Cus - Trial Court cannot invoke provisions of Sec 451 of CrPC to release confiscated vehicles even if provisions of Customs Act do not specifically bar jurisdiction of courts to release seized goods pending investigation by Customs: HC
By TIOL News Service
NEW DELHI, APRIL 29, 2019: THE present appeals were filed by the Directorate of Revenue Intelligence (DRI), contesting the common order passed by the Trial Court in two matters. Such common order directed the release of two vehicles which had been confiscated due to their utilization allegedly while attempting to smuggle Gold.
During the relevant period, the DRI intercepted a car from which 8 Kgs of Gold was recovered. The car was registered in the name of the respondent-company. The DRI proceeded to arrest the director of the firm along with another person, for carrying smuggled Gold. Thereafter, the Chief Metropolitan Magistrate directed that the car be released. The same order also directed the release of another vehicle which allegedly was utilized for carrying smuggled Gold to one person, who had been arrested along with two others for alleged offences punishable u/s 132 & 135 of the Customs Act in connection with the recovery of gold bars weighing 5 Kgs. Both vehicles were allowed to be released on superdari by following the decision of this court in Manjeet Singh v. State, in Crl.M.C. No. 4485/2013 and Crl. M.A. No. 16055/2013. The CMM also observed that the vehicles if not released would deteriorate with time & also that if not released, the upkeep of the vehicles would drain resources & space. Hence it was observed that presumption of inconvenience had to be given due weightage & the accused person ought not to be penalized indirectly.
On hearing the matter, the High Court noted the relevant provisions of the Customs Act and then proceeded to observe that the Act provides a complete code in itself in relation to search, seizure, confiscation and release of goods seized in alleged violation of the Act.It observed that -
"43. Though after confiscation ordered by the adjudicating authority, the confiscated goods become vested in the Central Government in terms of Section 126(1) of the Customs Act, 1962 coupled with the factum that Section 127 of the said enactment provides that the award of any confiscation of penalty under the Customs Act, 1962 by an officer of the Customs shall not prevent the infliction of any punishment to which the person affected there is liable under the provisions of Chapter XVI of the Act and under any other law, makes it apparent that the search, seizure, confiscation and adjudication in relation to the confiscation is de hors the infliction of punishment that may be imposed in terms of the Customs Act, 1962..."
It was also noted that the Act enabled one to file an appeal against an order passed by the Adjudicating Authority. The High Court then relied upon the decision of the Supreme Court in the case of State of Madhya Pradesh v. Uday Singh: Criminal Appeal 524/2019 by a verdict dated 26.3.2019 wherein it had been held that -
"46. It was reiterated vide this judgment that a criminal prosecution and a proceeding for confiscation are distinct and are two parallel proceedings and that criminal prosecution is not an alternate to confiscation proceedings, and that the mere fact that there was an acquittal in a criminal trial before a Magistrate due to paucity of evidence would not necessary result in nullifying the order of confiscation passed by an authorized officer based on a satisfaction that a forest offence had been committed..."
The Court then observed that Section 128 of the Act enabled one to file an appeal against an order passed by the Commissioner (Appeals) before the Appellate Tribunal. Hence considering the status of the Customs Act as a complete code for search, seizure, investigation, confiscation and release of goods, the High Court observed that at the stage of investigation being conducted by the Customs Officers, the provision of Section 451 of the Cr.P.C., 1973 did not operate.
The High Court then proceeded to hold that reliance placed by the Trial Court on the decisions in the cases of Sunderbhai Ambalal Desai & Ors. v. State of Gujarat ; (2002) 10 SCC 283 and in Manjeet Singh v. State, in Crl.M.C. No. 4485/2013 and Crl. M.A. No. 16055/2013 was misplaced. This was because both cases relate to cases where the provision of Section 451 of CrPC were applicable, whis is not so in the present case. This is because the seizure of the two vehicles in the instant case was not subject matter of any inquiry or trial before the Trial Court. The High Court held that -
"54. Thus, it is apparent that despite the non-existence of a specific bar to the jurisdiction of Courts in the Customs Act, 1962 to release of the seized goods during investigation by the Customs Authority, the Trial Court could not have invoked the provisions of Section 451 of the Code of Civil Procedure, 1973 for release of the vehicles in question on superdari in as much as the seizure of the two vehicles in question was not subject matter of any ' inquiry' or 'trial' before the learned CMM at the time of consideration of the prayer for release of the vehicles on superdari. The orders of the Trial Court are thus set aside..."
With these observations, the High Court set aside the order passed by the Trial Court.
(See 2019-TIOL-935-HC-DEL-CUS)
