TaxTMI 
TaxTMI 
2019 (5) TMI 88
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....bearing No. DL-4CAH 8319 which was alleged to have been utilized for carrying smuggled gold on superdari to Sh. Inder Prakash Kohli @ Baboo who had been arrested along with Mr.Vinod Khanna and Mr.Hari Sharan Khanna on 20.6.2014 for the alleged commission of offences punishable under Section 132/135 of the Customs Act, 1962 in connection with the recovery of gold bars weighing 5 Kgs valued at 1,24,22,475/- as per the tariff value as per the customs notification No. 46/14/NT/96/2014 with market value at Rs. 13,65,5000/- seized vide panchnama dated 29.6.2014. Both the vehicles referred to herein above were allowed to be released on superdari holding that in view of the verdict of this Court in the case of Manjeet Singh v. State, in Crl.M.C. No. 4485/2013 and Crl. M.A. No. 16055/2013, the vehicle seized during the investigation including those seized under the provisions of the Customs Act ought to be released to the registered owner of the vehicle on the undertaking that in the event of confiscation of the vehicle in adjudication proceedings, the registered owner would furnish a bond to the value of the vehicle to the department or as ordered by the department and it was observed by t....
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.... iii. Randhir Singh v. Directorate of Revenue Intelligence: 29(1986) DLT 2 iv Customs v. Rajesh Bhaskar, Crl. Rev. P. 259/1999 v Superintendent Customs and Central Excise Vapi v. Raichand Lakhamsing Shah, AIR 1970 Gujarat 223(V 57 C 37) vi DRI v. Amit Kumar: Crl. M.C. No. 5320/2013 vii Smt. Narender Kaur v. Arun Sheoran, Intelligence Officer, Narcotics Control Bureau; 2000(2) JCC 512 (Delhi) viii Kirta Ram v. State of Rajasthan: 2008 Crl. L.J. 1438 5. On behalf of the respondents, the petition was vehemently opposed placing reliance on the following verdicts: I. Department of Customs v. M/s Eastern Carriers (1994 II AD (Delhi) 105) II. Department of Customs v. M/s Eastern Carriers; SLP (Civil) No. 1566/94 III. DRI v. Amarjeet Singh: Crl. M. (M) No. 1564/2000 IV. Jagdish Chander Sharma v. DRI: Crl.M(M) No. 1774/1999 V. Enforcement v. Braham Choudhary:Crl. M(M) No. 680/1998 VI. Smt. Narender Kaur v. Arun Sheoran; Crl. M(M) No. 1026/1998: 2000(2) JCC 512 (Delhi) VII. Madan Lal v. State, National Capital: 2002 IV AD Delhi 177 VIII. Gurbinder Singh @Shinder vs. Stat....
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....custody and disposal of property pending trial in certain cases.-When any property is produced before any Criminal Court during any inquiry or trial, the Court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, and, if the property is subject to speedy and natural decay, or if it is otherwise expedient so to do, the Court may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of. Explanation.- For the purposes of this section," property" includes- (a) property of any kind or document which is produced before the Court or which is in its custody, (b) any property regarding which an offence appears to have been committed or which appears to have been used for the commission of any offence. 452. Order for disposal of property at conclusion of trial.-(1) When an inquiry or trial in any Criminal Court is concluded, the Court may make such order as it thinks fit for the disposal, by destruction, confiscation or delivery to any person claiming to be entitle to possession thereof or otherwise, of any property or document produc....
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.... issue a proclamation specifying the articles of which such property consists, and requiring any person who may have a claim thereto, to appear before him and establish his claim within six months from the date of such proclamation. 458. Procedure where no claimant appears within six months.- (1) If no person within such period establish his claim to such property, and if the person in whose possession such property was found is unable to show that it was legally acquired by him, the Magistrate may, by order direct that such property shall be at the disposal of the State Government, and may be sold by that Government and the proceeds of such sale shall be dealt with in such manner as may be prescribed. (2) An appeal shall lie against any such order to the Court to which appeals ordinarily lie from convictions by the Magistrate. 459. Power to sell perishable property.-If the person entitled to the possession of such property is unknown or absent and the property is subject to speedy and natural decay, or if the Magistrate to whom its seizure is reported is of opinion that its sale would be for the benefit of the owner, or that the value of such pr....
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.... of General Insurance Council v. State of A.P.(supra). 97. The Courts below shall also file a quarterly report through their District & Sessions Judge before the Registrar General containing the particulars of the cases in which the appropriate order has been passed within one month of the application. If any case could not be disposed of within 30 days, particulars thereof along with the reasons be also submitted. The first compliance report for the period 1st October, 2014 to 31st December, 2014 be filed by 15th January, 2015. 98. With respect to the submission of Delhi Police that the District Nazir is not equipped to deal with the order with respect to the sale/auction of the case properties and therefore, Provisioning & Logistics Department of Delhi Police be allowed to deal with the sale/auction of the case properties, it would be appropriate for the Delhi Police to take up the matter with the High Court on the administrative side and no orders are warranted in this petition. Present case 99. In the present case, the petitioner is registered owner of the car in question and the accused has no objection to the petitioner being permitted to s....
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....8. Vide order dated 18/11/2016 in Crl.M.C. No. 4316/2016 and vide order dated 21.12.2016 in Crl.M.C. No. 4767/2016, the operation of the common order dated 31.8.2016 of the learned Trial Court had been stayed which interim restraint is still in existence. In Crl.M.C. No. 4316/16 in the case titled Directorate of Revenue Intelligence v. P.R.K. Diamonds Pvt. Ltd. and Sunny Kakkar, has been submitted on record an order dated 1.12.2017 bearing No. DLI Customs/PRE/PRCMOR/19/17 of the Pre-Commissioner Customs Preventive which brings forth that the vehicle Mercedes bearing Registration No. DL1CQ 7525 seized from the possession of Mr.Sunny Kakkar, the director of the company M/s PRK Diamonds Pvt. Ltd. has been confiscated under Section 115 (2) of the Customs Act, 1962, though an option had been given to Sunny Kakkar to pay a fine of Rs. 10,00,000/- in lieu of the confiscation. Apparently in view of the said confiscation order qua which it was submitted on behalf of the respondents on 9.3.2018 that the order has been assailed in appeal and taking into account that vide the impugned order it had been directed to the effect that because the Registered Owner of the vehicle shall give an undert....
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....uperintendent of Customs and Anr.: 15(1979) DLT 183 decided on 6.4.1978 qua the prayer made by the owner of the intercepted vehicle for release of the vehicle on superdari was declined holding to the effect that the customs authorities are under a legal obligation to take proceedings qua confiscation within six months failing which the seized goods have to be returned to the person from whose possession they were seized. The vehicle here also had been seized under Section 110 of the Customs Act, 1962. 12. Reliance was placed on behalf of the petitioner on the verdict of this Court in Randhir Singh v. Directorate of Revenue Intelligence, 1986 Crl. LJ 1208 in which the vehicles seized under Section 110 of the Customs Act, 1962 with textiles of foreign import without any document of lawful import and acquisition and possession and it was held to the effect that the vehicles, having been seized by the customs authorities in exercise of statutory powers conferred on them by the Customs Act, 1962, the mere filing of a complaint in the Court does not deprive the Customs Authority of their control and the control would continue to vest with the Customs Authority and the Criminal Cour....
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....is entitled to seize the articles or goods has wide power under the Customs Act, 1962 itself without a search warrant obtained from the Magistrate, the direction to release the vehicle on conditions cannot be ordered by the Magistrate in relation to the seizure of a truck which in that case alleged to have had been used for transporting or carrying smuggled goods. The observation in para 22 of the verdict read to the effect: "22. Section 111 of the Act, which falls in Chapter XIV deals with, "confiscation of improperly imported goods, etc." Section 112 of the Act deals with, "penalty for improper importation of goods, etc.", and Section 113 of the Act deals with 'confiscation of goods attempted to be improperly exported goods, etc." Section 115 of the Act deals with, "confiscation of conveyances". Sub-section (2) of it, which is material for our purposes, reads:- "(2) Any conveyance or animal used as a means of transport in the smuggling of any goods or in the carriage of any smuggled goods shall be liable to confiscation, unless the owner of the conveyance or animal proves that it was so used without the knowledge or connivance of the owner himself, his agent....
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....ffect that the said seizure had been effected in terms of Section 43 of this NDPS Act, 1985, and that Section 60 and 63 thereof provided for disposal of the conveyance used in the case of committing of the offence and that it was held that the discretion exercised by the Trial Court in disallowing the request for the return of the car primarily on the ground that it was liable to be confiscated under the NDPS Act, 1985 did not warrant any interference. Reference was also made in this judgment to the verdict of the Hon'ble High Court of Bombay in B.S. Rawat V. Shaikh Abdul Karim & Anr.: 1989 Cri.LJ 1998 wherein it had been observed to the effect that the purpose of the NDPS Act was to see that the vehicle which was used for the conveyance of the contraband was not made available to the persons indulging in those activities and confiscation of the vehicle was an additional safeguard to discourage this crime. 16. Reliance was also placed on behalf of the petitioner on the verdict of the Hon'ble High Court of Rajasthan in Kirta Ram v. State of Rajasthan: 2008 Crl.L.J.1438, which was also one under the NDPS Act, 1985 in which the vehicle transporting poppy straw which had been interc....
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.... behalf of the petitioner that the said judgment dated 25.3.1994 in Crl. M.(M) No. 679/1994 was upheld by dismissal of the Crl. M.A. no. 2902/94 against the said judgment by the Hon'ble Supreme Court on 5.8.1994, though it was observed to the effect that if the order was not complied, it was open to the authority to sell the goods in an appropriate manner. 19. Reliance was also placed on behalf of the respondents on the order dated 9.8.1999 of this Court in Crl. M(M) No. 1774/99 whereby the order of the learned ACMM dated 5.6.1999 permitting the release of a truck seized by the customs authorities was not set aside. Reliance was also placed on behalf of the respondents on the order dated 13.7.2000 of this Court in Crl. M.(M) No. 564/2000 in which a truck was allowed to be released on superdari in which case the respondents arrayed therein in the case titled Jagdish Chander Sharma V. Directorate of Revenue Intelligence; Crl.M(M) No. 1564/2000, was the Intelligence Officer of the Directorate of the Revenue Intelligence and the order dated 13.7.2000 indicates that the truck had been directed to be maintained including the cavities from which the contraband articles were recovered b....
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....ed to be produced on superdari on conditions with it having been directed to be produced before the learned Trial Court as and when required. 21. Reliance was also placed on behalf of the respondents on the verdict of the Hon'ble Division Bench of the High Court of Punjab & Haryana in the case of Gurbinder Singh @ Shinder v. State of Punjab: CRR No. 1765/2015 in which the vehicles seized under the NDPS Act were allowed to be released on interim custody observing to the effect that there was no provision under the NDPS Act debarring the release of the vehicle for interim custody and that the provisions of Section 451 of the Cr.P.C. were found to be not inconsistent to the provisions of the NDPS Act. 22. Vide this judgment, the Hon'ble Division Bench of the High Court of Punjab & Haryana also observed to the effect that in view of the law laid down by the Hon'ble Supreme Court in Sunderbhai Ambalal Desai's (supra)case would also apply to the seizure of vehicles under the NDPS Act and any contrary view taken by the Courts of law would be against the interest of the owner of the vehicles, the public at large and the State. 23. Reliance was also placed on behalf of the responde....
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....y the accused, owner, or the Insurance company or by a third person, it may be ordered to be sold by auction.", with also reference to the general guidelines therein which read to the effect: "General 86. The Court may impose any other condition which may be necessary in the facts of each case. 87. The Court shall hear all the concerned parties including the accused, complainant, Public Prosecutor and/or any third party concerned before passing the order. The Court shall also take into consideration the objections, if any, of the accused. 88. When the property has any evidentiary value, it is to be kept intact and the condition of non-alienation is imposed to ensure its production during the course of evidence for the purpose of marking as a material object. However, when the property has no evidentiary value and only the value of the property is to be properly secured for passing of final order under Section 452 Cr. P.C., the necessity of keeping such properties intact by imposing onerous conditions, prohibiting its alienation or transfer would not be necessary in law. 89. The production of property which has evidentiary value ....
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....f properties, the SHO/IO shall produce the case properties before the concerned Court within one week of the seizure whereupon the Court shall pass appropriate order within one month thereafter. 96. Since the Supreme Court has fixed responsibility of the Registry of the High Court to ensure the compliance of its directions, the Delhi Police shall submit a quarterly compliance report before the Registrar General of this Court. The first compliance report for the period 1st October, 2014 to 31st December, 2014 be filed by 15th January, 2015. The quarterly reports thereafter, be filed after every three months. The compliance report shall contain the particulars of the applications for disposal of the properties filed and the orders passed thereon by the concerned Courts. The compliance report shall also contain the list of cases in which the applications could not be filed within the prescribed period along with the explanation thereof. The Registrar General shall consider the reports and ensure the compliance of the directions issued by the Supreme Court. The compliance reports be filed by the police officers made responsible by the Supreme Court in para 14 of General Insura....
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.... Court was to have asked the accused whether he had any claim or objection to the sale of the vehicle. The petitioner being a registered owner of the vehicle which was stolen and recovered from the possession of the accused, the view taken by the learned Sessions Court (without even asking the accused) that the accused, the alleged thief, would stake a claim is clearly perverse. The learned Sessions Court also did not appreciate the petitioner's contention that the petitioner would not get a fair price if the vehicle is sold with a bond and further that the value of the vehicle is already depreciated and it is expensive to maintain the same. 100. For the reasons stated above, the petition is allowed and the condition imposed by the learned Trial Court requiring the prospective/intending purchaser to execute the superdari bond is set aside. The petitioner has already been permitted to unconditionally sell the vehicle after taking photographs of the said vehicle and furnishing them to the Investigating Officer concerned. The pending application is disposed of." 25. Reliance was also placed on behalf of the respondents on the verdict of the Hon'ble Supreme Court i....
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....s apparent that in terms of Chapter 14 of the Customs Act, 1962, confiscation of improperly imported goods is permissible, which confiscation is pursuant to seizure of the improperly imported goods allegedly in terms of Section 110 of the Customs Act, 1962. Section 110 (1A) of the said enactment provides for provisional release of the goods, documents or thing seized pending adjudication and provides as follows: "(1A) The Central Government may, having regard to the perishable or hazardous nature of any goods, depreciation in the value of the goods with the passage of time, constraints of storage space for the goods or any other relevant considerations, by notification in the Official Gazette, specify the goods or class of goods which shall, as soon as may be after its seizure under sub-section (1), be disposed of by the proper officer in such manner as the Central Government may, from time to time, determine after following the procedure hereinafter specified." 32. Thus the statute itself provides for the disposal of the seized goods, documents and things by the appropriate officer in such a manner as the Central Government may from time to time determine after followi....
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....mproperly. 36. Under Section 115(2) any conveyance used as a means of transport in the smuggling of any goods or in the carriage of any smuggled goods is liable to confiscation, unless the owner of the conveyance proves that it was so used without the knowledge or connivance of the owner himself and the proviso to Section 115(2) provides for the imposition of a fine not exceeding the market price of the goods which are sought to be smuggled or the smuggled goods as the case may be in lieu of the confiscation of the conveyance. 37. In terms of Section 122 of the said enactment where goods are liable to confiscation in terms of Chapter XIV of the Customs Act, 1962, any person liable to a penalty thereon, the confiscation of the penalty may be adjudged without limit by the Principal Commissioner of Customs or Deputy Commissioner of Customs and upto such limit by such officer as the notification specify Section 122A lays down the adjudication procedure. 38. In terms of Section 124 of the Customs Act, 1962, a notice is required to be given to the person from whom the goods are seized and proposed to be confiscated which notice has to be given in writing with the proper approval....
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.... of the day of the communication to him. 42. Thus it is apparent that the Customs Act, 1962 provides for a complete code in itself in relation to search, seizure, confiscation and release of goods seized in alleged violation of the Customs Act, 1962. 43. Though after confiscation ordered by the adjudicating authority, the confiscated goods become vested in the Central Government in terms of Section 126(1) of the Customs Act, 1962 coupled with the factum that Section 127 of the said enactment provides that the award of any confiscation of penalty under the Customs Act, 1962 by an officer of the Customs shall not prevent the infliction of any punishment to which the person affected there is liable under the provisions of Chapter XVI of the Act and under any other law, makes it apparent that the search, seizure, confiscation and adjudication in relation to the confiscation is de hors the infliction of punishment that may be imposed in terms of the Customs Act, 1962. 44. The factum that the Customs Act, 1962, provides even for an appeal against an order of the adjudicating authority under Chapter XV of the Customs Act, 1962 in terms of Section 129A(a) and provides for an Appel....
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....ssed unless the appellant is given notice within the timelimit specified in section 28 to show cause against the proposed order." 48. Taking the same into account it is apparent that the Customs Act, 1962 as observed herein above provides a complete code in relation to the searches, seizures and confiscation of contraband in terms of the Customs Act, 1962 and also provides for the adjudication in relation to the release thereof. 49. It is apparent thus at the stage of investigation being conducted by the Customs Officers that the provision of Section 451 of the Cr.P.C., 1973 thus do not operate. 50. As regards the judgment under the Customs Act, 1962 referred to by the learned Trial Court in the impugned order i.e. in Department of Customs V. M/s Eastern Carriers: 1944 II AD Delhi 105, a verdict dated 25.3.1994, brings out a distinction from the case of Tarlok Singh v. The Superintendent of Customs and Anr. (supra) observing to the effect that in M/s Eastern Carrier (supra), the case was not the release of the car as in Tarlok Singh (Supra) which was used for transporting the smuggled goods and it was held that the appropriate authority was to take steps for conducting of ....
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....redemption is mandatory while in prohibited goods the discretion is vested upon the adjudication authority. This is supported by the following judgments: (a) 2009 (242) E.L.T. 334 (Bom.) COMMISSIONER OF CUSTOMS (AP), MUMBAI VERSUS ALFRED MENEZES it was ruled that-Discretion of officer to release prohibited goods under redemption fine - Section 125(1) of Customs Act, 1962 deals with two situations i.e. import & export of prohibited goods and import & export of any other goods - Expression used in case of prohibited goods is " may" and for any other goods it is " shall" Discretion on officer to release confiscated prohibited goods - Officer however bound to release " other goods" - Officer in present case exercised discretion which was upheld by Tribunal - no merit in question whether discretion vests with adjudicating authority to give option to redeem goods absolutely confiscates as prohibited for import- Section 125(I) ibid. [ paras 4,5] (b) 2003 (151) E.L.T. 265 (Mad.) NINE STAR EXPORTS Versus COMMISSIONER OF CUSTOMS (PORTS), CHENNAI - In case of prohibited goods, adjudicating authority has discretion whether or not to give option to pay fine in lieu of confisca....
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....policy along with nature and character of act, should be taken into consideration and it is pertinent to enquire whether putting the offender in strict liability will assist in the enforcement of the regulations or otherwise. I find that in most of the referred cases where gold have been allowed to be released on payment of redemption fine, the plea has been taken regarding the liberalized policy of the government and the same may be true at that point of time. But at present as discussed above, government is trying to discourage the import of gold to safeguard the national economic interest and in such circumstances, when attempts are being made to smuggle the gold in a large scale to derail the Indian economy, if the seized smuggled gold are ordered to be released on payment of fine, such order will not be in conformity with the government policy and it will not assist in the enforcement of the regulations. The object and end of the policy will be frustrated. The public interest will irreparably suffer if release of such smuggled gold in current situation is permitted. In view of above and above stated case laws, I am not inclined to offer any redemption to the seized gold. ....
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....ight. In the light of the discussion, government views the grant of free allowance in the instant case as improper and sets aside the same. 49. I have already discussed the acts of omission and commission of the Noticees and accordingly I find that they have made themselves liable for penal action under Sec. 112(a) & (b) and 114AA of Customs Act, 1962. The quantum of penalty is being considered keeping in consideration the mens rea i.e. intent of smuggling and evasion of duty; the actus rea of crossing the green channel and non-declaration of the gold in prescribed form to customs officer. 50.... i) I order absolute confiscation of five numbers of gold bars totally weighing 5000 Grams valued to Rs. 1,36,55,000/- (Rupees One Crores Thirty Six Lakhs Fifty Five Thousand only) seized on 20.06.2014 under Section 111(d), 111(i), 111(j), 111(l) & 111(m) of the Customs Act, 1962. ii) I also impose a penalty of Rs. 27,31,000/- (Rupees Twenty Seven Lakhs Thirty One Thousand only) each upon Vinod Khanna, Inder Prakash Kohli @ Babbu Kohli, Nagesh Chaddha, Prem Chand Gupta and Syed Zainul Hassan under Section 112(a) and (b) and 114AA of the Cu....