Decided on October 12,1972

Nazir Gulam Saheb Baddi Appellant
D.G. Mugwe Respondents


J.R. Vimadalal, J. - (1.) This is an application to revise the order passed by the Sessions Judge of Kolaba, on December 15, 1971, confirming the order passed by the Judicial Magistrate (First Class), Uran, at Panvel, on November 6, 1971, dismissing the application made by the present applicant for an order for return of his motor-truck under section 516 A of the Code of Criminal Procedure.
(2.) The facts of the case are that on December 18, 1970, the Customs authorities seized silver worth more than Rs. 6,00,000 dumped at Dassakushi in Uran for being illegally transported out of India, and in the course of their investigation, it was found that the present applicant's truck No. MHS. 121 7 had been used for the transport of that silver, and they, therefore, seized the truck. It appears that the truck had been seized earlier, but had been returned to the present applicant, and was seized again on September 26, 1971. A notice to show cause why the said truck should not be confiscated under section 115(2) of the Customs Act, 1962, was thereafter served on the present applicant on November 6, 1971.
(3.) The present applicant and some other persons were prosecuted for offences under sections 109 and 120 of the Indian Penal Code, section 133 of the Customs Act, and section 5, read with section 12 (1) of the Export and Import Control Act, and in the criminal proceedings that ensued in the Court of the Judicial Magistrate (First Class) Uran, being Criminal Case No, 40 of 1970, the said truck was produced and exhibited as exh 61. The present applicant thereafter filed an application under section 516A of the Code of Criminal Procedure on October 27, 1971 praying that the said truck be handed over to him pending the hearing and final disposal of those criminal proceedings. That application was opposed on behalf of the State and was dismissed by the trial Magistrate on November 6, 1971 on the ground that the present applicant had the remedy under sub-section (2) of section 115 of the Customs Act available to him, of proving that the said truck was not liable to confiscation on the ground that it had been used for transport of the goods confiscated without his knowledge or connivance, and it would not, therefore, be proper for him to make an order under section 516A of the Code of Criminal Procedure.;

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