9911796707
TMI Blog1961 (11) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... made under Section 172 of the Sea Customs Act to the Chief Presidency Magistrate, Calcutta requesting that warrants be issued to search the two premises already mentioned, on the allegation that documents relating to and connected with "illegal exportation of dutiable goods which were actually exported in contravention of the Sea Customs Act" were secreted in the above premises. The Chief Presidency Magistrate issued two warrants returnable on December 5, 1959. Subsequently, time for return was extended to December 15, 1959. It appears that the search was carried with somewhat undue zest, and the Chief Presidency Magistrate, on December 12, 1959, limited the search to documents relating to manganese ore and also fixed the time of the day during which the search could be made. Meanwhile, applications for withdrawal of the search warrants were unsuccessfully made by the appellants, and, in the end, the Customs authorities seized 959 documents, registers, books, etc. The Customs authorities wished to retain these documents in their own custody for the purpose of sucrtiny, and on December 15, 1959, an application was made to obtain this permission. On the same day, the appellant also a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only as, when and where he ordered. 5. Against the order of the Magistrate, an application for revision was filed by the Customs authorities in the Calcutta High Court. According to the practice of that High Court, the Chief Presidency Magistrate was also called upon to show cause against the application. He showed cause on the same lines. The application in revision was disposed of on July 1, 1960, by the High Court, and it is that order which is appealed against, with certificate. 6. The High Court, in its order, observed that the Chief Presidency Magistrate had "placed real difficulties in their way of speedily and properly finishing the task of scrutinising the documents", that due consideration was not given by the Chief Presidency Magistrate to this aspect of the case, and holding that the Customs authorities under the law were entitled to the custody of the documents seized, ordered that all the documents (bar 63 documents) should at once be handed over to the Customs authorities with an imperative direction to complete the scrutiny of the documents within three months from the date the order of the High Court reached the Chief Presidency Magistrate. 7. In this appeal, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law relating to Criminal Procedure." In an unreported case of the Calcutta High court, Calcutta Motor and Cycle Co. v. Collector of Customs, Criminal Revn. Case No. 698 of 1955. Debabrata Mookerjee, J. has held that search warrants must be issued when the Customs Officer states his belief etc., and the Magistrate is not required to form his own opinion. He has further held that warrants issued under Section 172 are not impressed with all the characteristics and features of a warrant under Section 96 of the Criminal Procedure Code, and that the form of the warrant prescribed under the Code can be suitably changed under Section 555 of the Criminal Procedure Code. Unfortunately, the judgment of Mookerjee, J. was not produced before us, and the above is a summary made in the judgment under appeal. 10. The matter also came before the High Court in two other cases, and the judgments can be read in some unauthorised reports. In Calcutta Motor and Cycle Co. v. Collector of Customs, 60 Cal. WN 67, Sinha, J. dealt with the matter under Article 226 of the Constitution. The view of Sinha, J. was upheld by the Division Bench in Collector of Customs v. Calcutta Motor & Cycle Co., AIR 1958 Cal. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her the belief is really entertained by the Customs Officer or not, or whether there is any mala fide action. Except for these two matters, the Magistrate has no other discretion. Once the documents have been seized, the second paragraph of Section 172 begins to operate, and the Magistrate's responsibility is at an end. He agrees with Debabrata Mookerjee, J. that all the provisions of the Code do not apply, and after seizure, the action of the Customs authorities is independent and uncontrolled by the Code. He, however, concedes that "the ultimate responsibility" of the Magistrate and his "overall control" still remain. But he states that "the immediate control" must remain with the Customs authorities, who need not produce the documents before the Magistrate, because seizure would be meaningless, if they did not have the power to scrutinise and inspect the documents in their own way. 12. The pendency of a proceeding before Magistrate as a condition precedent to the issue of a warrant is no longer a matter for consideration, after the decision of the Privy Council in Clarke v. Brojendra Kishore Roy Choudhury, ILR 39 Cal. 953 (PC). A Magistrate thus has jurisdiction the moment an a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods or documents scrutinised under his control, so that goods or documents not really subject to the Sea Customs Act are not retained for an unduly long period. 13. The words "ultimate responsibility" and "overall control" used in the judgment under appeal would mean nothing, if they did not imply the power of the Magistrate, to which we have referred. If they mean anything, they mean the power of the Magistrate to see that his own warrant is not used in a manner which he did not contemplate. The second paragraph of Section 172 of the Sea Customs Act which applies the Criminal Procedure Code, says that the warrant shall be executed in the same way and shall have the same effect as a search warrant issued under the Criminal Procedure Code. The execution of a warrant is one thing and its effect is another. In talking of the effect, Section 172 of the Sea Customs Act intends to apply not only the Criminal Procedure Code but also the forms prescribed, and if the form says that the goods or documents should be produced before the Magistrate to be dealt with under his direction, then that effect necessarily flows from the words of that section. In our opinion, the view expressed by S ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
