JUDGMENT
Ratnavel Pandian, J.
1. All the above appeals are listed before us in pursuance of the reference made by Maheswaran, J., in Criminal Appeal No. 688 to 1976, disagreeing with the view expressed by Suryamurthy, J., in Assistant Collector of Central Excise, Vellore Division, Vellore v. R. Padmanabhan (judgment of this Court in Criminal Appeal No. 808 of 1976 dated 20th December, 1979), on the question whether the officer of the customs department would be an agency empowered to made investigation into an offence under the provisions of the Customs Act, within the meaning of Section 377(2) of the Code of Criminal Procedure and whether an appeal preferred at the instance of such as officer on the ground of the inadequacy of the sentence awarded, is maintainable.
2. Before adverting to the important legal question raised before us, the brief facts of these four appeals, in which the same question of law is involved, may be stated.
3. Criminal Appeal No. 688 of 1976. – This appeal arises out of the judgment made in C.C. No. 3336 of 1974 on the file of the Chief Metropolitan Magistrate, Madras, convicting accused 1 and 2 therein under Section 135(b)(ii) of the Customs Act and sentencing each of them to pay a fine of Rs. 2,000 in default to suffer rigorous imprisonment for six months and further convicting both of them under Rule 126-P(2)(ii) of the Defence of India Gold (Control) Rules, 1962, for contravention of Rule 126-E of the Rules, and sentencing each of them to suffer imprisonment till the rising of the Court and to pay a fine of Rs. 2,000 in default to suffer rigorous imprisonment for six months. Before the trial court, there were five accused, of whom accused 3 to 5 were acquitted.
4. The gist of the accusation against the five accused was as follows : Accused 1 was a dealer Pondicherry and he used to purchase gold bars of foreign origin from Messrs Kanyala and Co. at Chintadripet, Madras, of which Accused 2 and 3 were partners and accused 4 and 5 were persons assisting accused 2 and 3 in the business. The Central Excise officials arranged for the surveillance of Kanyala and Co., and of the residential premises of the second accused. On 12th February, 1968, the first accused was intercepted by the Central Excise officials on surveillance duty, on his being found moving in a suspicious manner in the premises of the said Kanyalal and Co. A search of the person of the first accused conducted by P.Ws. 1 and 7, the Inspector and Superintendent of Central Excise C.I.U., Madras had resulted in the recovery of 10 bars of gold of foreign origin (M.O.I. series) which were found kept concealed in a paper packet tied to the dhothi of accused 1 in his waist. Accused 1 was taken to the nearby Tripurasundari Silk House where he was detained. P.W. 1 then proceeded with his party to the residence of the second accused and searched his house on the strength of a search warrant, exhibit P. 5, and seized 15 bars of gold of foreign markings (“Johnson Mathey”) (M.O. 2 series) kept above the mattress and below the pillow, under a mahazar, exhibit P. 6. He also recovered an aluminium box, M.O. 4, containing new gold jewellery of different varieties in commercial quantities, weighing 3343 grams (M.O. 5 series) found kept in plastic boxes, 34 in number (M.O. 6 series), and cash of Rs. 18,162. According to the prosecution, neither of accused 1 to 5 had any permit, licence or any other document to prove the licit origin and legal acquisition of the said gold (M.Os. 1, 2 and 5 series) valued at Rs. 64,502 in all, which were prohibited items of import and which were dutiable goods. Therefore, on the reasonable belief that the said gold items were smuggled, they were seized and accordingly the accused, as per the prosecution case, were knowingly concerned in keeping concealing, transporting or dealing with the said gold items, having reason to believe that they were liable to confiscation under Section 111 of the Act.
5. The first accused was taken to the Central Excise office where a statement was recorded from his under exhibit P. 4 on 13th February, 1968, attested by witnesses. Show cause notices under the Act were given to accused 1 to 5 under exhibits P. 13 to P. 17, to which they replied under exhibits P. 18 to 22. Show cause notices under the Gold (Control) Act were also issued to accused 1 to 5, and exhibit P. 24 is a copy of one such notice. Exhibits P. 25 to P. 28 are the replies given by accused 1 to 4. Exhibits P. 23 to P. 20 are the adjudication orders passed under the Customs Act and the Gold (Control) Act by the Collector of Central Excise, Madras. Thereafter, on the strength of the sanction order, exhibit P. 30, the prosecution was launched. In support of the Prosecution, P.Ws. 1 to 7 were examined, exhibits P. 1 to P. 31 were filed and M.O. 1 series to M.O. 6 series were marked.
6. Criminal Appeal No. 903 of 1976. – This appeal is preferred by the Assistant Collector of Central Excise, Vellore, through his counsel against the judgment made by the learned judicial First Class Magistrate, Vellore, in C.C. No. 403 of 1976, on his file, on the ground that the sentence of imprisonment till the rising of the court and the direction to pay a fine of Rs. 100 in default to suffer rigorous imprisonment for three months, for the convictions recorded on plea of guilt for the offences punishable under Sections 33, 55(2) and (3) of the Gold (Control) Act, each read with Section 85(ii) and (viii) and Section 37 of the said Act is inadequte.
7. The accusation against the accused in the said cases was that on or about 23rd October, 1974, at door No. 10-A, Arali Amman Koil Street, Tiruvannamalai Town, he was found in possession of 1415.500 grams of primary gold and old and new ornaments, not covered by the stock register. To substantiate the above charge, the prosecution examined P.Ws. 1 and 2, the Inspectors of Central Excise.
8. It is the evidence of P.W. 1 that he, on the direction of the Assistant Collector of Central Excise, Vellore, inspected and checked the stock accounts of the accused and found the stock account of gold ornaments and gold tallying with the gold stock register. Then he checked the premises of the accused and found 3282.50 grams of primary gold and new and old gold ornaments not covered by the stock register. He seized them under the mahazar, exhibit P. 1, in the presence of one Kuppuraj. The accused gave a voluntary statement under exhibit P. 2 to P.W. 1. A statement under exhibit P. 7 was recorded by P.W. 2 from the accused on 16th November, 1974. Then, P.W. 1 issued a notice, exhibit P. 3, to which the accused replied under exhibit P. 4. The Collector of Central Excise, under exhibit P. 5 passed the adjudication order releasing the gold items weighing 1415.500 grams and held that 1275 grams of gold items as belonging to the seven claimants, and 140 grams as belonging to others, and imposed a penalty of Rs. 500 on the accused under Section 74 of the Gold (Control) Act, for contravention of Section 33, 55(2) and (3) of the said Act. Thereafter a sanction to prosecute the accused was passed by the Collector of Central Excise under exhibit P. 6.
9. From the judgment, it is seen that the accused, during his examination under Section 313, Criminal Procedure Code, pleaded guilty to the charge and it was only thereafter the trial court convicted the accused, but passed the impugned judgment, though the trial Magistrate has observed that the offence is an anti-social one.
10. Criminal Appeal No. 41 of 1977. – The Assistant Collector of Central Excise, Salem, through his counsel, has directed this appeal against the judgment made by the learned Judicial First Class Magistrate No. II, Salem, in C.C. No. 828 of 1975 on his file, sentencing the accused to undergo imprisonment till the rising of the Court and to pay a fine of Rs. 700, in default to suffer rigorous imprisonment for six months, for the offence under Section 85(1)(b) read with Sections 8(1) and (2) of the Gold (Control) Act, and to undergo imprisonment till the rising of the Court and to pay a find of Rs. 300 in default to undergo rigorous imprisonment for six months, under Section 16(1) read with Section 86 of the Gold (Control) Act, on the ground that the sentences imposed by the trial court are inadequate.
11. The brief facts of the case which led to this prosecution can be stated thus :
P.W. 1, the Inspector of Central Excise, on 28th June, 1973 at 10 a.m., searched the house of the accused at door No. 53, Ammapet Main Road, Salem, in the presence of P.Ws. 2 and 3 others, on the strength of a search warrant, exhibit P. 1, issued by the Assistant Collector of Central Excise, Preventive, Madras. In the room adjoining the front hall, where the accused was doing business as broker, on the floor and in a steel almitah, new and old ornaments were found. In another steel bureau kept upstairs, there were primary gold and gold articles with new gold ornaments. M.O. 1 series are the two primary gold ingots; M.O. 2 series are three gold articles; M.O. 3 series are 33 new gold articles; M.O. 4 series are five gold ornaments. M.Os. 1 to 4 series were seized under the mahazar, exhibit P. 2, attested by P.W 3 and others. In the shirt packet, some chits (exhibit P. 3 series) were found. M.O. 5 series (8 hard-board boxes) were also found in the first room. They were all seized under exhibit P. 2. A statement under exhibit P. 4 was recorded from the accused by P.W. 2. Subsequently, on 14th July, 1973, the accused sent exhibit P. 5, a petition to the authorities. A show cause notice under exhibit P. 6 was issued to the accused who replied under exhibit P. 7. Exhibit P. 8 is the adjudication proceeding. After obtaining the sanction for prosecution under exhibit P. 9, the Assistant Collector of Central Excise laid the complaint against the accused.
12. The accused, when questioned, stated that he was not doing business in gold and that the ornaments found in the house belonged to him and his relatives. He would further add that the primary gold does not belong to him and that he has no licence for dealing in gold ornaments.
In support of the prosecution, three witnesses were examined Exhibits P. 1 to P. 5 were filed and M.Os. 1 to 5 series were marked.
13. On a consideration of the evidence adduced by the prosecution, the trial court convicted the accused under the first charge on the ground that the accused was found in possession of primary gold weighing 29.500 grams, without any permit, and under the second charge, the accused was indicted on the allegation that he was found in possession of 4244 grams of gold ornaments and 20 grams of gold articles, other than personal ornaments, and that he failed to make declaration as required under the provisions of the Gold (Control) Act.
14. Criminal Appeal No. 614 of 1977. – The Assistant Collector of Central Excise, Madurai, has directed this appeal against the judgment made in Criminal Appeal No. 451 of 1976 on the file of the Sessions Judge of Madurai, reducing the sentence of 18 months rigorous imprisonment imposed on the first accused by the learned Chief Judicial Magistrate, Madurai, in C.C. No. 282 of 1976 on his file, to the period already undergone, and in addition, imposing a fine of Rs. 500, in default to suffer rigorous imprisonment for six months, while confirming his conviction passes by the trial court for an offence under Section 85(1)(ii)(a) read with Section 2(1)(i) of the Gold (Control) Act, 1968. This appeal has been filed on the ground of inadequacy of the sentence imposed by the lower appellate court.
15. The brief facts of the case are as under : On 5th February, 1974, P.W. 1, the Inspector of the Central Intelligence Unit of Central Excise, along with the Superintendent and party, search the house of the first accused situate as Sathya Sai Nagar, Madurai, in the presence of the first accused’s wife, accused 2 (since acquitted), and some independent witnesses, and recovered 17 bars of primary gold (M.O. 1 series) weighing 4946.900 grams, valued at Rs. 2,10,000. A voluntary statement under exhibit P. 2 was recorded from the second accused. The first accused was contacted on 16th April, 1974, and he gave a statement, exhibit P. 3, explaining that he was carrying on a business as broker in ornaments and that one Abdul Hasim gave him two paper packets which he had kept in his house under the bona fide belief that they contained only ornaments but he was shocked to realise that the packets contained gold pieces only on reading the news item in the press that his house was searched and gold bars were recovered. After completing the investigation, a show cause notice, exhibit P. 4, was issued to the accused, to which the first accused replied under exhibit P. 8 wherein also he had given an explanation similar to the one contained in exhibit P. 3. Thereafter, the Collector adjudication the matter. Exhibit P. 5 is the order of adjudication. P.W. 1, after obtaining sanction under exhibit P. 6, filed the complaint.
16. When questioned, the case of the first accused before the trial court was one of denial.
17. The trial court, on a consideration of the evidence of P.Ws. 1 and 2 and the documents, exhibits P. 1 to P. 8, convicted the accused and sentenced him to undergo rigorous imprisonment for 18 months.
18. The learned Sessions Judge, disagreeing with the view of the trial Magistrate that the facts of the case called for a deterrent sentence and relying on exhibits P. 3 and P. 8, took a lenient view and reduced the sentence to the period already undergone and imposed a fine of Rs. 500 as aforementioned. Hence the appeal.
19. The main point that arises for consideration from the submissions made by the learned counsel for the appellant and the respondents in all these four appeals, is whether the appeal for the enhancement of the sentence on the ground of its inadequacy, presented by the Assistant Collector of Central Excise through his counsel, is maintainable under Section 377 of the Code of Criminal Procedure. Before answering this point of law, we would like to point our that no argument was advanced on behalf of the respondents by any one of the counsel, pleading for setting aside the convictions, by resorting to sub-section (3) Section 377.
20. For a decision about the competence of the appeals, a detailed discussion about the import of sub-sections (1) and (2) of Section 377, Criminal Procedure Code, is relevant. They read as follows :
“Appeal by the State Government against sentence. – (1) Save as otherwise provided in sub-section (2) the State Government may, in any case of conviction on a trial held by any Court other than a High Court, direct the Public Prosecutor to present an appeal to the High Court against the sentence on the ground of its inadequacy.
(2) If such conviction is in a case in which the offence has been investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946, or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, the Central Government may also direct the Public Prosecutor to present an appeal to the High Court against the sentence on the ground of its inadequacy.
(3)………….”
21. The expression “the Central Government may also direct” occurring in sub-section (2) has been substituted for the words “the Central Government may direct”, by section 29 of Act 45 of 1978 dated 18th December, 1978. The above section is newly inserted to give effect to the recommendation of the Law Commission in its 41st report, according to which an appeal should be provided against the inadequacy of a sentence and the ordinary court of appeal should be invested with power to deal with it. It may not be out of place to mention here that Section 378(2), Criminal Procedure Code, dealing with an appeal against acquittal also contains provisions analogous to Section 377(2).
22. A plain reading of the above section shows that whilst section 377(1) empowers the State Government, save as otherwise provided in sub-section (2), to direct the Public Prosecutor to present an appeal for enhancement of sentence in any case conviction on a trial held by any court other than the High Court, as per sub-section (2) of that section the Central Government is empowered to direct the Public Prosecutor to present an appeal for enhancement of sentence only in certain categories of cases. viz., (1) when the offence has been investigated by the Delhi Special Police Establishment, or (2) when the offence has been investigated by any other agency empowered to make investigation under any Central law other than the Criminal Procedure Code.
Thus, a reading of sub-section (2) clearly shows that so far as the Central Government is concerned, its power is restricted only to the abovesaid two categories of cases.
The above section introduces a new right of appeal which was not earlier available under the old Code, whereunder the High Court, while exercising its revisional power, was vested with discretion to enhance the sentences passed by the subordinate courts after affording the accused an opportunity of being heard as envisaged under Section 439 of the old Code. As pointed out by the Supreme Court in Eknath v. State of Maharashtra , the High Court’s power to enhance the sentence in an appropriate case by exercising its suo motu power of revision is still extant under section 397 read with section 401 of the present Code, inasmuch as the High Court can by itself call for the record of proceedings of any inferior criminal court under its jurisdiction and the provision of section 40(4), which is a bar to a party who does not appeal when appeal lies, but applies in revision, does not stand in the way of the High Court’s exercise of revision, suo motu, which continues as before, in the new Code. The provisions under Section 401 read with section 386(c)(iii), Criminal Procedure Code, are clearly supplemental to those under Section 377 : see Nadir Khan v. State (Delhi Administration) .
23. The Law Commission, in its 41st report, proposing to insert a new provision, viz., section 417-A in the Code, has observed as follows :
“It may be noticed that although section 417 permits the State Government to appeal against an order of acquittal, it does not permit any appeal against a conviction when the punishment may be grossly inadequate. Any error in sentencing can be remedied only by the exercise of revisional power of the High Court. This is somewhat unsatisfactory.
There seems no reason why the State Government should not appeal against an inadequate sentence; nor why such an appeal cannot be handled by ordinary course of appeal. Cases of inadequate sentencing are frequently occurring and we consider the ordinary court of appeal should, in each case where the State considers it proper to lodge an appeal, be able to deal with it. We therefore propose to add a new section in this chapter as section 417-A.”
24. The proposed draft section read as follows :
“417-A. (1) The State Government may, in any case of conviction on a trial held by any court other than a High Court, direct the Public Prosecutor to present an appeal against the sentence on the ground of its inadequacy.
(2) If such conviction is in a case in which the offence has been investigated by the Delhi Police Establishment constituted under the Delhi Special Police Establishment Act, 1946, the Central Government may also direct the Public Prosecutor to present an appeal against the sentence on the ground of its inadequacy.
(3) An appeal under this section shall lie to the courts to which an appeal by the person convicted in the case would lie under section 408.”
25. A comparative study of section 377 as it stands now and the proposed section as suggested by the Law Commission shows that there are some material alterations made at the time of the passing of the enactment. For the purpose of this case it may be noted that the following clause appearing in sub-section (2), viz., “or by any other agency empowered to make investigation into an offence under any Central Act other than this Code” was not inserted in the section as proposed by the Law Commission. Sub-section (2) of section 377 confers a right of appeal on the Central Government against a sentence on the ground of its inadequacy in two types of cases, viz., (1) those cases where investigation is conducted by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946; and (2) those cases which are investigated by any other agency empowered to make investigation under any Central Act, not being the Code of Criminal Procedure.
26. There is no difficulty in the first type of cases, which are investigated by the Delhi Special Police Establishment where, certainly, the Central Government is the competent authority to appeal against the inadequacy of the sentence. The controversy centres round the second type of cases, viz., those which are investigated by any other agency empowered to make investigation under any Central Act not being the Code of Criminal Procedure. Therefore, in the cases on hand, which fall under the second category of cases enumerated above we have to examine, whether the offences involved have been investigated by the official empowered to do so under the Customs Act or the Gold (Control) Act, as the case may be. The Criminal Procedure Code is a procedural law, whereas the Customs Act, the Gold (Control) Act, etc., are substantive laws. We have, therefore, to closely examine those substantive laws and find out whether the provisions of such Acts contain any express provision empowering the making of investigation under the said Acts, just like section 3 of the Delhi Special Police Establishment Act, whereunder the Central Government is empowered to specify the offences and classes of offences which are to be investigated by the Delhi Special Police Establishment by a notification. At the outset, we would like to point out that there is no special express provision either in the Customs Act or in the Gold (Control) Act regarding investigation of offences under the respective Acts.
27. It is to be noted that the Criminal Procedure Code inter alia provides for investigation of all categories of criminal offences. The First Schedule of the Code classifies Offences into two categories, viz., (1) those punishable under the Indian Penal Code, and (2) those punishable under the other laws. Between these two classifications, the entire denotation of criminal offences is exhausted. We shall, therefore, now examine the meaning of the term “investigation” occurring in Section 377(2), Criminal Procedure Code.
28. Chapter XII of the present Criminal Procedure Code (corresponding to Chapter XIV of the old Code) (covering section 154 to 176 in both Codes) comes under the heading “Information to the Police and their powers to investigate” and such powers of investigation include the power to take measures for discovery and arrest of the accused, to require attendance of witnesses, their examinations, recording of confessions, search, power of releasing the accused when evidence is deficient, writing of diaries about proceedings of investigation, and finally submission of the report of the investigation under Section 173 of the Code.
29. The term “investigation” is defined in Section 2(h) of the present Code which is an exact reproduction of section 4(1)(h) of the old Code. Section 2(h) reads :
“In this Code, unless the context otherwise requires –
(h) ‘investigation’ includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than Magistrate) who is authorized by a Magistrate in this behalf.”
30. The Supreme Court, while construing the term “investigation” in H. N. Rishbud v. State of Delhi , has observed that under the Code of Criminal Procedure, investigation consists generally of the following steps, viz. (1) proceeding to the spot, (2) ascertaining all the facts and circumstances of the case, (3) discovery and arrest of the suspected offender, (4) collection of evidence relating to the commission of the offence, which may consist of (a) the examination of various persons (including the accused) and the reduction of their statements into writing, if the officer thinks fit, (b) the search of places or seizure of things considered necessary for the investigation and to be produced at the trial, and (5) formation of the opinion as to whether on the materials collected, there is a case to place the accused before a Magistrate for trial and if so, taking the necessary steps for the same by filing a charge-sheet under section 173.
The above observation was affirmed and reaffirmed by the Supreme Court in State of Madhya Pradesh v. Mubarak Ali .
31. Hence we have to examine the Customs Act and the Gold (Control) Act and see whether the concerned officials under these Acts are clothed with the power of investigation as defined in the Code and as explained by the Supreme Court in the above two decisions. It may be mentioned at this juncture that the expression “investigation” used in section 377(2) is with a definite meaning in its strict legal sense and not in a loose and general sense.
32. The word “investigation” defined in section 2(h) of the Code has to be read and understood in the light of not only the powers conferred on police officers, but the restrictions placed on them in the use and exercise of such powers. For this purpose, sections 154 to 173 in Chapter XII of the Code may be cursorily glanced at. Oral information relating to the commission of a cognizable offence should be reduced to writing; and such information whether given in writing or reduced to writing, should be signed by the person giving it, and the substance thereof shall be entered in a register prescribed by the State Government (section 154). In respect of information regarding the commission of a non-cognizable offence, the substance thereof should be entered in a prescribed register. No police officer shall investigate a non-cognizable case without the order of concerned Magistrate (Section 155). Without the order of a Magistrate the police officer-in-charge of a police station, may investigate any cognizable case (section 156). An officer-in-charge of a police station, when he receives information about the commission of a cognizable offence shall send forthwith a report of the same to a Magistrate (section 157). The police officer’s report to a Magistrate under section 157 shall be submitted through a superior police officer if the State Government so directs (section 158). A police officer making investigation may, by order in writing, require the attendance of witness (section 160). A police officer making an investigation may examine orally any person acquainted with the facts and circumstances of the case and reduce the statement to writing (section 161). No statement made to police officer in the course of investigation shall, if reduced to writing, be signed by the person making it; such statement shall not be used for any purpose at any inquiry or trial in respect of any offence under investigation except in the manner provided under the section (section 162). A police officer making an investigation may make a search of the premises, after recording in writing the grounds of his belief and specifying in writing, so far as possible, the thing for which the search is to be made; copies of any record made under sub-section (1) or sub-section (3) shall forthwith be sent to the nearest Magistrate (section 165). An officer-in-charge of police station or an officer not below the rank of a sub-inspector making investigation may require an officer-in-charge of another police station or an officer not below the rank of a sub-inspector making investigation may require an officer-in-charge of another police station to cause a search to be made to any place (section 166).
33. When a person is arrested and detained in custody and it appears that investigation cannot be completed within 24 hours the police officer making the investigation shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary and seek further detention of the accused in custody (section 167). If, after investigation, the evidence is found deficient, the police office can release a person in custody after obtaining a bond, with or without sureties, from the person concerned (section 169). If an investigation revealed the existence of sufficient evidence, the police officer shall forward the accused under custody to a Magistrate for the accused being tried or committed for trial (section 170). Every police officer making an investigation shall day by day enter his proceedings of the investigation in a diary; any criminal court may send for the police diaries of case under inquiry or trial and may use such diaries as an aid in the inquiry or trial (section 172). Every investigation shall be completed without unnecessary delay and as soon as it is completed, the police officer shall forward to a Magistrate a police report in the form prescribed by the Government for the Magistrate taking cognizance of the offence (section 173).
34. As submitted by Mr. C. Krishnan, the learned counsel for the appellants in all these appeals, as per the definition of the word “investigation”, all the proceedings under the Code for the collection of evidence conducted by not only the police officer but also by any person (other than a Magistrate) who is authorised by the Magistrate in this behalf, are included. Section 4 of the Code enacts that all offences under the Indian Penal Code shall be investigated, inquired into, tried or otherwise dealt with according to the provisions contained in the Code and all offences under any other law shall be investigated, inquired into, tried or otherwise dealt with according to the same provisions but subject to any enactment for the time being in force regulating the manner or place of Investigation, inquiring into, trying or otherwise dealing with such offences. Hence, by virtue of sub-section (2), an offence falling under any other law should be investigated, inquired into, tried or otherwise dealt with according to the provision of the Code of Criminal Procedure, but subject to any enactments for the time being in force regulating the manner of investigating, inquiring into, trying or otherwise dealing with such offences : Ishan Chandra v. Manmath Nath Dutta A.I.R. 1923 Cal. 339, Agarwala v. Emperor A.I.R. 1932 Pat. 188 and Nilratan v. Lakshminarayan . In such cases, the provisions of the said law must prevail and the Criminal Procedure Code must give way. Therefore, if an authority under any other law is empowered to investigate into an offence under that law, that law should prescribe the mode of investigation. In such a case, the salutary principle underlying section 377(2) would apply equally to other officials, by whatever designation they may be known, who have the power and duty to detect, and investigate into crimes. It is not the garb of the designation under which the officer concerned functions that matters, but the nature of the power he exercises or the character of the function he performs which is decisive. The question, therefore, in each case is : Does the officer under the particular Act substantially exercise the powers and discharge the duty of prevention and detection of crimes ?
35. Under the various Central Acts, it is true, there are certain provisions enacted primarily for prevention of offences enumerated therein and also for enforcement of the said provisions. We think it would be useful to give in a tabular form the provisions contained in some relevant Central Act including the Customs Act and the Gold (Control) Act, relating to the powers vested and the duties case on the officials of the concerned departments, so that the questions involved in these cases could be understood and answered. It may be noted that the following table is only illustrative and not exhaustive :
————————————————————————
Serial Name of the Power to Power to Power to Power to
No. Act search search search stop and
premises suspected persons search
persons conveyances
entring
or leaving
India
------------------------------------------------------------------------
1 2 3 4 5 6
------------------------------------------------------------------------
1. The Customs Section 105 Section 100 Section 101 Section 106
Act
2. The Gold " 58 - " 60 " 61
(Control) Act
3. The prevention " 10(2) S. 6 to be - -
of Food r/w S. 18
Adulteration of the Sea
Act Customs Act
4. The Railway " 10 - - -
Property &
(Unlawful " 11
Possession)
Act
5. Foreign Exchange " 37 S. 34 " 34 " 36
Regulation Act,
1973
------------------------------------------------------------------------
------------------------------------------------------------------------
Power to Power to Power to Power to summon Cognizance
seize arrest examine persons to give
goods persons evidence and
documents, produce documents
------------------------------------------------------------------------
7 8 9 10 11
------------------------------------------------------------------------
Section 110 Section 104 Section 107 Section 108 Section 137
" 66 " 68 " 64 " 63 " 97
" 10 " 10(B) - - " 20
- " 6 - " 9 " 5
" 38 " 35 " 39 " 40 " 61
-----------------------------------------------------------------------
36. The provisions relating to the powers of officers under the Customs Act, the Gold (Control) Act, and other Central Acts are analogous to some of the provisions contained in the Criminal Procedure Code, whereunder the police officers have to investigate into the offences in compliances with those provisions as contemplated under Chapter XII. A question arose for examination before the Supreme Court in State of Punjab v. Barkat Ram , whether a Customs Officer can be regarded as a police officer within the meaning of Section 25 of the Evidence Act. Majority of the learned Judges, while holding that a Customs Officer, either under the Land Customs Act, 1924, or under the Sea Customs Act, 1878, is not a police officer for the purpose of section 25 of the Evidence Act, observed as follows : “The duties of the Customs Officers are very much different from those of the police officers and their possessing certain powers, which may have similarity with those of police officers, for the purpose of detecting the smuggling of goods and the persons responsible for it, would not make them police officers. Merely because similar powers in regard to detection of infractions of customs laws have been conferred on officers of the customs department as are conferred on officers of the police, is not a sufficient ground for holding them to be police officers within the meaning of section 25 of the Evidence Act. The Customs Officers, when they act under the Sea Customs Act to prevent the smuggling of goods by imposing confiscation and penalties, act judicially”.
37. In Badaku Joti Svant v. State of Mysore the Supreme Court had to consider the question whether a statement made by an accused with the Deputy Superintendent of Customs and Excise would not be hit by section 25 of the Evidence Act. Their Lordships, after making an elaborated discussion on this point with reference to section 21(1) of the Central Excises and Salt Act, 1944, pointed out that even if the broader view, viz., that a Central Excise Officer is a “Police Officer”, is accepted, mere conferment of powers of investigation like those vested in an office-in-charge of a police station, into criminal offences under section 9 of the Central Excises and Salt Act does not make the officer a police officer and hence the statement is not hit by section 25 of the Evidence Act.
38. The Supreme Court, in State of Uttar Pradesh v. Durga Prasad , after carefully examining and comparing the powers of arrest, inquiry, and investigation, of an officer to the Railway Protection Force under the Railway Property (Unlawful Possession) Act, 1966, with those of a police office under the Code of Criminal Procedure, pointed out that such an officer of the R.P.F. does not possess all the attributes of an officer-in-charge of a police station investigating a case under Chapter XIV of the old Code (Chapter XII of the new Code). It was further observed : “The right and duty of an investigating officer to file a police report or a charge-sheet on the conclusion of the investigation is hallmark of an investigation under the Code. Section 173(1)(a) of the Code provides that as soon as the investigation is completed, the officer-in-charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government. The officer (RPF) conducting an inquiry under section 8(1) cannot initiate court proceedings by filing a police report.”
In the above case, their Lordships, agreeing with the dictum laid down in Barkat Ram’s case and Badaku Joti’s case. held that an officer of the Railway Protection Force conducting an inquiry under Section 8(1) of the Railway Property (Unlawful Possession) Act, could not be equated with an officer-in-charge of a police station making an investigation under Chapter XIV of the (old) Code.
39. Once again, a similar question whether an officer of the Railway Protection Force making an inquiry in respect of an offence under section 3 of the Railway Property (Unlawful Possession) Act is a police officer in order to bring him within the purview of a police officer for the purpose of determining the admissibility of a statement of the accused under Section 25 of the Evidence Act was considered by the Supreme Court in Balkishan v. State of Maharashtra, 1980 Crl. L.J. 1424. The Supreme Court after making a comparative study of the relevant provisions of the Railway Property (Unlawful Possession) Act, 1966, and the Code of Criminal Procedure in detail held that an officer of the Railway Protection Force making investigation under section 8(1) of the said Act does not possess several important attributes of an officer-in-charge of a police station conducting an investigation under Chapter XIV of the (old) Code and that the official status and powers of an officer of the R.P.F. in matter of inquiry under the 1966 Act differed in material aspects from those of a police officer conducting an investigation under the Code and particularly he has no power to initiate prosecution by filing the charge sheet under section 173, Criminal Procedure Code, which has been held to be clinching attribute of an investigating “Police officer”.
40. Reference can also be made to the decision of the Calcutta High Court in Hoshide v. Emperor A.I.R. 1940 Cal. 97, wherein it has been observed that :
“A proceeding by a police officer for the collection of evidence would answer the definition of investigation only if it were a proceeding under the Code.”
And that an examination of documents seized either by a Customs Officer or by the police is not a proceeding under the Code and therefor not an investigation.
41. A full bench of this Court in Mani, In re 1966 L.W. (Cri) 195 (F.B.) has pointed out that neither the inquiry under section 107 nor the inquiry under section 108 of the Customs Act can in any way, in substance or in law, be considered to be the same as an investigation into the criminal offence, by an officer-in-charge of a police station under Chapter XIV of the old Code, which is primary test for the application of the section 25 of the Evidence Act.
42. After the introduction of this new provision, viz., section 377, the meaning of the expression “by any other agency empowered to make investigation into an offence under any Central Act other than this Code” occurring therein, was considered by the Supreme Court in Eknath v. State of Maharashtra , while examining the question whether the officer under the Prevention of Food Adulteration Act, 1954 (Central Act No. 37 of 1954), is vested with the power of “investigation” within the meaning of that expression as occurring in section 377(2) of the Code, and it has been held by the Supreme Court as follows :
“The true test, therefore, under Section 377(2), Criminal Procedure Code, is whether the offence is investigated by the Delhi Special Police Establishment or is investigated by another agency empowered to make investigation under any Central Act other than the Code of Criminal Procedure. In other words, just like section 3 of the Delhi Special Police Establishment Act, there should be an express provision in the Prevention of Food Adulteration Act empowering the making of investigation under the Act. But no such express provision is found in the Prevention of Food Adulteration Act……… The scheme of the Act is such that the case is instituted on his (Food Inspector’s) report and dealt with under the Criminal Procedure Code as a case of which cognizance is taken under Section 190(1)(a) of the Criminal Procedure Code. In the absence of any express provision in the Act in that behalf it is not possible to hold that the Food Inspectors are empowered to make investigation under the Act. Section 377(2), Criminal Procedure Code, therefore, is not attracted and the appeal under Section 377(1), Criminal Procedure Code, at the instance of the State Government is maintainable.”
43. The Supreme Court, in a subsequent case, viz., State of Maharashtra v. Mahipati following the decision in Eknath’s case , held that the High Court of Maharashtra was not right in holding that an appeal preferred by the State under Section 377(1), Criminal Procedure Code relating to an offence investigated by the Forest Officers under the provisions of the Indian Forest Act (a Central Act) was not competent.
44. Before a Division Bench of the Bombay High Court in State of Maharashtra v. Laxmichand Barhomal 1978 Crl. L.J. 845, a point was raised whether the appeals for enhancement of sentence for convictions under the Customs Act, the Drugs and Cosmetics Act, etc., filed by the Public Prosecutor at the instance of State Government, were validly filed under section 377, Criminal Procedure Code. It was argued before the Bench that the Customs Act is an independent and complete Code by itself and that the provisions starting from section 100 in Chapter XIII as well as Chapter XIV provide complete machinery, for the purpose of detection an offence as well as the investigation thereof including the recording of statements of witnesses, etc., and therefore the officials under the Customs Act are carrying on the investigation otherwise than under the Code and hence all the appeals ought to have been filed by the Public Prosecutor only at the instance of the Central Government. The learned Judges, following the view expressed by the Supreme Court in Eknath’s case and Mahipati’s case , held that there is no warrant for thinking that the investigation of the customs crimes falls within sub-section (2) of section 377, Criminal Procedure Code so as to render the State Government incompetent to instruct the Public Prosecutor to file an appeal. While so concluding the Bench observed thus :
“In our view, therefore, the scheme of the Act is to enforce the provision of the Customs Act and to prevent the evasion of customs duty. The machinery created under this Act is not one for the purpose of investigation into crimes. It is only the side-effect resulting from the enforcement of the Customs Act that certain offences are detected. Certain imports and exports without licence are also detected. Since they also constitute offences on the basis of the material collected, a prosecution can be launched as provided in Chapter XIV. The machinery is, not created for the purpose of investigation of crime under any Central Act. It cannot be said that that is a separate machinery for the purpose of investigation of crimes by-passing the provisions of the Criminal Procedure Code.”
45. A single Judge of the Bombay High Court in State of Maharashtra v. Anderson Pinn Kay 1978 Crl. L.J. 1666, following Eknath’s case and Laxmichand’s case 1978 Crl. L.J. 845 held that the investigation of offences under the Customs Act by the Customs Officers does not fall within the ambit of section 377(2) and hence an appeal for enhancement of sentence at the instance of the State Government is competent.
Mr. C. Krishnan, the learned counsel appearing for the appellants relying on Nilratan v. Lakshmi Narayan and Badaku Joti v. State of Mysore would submit that the officers under the Foreign Exchange Regulation Act and the officers of the Central Excise Department are clothed with the power of investigation and hence it must be held that the investigation held under the sister enactments, viz., the Customs Act and the Gold (Control) Act, the provisions of which are similar to those in the Foreign Exchange Regulation Act and the Central Excises and Salt Act, should be deemed to be an investigation within the meaning of the term as contemplated in section 337(2), Criminal Procedure Code.
46. The submissions of Mr. C. Krishanan cannot be accepted as the said two decisions relied upon by him have been rendered with reference to the particular provisions of those Central Acts and cannot be made applicable to the questions involved in these cases for the reasons to be presently given by us.
47. In Nilratan’s case , the interpretation was with reference to section 19-A of the Foreign Exchange Regulation Act, 1947, which provides for the necessary investigation into the alleged suspected commission of an offence under the Act, by the Director of Enforcement. The Supreme Court, while answering an argument advanced before it with reference to section 5(2) of the Criminal Procedure Code, 1898, held that “the provisions of the Code of Criminal Procedure, therefore, will not apply to such investigation by him, assuming that the expression ‘investigation’ includes the retaining of the documents for the purposes of investigation”. A close scrutiny of the judgment, in our view, shows that this decision is not helpful to the appellant in deciding the question involved in this case, especially when the Supreme Court has laid down the principle regarding the application of section 377(2) in Eknath’s case .
48. In Badaku Joti’s case the Supreme Court, in view of section 21(2) of the Central Excises and Salt Act which enacts that the Central Excise Officer for the purpose of proceeding to inquire into a charge against any person, may exercise the same powers and shall be subject to the same provisions as the officer-in-charge of a police station may exercise and is subject to, under the Code of Criminal Procedure, 1898, when investigating a cognizable case, found that section 21(2) confers on the Central Excise Officer the same powers as an officer-in-charge of a police station has when investigating a cognizable case, but that this power is conferred for the purpose of sub-section (1), which gives power to the Central Excise Officer, to whom any arrested person is forwarded to inquire into the charge against him. It further held that “it does not, however, appear that the Central Excise Officer under the Act has power to submit a charge-sheet under Section 173 of the Criminal Procedure Code, we are of the opinion that mere conferment of powers of Investigation into criminal offences under section 9 of the Act does not make the Central Excise Officer a police officer even in the broader view mentioned above. Otherwise, any person entrusted with investigation under section 202 of the Criminal Procedure Code would become a police officer.”
Neither in the Customs Act nor in the Gold (Control) Act, with which Acts we are now concerned, there is a provision nor has the learned counsel brought to the notice of this Court any such provision similar to section 21(2) of the Central Excises and Salt Act of 1944, and further, in view of the Supreme Court’s decisions which we have extracted above, the above ruling does not come in aid of the case of the appellant.
49. Mr. C. Krishnan further submits that as provided in Article 246 of the Constitution of India, the Parliament is empowered to make laws on the subjects contained in list I (Union List) of the seventh Schedule to the Constitution, and on the subjects contained in List III of the same schedule (Concurrent List), and that as per entries 36, 41 and 84 of the said List I, the Parliament is empowered to make laws relating to foreign exchange, customs and Central Excise respectively. He would further point out that the Gold (Control) Act is enacted as per entry 97 of List I which empowers the Parliament to make laws relating to any other matter not enumerated in List II or List III. According to him, the Foreign Exchange Regulation Act, the Customs Act, the Central Excises and Salt Act. The Gold (Control) Act, etc. made by Parliament under the powers vested in it, make special provisions for the enforcement and execution of the provisions of the said Acts by creating special functionaries and hence the investigation carried on under those Acts by the said functionaries should be held to come within the definition of “Investigation” occurring in sub-section (2) of section 377.
50. We are unable to appreciate the above submission of the learned counsel for the appellants. The Criminal Procedure Code, which is a Central Act, comes under Item 2 of List III (Concurrent List) and is enacted by Parliament. A plain reading of section 377(2) shows that for an appeal being preferred by the Public Prosecutor at the instance and on the instructions of the Central Government, the offence should have been investigated by any other agency empowered to make investigation into such an offence under the concerned Central Act not being the Criminal Procedure Code. In other words, the agency empowered to make investigation should be an agency created for the purpose under the particular Central Act and the investigation has to be carried on within the meaning of that term (“investigation”) as used in the provisions of the Criminal Procedure code. In our view, the scheme of the Customs Act is to enforce the provisions of the Customs Act and that of the Gold (Control) Act is for the control of production, supply, possession, etc., of gold. The machineries created under those Acts are not for the purpose of investigation into crimes. It is only the side-effect resulting from the enforcement of the provisions of those Acts, that certain offences are detected. Since they also constitute offences on the basis of the material collected, the prosecution can be launched as provided in Chapter XVI of the Customs Act and Chapter XV of the Gold (Control) Act. The machineries, however, are not created for the purpose of investigation of crimes under those Central Acts and it cannot be said that they are separate machineries for the purpose of investigation of crimes by-passing the provisions of the Criminal Procedure Code. Therefore, as pointed out by the Division Bench of the Bombay High Court in Laxmichand’s case 1978 Crl. L.J. 845, extending the principle laid down in Eknath’s case , there is no warrant for thinking that investigation of the customs crimes or crimes under the Gold (Control) Act falls under sub-section (2) of section 377, so as to hold that the investigation carried on by the officials enumerated under those Acts are investigations as defined in the Code of Criminal Procedure. Therefore, this contention made on behalf of the appellant also fails.
51. Maheswaran, J., in the reference made to the Bench, has taken the view, on the basis of the decisions rendered by the Supreme Court in Rishbud’s case , after referring to the various provisions of the Customs Act that as the final step in the investigation viz., the formation of opinion as to whether or not there is a case to place the offender on trial, rests with the officer of Customs, in the wider interpretation of the term the officer under the Customs Act must be deemed to have investigated into the case. The learned Judge has distinguished the principles laid down in Eknath’s case holding that the powers of a good Inspector are very different from the powers of the Customs Officer.
With great respect to the learned Judge, we are unable to share his view. The Customs Act has been enacted primarily for the enforcement of the provisions of the Customs Act and to prevent the evasion of duty in the matter of imports and exports. That is the primary function of the customs department, and all the officers appointed under the Act are meant for that purpose. When they detect that duty has been evaded in a certain manner by a certain person they have a right to commence adjudication proceedings and levy penalty as well as confiscate the goods. Unless the Customs department is satisfied that prosecution is necessary and to that effect a certificate is issued and prior consent is given by the Collector of Customs, no prosecution is filed into court.
52. The object of the Gold (Control) Act is to provide for the economic and financial interests of the community, for the control of the production, manufacture, supply, distribution, use and possession of and business in, gold ornaments and articles of gold and for matters connected therewith or incidental thereto. It is true that under the Customs Act there are certain provisions which empower the Customs Officers to exercise the same powers mentioned in certain provisions of the criminal procedure Code. For example, under section 104(3) of the Customs Act, and officer of Customs is, in the matter of releasing the arrested persons on bail, given the same powers and are made subject to the same provisions, as in the case of an officer-in-charge of a police station as contemplated in the Criminal Procedure Code. Similarly, there is also a similar provision in the Gold (Control) Act, viz., section 68(2) which is analogous to section 104(3) of the Customs Act. Under section 69 of the Gold (Control) Act, the provisions of sections 102 and 103 of the Criminal Procedure code relating to search and seizure could be made applicable. However, it will be relevant to note that section 104(4) of the Customs Act specifically states that notwithstanding anything contained in the Code of Criminal Procedure, an offence under this Act shall not be cognizable. As pointed out supra, under section 108(4) of the Customs Act, which is in pari materia with section 63(4) of the Gold (Control) Act, every inquiry by any gazetted officer of the Customs department or any gazetted officer under the Gold (Control) Act, made under section 108 or under section 63, as the case may be, shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228 of the Indian Penal Code. Section 122 of the Customs Act and section 78 of the Gold (Control) Act deal with the adjudication proceedings of confiscations and penalties. Sections 128 to 131 of the Customs Act deal with the appellate powers and revisional powers given to the authorities under the said Act. It would not be out of place to mention here that under the proviso to sub-section (3) of section 108 of the Customs Act, which is in pari materia with the second proviso to subsection (3) of section 63 of the Gold (Control) Act, the exemption given under section 132 of the Code of Civil Procedure is made applicable to any requisition for attendance of any person summoned under this section. Thus, we see that the officers under these two Central Acts are vested with various quasi-judicial powers. Under section 137 of the Customs Act, no court shall take cognizance of any offence under section 132, 133, 134, or 135 of the said Act except with the previous sanction of the Collector of Customs. Therefore, the machinery created under these Acts is not for the purpose of investigating the crimes, but for the enforcement of the provisions of these Acts and the prevention of evasion of duty under the Customs Act. The restricted powers of arrest, search, etc., given to the officers are incidental to the efficient discharge of their basic duty to prevent the offences falling under the respective Acts. The investigation of a crime made by a police officer under the Criminal Procedure Code culminates in filing a final report (charge-sheet) under section 173(2) of the Criminal Procedure Code, on completion of investigation, and the cognizance of the offence is taken by the Magistrate upon the said police report under Section 190(1)(b). But, in the case of offences falling under the Customs Act or the Gold (Control) Act, no final report (charge-sheet) is filed and the cognizance of the Offence is taken by a court only on receiving a complaint of facts from the competent officer, constituting such an offence, under section 190(1)(a) of the Code.
53. It may be apposite to refer to the definition of “complaint” in the Code of Criminal Procedure to point out that a complaint is not equivalent to a police report. Section 2(d) defines the term “complaint” as meaning “any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but not including a police report.” The explanation to the said definition is to the effect that “a report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable office, shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant.”
The Supreme Court, in Eknath’s case , after having observed that if, in a Central Act not being the Code of Criminal Procedure, provision is made empowering a particular agency to make investigation of offences under that Act, then the Central Government alone will be the competent authority to prefer an appeal under section 377(2), Criminal Procedure Code, held that the true test therefore, under section 377(2), Criminal Procedure Code, is whether the offence is investigated by any other agency empowered to make investigation under the Central Act other than the Criminal Procedure Code. In other words, there may be an express provision in the Central Act empowering the making of investigation under that Act.
54. Now bearing in mind the principles laid down in all the above cited cases, when the question involved in this case is examined, we are of the view that the Customs Officer and the officer under the Gold (Control) Act, is not empowered to make investigation in the Strict legal sense of the term as used in section 377(2), Criminal Procedure Code, for the following reasons :
1. There is no express provision found in the Customs Act or under the Gold (Control) Act – nor has any such provision been brought to the notice of this court by the counsel for the appellant – just like section 3 of the Delhi Special Police Establishment Act, empowering the agency under the Customs Act or under the Gold (Control) Act to make investigation under the relevent Act.
2. There is no provision in these Acts similar to section 173, Criminal Procedure Code, for the filing of a final report on completion of investigation.
3. The initiation of prosecution under the Customs Act is made only on the filing of a complaint in writing, that too with the previous sanction of the Collector of Customs. Similarly, under the Gold (Control) Act, the prosecution is launched only on a complaint in writing made by the officer specified in the said Act.
4. The cognizance of an offence under these Acts is taken by the court only under section 190(1)(a), on receipt of a complaint of facts constituting such an offence, unlike cases where cognizance is taken by a court under section 190(1)(b) on receipt of a report filed under section 173, Criminal Procedure Code.
Therefore, from the mere fact that the formation of opinion as to whether or not there is a case to place the offender on trial rests on the officer of customs, it cannot be said that there is “investigation” within the meaning of the said term in section 377(2) Criminal Procedure Code, as viewed by Maheswaran, J. Further, we feel that Maheswaran, J., has distinguished Eknath’s case on the ground that the powers of the Food Inspector are very different from the powers of the customs officials. Similarly, that decision cannot be distinguished, as contended by Mr. C. Krishnan, on the ground that the agency under the prevention of Food Adulteration Act is a machinery belonging to the State Government. But the true test laid down by the Supreme Court in Eknath’s case , for the application of section 377(2), Criminal Procedure Code, is to find our whether there is a specific provision in the Central Act concerned empowering any agency to make investigation into the offence under that Act, thereby meaning that in the absence of any such provision there is no “investigation” within the meaning of section 377(2). Therefore, even though in Eknath’s case the facts related to an offence under the prevention of Food Adulteration Act, the principle laid down was clearly applicable to all the Central Acts. Hence, in the view of all the discussions made above, we are in agreement with the view taken by Suryamurthy, J., holding that the Customs Officer is not an agency empowered to make “investigation” within the meaning of that expression as used in section 377(2), Code of Criminal Procedure.
55. On the analogy of the above principles, we hold that the Assistant Collector or Central Excise under the Gold (Control) Act is also not an agency empowered to make investigation within the meaning of section 377(2), Criminal Procedure Code.
56. In the result, we conclude that the appeals preferred by the learned counsel on behalf of the appellant under section 377(2), Criminal Procedure Code, are not competent, and accordingly, all the appeals are dismissed.
57. It is pleaded on behalf of the second respondent in Criminal Appeal No. 688 of 1976 that this Court be pleased to pass an order regarding the return of M.O. 5 series, the gold jewelleries seized from him, to him. The learned Chief Metropolitan Magistrate has directed M.O. 5 series to be returned to the second accused (second respondent). But, it is represented that when M.O. 5 series were asked to be returned, a reply was received from the Assistant Collector of Central Excise, Preventive, Madras, stating that since the matter is pending in the High Court, the petitioner could move the High Court for return of the property. As the matter is now disposed of and as no petition is pending before this Court regarding the disposal of the property, we direct the petitioner either to move the authorities concerned or to take appropriate action for the return of the property, and this Court is not inclined to pass any order regarding the disposal of the property as it is not the subject matter of the appeal.