences and public nuisances and to detect and bring offenders to justice and to apprehend all persons whom the police officer is legally authorised to apprehend. It is clear, therefore in view of the nature of the duties imposed on the police officers, the nature of the authority conferred and the purpose of the Police Act, that the powers which the police officer 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 realisation 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. Refer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hey have nothing to investigate about it. Similarly, the offence at item 72 relating to a person's making a false declaration. Offences at items Nos. 74, 75 and 76 are with respect to the conduct of the Customs Officers themselves Items Nos. 76-A, 76-B, and 78 deal with the obstruction by smugglers to the performance of duty by the Customs Officer. The Offence at Item No. 77 relates to an offence where a police officer neglects to do his duty. Item 81 creates an offence with respect to a person doing certain things to defraud the Government. The Customs Officer, therefore, is not primarily concerned with the detection and punishment of crime committed by a person but is mainly interested in the detection and prevention of smuggling of goods and safeguarding the recovery of customs duties. He is more concerned with the goods and customs duty, than with the offender." 9. Later on, the Supreme Court has expressed the opinion that - "the duties of the Customs Officers are very much different from those of the police officers and that their possessing certain powers, which may have similarity with those of police officers, for the purpose of detecting the smuggling of goods and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh Court has held that the machinery created under the Customs Act is not one for the purpose of investigation into crimes. Speaking for the Bench, Deshmukh J. has observed that - "The machinery is, however, not created for the purpose of investigation of crime under any Central Act. It cannot be said that that is a separate machinery for the purpose of investigation of crimes by passing the provisions of the Criminal Procedure Code." With respect, I am in agreement with the view expressed by the Bench of the Bombay High Court in the decision referred to above, and I am of the opinion that in exercising the powers conferred on him by Secs. 104, 105, 106, 107, 108 and 110 of the Customs Act, the Customs Officer is not acting as an investigating officer and, therefore, in the instant case, the appellant should have moved the State Government to direct the Public Prosecutor to present an appeal to the High Court against the sentence on the ground of its inadequacy. The appeal by the Assistant Collector of Central Excise, Vallore division, is not competent, as he has no locus standi to file an appeal. Even if the Assistant Collector of Customs can be deemed to be an agency empower ..... X X X X Extracts X X X X X X X X Extracts X X X X
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