TMI Blog1961 (11) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... and we direct that they be granted—a period of four months from the date of this order reaches the Magistrate should prove enough. We, therefore, set aside the order for the handing over the documents to the Customs authorities, and make a direction for the disposal of the records, as stated above. We may add that this order does not apply to the 63 documents, which the Customs authorities have already agreed to return to the party. - 158 of 1960 - - - Dated:- 24-11-1961 - Mr. Justice J.L. Kapur, Mr. Justice M. Hidayatullah and Mr. Justice J.C. Shah [Judgment per : Hidayatullah, J.]. - This appeal is by certificate under Article 134(l)/(c) of the Constitution granted by the High Court of Calcutta against its judgment and order dated July 1, 1960. The appellant, Mohammad Serajuddin, is the managing partner of Messrs. Serajuddin and Co., of No. 19A, British, Indian Street and of P. 16, Bentick Street, Calcutta. The said firm carries on business as exporters of mineral ores, and also possesses some mines. The business of the appellant involved the export of manganese ore. Till April, 1948, there was no export duty on manganese ore. On April 19, 1948, export duty at ad valo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecy, if the inspection was to be done in the Court premises. This application was summarily dismissed by the Magistrate the same day. 4. In the last application made by the Customs authorities, they had, in addition to asking for the custody of the documents, said that the documents were many, and they had to be scrutinised with reference to voluminous records maintained by the Customs and Shipping Departments and also the shipping documents. They also said that certain witnesses and informers had to be questioned and that it was not possible to complete the work within reasonable time, if the inspection had to be carried on, not during Court hours but in the presence of the representatives of the appellant. They had, in the alternative, asked for a separate room where the scrutiny and discussions between the Customs officers could take place in privacy and for facilities for inspection of the records even after Court hours, because during the day, the staff at their disposal was limited. Both these matters, of course, were disposed of summarily; but the learned Magistrate had, in his earlier orders, said that he could give them only such room as he could spare, since he had not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uired under the Act to make them over to a Magistrate; when documents or goods are seized on a warrant, they can only enter the premises for effecting a search, armed with the warrant of a Magistrate. According to the Customs authorities, once a Magistrate has issued a warrant, his connection with the search comes to an end, and whatever is seized as a result of the search is to be disposed of by the Customs authorities in the discharge of their duties to adjudicate whether any contraband goods have been brought into the country against the Customs laws. It is contended that just as the goods seized by them under the Act are not required to be produced before a Magistrate, so also documents seized under a warrant from a Magistrate need not be produced before him. They concede, however, that a Magistrate has jurisdiction over his warrant, which he can withdraw, annul or modify. 9. It appears that, in the Calcutta High Court, there is a conflict of opinion on this point, which arises on two aspects of Section 172 of the Sea Customs Act. That section reads : "Any Magistrate may, on application by a Customs-collector, stating his belief that dutiable or prohibited goods or any docu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al authority to dispose of the papers and books. He also does not accept the contention that, as there is no pending proceeding in the Court, the production of the goods and documents seized is not necessary before the Court. He further holds that the Magistrate has the power to insist that the inspection shall be completed within a reasonable time, and papers and books not required for the purpose of the case are returned promptly to the party. At p.1078 (of Cal. WN) : (at p. 611 of AIR) the learned Judge observes : "After seizure by the police in execution of the search warrant, the goods and documents must normally be produced before the court issuing the search warrant. That is implied by the issue of a search warrant by a Magistrate for search of a place within his jurisdiction and is expressly provided for in the prescribed forms for search warrant under Sections 96 and 98 of the Code." 11. In the judgment under appeal, the view expressed by Sinha, J. has been preferred. The learned Judge has referred to the language of Section 172, and has contrasted it with the language of Section 96 of the Code. He observes that the words, "wherein the court has reason to believe" do n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re he issues the warrant. After the warrant is issued, it is an order of the Magistrate enabling the Customs authorities to take action, for without warrant, they cannot enter any house or premises. The warrant of the Magistrate, so to speak, opens the door for entry into a house or premises, and the authority to do so is based upon the Magistrate's order. The forms prescribed under the Code require that articles seized as a result of the warrant should be brought into court, and a Magistrate, who issues a search warrant is entitled to see that his warrant is not abused, and has been properly executed. In a suitable case, of course, a Magistrate may amend the warrant dispensing with the production of the goods or documents before him. That, however, would be in a clear case only, but if the Magistrate so desires, he need not amend the form, and may keep the control of the goods or documents in himself. This he may find necessary to do, so that the warrant issued by him is not abused or made the instrument of harassment. A condition, therefore, in the warrant that the goods or documents should be produced before the Magistrate must be complied with, and once the goods or documents h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lities for inspection and scrutiny. Perhaps, his action was somewhat justified, if one looks only at the inordinate delay and the leisureliness with which the inspection was being made. But Magistrates, even though they may desire expedition, must not frustrate other departments of Government in discharging their legitimate duties under the Act. 15. On this part of the case, learned counsel for the Customs authorities was very frank and accommodating. He said that the Customs authorities are not keen on the custody of the documents but only on their proper inspection in privacy, because they have to bring in various documents for comparison and have to examine witnesses and informers. He said that if a separate room in the Court premises were given to the Customs authorities, and they were allowed to have inspection even after Courts hours, they would be able to complete the inspection, within three to four months' time. The difficulties of the Customs authorities are also many. Their supervisory staff has to deal not only with this case but many others, and in view of the volume of records which they have to go through in connection with this case, it is obvious enough that time ..... X X X X Extracts X X X X X X X X Extracts X X X X
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