TaxTMI 
TaxTMI 
2019 (5) TMI 88
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....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 the learned Chief Metropolitan Magistrate to....
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....) 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. State of Punjab CRR No. 1765/2015 IX. Hari Singh v. State of Haryana; Crl.Rev.No. 903/1986 X. Manjit Singh v. State; Crl.M(M) No.4485/2013 XI. ....
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....nks 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 produced before it or in its custody, or regarding which any offence appears to have been committed, or which has been used for the commission of any offence. (2) An order may be made under sub- section (1) for the delivery of a....
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....- (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 property is less than five hundred rupees, the Magistrate may at any time direct it to be sold; and the provisions of sections 457 and 458 shall, as nearly as may be practicable, apply to the net proceeds of such sale." and on a consideration of the judgments in Basava Kom Dyamogouda Patil v. Sate of Mysore: 1977 4 SCC 3....
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....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 sell the vehicle and in that view of the matter, the learned Sessions Court should have permitted the petitioner to sell the vehicle after taking photographs of the same. The Supreme Court in Sunderbhai Ambalal Desai v. State of Gujarat (supra 1), Sunderbhai Ambalal Desai v. State of Gujarat (supra 2) and General Insurance Council v. State of A.P. (supra) has clearly held that....
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....n 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 undertaking to the effect that in the event of the adjudication proceedings, the vehicle which was released to him on superdari as confiscated, he would furnish the value of the vehicle to the department, it is apparent that the interim release of the said vehicle granted vide the impugned order dated 13.8.2016 qua the said vehicle does not survive any more. However in view of the proceedings....
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.... 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 Court in terms of Section 451 of the Cr.P.C. cannot permit its release unless the property is produced before the Court during the inquiry or trial and that thus merely because the vehicles would become a junk and the loss could result to insignificance thereof due to lack of care and proper upkeep was no ground to release the vehicles, though it was categorically observed vide para 10 of the said ve....
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....ead 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, if any, and the person in charge of the conveyance or animal and that each of them had taken all such precautions against such use as are for the time being specified in the rules." That section indicates that such a conveyance can also be confiscated if it is used as a means of transport in the smuggling of any goods or in the carriage of any smuggled goods. Section 110 of the Act does not indicate that such seizure....
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....ant 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 intercepted by the police was not allowed to be so released, and it was held that it could not be released on superdari in terms of Section 60 of the NDPS Act, 1985 and it was also held that no interim custody of the vehicle could be granted. 17. On behalf of the respondents through their written submissions it has been submitted that against the order dated 18.11.2016 in Crl. M. C. No. 4316/16 vide which the operation of the impugned ord....
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....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 by the petitioner who sought the release of the vehicle on superdari in the same condition as it was on 13.7.2000. Reliance was also placed on behalf of the respondents on the order dated 22.4.1999 of this Court in Crl.M(M) 688/98 in the case Enforcement V. Braham Choudhary: Crl.M(M) No. 680/1998 in which a Maruti car was allowed to be released on superdari though it had been contended that the car had been purchased from foreign currency i....
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....erim 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 respondents on the verdict of the Hon'ble High Court of Punjab & Haryana in Hari Singh v. State of Haryana: Volume 16 1987-I PLR 413, in the case in which it was held that merely that a vehicle was liable to be confiscated under the NDPS Act, 1985, the same is no ground to assume that it would be confiscated merely because the release of the property would be regulated in accordance with the well settled judicial ways and not because that there was a stri....
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....sideration 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 during evidence is a part of a fair trial. With the advanced technology, it is not necessary that the original of the property inevitably has to be preserved for the purpose of evidence in the changed context of times. The reception of secondary evidence is permitted in law. The techniques of photography and photo copying are far advanced and fully developed. Movable property of any nature can be a subject matter of photography and taking necessary photographs of all the features of the property clearly is not a impossible task in photogr....
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....ter 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 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 n....
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....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 in Sangram Singh v. Election Tribunal, 1955 AIR 425 to contend that the respondents herein had rightly invoked the jurisdiction of the Hon'ble Supreme Court by filing the LPA against the order dated 18.11.2016 in exercise of criminal jurisdiction. 26. Chapter XXXIV of the Cr.P.C., 1973 deals with the disposal of the property. In terms of Section 451 thereof an order for custody and disposal of property can be made. Section 451 of the Cr. PC, 1973 reads to the effect: "451. Order for 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 ....
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....y 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 following the procedure prescribed under the Customs Act, 1962 in cases where the goods are of perishable or dangerous nature and taking into account the depreciation in the value of the goods with the passage of time, constrained storage space for the goods or any other relevant consideration by notification in the official gazette which notification is also to satisfy the goods or classes of goods through which the disposal may be ordered under Sub-section (1) of Section 110 of the Customs Act, 1962. Consequently, Section 110(1) of the said Act provides as follows: "110. Seizure of goods, documents and things.- (1) If the proper officer has reason to believe that any g....
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....able 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 of the officer of Customs not below the rank of a Deputy Commissioner of Customs informing the person from whom the seizure has been made on the grounds on which it is proposed to confiscate the goods or to impose a penalty. In terms of Section 125 of the said enactment it has been specifically laid down that the officer adjudging at the time of confiscation of the goods may impose a fine in lieu of confiscation as the officer thinks fit. Section 125 of the Customs Act, 1962 provides as follows: "125. Option to pay fine in lieu of confiscation.- (1) Whenever confiscation of any goods is authorised by this Act, the officer adjudging it may, in the case of any goods, the importation ....
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.... 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 Appellate Tribunal in relation thereto, is significant. 45. Significantly, the Hon'ble Supreme Court in the State of Madhya Pradesh v. Uday Singh: Criminal Appeal 524/2019 by a verdict dated 26.3.2019 has inter alia observed to the effect that vide the Indian Forest Act, 1927, specific provisions have been made for the seizure and confiscation of forest produce and tools and weapons and articles used in the commission of offences punishable under the Indian Forest Act, 1927, which had been infused with a salutary public purpose and that the order of confiscation under the said enactment is subject to an appeal provided under Section 52A and a revision vide Section 52B. 46. It was reiterated vide this judgm....
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....ustoms 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 investigation within six months which had expired and there was no prayer made by the Customs Department permitting disposal and that in the case of M/s Eastern Carriers (Supra) the department itself made an application for permission to dispose of the Toothpastes which were perishable in nature and thus it is apparent that the facts of the two cases were not in pari materia with each other and thus apparently the facts of the instant case are not in pari materia to that of the case in Eastern Carrier (Supra) as allegedly contended on behalf of the petitioner. 51. Further more the reliance placed on behalf of the respondents on the verdicts of this Court in Manjeet Singh (Supra) and the verdict of the Hon'ble Supreme Court in Sunderbhai Amba....
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....rit 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 confiscation, but in case of other goods, such option has necessarily to be given - Section 125 of Customs Act, 1962.[ paras 13,16] Writ jurisdiction - Redemption fine - Prohibited goods- Adjudicating authority is not obliged to give option to pay fine in lieu of confiscation in case of prohibited goods - If such option is not given, no writ of mandamus would lie- Section 125 of Customs Act, 1962. [paras 13, 14] 44.2 Further, it appears that gold stands out on a different pedestal than other goods. It is prohibited no doubt and thus liable for confiscation. To release it, it must comply with statutory conditions. Moreover the circumstances of the case also need to be factored in, especially the form in which the gold was attempted to be smuggled. A guilty mind i....
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.... 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. 46. I find that in the instant case, the Noticees failed to satisfy the customs authorities regarding purpose and intention of the importing gold in India by supporting evidences. Further, the Noticees could not produce the documentary evidence in support of the licit possession of the recovered gold. Hence, the ownership of the Noticees is in dispute. Further, as per Section 123 of the Customs Act, 1962, the burden of proof regarding ownership of the seized goods lies upon the Noticees, but they failed to prove the same thereore they cannot escape from the penal actions for their omission and commission. 47. I find that the Noticees had an intention to evade payment of the Customs Duty leviable on the goods, due to which they tried to import and clear clandestinely. The Noticee was intercepted wi....