JUDGMENT
V.B. Bansal, J.
(1) Department of Customs has filed this petition under Section 482 of the Code of Criminal Procedure (tor short “the Code”) with a prayer that the order dated 23.2.1994 passed by Shri R.K. Sharma, ACMM. New Delhi be set aside and the petitioner be permitted to dispose of the ‘CloseUp’ tooth paste in accordance with the prescribed rules.
(2) Before discussing the submissions made by the learned counsel for the parlies, it would be necessary to give the brief facts leading to the filing of this petition. On 18.12.1993, Officers of the Customs (Preventive), Delhi recovered and seized smuggled ball-bearings worth Rs.40,95,600.00 from two trucks bearing No. DIG-4706 and DL-1L-A 3252. These were concealed under 450 boxes of Close Up toothpaste. The drivers of the two trucks besides other persons including Pradip Goel were examined under section 108 of the Customs Act. The seizure of the articles including the Close Up packings was made under the reasonable belief that they were liable to confiscation.
(3) The Department of Customs moved an application before the learned ACMM. New Delhi with a prayer that they may be permitted to dispose of the tooth paste Close-Up. It was, inter-alia, pleaded that the Tooth Paste were not contraband goods but were used only for the concealing of smuggled goods. Further averments made in the application were that the Tooth Paste is a perishable item. which will deteriorate in value and utility by passage of time so the application for permission to dispose of the same.
(4) M/S. Eastern Road Carriers Lid. moved an application to the Customs Department through their counsel for the release of 450 packings of Close-Up tooth paste to which a reply was sent by theAssll.Col]ecior,Customs(prev) from the Office of Collector of Customs, Customs House, New Delhi, slating therein that these packings were liable to confiscation under Section 119 of the Customs Act and thus,could not be released at that stage. Further information to the respondent was that the department has already moved the Court of Additional Chief Metropolitan Magistrate, for permission to dispose of the said tooth paste to safe guard the interests of the department. Accordingly, an application was moved by Eastern Road Carriers Ltd., respondent, before the learned Acmm, New Delhi for release of the cartons of Close-Up toothpaste. It was, inter-alia, pleaded that the applicant was the General Manager of M/s. Eastern Road Carriers Ltd. holding a General Power of Attorney and also authorised to file the application. It was also claimed that M/s. Eastern Road Carriers was a leading road transport company having 40 branches of it all over the country with a fleet of about 14 trucks of its own. It was also claimed that in the course of their normal business, various consignments of different clients are booked for transportation of the cargo to various places and in case of need of more trucks, they, as usual, hired the same through various lorry brokers against settled rates. It has also been pleaded that they were handling the work of transportation of goods of M/s. Hindustan Lever Limited. Calcutta to various places for quite a long time and on 7.12.93 at the instance of M/s. Hindustan Lever Ltd. they as usual, hired truck No. DIG-4706 through Calcutta-Gujrat Roadways at the rate of Rs.7800.00 for which Rs.6000.00 were paid in advance and a copy of loading advice was also annexed with the application. Further averments made in the application were that the truck No. DIG-4706 was sent to the factory of M/s. Hindustan Lever Ltd., Calcutta which was loaded on 7.12.93 and that from a news paper they came to knowon21.12.93 about the interception of truck No.DIG-4706 by Customs Department, Delhi Office and about the seizure of the same. It had been submitted that since they were to ensure the delivery of 450 cartons, to the consignee at their given address, a prayer was made for the release of the same in their favor.
(5) Learned Acmm heard the arguments on both the applications and vide the impugned order, dismissed the application of the department while the application of the respondent was allowed and the Assistant Collector (Prev) was directed to hand over 450 card board boxes containing Close Up tooth paste to Shri Ashok Chakraborty, General Manager and constituted attorney of M/s. Eastern Road Carriers after he executes an indemnity bond.
(6) I have heard Shri Satish Aggarwal. learned counsel for the petitioner and Shri Pradip Jain. learned counsel for the respondent and have also gone through the record.
(7) Learned counsel for the petitioner h:is submitted that the cartons of Close-Up tooth paste were used for concealing the smuggled goods and those were seized by the Customs Officer under Section 110 of the Act under reasonable believe that they were liable to confiscation. He has also submitted that once the goods are seized, as referred to above, il is only the appropriate authorities under the Act. who can Like proceedings for the confiscation of such goods and that the court has no jurisdiction to pass any order for handing over the same to any one. He has. thus. submitted that learned Acmm has committed illegality in passing the impugned order. He has further submitted that even the goods, subject matter of this petition, have not been produced before the learned Acmm, who was thus. nol vested with any jurisdiction. According to him, the order passed by the learned Acmm is without jurisdiction and thus. prayer has been made that the same may be set aside and the department may be permitted to dispose of the same.
(8) Learned counsel for the respondent has, on the other hand, sub p73 milted that the Close-up tooth paste is a perishable article and in case immediate steps are not taken to release the same in favor of the respondent, they would suffer irreparable loss since they would be required to pay huge amount to M/s. Hindustan Lever Ltd. where from, the goods were taken or in any case. to the consignee. He has alo submitted that jurisdiction was vested in the learned Acmm under Section 451 of the Code and there has been a proper exercise of jurisdiction by him in passing the impugned order. He has also submitted that the interest of the department has been safe-guarded in the impugned order and in case the department, at any time, holds that the goods were liable to confiscation, the amount can be paid to them by the respondent, for which, the indemnity bond has been required to be furnished. A prayer has, thus, been made that this petition may be dismissed.
(9) It is the admitted case of the parties that Close Up tooth paste is a perishable commodity and thus. requires to be disposed of at the earliest. It is not disputed that there is always the expiry date for such-like items and the value of such articles become zero once the date expires. Even the petitioner-department has claimed it to be a perishable good and it was so stated in the application moved before the learned Acmm for permission to dispose of the same. The short question for consideration is as to whether there has been any illegality in the passing of the impugned order by the learned ACMM. There is no doubt that under Section 119 of the Act. any goods used for concealing the smuggled goods are liable to confiscation. Section 124 of the Act requires the issuing of a show cause notice before confiscation of the goods and there is power vested in the officer, adjudicating it to give an option to the concerned person to pay in lieu of confiscation, such fine as the said officer thinks fit. A notice is required for initiating confiscation proceedings within a period of 6 months of the seizure of goods. Admittedly, this period has not expired as yet.
(10) Learned trial court has placed reliance on Sec.451 of the Code to pass the impugned order. Submission of learned counsel for the petitioner has been that this provision was not applicable and thus, was not available to the learned Acmm in passing the order since the property had not been produced before the court. I am afraid, I can not agree with this submission. The production of property before the trial court does not mean that it should be produced physically. Learned counsel for the petitioner has admitted that the department is placing reliance upon the recovery of card board boxes of Close-Up tooth paste and it is a case property also. He has also submitted that department is relying upon this evidence to prove the offences of smuggling. It is only with this view that an application has been moved by the department for permission to dispose of the Close Up tooth paste. The claim of the department, however, has been that the department should be permitted to dispose of the same, may be by public auction, in- which the respondent can be permitted to participate so that if they are highest bidder, they may get the delivery of the same and in this way, their interests will also be safe p73 guarded. I am afraid this argument can not be accepted. If there is an open auction, there is no concession to the respondent and every body is competent to participate in such an auction hut can be it said that it is for the benefit of both she parties.
(11) Learned counsel for the respondent has placed on record different documents to indicate that they have an agreement for transporting the goods of M/s. Hindustan Lever and for this purpose, they have been utilising their own vehicles as also they have been arranging the trucks belonging to others to transport the goods. The mere fact that the respondent hired the trucks from M/s.Calcutta-Gujrat Roadways for a sum of Rs. 7,800.00 for a load of 10 tonnes and received a sum of Rs.10,560.00 since it was a profit earned by Eastern Road Carriers Ltd., which could not be challenged nor it can be said to be something illegal. It is not necessary and many a times it may not be possible to produce the case property actually in side the court room like vehicles or heavy load machinery which could not be easily shifted. Such type of vehicles and machinery is also deemed to have been produced in court and adopting different methods, such properties are also exhibitted. In the instant case. criminal complaint has already been filed against the accused persons, and thus, the learned Acmm is ceased of the complaint and the Close Up tooth paste being required to be proved having been recovered from the truck and used for concealing the smuggled goods, it can not be said that no jurisdiction was vested in the learned Acmm to pass the impugned order.
(12) Learned counsel for petitioner had placed reliance upon case P.O. Thomas and others vs Union of India (1990 Crl.L.J. 1028). This case, I am afraid, can not be of any assistance to the petitioner. It was a case of recovery of primary gold from the petitioner, who returned to Kerala from abroad and which was seized by the Customs Authorities under Section 110 of the Customs Act and they were arrested and produced before the ACMM. The pass ports and return air tickets of accused persons were also seized by the Customs Authorities to be useful and relevant to proceeding under the Act. Separate applications were filed by the petitioners before the court for the return of the pass-port and return air tickets, which were dismissed by the Magistrate, holding that he had no jurisdiction to return the same. While dealing with this matter, the High Court of Kerala came to the conclusion that the challan had not been filed and thus, the court had no jurisdiction to pass an order for return of pass port and the return-air tickets. In the instant case as already referred to, not only that the complaint has already been filed but the department itself wanted the permission of the court for disposal of the Close Up tooth paste.
(13) The case of the respondent has been that they had taken the delivery of the tooth paste from M/s. Hindustan Lever Ltd., Calcutta and thus, the same was to be delivered to the consignee and they were concerned about its possession and they have established the need for immediate possession of the same so as to p73 avoid its total loss and thus, irreparable loss and injury to the respondent. The delay not only would cause damage to the property, but may result in hardship to the respondent but the interests of the department could be safeguarded by the conditions, as imposed by the learned trial court. It could be different case where there is an offence under a particular special Act not attracting the criminal offence and a person authorised under the Special Act may seize the property for which the remedy would lie before the authority under the Special Act, but iii the instant case, jurisdiction of the criminal court could not be ousted after the following of the criminal complaint and especially moving of the application by the petitioner for orders for the disposal of tooth paste. Reliance has been placed by the learned counsel for the petitioner on the judgment in case Tirlok Singh Vs. The Supdt. of Customs & Another (1979 Chandigarh Law Reporter 1). This judgment, in my view, cannot be of any help to the petitioner and the facts of that case were distinguishable. It was a case regarding the release of a car used for transporting the smuggled goods and it was held that the appropriate authority will take steps for giving of notice within six months which had not expired and there was no prayer by the Customs Department for permission to dispose of the same. However, in the instance case it is the disposal of the tooth paste which is perishable in nature and a prayer has been made even by the Department for permission to dispose of the same lest it becomes a total loss.
(14) The most important question, now to be considered is, as to whether the condition imposed by the learned Acmm for the release of the Close-Up tooth paste to the respondent is sufficient to safe guard the interests of the petitioner or not. During arguments, it was suggested by the learned counsel for the petitioner that one carton of Close-up tooth paste could be allowed to be retained by the department so that the same is produced during trial and be exhibitted. Learned counsel turn the respondent submits that there is no objection to the order being made in this regard. The respondent has been directed to furnish indemnity bond in the sum of Rs. 12.00 lakhs which admittedly covers the price of the tooth paste. It would also be necessary to get the undertaking from the respondent that they would deposit the amount covered by the indemnity bond if ultimately, the Appropriate Authority comes to the conclusion that the tooth paste was liable to confiscation.
(15) In view of my aforesaid discussion, the order of the learned Additional Chief Metropolitan Magistrate, New Delhi, is’ modified to the extent that besides giving of indemnity Bond, Shri Ashok Kumar Chakraborty will also give an undertaking before the learned Acmm for the payment of the amount to the Customs Department, if a decision to that effect is taken by the Appropriate Authority and that one carton of Close-Up would be retained by the department to be produced during trial.
(16) The petition stands disposed of with the aforesaid modification.