Calcutta High Court (Appellete Side)
Union Of India vs Sushanta Karmakar @ Susanta ... on 19 May, 2023
IN THE HIGH COURT AT CALCUTTA
Criminal Revisional Jurisdiction
APPELLATE SIDE
Present:
The Hon'ble Justice Shampa Dutt (Paul)
CRR 458 of 2019
Union of India
Vs.
Sushanta Karmakar @ Susanta Karmakar
For the Petitioner : Mr. K.K. Maiti,
Mr. Tapan Bhanja.
For the Opposite Party : Mr. Souvik Mitter,
Mr. Saptarshi Basu,
Mr. Sanjib Seth.
Heard on : 25.04.2023
Judgment on : 19.05.2023
Shampa Dutt (Paul), J.:
1.
The present revision has been preferred praying for quashing of
the order dated 05.04.2018 read with order dated 05.12.2018 passed
in Complaint Case No. 1108 of 2016 arising out of Seizure Case No.
1/Seizure/CL/IMP/CUS/GD/2016 dated 22.09.2016 under Section
110 of Customs Act, 1962 for the offence punishable under Section
135 1(b)(ii) of the Customs Act, 1962 pending before the learned Chief
Judicial Magistrate, Krishnanagar, Nadia.
2. The petitioner's case is that the petitioner is a public servant
and is duly authorized to file this petition before this Hon'ble Court as
per provisions of law and has preferred this application against the
order dated 05.04.2018 read with order dated 05.12.2018 passed in
Complaint Case No. 1108 of 2016 by the learned Chief Judicial
Magistrate, Krishnanagar, Nadia wherein the learned Court was
pleased to pass the order stating inter alia,
".........that the seized articles in connection with the
case be returned to the accused on furnishing a bond
of Rs.1 Crore and on further conditions that the
accused will be liable to produce such articles before
the Court as and when called for by the Court. It is
also clarified that the accused will not dispose the
article till the final disposal of the case".
3. Mr. K.K. Maiti, learned counsel for the petitioner has
submitted that the above case has arisen out of the following facts :-
(a) That acting on the basis of a specific information recorded
vide DRI No.01/16 dated 22.09.2016 the Customs Officers of
Gede Land Customs Unit, Gede Nadia on 22.09.2016 at
12.00 Hours at the time of baggage clearance searched the
opposite party who was returning from Bangladesh through
Gede Land Customs Station in presence of two independent
witnesses and recovered two yellow coloured metallic bars
believed to be gold of Foreign origin weighing 2.648 kgs.,
valued at Rs.81,84,000/- only from his possession. The
goods were concealed in between the feet and sole of his
shoes (one piece under each foot).
(b) That a Panchanama of the incident was drawn in presence of
two independent witnesses and a copy of the same was
handed over to the opposite party. On demand by the
Customs Officer the opposite party failed to produce any
document whatsoever in support of legal importation,
possession, acquisition or transportation of the said goods.
Hence, inventory of the said goods was done in presence of
two independent witnesses and were seized under section
110 of the Customs Act, 1962 vide seizure case no.
01/Seizure/CL/IMP/CUS/GD/2016 dated 22.09.2016 on
the reasonable belief that the said goods so recovered had
been illegally imported into India from Bangladesh through
an unauthorized route in contravention of section 7(c) of the
said Act read with section 77 of the said Act, Rule 3 of
Baggage Rules, 2016 and Regulation 3 of the Customs
Baggage Declaration Regulations, 2013, thus, rendering the
goods liable for confiscation under Section 111(b) and 111(d)
of the Customs Act, 1962.
(c) That subsequently a local gold smith namely M/s. Bhagabati
Jewellers, Majdia, Nadia was contacted for examination of
the seized goods and the said Gold Smith after examining
the same has issued a certificate regarding the purity, weight
and value of gold. The said Gold Smith certified that it was
24 carat gold, weighing 2.648 kgs., and valued
approximately at Rs.81,84,000/-.
(d) That the opposite party's voluntary statement under section
108 of the Customs Act, 1962 was obtained and recorded on
22.09.2016. The opposite party admitted his guilt confirming
that he illegally imported the said two yellow metallic bars
into India by concealing the same in between the feet and
sole of his shoes. During the course of investigation the
opposite party confirmed the names of other persons
involved in the same.
(e) That thereafter the opposite party was arrested on
22.09.2016 at 4.30 hours at Gede LCS under section 104 of
the Customs Act for the offence punishable under section
135 of the Customs Act.
(f) The opposite party was then produced before the Learned
Chief Judicial Magistrate, Krishnanagar, Nadia on
23.09.2016 and the Learned Court was pleased to remand
the said opposite party to Judicial Custody up to
24.10.2016.
(g) That thereafter the department has filed a petition before the
Learned Court on 05.10.2016 praying for permission to
interrogate the opposite party and to record his statement at
Krishnanagar District Correctional Home and the Learned
Court was pleased to grant permission to that effect.
(h) That pursuant to the permission granted by the Learned
Court the Department has obtained the voluntary
statements of the opposite party on 18.10.2016 in presence
of the Controller of Krishnanagar District Correctional Home.
(i) The opposite party has been enlarged on bail on 25.10.2016.
(j) Thereafter the said seized yellow metallic bars were sent for
testing to the Joint Director, Chemical Laboratory, Customs
House vide letter dated 19.10.2016. Thereafter chemical test
has been conducted by the Joint Director and as per the test
report vide lab No.2080-2083/SZD(G)-382-385 dated
27.10.2016 the seized yellow metal is found to be gold and
purity of the gold is 99.5%.
(k) On 13.12.2016 a notice under section 150 of the Customs
Act, 1962 was served upon the opposite party and in reply to
the same dated 22.12.2016 the opposite party however
claimed to be the owner of the seized gold and stated that he
wants to receive it back by depositing nominal customs duty
in terms of section 125 of the Customs Act.
(l) Since the investigation of the case could not be completed
within six months, under the provision of section 110(2) of
the said Act the Commissioner of Customs (Preventive), West
Bengal, Kolkata granted further extension period of six
months for issuance of show cause notice vide Adjudication
Order No. 43/CUS/CC(P)/WB/2016 dated 15.03.2017.
Thereafter further investigation was conducted.
(m) A show cause notice dated 01.09.2017 was issued
under section 124 of the Customs Act, 1962 to the opposite
party proposing as to why the seized gold weighing 2.648
kgs. and having value of Rs.81,84,000/- should not be
confiscated under section 111(b) and 111(d) of the said Act
as well as why penalty under section 112 of the said Act
should not be imposed.
(n) A written reply dated 10.10.2017 was submitted on
behalf of the opposite party by his learned Advocate against
the show cause notice dated 01.09.2017.
(o) That the Department issued notice for personal hearing for
adjudication of the said show cause notice. Though three
opportunities were granted for personal hearing but neither
the opposite party nor his representative have appeared
before the Adjudicating Authority.
(p) The Adjudicating Authority after going through the records
and reply of the opposite party has been pleased to pass the
order on 29.05.2018 holding that the opposite party is
involved in smuggling of contraband gold from Bangladesh to
India and the said opposite party is the key person involved
in the smuggling of two pieces of gold bars of foreign origin
weighing 2.648 kgs. valued at Rs.81,84,000/- into India in
illicit manner in contravention of the provision of section 7(c)
read with section 77 of the said Act along with Rule 3 of
Baggage Rules, 2016 and Regulation 3 of the Customs
Baggage Declaration, 2013 which renders the aforesaid gold
bars liable for confiscation under section 111(b) and 111(d)
of the said Act and the said opposite party has rendered
himself liable for penalty under section 112 of the said Act.
(q) The opposite party on 19.01.2018 has made an application
praying for return of the seized goods and to discharge him
from the case before the Chief Judicial Magistrate,
Krishnanagar, Nadia.
(r) The said application was heard by the Learned Court and
the Learned Court was pleased to pass the order on
05.04.2018 stating inter alia,
"........that the seized articles in connection with
the case be returned to be accused on furnishing
a bond of Rs.1 crore and on further conditions
that the accused will be liable to produce such
articles before the Court as and when called for
by the Court. It is also clarified that the accused
will not dispose the article till the final disposal
of the case".
4. It is submitted that the Learned Court without observing and
appreciating the provisions of the Customs Act has wrongly directed
to return the goods furnishing a bond of Rs.1 crore.
5. That the said goods were seized under section 110 of the
Customs Act, 1962. The direction for return of seized goods without
considering the provision, as passed by the Learned Court is
absolutely bad and perverse as well as contrary to the Customs Act.
6. Section 110(2) provides that where any goods are seized under
sub Section 1 and no notice is given under clause (a) of Section 124
within six months of the seizure the goods, the goods shall be
returned to the person from whose possession the goods have been
seized. But in the present case the notice has been issued for
extension of time to issue the show cause in terms of section 124 of
the Customs Act and ultimately, the show cause notice under section
124 of the Customs Act, 1962 was issued to the opposite party on
01.09.2017 and the opposite party has filed his reply to the said show
cause notice on 10.10.2017.
7. That the opposite party being aware of the legal provision has
filed his reply but has purportedly avoided the personal hearing in
spite of three opportunities of hearing being granted by the
adjudicating authority. The opposite party without availing the said
opportunity has purportedly filed the application on 19.01.2018
before the Learned Court praying for return of the goods.
8. That section 110A of the said Act clearly provides provisional
release of goods, documents and things seized pending adjudication.
The opposite party at no point of time made any application for
provisional release of the goods before the Customs Authority.
9. That section 122 of the said Act provides adjudication of
confiscation and penalties. The said section clearly provides that in
every case under this chapter in which anything is liable to
confiscation or any person is liable to a penalty, such confiscation or
penalty may be adjudged (a) without limit by a (Commissioner of
Customs or a Joint Commissioner of Customs).
10. Section 122A of the said Act provides for adjudication
proceedings. The opposite party being aware of the same has not
participated in the adjudication proceedings and has wrongly made
an application before the Learned Court. The Learned Court also
without appreciating the provision of Customs Act has wrongly passed
the order on 05.04.2018, though, the show cause notice had been
issued prior to that of the order passed by the Learned Court
proposing confiscation of the goods as well as imposition of penalty,
therefore, the Learned Court on 05.04.2018 ought not to have passed
such order for return of the seized goods when the same has been
taken care of by the adjudicating authority in terms of the Customs
Act.
11. That the Learned Court from time to time directed the
department to return the said goods and ultimately on 15.12.2018
directed the Assistant Commissioner to file a report before the Court
as to the step taken in respect to the compliance of the order passed
on 05.04.2018.
12. The petitioner states that the Learned Court being aware of the
provisions of the Customs Act wrongly directed to return the goods to
the opposite party.
13. That the Learned Court by exceeding the jurisdiction has
passed the order which is contrary to the Customs Act, 1962 and is
thus liable to be set aside.
14. Mr. Souvik Mitter, learned counsel for the opposite party
has submitted that the order under revision is in accordance with law
and the petitioner is bound under the law to comply with same, and
as such the revision is liable to be dismissed.
15. The relevant portion of the order under revision passed by the
learned Chief Judicial Magistrate is as follows:-
Complaint Case No. 1108/2016
Order Dated 05.04.2018
"...........The second question of return of the seized
articles due to non-compliance of Sec. 110(2) of the
Customs Act on account of failure of proper
confiscation is to be considered by the Court. It is to be
mentioned that the process of confiscation or non-
confiscation is the prerogative or duty of the customs
authorities and this Court has got no function in either
the confiscation or non-confiscation of the seized
articles. The question of issuance of notice by the
customs authorities and extension of period by
Commissioner of Customs is not the jurisdiction of the
Court, but when the process of inventory is already
completed by the Magistrate and when the seized
articles are not considered as prohibited articles as
itemized in the Customs Act and when the goods or the
seized articles are photographed and certified in
presence of Magistrate then return of the seized
articles in absence of confiscation can be given by the
Court after furnishing a proper bond.
In the result, the petition partly succeeds.
Hence,
Ordered
that the seized articles in connection with the
case be returned to the accused on furnishing a bond
of Rs.1 crore and on further conditions that the
accused will be liable to produce such articles before
the Court as and when called for by the Court. It is
also clarified that the accused will not dispose the
articles till the final disposal of the case."
Sd/-
Chief Judicial Magistrate, Nadia
16. The Supreme Court in Sunderbhai Ambalal Desai vs State
of Gujarat, Special Leave Petition (crl.) 2745 of 2002, on 18
November, 2002 laid down the guidelines for return of seized
article/vehicles etc. as per section 451 of the Cr.P.C. But the
Customs Act has its own provisions for search, seizure, confiscation
etc. laying down the detailed procedure in respect of cases under the
Act.
17. From the materials on record the following facts are before
this Court:-
i. The opposite party was served a notice under section 150 of the
Customs Act, 1962 on 13.12.2016.
ii. On 01.09.2017 a show cause notice was issued to the
opposite party under section 124 of the Act, thereby
initiating the confiscation proceedings.
iii. Reply to the show cause was filed on 10.10.2017.
iv. Final order of confiscation under section 111(b) and 111(d) of the
Act was passed on 29.05.2018.
v. The opposite party after filing the reply to the show cause
notice, approached the court of the Chief Judicial Magistrate,
on 19.01.2018 praying for discharge and return of the seized
article during the confiscation proceedings.
vi. No notice was served upon the petitioner/customs
authorities, for the hearing, when the confiscation
proceedings had been initiated already.
vii. The order of discharge was rejected but the prayer for seized
article was allowed without hearing the
petitioner/authorities. Not even a notice was served and
confiscation proceedings had already commenced.
18. Thus, it is clear that the Magistrate did not act in the interest
of justice and the said order dated 05.04.2018 read with order dated
05.12.2018 passed in Complaint Case No. 1108 of 2016 arising out of
Seizure Case No. 1/Seizure/CL/IMP/CUS/GD/2016 dated
22.09.2016 under Section 110 of Customs Act, 1962 for the offence
punishable under Section 135 1(b)(ii) of the Customs Act, 1962
pending before the learned Chief Judicial Magistrate, Krishnanagar,
Nadia, being not in accordance with law is clearly an abuse of the
process of law and if not set aside shall lead to miscarriage of justice.
19. CRR 458 of 2019 is accordingly allowed.
20. The Order dated 05.04.2018 read with order dated 05.12.2018
passed in Complaint Case No. 1108 of 2016 arising out of Seizure
Case No. 1/Seizure/CL/IMP/CUS/GD/2016 dated 22.09.2016 under
Section 110 of Customs Act, 1962 for the offence punishable under
Section 135 1(b)(ii) of the Customs Act, 1962 pending before the
learned Chief Judicial Magistrate, Krishnanagar, Nadia, is quashed
and set aside.
21. No order as to costs.
22. All connected application, if any, stands disposed of.
23. Interim order, if any, stands vacated.
24. Copy of this judgment be sent to the learned Trial Court
forthwith for necessary compliance.
25. Urgent certified website copy of this judgment, if applied for, be
supplied expeditiously after complying with all, necessary legal
formalities.
(Shampa Dutt (Paul), J.)
