JUDGMENT
V.B. Gupta, J.
1. Department of Customs has filed this Petition under Section 482 of Cr.P.C. for setting aside orders dated 29th September, 2006 and 13th October, 2006, passed by Additional Chief Metropolitan Magistrate, New Delhi.
2. As per case of the petitioner, on 28th September, 2005, the officers of Customs, recovered and seized 12925 Euros, which had been concealed in the various pockets of trousers found in the suit case from the baggage of respondent No. 2 and 23,185 Euros from the baggage of respondent No. 1 from the various trousers found in the said suit case.
3. On 26th April, 2006, respondent No. 1 moved an application for release of the goods and after hearing, the ACMM passed an order on 29th September, 2006 that goods recovered from the personal search, which are not liable to confiscation be released to the accused.
4. Therefore, on 9th October, 2006, the petitioner moved an application for recalling of the order dated 29th September, 2006 of release of wearing apparels and articles of personal search and daily use of the respondent. After hearing, the ACMM dismissed the said application of 13th October, 2006.
5. It has been contended by learned Counsel for the petitioner that the alleged wearing apparels were neither the personal effects nor the jamatalashi and these were used for concealing the currency and have been proposed to be confiscated under the provisions of Customs Act, 1962 and the release of the same was not in accordance with law.
6. Further, it is contended that no observation can be made by the Court against the counsel and in support of his contentions, learned Counsel cited certain judgments viz (i) The Asstt. Collector of Customs, Bombay and Anr. v. L.R. Melwani and Anr. , (ii) Shri Lachman Singh v. Mahender Singh and Ors. Crl. Rev. No. 108/87 decided by Hon’ble Mr. Justice H.C. Goel on 19.12.88, (iii) Ishan Research Laboratories (P) Ltd. and Ors. v. Shri S.K. Verma, Inspector, Central Excise Crl. M. No. 1551/2000 in Crl. Rev. No. 308/2000 decided by Hon’ble Mr. Justice R.S. Sodhi, (iv) A.N. Lewis and Anr. v. The State 2nd (1974) 1 Delhi, (v) State of West Bengal v. Mir Mohammad Omar and Ors. 2000 Crl. L.J. 4047 (Supreme Court), (vi) The State of Uttar Pradesh v. Mohammad Naim , (vii) Manish Dixit and Ors. v. State of Rajasthan (2001) 1 SC Cases 596, (viii) Samya Sett v. Shambu Sarkar and Anr. 2005 (3) CC Cases (SC) 1, (ix) State of West Bengal and Ors. v. Sujit kumar Rana 2004 (1) JCC 324, (x) Assitant Collector of Customs v. Tilak Raj Shiv Dayal, Dehradun AIR 1969 Delhi 301, (xi) Randhir Singh v. Directorate of Revenue Intelligence 1986 Crl. L.J. 1208 (Delhi High Court), (xii) Customs v. Rajesh Bhaskar Crl. Rev. No. 259/1999.
7. Trial Court record has been perused.
8. On 18th April, 2006, an application was moved on behalf of Sachin Bharti (respondent No. 2) before the Trial Court for release of the goods seized by the Collector of Customs, except the goods liable for confiscation of such terms and conditions.
9. On this application, the ACMM passed the following order on 26th April, 2006:
File taken up on the application of the accused.
Present : Ms. Mala Sharma SPP.
Sh. Ajay Gupta counsel for the applicant/accused Sachin Bharti.
It is submitted that the personal belongings of the accused which are liable for confiscation has also been withheld by the department and by way of this application the accused is seeking release of his articles. The SPP submits that she has no objection to the release of the personal goods of the accused seized by the authorities which are not liable for confiscation.
It is hereby directed that the goods of the applicant/accused which has been seized vide personal search memo which are not liable for confiscation and are not required for the purposes of investigation including the jama talashi be released as per rules.
10. It has been mentioned in the present petition that on 26th April, 2006, an application was moved on behalf of respondent No. 1 for release of the goods. This is factually incorrect, as no such application is on record.
11. In Para 3 of the present petition it has also been stated that on 29th September, 2006, the ACMM has passed the orders that the goods recovered from the personal search, which are not liable to confiscation be released to the accused.
This order reads as under:
Present: Ms. Puja Bhaskar proxy counsel for SPP.
Accused No. 1 with counsel Sh. Pankaj Gupta, Adv.
Accused No. 2 with counsel Sh. Anil Adv.
I am informed by Learned Counsel for the accused No. 2 that only the copy of the complaint has been supplied and copies of the documents annexed with the complaint have not been supplied. It has been observed by this Court that Mr. Satish Aggarwal is in a regular habit of non supplying the annexures to the accused persons. This adverse effects the rights of the accused. The SPP is warned to be careful in future and to ensure that the entire set of the complaint along with annexures are supplied to the accused persons. Matter is passed over for supply of the documents.
Sd/-
ACMM/29.9.2006
12.15 p.m.
Present : Ms. Pooja Bhaskar, proxy for the SPP.
Accused No. 1 in person on bail.
Accused No. 2 on bail with counsel
Sh. Ajay Gupta.
Copies of the complainant Along with the complete annexures have been supplied to the accused No. 2. Ld. Counsel for the accused seeks time to file a reply to the application filed by the SPP for recall/modification of the earlier order. It is submitted that the Laptop is a vital and crucial piece of evidence which is required to be produced before this Court during the trial, hence the same cannot be released. Ld. Counsel for the accused No. 2 submits that at the moment he is not pressing the release of the Laptop and shall file a detailed reply. In the meanwhile he request that the personal belongings with wearing apparels may be released.
I have considered the submissions made before me. The wearing apparels and articles of personal & daily use which are not the case property may be released to the accused as per rules. Case by listed for pre-charge evidence for 24.1.2007 and also for reply/arguments on the application for return of the articles.
Sd/-
ACMM/29.9.2006
12. Other order which is under challenge in the present proceedings is dated 13th October, 2006 and it reads as under:
File taken up on the application filed on behalf of the department for recall of the order dated 29th September, 2006.
Present : Sh. Vikas Gautam proxy for SPP.
Heard arguments.
The record reveals that the order had been passed in the presence of proxy counsel Ms. Pooja Bhaskar. Under these circumstances, the order for recall is not required. The application is hereby dismissed.
13. So, the record shows that on 26th April, 2006, order was for release of goods which have been seized vide personal search memo which are not liable for confiscation and are not required for the purpose of investigation including the Jama talashi be released as per rules passed only after “No objection” has been given by Sr. P.P.
14. Similarly, vide order dated 29th September, 2006, wearing apparels and articles of personal and daily use, which were not the case property, were ordered to be released.
15. If the Custom Department had any grievance against the orders dated 29th September, 2006 and 13th October, 2006, then the appropriate remedy was to file appeal/revision. The present petition under Section 482 Cr.P.C. does not lie, since there is no abuse of process of any Court and on this point certain decisions of this Court are referred; Makhdum Ali v. Nargis Bano and Anr. , in which it was held that:
Where specific remedy is open to party to set aside ex-parte order under Section 126 Cr.P.C. and the remedy was not availed, the High Court will not interfere under Section 482 Cr.P.C.
16. In other case decided by this Court Asstt. Collector of Customs v. Sudarshan Kumar Modi , where the remedy by filing Revision Petition under Section 397 Cr.P.C. was open to the petitioner but the petitioner did not avail the remedy by way of revision, held:
It should not be open to him to avail or to invoke the inherent jurisdiction of this Court, under Section 482 which is to be used sparingly and only when there is no other remedy provided for the redressal of the of the grievance in the Code.
17. In Full Bench decision of this Court in Gopal Das v. State , it was held that:
The High Court in the exercise of its inherent powers at the instance of a party who has a right of appeal or revision but has not availed himself of that right, cannot pass an order directing that a sentence of imprisonment awarded to such a person on a subsequent conviction to imprisonment when he is already undergoing a sentence of imprisonment on an earlier conviction shall run concurrently with such previous sentence.
18. Lastly, there is no ambiguity in the order dated 13th October, 2006 passed by learned ACMM, since the order dated 29th September, 2006 has been passed in the presence of counsel for the Custom and thus the observation made by the Trial Court with regard to the conduct of counsel for Custom are fully justified as the record shows that only proxy counsel for Custom is appearing and their regular counsel is not appearing and when orders are passed in presence of proxy counsel, they are being challenged time and again by the Customs Department. The judgments cited by learned Counsel are not at all applicable to the facts of the present case.
19. Hence, the present petition under Section 482 Cr.P.C. is without any legal substance and it is dismissed with costs of Rs. 5.000/-. Petitioner is directed to deposit the costs with learned trial court, within four weeks from today and in case it fails to deposit, the trial court shall recover the same in accordance with law.
20.Trial court record be sent back forthwith along with copy of this order.