1979 (6) TMI 53 - HC - Customs

Summary

Issues Involved:
1. Legitimacy of the Magistrate's jurisdiction under Section 451 of the Code of Criminal Procedure.
2. Entitlement of the opposite party No. 1 to the custody of the seized goods.
3. Impact of the forfeiture order under the Smugglers and Foreign Exchange Manipulation (Forfeiture of Property) Act.
4. Payment of customs duty as a precondition for the release of the goods.

Detailed Analysis:

1. Legitimacy of the Magistrate's Jurisdiction under Section 451 of the Code of Criminal Procedure:

The primary issue was whether the Magistrate had the jurisdiction to pass an order regarding the seized goods under Section 451 of the Code of Criminal Procedure. The court held that under Section 451, a Criminal Court can pass an order in respect of any property which is produced before it during an enquiry or trial. "Property" includes any kind of property or document produced before the court or in its custody. However, the court clarified that "production" or "custody" does not necessarily mean physical production but implies control over the property. In this case, since the goods were in the possession and custody of the customs authorities and not under the court's control, the Magistrate erred in passing the order under Section 451.

2. Entitlement of the Opposite Party No. 1 to the Custody of the Seized Goods:

The opposite party No. 1 claimed to be the genuine importer of the seized goods and sought their return. The Magistrate found that the documents produced by the customs authorities, such as the bill of exchange, invoice, packing list, and original bill of lading, prima facie indicated that the opposite party No. 1 was the importer. Additionally, the opposite party No. 1 was not an accused in the case, and a partner was cited as a witness. The court considered these facts and circumstances and exercised its inherent powers to direct the return of the goods to the opposite party No. 1 for interim custody, pending the disposal of the original case.

3. Impact of the Forfeiture Order under the Smugglers and Foreign Exchange Manipulation (Forfeiture of Property) Act:

The intervenor argued that the goods were forfeited under the Smugglers and Foreign Exchange Manipulation (Forfeiture of Property) Act and had vested in the Central Government. The court acknowledged that it could not adjudicate the merits of the forfeiture order in the present Rule. Therefore, it held that the order of forfeiture must stand, and the opposite party No. 1 could not take custody of the goods as long as the forfeiture order was in effect.

4. Payment of Customs Duty as a Precondition for the Release of the Goods:

The court addressed the petitioner's argument that the customs authorities were entitled to customs duty payable on the goods. The opposite party No. 1 conceded that they would be bound to pay the customs duty if the goods were returned. Consequently, the court directed that the opposite party No. 1 must pay the customs duty amounting to Rs. 1,35,612.73P before taking custody of the goods.

Conclusion:

The court concluded that the opposite party No. 1 was entitled to the custody of the seized goods, pending conclusion of the inquiry or trial, on execution of a bond of Rs. 1,83,000/- and prior payment of the customs duty amounting to Rs. 1,35,612.73P. However, this order would not be effective as long as the forfeiture order under the Act stood. The Rule was thus disposed of.