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PETITIONER: REMO PAUL ALTOE

       Vs.

RESPONDENT: UNION OF INDIA

DATE OF JUDGMENT13/10/1977

BENCH: GUPTA, A.C. BENCH: GUPTA, A.C. FAZALALI, SYED MURTAZA

CITATION:  1977 AIR 2255            1978 SCR  (1) 719  1977 SCC  (4) 437  CITATOR INFO :  D          1983 SC  60  (5)

ACT: Criminal  Procedure Code, 1973 (Act II of 1974), s.  452(1)- Order  for  disposal  of property at  conclusion  of  trial- Confiscated  property  under the Customs  Act  not  produced before  the court or in custody or control of the  court-The court cannot make an order for disposal of the properly u/s. 452(1) of the Criminal Procedure Code.

HEADNOTE: On  a search of the room of the appellant, a foreigner,  who arrived  at Calcutta by air from Bangkok on June  28,  1975, the  Customs  Authorities found 1701 U.S. dollars  and  4400 Canadian  dollars in his possession.  For violation  of  the provisions  of  s.13(1) of the Foreign  Exchange  Regulation Act,  1973  read with s.135 of the Customs  Act,  1962,  the Chief  Metropolitan Magistrate convicted the  appellant  and sentenced him to pay a fine of Rs. 2000/- and in default  to suffer rigorous imprisonment for six months.  The Magistrate further  ordered that "the goods involved in this  case  are confiscated  to the State if not already confiscated".   The Calcutta  High Court, in revision, affirmed  the  conviction but reduced the fine to Rs. 500/- and affirmed the order  of confiscation  of. the dollars.  In appeal by special  leave, the appellant contended that the Magistrate had no power  of confiscation of the currency and the High Court was in error in affirming that order. Allowing the appeal, the Court, HELD  : (1) An order for the disposal of any  property  u/s. 452(1) of the Criminal Procedure Code is necessary where the property  remains to be disposed of by the Court  after  the inquiry or trial is over.  In the present case there was  no necessity  or  occasion for the Court to make an  order  for disposing of any property since the seized foreign  currency was  not produced before the Magistrate and was not  in  the custody   or  control  of  the  court  when  the  order   of confiscation was made.  The order of the Magistrate that the goods  involved in the case be confiscated "if  not  already confiscated"  clearly shows that he was not aware  what  had happened  to  the  goods which were in the  control  of  the Customs Authorities. [721 H, 722 A-B]

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(2)It  is true that the foreign currency seized  from  the appellant’s  possession was property in respect of which  an offence  was committed but this fact alone did not call  for an order u/s. 452(1) in the circumstances of the case.                                                 [722 B] [The  court left open to the Customs Authorities to  take  a decision according to    law as early as possible  regarding the disposal of the seized currency.]

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION : Criminal Appeal  No.  191 of1977. Appeal by Special Leave from the Judgment and Order dated 6- 12-76     of  the Calcutta High Court in Crl.  Revision  No. 1111-/76. R. L. Kohli and S. K. Sabharwal for the Appellant. Soli J. Sorabjee and Addl.  Solicitor General Girish Chandra for the Respondent. The Judgment of the Court was delivered by GUPTA,  J.-This appeal is by special leave, from a  judgment of  the Calcutta High Court, this Court in granting  special leave  limited  the appeal to only one ground,  whether  the trial  court  bad power to order confiscation of  the  goods found  in appellant’s possession while convicting him  under section 135 of the Customs Act. 720 The facts relevant for the purpose of the appeal are  these. The. appellant is a foreigner who arrived at Calcutta by air from  Bangkok on June 28, 1975.  On a search of his room  in the  hotel  where he. was staying in Calcutta,  the  Customs authorities  found in his possession 1701 U.S.  dollars  and 4400 Canadian dollars which they seized as. smuggled  goods. On  September  23, 1975 an Assistant  Collector  of  Customs filed  a  petition of complaint in the court  of  the  Chief Metropolitan  Magistrate,  Calcutta, alleging,  inter  alia, that  the  appellant  had brought in  the  foreign  currency seized from his possession in violation of section 13(1)  of the Foreign Exchange Regulation Act, 1973 and was  therefore liable to be convicted under section 135 of the Customs Act, 1962.  Section 13(1) of the Foreign Exchange Regulation Act, 1973 imposes restrictions on bringing or sending into  India any  gold  or silver or any foreign exchange or  any  Indian currency.  Section 67 of that Act provides               "Application  of the Customs Act,  1962.   The               restrictions  imposed by or under section  13,               clause  (a) of sub-section (1) of  section  18               and  clause (a) of sub-section (1) of  section               19 ’shall be deemed to have been imposed under               section  11 of the Customs Act, 1962, and  all               the  provisions of that Act shall have  effect               accordingly." Section 11 of the Customs Act, 1962, to which section 67  of the Foreign Exchange Regulation Act, 1973 refers, authorises the  Central Government to prohibit the import or export  of goods of specified description for purposes mentioned in the section;  one  of the purposes mentioned in  clause  (u)  of section 11 (2) is the prevention of the contravention of any law for the time being in force.  Section III of the Customs Act  lists  the  various goods brought  in  from  any  place outside  India  which  "shall be  liable  to  confiscation", clause  (d) of the section mentions inter ailia goods  which are imported contrary to any prohibition imposed by or under the  Customs  Act  or any other law for the  time  being  in

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force.   Section  135  of  the  Customs  Act  provides   the punishment  for  fraudulent evasion of duty  or  prohibition imposed  in relation to any goods under the Customs  Act  or any  other  law for the time being in force,  and  also  for acquiring possession or in any way dealing with goods  which the person concerned knows Ire liable to confiscation  under section 111. The  Metropolitan Magistrate convicted the  appellant  under section  135 of the Customs Act and sentenced him to  pay  a fine   of  Rs.  2000/-,  in  default  to   suffer   rigorous imprisonment for six months.  The Magistrate further ordered that the "goods involved in this case are confiscated to the State, if not already confiscated".  The Calcutta High Court in revision affirmed the appellant’s conviction but  reduced the  ’sentence of fine to Rs. 500/-, and affirmed the  order of  confiscation of the dollars.  It is contended  that  the Magistrate  had  no  power  to  order  confiscation  of  the currency  and the High Court was in error in affirming  that order. 721 The order of confiscation was presumably made under  section 452(1)  of  the Code of Criminal Procedure,  1973.   Section 452(1) provides : Order for disposal of Property at conclusion of trial               "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 entitled 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." Confiscation  under  section 452(1) is one of the  modes  of disposal of property after an inquiry or trial in a criminal court is concluded.  The contention of the appellant is that operation  of  this  general provision is  excluded  by  the special  provisions for confiscation of goods  contained  in chapter  XIV of the Customs Act, 1962.  Chapter XIV  of  the Customs Act which includes section 111 to ’section 127 deals with  confiscation of goods and conveyances and in  position of penalties.  We have already referred to section 1 1 under which   goods  improperly  imported  shall  be   liable   to confiscation.    Section   112  provides  for  penalty   for improper importation of goods.  Such Confiscation or penalty is  adjudged under section 122.  Section 124 states that  no order confiscating any goods or imposing any penalty on  any person  shall  be  made  except  on  notice  to  the  person concerned and only after giving him an opportunity of making a  representation and also an opportunity of being heard  in the matter.  Under section 125 the officer adjudging a  case of  importation  or  exportation  of  any  goods  which   is prohibited  under  the Customs Act or any other law,  has  a discretion  to give to the owner of the goods an  option  to pay in lieu of confiscation such fine as the officer  thinks fit.   Section 126 lays down that on confiscation the  goods shall  vest in the Central Government and that  the  officer adjudging confiscation shall take and hold possession of the confiscated  goods.   Section 127 makes it  clear  that  the award  of any confiscation or penalty under the Customs  Act does  not prevent the infliction of any punishment to  which the  person  concerned is liable under chapter  XVI  of  the Customs  Act  or  under any other law.  Section  135  is  in chapter xvi.

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The  Customs Act thus provides that contraband goods  "shall be  liable  to confiscation" and also lays down  a  detailed procedure for the confiscation of such goods.  The appellant contends  that  the Special provisions of  the  Customs  Act regarding  the confiscation of goods Seized under  that  Act make the general law as to disposal of property contained in section 452 (1) of the Code of Criminal Procedure inapplica- ble  in respect of such goods.  According to the  respondent Union  of India, Customs authorities and the criminal  court have concurrent jurisdictions in the matter.  However, we do not find it necessary to answer the question in this  appeal which, in our opinion, should succeed on a short point.   An order for the disposal of any property under section 452 (1) of  the  Code of Criminal Procedure is necessary  where  the property  remains to be disposed of by the court  after  the inquiry or trial 722 is  over.  In the present case it appears that  the  foreign currency  seized from the appellant was not produced  before the Magistrate and was not in the custody or control of  the court  when the order of confiscation was made.   There  was thus no necessity or occasion for the court to make an order for  disposal of any property; the order of  the  magistrate that the goods involved in the case are confiscated "If  not already  confiscated"  clearly shows that he was  not  aware what had happened to the goods which were in the control  of the  Customs  authorities.   It is  true  that  the  foreign currency seized from the appellant’s possession was property in respect of which an offence was committee, but this  fact alone  did not call for an order under section 452 ( 1 )  in the  circumstances  of  the case,  and  that  order  passed, besides being unwarranted, is likely to create complications if in respect of the foreign currency a proceeding under the Customs Act is pending or the Customs authorities have  made any order with which the magistrate’s order is inconsistent. We  therefore  allow the appeal and set aside the  order  of confiscation  passed by the magistrate and affirmed  by  the High Court. Mr. Kohli, learned counsel for the appellant, prays that the Customs   authorities  should  be  directed  to  return   to appellant the currency seized from his possession.  How  the Customs  authorities have dealt with the  property,  whether the  appellant  is  entitled to have  the  foreign  currency seized  from  his  possession  returned  to  him  under  any provision  of the Customs Act, are not questions that  arise for  consideration in this appeal.  The record of  the  case also does not contain any material upon which we could  give any  direction in the matter even if we wanted to.  However, as this is an old case, we hope that the Customs authorities will  take  a decision in this matter according  to  law  as early as possible. S. R.            Appeal allowed. 723