TMI Blog1979 (6) TMI 53X X X X Extracts X X X X X X X X Extracts X X X X ..... n interrogation of several witnesses, the place where the goods in question were removed was ascertained and on search of the premises under occupation of the accused No. 11 and others, the wrappers for the goods and other incriminating materials were recovered. On gathering the particulars of the persons who brought the goods to the aforesaid premises and subsequently removed them from there for storage in a godown at Cossipore, the Customs officers took up immediate follow-up action upon identification of the said godown by accused No. 13 who led a batch of Customs Officers to 15, Kaliprosanna Sigghee Road, Calcutta in the early hours of October 25, 1973. In exercise of power vested under section 105 of the Customs Act, the Customs Officers searched the said premises and recovered the aforesaid 24.33 M/Tonnes of Stainless Steel Flats. 3.As the goods, which were of Japanese origin, were unlawfully removed from the custody of the Port Commissioners without payment of duties and without production of Import Trade Control Licence, and as all the thirteen accused persons were concerned in carrying, removing, depositing, harbouring, keeping, concealing, selling or purchasing or in an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner opened an irrevocable letter of credit with Grindlays Bank Ltd., Chittaranjan Avenue Branch, Calcutta in favour of the said foreign sellers. The goods covered by the said order were shipped by foreign sellers and on October 20, 1973 the firm's clearing agents duly filed relevant bill of entry in the Customs House to clear the said consignment which was duly noted by the Customs Authorities. On or about October 27, 1973 the firm learnt from their clearing agent that the said consignment of stainless steel Flats belonging to the firm was illegally and wrongfully delivered to some unauthorised persons, whereupon the firm by its letter dated November 2, 1973 informed the Commissioners for the Port of Calcutta that the bill of entry had already been filed in the Customs House by the clearing agent and the same had been noted by the Customs Authorities and that the firm was a legitimate importer of the said consignment. By the said letter the firm requested the Customs Authorities to arrange the release of the shipping documents. Having come to learn that its Bankers had received the relevant bill for collection and the relative shipping documents, the firm duly paid Rs. 1,83,13 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t it was likely to deteriorate further if the consignment was not released immediately. Accordingly, he directed that the seized consignment be released to the opposite party No. 1 on executing a bond of Rs. 1,83,000/- subject to the condition that they must produce the goods when directed to do so. The above order dated 22-7-1978 has been impugned in the present Rule by the complainant. 8.When the matter was taken up for hearing, an application was filed by Sri Sailendra Nath Sen, an officer on Special duty (competent authority authorised by the Central Government under sub-section (1) if section 5 of the Smugglers and Foreign Exchange Manipulation (Forfeiture of Property Act), hereinafter referred to as the Act, praying for intervention in the present Rule and for an opportunity of being heard. In the application it has been stated that the consignment in question, which was imported from Yokohama by the vessel M.V. Vishaw Anand on account of M/s. Ramchand Bhagawandas against an import licence, was smuggled from the customs area in Kidderpore Dock by Balai Chandra Dutta and his associates, including Tarak Dey and Biswanath Nandi, in pursuance of a criminal conspiracy hatched by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... feited, as contended by the Intervenor, there is no scope or occasion to pass any order regarding interim custody of the goods. 10.Mr. Ghosh, the learned Advocate appearing on behalf of the Intervenor reiterated the contentions raised in the application and submitted that as the goods stand forfeited the question of return of the goods to the petitioner does not arise so long as the order of forfeiture stands. 11.Mr. Dilip Kumar Dutta, the learned Advocate appearing for the opposite party No. 1, fairly conceded that the learned Magistrate erred in invoking section 451 of the Code of Criminal Procedure in passing the impugned order. He however contended that this court in exercise of its inherent powers can pass an order directing the return of the goods to the opposite party No. l. In support of his contention Mr. Dutta firstly relied upon the fact that liberty was given to the opposite party No. 1 by this Court to file an application before the learned Magistrate for return of the goods and the fact that materials on record support the claim of the opposite party No. 1 in respect of the goods. In reply to the second contention of Mr. Ghosal, Mr. Dutta submitted that in case th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d circumstances of the instant case. In the court below the claim of the opposite party No. 1 in respect of the goods was challenged on the ground that though ownership was claimed it was not legally established by the adjudicating officer. It appears from the impugned order that the documents seized and produced by the Customs Authorities supported the claim of the opposite party No. 1 and prima facie indicated that the opposite party No. 1 was the importer of the seized consignment of 17 bundles of stainless steel flat. These observations of the learned Magistrate have not been assailed before me. The other observation of the learned Magistrate, that the allegations of the opposite party No. 1 that the consignment had considerably deteriorated and that it was likely to deteriorate further if it was not released immediately was not challenged by the complainant, has also not been assailed. It has also to be borne in mind that neither the opposite party No. 1 nor any of its partners has been arraigned in the complaint; on the contrary, a partner of the opposite party No. 1 namely, Rajkumar Kishorepuria has been cited as a witness. Then again, the averments made by the Intervenor in ..... 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