The State of Assam vs Sri. Dipal Bardhan

T.N. Singh, J.—The short point mat arises for decision in this application by the state is, whether a Criminal Court can pass any order in respect to matter for which the legislature has provided a separate machinery for adjudication. In the instant case, a prosecution was launched against the opposite party u/s 135 of the Custom Act, 1962. Thereafter referred to as the Act, On 5.11.77, so(sic) wrist watches were seized from possession of the opposite (sic) on bing conducted in his shop and dwelling hour. (sic) mation that smuggled watches which were concern (sic) in that house. Along with the wrist watches which were of S(sic)s and (sic)made, currency notes worth Rs. 5,550.00 were also covered along with the note book showing the transaction of sale and receipt of foreign watches. The opposite party was bund guilty u/s 135 of the Act and was convicted thereunder by the Chief Judicial Magistrate, Sibnagar by judgment passed on 3.3.79 in C.R. Case No. 4767/77. Ha was sentence to under R.I, for two years and also to pay a fine of Rs. 5,000 (sic) default, R.I, for one year, There was a further (sic)ctior in order that the seized writ watches and also (sic) seized m(sic) were (sic) be confiscated to the State.

The opposite party preferred in appeal which was heard and disposal of by the learned Session Judge, U.A.D. Jorhat. The learned session(sic) upheld the conviction but modified the sentence passed(sic) O.P. the Appellant before aim. The period of (sic)nnr was reduced to the period already undergone. the amount of fin was reduced from Rs. 5,000.00 to Rs. 2,0(sic) in (sic) undergo R.L. for one year. However. there was (sic) by the learned Sessions Judge which is serious invested as application before me by the learned Public Prosecutor Assam. Mr. D.N. Choudhury. The learned Sessions Justice directed that the currancy notes seized from the possession the opp the patty should be returned to him within a period of the month. This directed he made upon holding the there were evidence on record to establish that the seized tenancy ho were the sale proceeds of the smuggled goods According to the learned Sessions Judge, the trial Court was wrong putting (sic) burden on the opposite party to prove that the (sic) was the sale proceeds of foreign watches. His holding was that (sic) burden rested solely on the prosecution to establish satisfactory that the subject money was the sale proceeds of (sic) saugg goods. The learned Judge further observed, rat suppressing that confiscation of the amount by the custom throatier the departmental proceedings was not justice indeed (sic) observation we do not find in the judgment of the trial Court.

The short p(sic) canvassed in this application relates to the finding and the decision of the learned Sessions Judge by which the seized currancy notes were directed to be returned to the (sic)ed-application. The learned Public prosecutor submits that the impugned o(sic) is patently without jurisdiction and that it has been made on erroneous appreciation of relevant provisions of the Act. He has drawn my attention to the fact that the customs Act is an hybrid Act. There are authorities under the Act invested with powers to deal with the offensive activities administrative we level and that Chapter-XIV has to be taken consider on organically for appreciating this position. The chapter (sic) acr(sic) Sections 111 to 127, Section 111 empower confiscation of improperly imparted goods which are quoted (sic) an authorities berein (sic)larly classed as "sined smuggled goods" goods. Section 112 enable penalty (sic) the (sic)or improper importations of goods etc. Section envisages penalty For not accounting for goods End Section 1(sic) penalty: contravention etc. not expressly mentioned, Section 121, and which centres the controversy raised in this (sic)sation; important and may be quoted:

(sic) Constitutions of sale-proceeds of smuggled goods. Whose any smuggled goods are sold by a person having knowledge or reason to believe that the goods are smuggled goods, the sale-proceeds thereof shall be liable to confiscation.

The authorities angered to levy penalties and make order of confiscation are completed u/s 122. Where the value of goods liable (sic)confiscation does not exceed twenty-five thousand rupees. The power to make order in respect thereof is vested an Assistant Collector of Customs by virtue of Sub-clause (b) of Section 122, while the Collector of Customs or the Deputy Collector Customs'' power has no limit. in terms of value of goods attached to them. These officials have been angered to (sic) order as respects to any penalty or confiscation after such person is adjudged liable by the said authority. As respect (sic) burden of proof in such proceedings special provisions are made in Section 123. It is contemplated therein t(sic) where any goods are seized under the Act in the responsible belief that they are smuggled goods, the burden of proving (sic)at they are not smuggled goods shall rest, inter alia, on the person from whose possession the goods were seized. Before an order or confiscation any goods imposing any penalty is passed on any person, (sic) Chapter XIV, it it contemplated u/s 1(sic) that a notice in writing has to be given informing the "ground:," therefore tore for a person and a reasonable opportunity of making a representation on and of being heard against the pro-posed order has to be forded to him. Section 126 contemplates that when any goods are confiscated under the Act such goods shall yes in the Central Government and the officer adjudging confiscation shall take and bold possession of the confiscated goods. There is another significant provision of which notice must be taken with due care: it is Section 127. It provides that "award of any confiscation or penalty" under the Act by an officer of customs (sic)all not present the "infliction of any punishment" to which the "person affiled thereby" is liable under the provisions of Chapter-xvi of the Act or under any other law. This provision deed carries the burden of Mr. Choudhury''s song in this case. Indeed, Section 135 of Chapter XVI which punishes evasion of duty and other prohibited activities contemplates prosecution" without prejustice to any action that may be taken under the (sic)to lend wight to the expression "effected thereby" of Section 127. I have no doubt therefore that the legislature intended the Criminal Court and the custom authorities to act in two separate water what compartments. Their jurisdiction is mutually exclusive: adjudication in one case terminate in "award of confiscation or penalty" and in the other case in "infliction of punishment".

There no doubt that the learned Sessions Judge misdirected himself in making the impugned direction in view of the provisions discussed above. Section 127, as I have indicated, was a clear pointer to indicate the line of demarcation of the jurisdiction of the Criminal Court under Chapter-XVI and the other authorities ("officers of customs") acting under Chapter-XIV of the Act. The submission of Mr. Choudhury, in my opinion, therefore must prevail. The impugned directions are patently without jurisdiction and are liable to bo set aside. In view of the fact that this aspect of (sic) matter was not considered at all by the learned scissions Judge (sic) Choudhury took me through the evidence of P.W. (sic) the Assistant Collector of Custom who was the officer empower under the Act to make ... an order for confiscation of the said currency notes as sale proceeds of the smuggled goods. His evidence is that on 11.1.77, foreign-made watches as well as cash money was recovered from the possession of the Appellant. The next day the opposite party made a statement in respect thereto and the watches deposited in the godown. On receipt of the "case report", a show cause notice was issued to the opposite party who made his representation. On 24.11.77. personal hearing was given to him, The case was departmentally decided, He was found guilty and a penalty of Rs. 5000.00 was imposed on him. The seized watches as well as the money were confiscated, Thereafter, sanction was, sought from the Collector of Customs and Central Excised for the prosecution of the Appellant which was granted by Act 5. Mr. Choudhury has also drawn my attention to the petition of appeal filed by the opposite party in the Court of Sessions Judge in which the Appellant admitted that in the purported exercise of powers u/s 112 of the Act, the Assistant Collector of Central Excise while adjudicating the case against him passed an order on 11.1.78 confiscating the watches had the sum of Rs. 5,550/- besides imposing a fine of Rs. 5000.00 of him. He also stated that there was an ''appeal by him against that order which had not been disposed of till their on this transaction, Mr. Choudhury further draws my attention to the provisions of Section 128 of the Act which provides, inter alia that any person aggrieved by any decision or order passed under the Act by an Officer of customs lower in rank than a Collector of Customs may appeal to the Collector (Appeals) within three months from the date of communication of such decision or order. There is a further provision for second appeal to the Appellant Tribunal u/s 129A of the Act. Therefore submits the learned Counsel, any decision rendered or order passed or action taken in exercise of powers conferred by Chapter-XIV of the is in itself complete and competent and there is a complete machinery for appropriate remedy in appeal for an aggrieved Persia and the remedy provided under Chapter-XIV executes the jurisdiction of the Criminal Court u/s 127 to deal with the same matter. I have no hesitation to accept this position which appears to'' me perfectly obvious in view of the provisions of Chapter-XV. There is no doubt that in the case u/s 121, the appropriate authority, namely the Assistant Collector of Customs, had the power to confiscate the amount which he considered to be the sale proceeds of smuggle, goods, namely, wrist watches. Whether the power was validity exercised in terms of Section 121 is not for the Criminal Court to consider because there is a different forum proved for given the matter under the Act, The fact that the currency note seized from the possession of the opposite party could not be held, to be the sale proceeds of the smuggled goods i.e. the wrist watches, as was contended before the Court below had to be decided in the proceedings under Chapter-XIV or XV The provision of Section 127 excluded the jurisdiction of the Courts acting under the provisions of Chapter XVI of the Act to consider any matter which could be adjudicated under Chapter-XIV and the ''''award of any confiscation or penalty made the under could only be challenged in the manner provided in Chapter XV relating to "appeals" emulating from any vision or order" made under Chapter-XIV, However, I am unble to accept the submission of Mr. Choudhury that he can in(sic) the an of Section 126 in his case because I had it did to holding that the sale proceeds of smuggled goods can be considered to be the "goods confiscated under the Act". Whatever that may be the bar of Section 127 is clear and is operative in this case disabling the O.P. to agitate the issue in his appeal against this conviction and sentence passed by the trial Court under Chapter-XVI of the Act.

Mr. P.G. Burua, learned Counsel for the opposite party, however, contend that the appellate Court bad Jurisdiction to deal with the matter in view of trial Court''s order of confiscation a wist waveles and the seized currency notes. This contents: was made by Mr. Barua by referring to para 25 of the judgment of the (sic) Court. It is true that the direction of the trial Court was that "the seized wrist watches and also the seized money are confiscated to the State". But I cannot accept the submission of Mr. Burua that this direction is covered by the terms of Section 452(1), Code of Criminal Procedure I do so, firstly, for the reason. that the learned trial Court had no jurisdiction to give such: direction view of the provision of Section 127. The direction of the (sic) Court has, therefore, to be considered as non (sic) in lacoudly, on facts the order of confiscation under Chapter-XI of the Act having already been passed by the appropriate, as far back as on 24.11.77 before the sanction of the prosecution was obtained and before the prosecution was launched, the issue was not live on the date when the direction was (sic) in the judgment passed on 3.3.79. In this connection Mr. Choudhary has drawn my attention to a decision reported in Remo Paul Altoe Vs. Union of India (UOI), wherein their Lordship; observed that an order u/s 452 was likely to create complications when a proceeding in respect thereof was pending, under the Customs Act before the Customs authorities, in the case also the subject matter of confiscation was American currency notes and Canadian dollars, and the order of confiscation passed by the Magistrate and affirmed by the High Court was suit aside In this view of the matter, That was apparent, a convert case. In the Instant case, on the other hand, the proceedings has already terminated and there was nothing before the Court and there was no live issue in respect of which an order u/s 452 could be made. Mr. Choudhury has also placed notice on a decision of the Madras High Court reported in on Crl. L.J. 1551 Assistant Collector of Customs v. Misrimal. The facts of the cassese similar to those of the instant case. An Officer of the Customs Department had second some wise watches and the departmental proceedings against the accessed Petitioner terminated in a levy of penalty of Rs. 5000.00 (sic) confiscation of the wrist watches. It was the confiscation (sic) wrist watches by the Customs authorities which was challenged through the Court in that case. It was held in that case that the procedure regulating the manner or place of vest gating, inquiring into, trying or otherwise dealing with the offence as prescribed under the Act has to be followed in per fence to procedure under the Code. This view was take on the this of the provisions of Section 5(2) of the Code of Criminal Procedure. However, in my view, Section 127 of the (sic) provides a complete answer to the objection taken by Mr Barua against the order of confiscation passed by the Assistant Collector of Customs in respect of the currency notes seized (sic) this case from the possession of the opposite party.

To be fair to Mr. Barua, before parting with this case, it is also necessary to (sic)on the preliminary objection taken by him as to the main ability of the petition. This petition, according to Mr. Barua, not maintainable inasmuch as there is a prayer made herein for enhancement of the sentence in addition to the prayer for acting aside the direction relating to the return of the currency mucus confiscated by the Customs Department. Mr. Burua contacted? that Section 377(2) provides for an appeal and even if this petition be revision can be treated as an appeal u/s 401, Petitioner roust satisfy that it was an appeal validly preceded by an authorised Counsel in the manner providence u/s 377(2), I did not think it necessary to deal was this objection as it appeared to me that the prayer for enactment of the sentence at this stage after a lapse of abort. 7 years should aid not be entertained by this Court in the fact, and circumstances of this case. There cannot be any dispute cat this petition in so for the impugned direction as to the return of the confiscated currency notes is maintainable because here is no provision for a second appeal against order passed by an Appellants Court even if I consider that the order of the trial - Magistrate was passed u/s 452, Code of Criminal Procedure.

In the result the application is allowed to the extent indicates above and he Rule is made absolute. The direction by the learned Seasons, Judge that the Assistant Collector of Custody and Central Excise, Jorhat should return the seized Indian currency notes of Rs. 5,550,00 to the opposite party is hereby (sic) aside.