http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 9  

PETITIONER: MOHAMMAD SERAJUDDIN

       Vs.

RESPONDENT: R. C. MISHRA

DATE OF JUDGMENT: 24/11/1961

BENCH: HIDAYATULLAH, M. BENCH: HIDAYATULLAH, M. KAPUR, J.L. SHAH, J.C.

CITATION:  1962 AIR  759            1962 SCR  Supl. (1) 545  CITATOR INFO :  D          1965 SC   1  (11,12,19)

ACT:      Customs-Seizure of  documents-Warrant  issued by  Magistrate-Custody   of  documents-If  customs authorities entitled to-Facilities for inspection- Sea Customs Act, 1878 (8 of 1878), s. 172,-Code of Criminal Procedure,  1898 (Act  5 of 1898), s. 96, Schedule V Form VIII.

HEADNOTE:      The  respondent   was  suspected   of  having exported dutiable  goods in  contravention of  the Sea Customs  Act and  of having secreted documents in  connection   therewith  in  two  premises.  An application was made to the Chief Presidency 546 Magistrate under  s. 172  of the  Act for  issuing warrants to search the premises for the documents. The warrants  were issued and after search a large number of  documents were  seized by  the  Customs authorities. They  then applied  to the Magistrate to retain  possession  of  the  documents  but  he ordered that  the documents  would remain  in  the custody of  the court  and  that  the  autuorities would be  given facilities  to inspect them. After having inspected some of the documents the Customs authorities again  applied to  the Magistrate  for custody of  the documents  and in  the alternative for allotment  of a separate room where they could inspect  the   documents  in   privacy,  but   the Magistrate rejected  both the prayers. On revision the High  Court held  that the Customs authorities were entitled  to the custody of the documents and directed  that   they  be   handed  over  to  them immediately. ^      Held, that  the goods  and  documents  seized under a  warrant issued  by a  Magistrate under s. 172 of the Sea Customs Act must be produced before the Magistrate  who issued  the warrant  and it is

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 9  

for him  to decide  how the  goods  and  documents shall be  disposed of.  He may make them over  the Customs authorities  or keep  them in his custody. The second  paragraph of  s. 172  provides that  a warrant issued  under s.  172 shall  have the same effect as  a search  warrant issued  under the law relating   to   criminal   procedure.   The   form prescribed  by  the  Code  of  Criminal  Procedure requires the  seized articles  to be  brought into court, and  the  Magistrate  has  jurisdiction  to decide about their custody. The Magistrate’s order that the  documents should  remain in  his custody and be scrutinised in his court was thus legal.      S. K.  Sribastava v. Gajanand (1956) 60 C. W. N. 1073, approved.      Calcutta Motor  Cycle  Co.  v.  Colleceor  of Customs (1955)  60 C.  W. N.  67 and  Collector of Customs v.  Calcutta Motor  and Cycle Co. A. I. R. 1958 Cal. 682, not approved.

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION  :  Criminal Appeal No. 158 of 1960.      Appeal from the judgment and order dated July 1,  1960,  of  the  Calcutta  High  Court  in  Cr. Revision No. 500 of 1960.      N. C.  Chatterjee and  P. K.  Chatterjee, for the appellant.      N.  S.   Bindra  and   T.  M.  Sen,  for  the respondent. 547      1961. November  24. The Judgment of the Court was deliered by      HIDAYATULLAH,   J.-This    appeal    is    by certificate  under   Art.  134   (1)  (c)  of  the Constitution granted by the High Court of Calcutta against its judgment and other dated July 1, 1960. The appellant, Mohammad Serajuddin is the managing partner of Messrs. Serajuddin and Co., of No. 19A, British Indian Street and of p-16, Bentick Street, Calcutta. The  said firm  carries on  business  as exporters of mineral ores, and also possesses some mines. The  business of the appellant involved the export of  manganese ore.  Till April, 1948, there was no  export duty on manganese ore. On April 19, 1948, export  duty at ad valorem rates was imposed on manganese  ore. This  was withdrawn  in August, 1954, but  was re-imposed  in September,  1956 and was withdrawn again in November, 1958. During this period,  the  appellant  exported  manganese  ore, among other mineral ores.      On November 28, 1959, an application was made under s.  172 of  the Sea Customs Act to the Chief Presidency Magistrate,  Calcutta  requesting  that warrants be  issued to  search  the  two  premises already  mentioned,   on   the   allegation   that documents relating  to and connected with "illegal exportation of  dutiable goods which were actually exported in  contravention of the Sea Customs Act" were secreted  in the  above premises.  The  Chief Presidency   Magistrate    issued   two   warrants returnable on December 5, 1959. Subsequently, time for return  was extended  to December 15, 1959. It

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 9  

appears that  the search was carried with somewhat undue zest,  and the  Chief Presidency Magistrate, on  December  12,  1959,  limited  the  search  to documents relating to manganese ore and also fixed the time  of the day during which the search could be made. Meanwhile, applications for withdrawal of the search warrants were unsuccessfully made by 548 the  appellant,  and,  in  the  end,  the  Customs authorities  seized   959  documents,   registers, books, etc.  The  Customs  authorities  wished  to retain these  documents in  their own  custody for the purpose of scrutiny, and on December 15, 1959, an application was made to obtain this permission. On the  same day,  the appellant  also applied for return of documents unconnected with the export of manganese ore  and for  retention of the remaining documents in  the, custody of the Court. The Chief Presidency Magistrate passed an order the same day that the documents would be kept in the custody of the Court  and the  Customs authorities  would  be given facilities  to inspect  them  in  the  Court premises. This  inspection commenced  on  December 17, 1959.      We may now pass over applications made by the appellant for  the return of documents unconnected with manganese  ore and by the Customs authorities for extension of time and for handing over all the documents to  them. Suffice  it to  say  that  the Magistrate  declined   both  the   requests,   and extended time  for inspection  till April 9, 1960. On February 6, 1960, the Customs authorities filed a last  application for  getting  custody  of  the documents and  for certain  facilities for  proper inspection in secrecy, if the inspection was to be done in  the Court  premises. This application was summarily dismissed  by the  Magistrate  the  same day.      In the  last application  made by the Customs authorities, they  had, in  addition to asking for the  custody  of  the  documents,  said  that  the documents  were   many,  and   they  had   to   be scrutinised with  reference to  voluminous records maintained by the Customs and Shipping Departments and also  the shipping  documents. They  also said that certain  witnesses and  informers had  to  be questioned,  and  that  it  was  not  possible  to complete the  work within  reasonable time, if the inspection had  to be  carried on, not only during Court hours but 549 in the  presence of  the  representatives  of  the appellant. They had, in the alternative, asked for a separate room where the scrutiny and discussions between the  Customs Officers  could take place in privacy and  for facilities  for inspection of the records even after Court hours, because during the day, the staff at their disposal was limited. Both these  matters,   of  courses   were  disposed  of summarily; but  the learned Magistrate had, in his earlier orders,  said that he could give them only such room  as he  could spare,  since he  had  not unlimited  accommodation   at  his  disposal.  The Magistrate also observed that he was, in no event, allowing  the  Customs  authorities  to  take  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 9  

documents away,  which had been seized as a result of warrants  issued by  him. He  claimed that  the documents belonged  to him, and could be inspected only as, when and where he ordered.      Against  the  order  of  the  Magistrate,  an application for  revision was filed by the Customs authorities in  the Calcutta High Court. According to the  practice of  that High  Court,  the  Chief Presidency Magistrate was also called upon to show cause against  the application. He showed cause on the same  lines. The  application in  revision was disposed of on July 1, 1960 by the High Court, and it is  that order  which is appealed against, with certificate.      The High  Court, in  its order, observed that the Chief  Presidency Magistrate  had "placed real difficulties in their way of speedily and properly finishing the  task of scrutinising the documents" that due  consideration was not given by the Chief Presidency Magistrate  to this expect of the case, and holding that the Customs authorities under the law were  entitled to the custody of the documents seized, ordered  that all  the documents  (bar  63 documents) should  at once  be handed  over to the Customs authorities,  with an imperative direction to 550 complete the  scrutiny  of  the  documents  within three months  from the  date the order of the High Court reached the Chief Presidency Magistrate.      In this  appeal,  two  questions  arise.  The first  is  whether  the  Customs  authorities  are entitled to  the custody of records seized by them under a  search warrant  issued under s.172 of the Sea Customs  Act, and  the Magistrate  cannot deny them the  right to  carry away  the documents  for their scrutiny.  If the answer to this question is in the  negative, a second question arises whether the order  of the Chief Presidency Magistrate gave inadequate facilities  to the  Customs authorities for inspection and scrutiny of the documents.      We shall deal with the question of law first. The Customs  authorities claim  that the documents seized  by  them  can  be  retained  by  them  for performing their  statutory duties.  They say that there is  no difference  between contraband  goods and documents  relating to  contraband goods,  and the same  procedure should  apply. when  goods are seized without  a warrent, the Customs authorities are not  required under  the Act to make them over to a  Magistrate;  when  documents  or  goods  are seized on  a warrant,  they  can  only  enter  the premises for  effecting a  search, armed  with the warrant of  a Magistrate. According to the Customs authorities,  once   a  Magistrate  has  issued  a warrant, his  connection with  the search comes to an end,  and whatever is seized as a result of the search  is  to  be  disposed  of  by  the  Customs authorities in  the discharge  of their  duties to adjudicate whether  any contraband goods have been brought into  the country against the Customs law. It is  contended that  just as the goods seized by them under the Act are not required to be produced before a  Magistrate,  so  also  documents  seized under a  warrant from  a Magistrate  need  not  be

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 9  

produced before him. They concede, however, that a Magistrate has jurisdiction 551 over his  warrant, which he can withdraw, annul or modify.      It appears  that, in the Calcutta high Court, there is  a conflict  of opinion  on  this  point, which arises  on two exprects of s. 172 of the Sea Customs Act. That section reads:           "Any Magistrate may, on application by a      Customs collector,  stating his  belief  that      dutiable or prohibited goods or any documents      relating to  such goods  are secreted  in any      place  within   the  local   limits  of   the      jurisdiction such Magistrate, issue a warrant      to search for such goods or documents.           Such warrant  shall be  executed in  the      same way,  and shall have the same effect, as      a  search-warrant   issued  under   the   law      relating to Criminal Procedure." In an  unreported case of the Calcutta High Court, Calcutta Motor & Cycle Co. v. Collector of Customs (1), Debabrata Mookerjee, J., has held that search warrants must  be issued, when the Customs Officer states his  belief etc., and the Magistrate is not required to  form his  own opinion. He has further held that  warrants issued  under s.  172 are  not impressed  with   all  the   characteristics   and features of  a warrant under s. 96 of the Criminal Procedure Code,  and that  the form of the warrant prescribed under  the Code can be suitably changed under s.  555  of  the  Criminal  Procedure  Code. Unfortunately, the  judgment of Mookerjee, J., was not  produced  before  us,  and  the  above  is  a summarry made in the judgment under appeal.      The matter also came before the High Court in two other  cases, and the judgments can be read in some unauthorised reports. In Calcutta Motor Cycle Co. v.  Collector of Customs (2), Sinha, J., dealt with  the   matter   under   Art.   226   of   the Constitution. The view of Sinha, J., was upheld by the Division 552 Bench in  Collector of Customs v. Calcutta Motor & Cycle Co.  (1). It  is held  in that  case that  a general seach warrant without specifying the goods or documents  is a  good  warrant,  and  that  the warrant for  search implies  the  power  to  seize goods  and  documents.  Sinha,  J.  also  observes obiter that  the goods  or documents  seized as  a result of  the search  need not be produced before the Magistrate, and may be retained by the Customs authorities, and, further, that the warrant should be suitably amended enable the Customs authorities not only to search for goods or documents but also to seize  them. In  S. K.  Sribastava v.  Gananand (2), Sen,  J., dissent  from the  observations  of Sinha, J.,  and holds that when goods or documents are seized  in execution  of a search warrant, the ultimate disposal  of the books and papers must be unde the  Magistrate’s order,  and that  there  is nothing in  the Sea  Customsd Act to show that the Customs-collector  is   the  final   authority  to dispose of  the papers and books. he also does not accept the contention that, as there is no pending

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 9  

proceeding in  the Court,  the production  of  the goods and documents seized is not necessary before the Court.  He further  holds that  the Magistrate has the  power to insist that the inspection shall be completed  within a reasonable time, and papers and books not required for the purpose of the case are returned  promptly to  the party.  At p. 1078, the learned Judge observes:           "After  seizure   by   the   police   in      execution of  the search  warrant, the  goods      and  documents   must  normally  be  produced      before the  court issuing the search warrant.      That is  implied by  the issue  of  a  search      warrant by a Magistrate for search of a place      within  his  jurisdiction  and  is  expressly      provided for  in  the  prescribed  forms  for      search warrant  under sections  96 and  98 of      the Code."      In  the   judgment  under  appeal,  the  view expressed by Sinha, J., has been preferr- 553 ed. The learned Judge has referred to the language of s. 172, and has contrasted it with the language of s.  96 of  the Code. He observes that the words "wherein the  court has  reason to believe" do not occur in  s. 172  of the  Sea Customs Act, and the Magistrate, therefore,  has no  discretion but  to issue the  search warrant  in spite  of the  words "may issue"  in that  section. He however, goes on to say  that the magistrate, in issuing the search warrant, acts  judicially, and may examine whether the belief  is really  entertained by  the Customs Officer or  not, or whether there is any mala fide action.  Except   for  these   two  matters,   the magistrate  has  no  other  discretion.  Once  the documents have  been seized,  the second paragraph of s.  172 begins to operate, and the magistrate’s responsibility  is  at  an  end.  He  agrees  with Debrabata Mookerjee,  J., that  all the provisions of the  Code do  not apply, and after seizure, the action of  the Customs  authorities is independent and  uncontrolled   by  the   Code.  He,  however, concedes that "the ultimate responsibility" of the Magistrate and his "overall control" still remain. But he  states that  "the immediate  control" must remain with  the Customs authorities, who need not produce  the   documents  before  the  Magistrate, because seizure  would be meaningless, if they did not have  the power  to scrutinise and inspect the documents in their own way.      The  pendency   of  a   proceeding  before  a magistrate as  a condition  precedent to the issue of  a   warrant  is   no  longer   a  matter   for consideration, after  the decision  of  the  Privy Council  in   Clarke  v.   Brojendra  Kishore  Roy Choudhury (1).  A Magistrate thus has jurisdiction the moment  an application  for  warrant  is  made before him,  and proceedings  on that  application can be  said  to  have  started  under  the  Code. Section 172 of the Sea Customs Act by 554 its second  paragraph brings  into  operation  the provisions of  the Criminal  Procedure Code,  and, therefore, the  Magistrate’s jurisdiction  is both under s.  172 of  the  Sea  Customs  Act  and  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 9  

Criminal Procedure  Code. There  can be  no  doubt also that  unlike s.  96, the  magistrate is to be guided  by  the  belief  on  the  on  the  Customs authorities,   though   he   may   prevent   undue harassment in cases, where it can be seen that the belief is  not entertained  by the Customs officer or his  action is  mala fide.  The  Magistrate  is certainly entitled  to satisfy  himself about  the belief of  the Customs  Officer, himself about the belief of the Customs Officer, but is not required to make  up his  own mind  independently  of  that belief. To  this extent  only is the matter in the control of  the Magistrate,  before he  issues the warrant. After  the warrant’  is issued,  it is an order  of  the  Magistrate  enabling  the  Customs athorities to  take action,  for without  warrant, they cannot  enter  any  house  or  premises.  The warrant of  the Magistrate, so to speak, opens the door for  entry into  a house or premises, and the authority to  do so is based upon the Magistrate’s order. The forms prescribed under the Code require that articles  seized as  a result  of the warrant should be  brought into  Court, and  a Magistrate, who issues  a search  warrant, is  entitled to see that his  warrant is  not  abused,  and  has  been properly executed.  In a suitable case, of course, a Magistrate may amend the warrant dispensing with the production  of the  goods or  documents before him. That, however, would be in a clear case only; but if  the Magistrate  so desires,  he  need  not amend the  form, and  may keep  the control of the goods or  documents in  himself. This  he may find necessary to do, so that the warrant issued by him is  not   abused  or   made  the   instrument   of harassment. A condition, therefore, in the warrant that the  goods or  documents should  be  produced before the  Magistrate must  be complied with, and once the  goods or  documents have  been  produced before 555 the Magistrate,  it is  for him  to decide, in the circumstances of  each case, whether he would make them over to the Customs authorities or not. Where the  Customs   authorities  have   been   somewhat indiscriminate in  their seizure,  the  Magistrate may  find  it  necessary  to  have  the  goods  or documents serutinised  under his  control, so that goods or  documents not  really subject to the Sea Customs Act  are not  retained for  an unduly long period.      The  words   "ultimate  responsibility"   and "overall  control"  used  in  the  judgment  under appeal would  mean nothing,  if they did not imply the power  of the  Magistrate, to  which  we  have referred. If  they mean  anything, they  mean  the power of  the  Magistrate  to  see  that  his  own warrant is  not used  in a manner which he did not contemplate. The second paragraph of s. 172 of the Sea  Customs   Act,  which  applies  the  Criminal Procedure Code,  says that  the warrant  shall  be executed in  the same  way and shall have the same effect  as  a  search  warrant  issued  under  the Criminal  Procedure   Code.  The  execution  of  a warrant is  one thing,  and its effect is another. In talking  of the  effect,  s.  172  of  the  Sea

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 9  

Customs Act intends to apply not only the Criminal Procedure Code  but also the forms prescribed, and if the  form says  that  the  goods  or  documents should be  produced before  the Magistrate  to  be dealt with  under his  direction, then that effect necessarily flows  from the words of that section. In our  opinion, the view expressed by Sen, J., is correct.      In view  of what  we have  said above,  it is clear that  the Magistrate’s  order that  the  959 documents, which were seized, should remain in his custody and  be scrutinised in his Court, was also correct. No  doubt, the documents seized are many, and a still more voluminous record will have to be gone into,  to  find  out  the  relevance  of  the documents seized.  But that  is a matter of detail bearing upon 556 the  scrutiny   and  insepection   of  the  seized documents  and   not  upon   their   custody.   If difficulties arise, (and they must have), they are capable of  being removed by a judicious action on the part  of the  Magistrate and collaboration the part of  the Customs authorities. This is a matter of expediency  rather than of law. In our opinion, though the learned Magistrate was legally right in retaining control  over the  documents seized,  he was  unduly   narrow  in  his  view  in  affording facilities for  inspection and  scrutiny. Perhaps, his action  was some  what justified, if one looks only at the inordinate delay and the leisureliness with which  the inspection  was  being  made.  But Magistrates,   even   though   they   may   desire expedition, must  not frustrate  other departments of  Government  in  discharging  their  legitimate duties under the Act.      On this part of the case, learned counsel for the  Costoms   authorities  was   very  frank  and accommodating.   He    said   that   the   Customs authorities are  not keen  on the  custody of  the documents but  only on  their proper inspection in privacy, because  they have  to bring  in  various documents  for  comparison  and  have  to  examine witnesses  and   informers.  He  said  that  if  a separate room  in the Court premises were given to the Customs  authorities, and they were allowed to have inspection even after Court hours, they would be able to complete the inspection within three to four months  time. The difficulties of the Customs anthorities are also many. Their supervisory staff has to  deal not  only with  this  case  but  many others, and in view of the volume of records which they have  to go  through in  connection with this case, it  is obvious  enough that  time  would  be needed.      In our  opinion, we  must discharge the order of the  learned Judge that the documents be handed over to the Customs authorities. The Magistrate is right in keeping these documents in his immedi- 557 ate  custody;   but  we   must  direct   that  due facilities for  inspection should  be afforded  to the Customs authorities in the shape of a separate room and  suitable  furuiture  and  time  extended beyond the ordinary Court hours. Inspection should

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 9  

be carried on in the presence of a Court official, and adequate  privacy  for  questioning  witnesses etc.,  should   be   afforded   to   the   Customs authorities, whenever  they find  it necessary. In our opinion,  if these  facilities are granted-and we direct  that they  be granted-a  period of four months  from  the  date  this  order  reaches  the Magistrate should prove enough. We, therefore, set aside the  order  for  the  handing  over  of  the documents to  the Customs  authorities, and make a direction for  the disposal  of  the  records,  as stated above.  We may add that this order does not apply to  the  63  documents,  which  the  Customs authorities have  already agreed  to return to the party.                                    Appeal allowed.