J.S. Solanki vs Om Parkash
1990 Latest Caselaw 170 Del

JUDGMENT

P.K. Bahri, J.

(1) This petition has been filed under Section 482, Code of Criminal Procedure seeking setting aside of the order dated October 24, 1989 passed by Additional Chief Metropolitan Magistrate, New Delhi by which he had rejected the application of the petitioner for disposal of the seized wrist watches and other parts of the wrist watches till the disposal of the criminal case.

(2) Notice of this petition was given to the respondent but despite service, no appearance has been put in by respondent-accused.

(3) The perusal of the impugned order shows that the accused had not opposed the prayer of the complainant for selling the seized goods even before the final decision of the case.

(4) The complaint has been filed against the accused for the offence punishable under Section 135 of the Customs Act on the ground that about 520 wrist watches and 20,842 watch movements and other assorted goods of the value of Rs. 12,86,330/ have been seized as smuggled goods from the accused. The said goods have been already exhibited during the trial and no controversy is being raised in respect of the identity of the said goods as being seized from the accused. It is to case of the complainant that the value of the said goods is likely to deteriorate if the same are kept stored for any longer period and three is also not enough space available for storage as large number of goods are being seized daily.

(5) Under Section 451 of the Code of Criminal Procedure the trial Court has enough powers to order the sale of the case property produced before him during the trial pending the conclusion of the trial if the property is subject to speedy and natural decay or if it is otherwise expedient to do so. It is true that the property subject-matter of the present petition is not subject to speedy and natural decay but the powers could have been exercised by the Magistrate for ordering sale of the case property if it is otherwise expedient to do so particularly when the accused has not opposed the prayer of the complainant turn directing sale of the said property even before the trial is concluded. It is not understandable why the Magistrate ought not to have exercised the discretion vested in him for directing sale of the said property treating the matter as covered by the words "if it is otherwise expedient so to do." Keeping in view the difficulty being expressed by the customs people in having enough storage space and when the prayer for sale of the property during the trial is not being opposed by the defense interest of justice required that Magistrate ought to have directed the sale of the seized property.

(6) I hence allow the petition and set aside the impugned order and direct that the case property be sold after preserving five pieces of each category from the case property for the purpose of trial.