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Who should certify/verify goods seized by Customs/DRI - Collector or Judge? Question of Law left open - SC

By TIOL News Service

NEW DELHI, MAY 03, 2017: THE ACT:

Sections 110(1A), (1B) and (1C)  of the Customs Act read as:

(1A) The Central Government may, having regard to the perishable or hazardous nature of any goods, depreciation in the value of the goods, with the passage of time, constraints of storage - page for the goods or any other relevant considerations, by notification in the Official Gazette, specify the goods or class of goods which shall, as soon as may be after its seizure under Sub-section (1) be disposed of by the proper Officer in such manner as the Central Government may. from time to time, determine after following the procedure hereinafter specified.

(1B) Where any goods, being goods specified under Sub-section (1A) having been seized by a proper Officer under Sub-section (1), he shall prepare an inventory of such goods containing such details relating to their description quality, quantity, mark numbers, country of origin and other particulars as the proper Officer may consider relevant to the identity of the goods in any proceeding under this Act and shall make an application to a Magistrate for the purpose of:

(a) certifying the correctness of the inventory so as prepared, or

(b) taking in the presence of the Magistrate, photographs of such goods, and certifying such photographs as true; or

(c) allowing to draw representative sample of such goods, in the presence of the Magistrate, and certifying the correctness of any list of samples so drawn.

(1C) Where an application is made under Sub-section (1B), the Magistrate shall, as soon as may be, allow the application.

In the instant case, DRI had seized 145.250 MT of Red Sanders wood vide Panchnama from the premises of C-315, Shahbad Daulatpur, Delhi02.01.2012. DRI approached the Metropolitan Magistrate ('MM') to certify the correctness of the inventory, who by an order dated 08.01.2013 directed the Petitioner (DRI) to obtain permission of the High Court for holding the Court at the CWC Warehouse, DSIDC, Narela for the purpose of certifying the correctness of the inventory prepared by the officers of DRI.

The High Court in its order dated 21.02.2013 reported as 2013-TIOL-1216-HC-DEL-CUS held that since the task of certifying the correctness of the inventory in respect of seized goods under Section 110 (1B) of the Customs Act is only an Executive function, in view of the provision of Section 3, sub-Section (4) of the Cr.P.C. the functions must be performed by an Executive Magistrate and not by a Judicial Magistrate .

The Petition by DRI was dismissed with liberty to the Petitioner to approach the Collector concerned of the area to perform the functions as laid down under Section 110 (1B) of the Act.

The DRI was aggrieved by this order of the High Court and took the matter to the Supreme Court.

The Supreme Court dismissed the special leave petition leaving the question of law open observing, "It is agreed that verification of the stocks in question, for the purpose of Section 110 (IB) of the Customs Act, 1962, be made by the Judicial Magistrate or any person authorised by him for the purpose. No objection shall be raised in this regard by the parties concerned."

For the present the LAW is open.

(See 2017-TIOL-200-SC-CUS)

 


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