- (1.) I have heard learned Counsel for the applicant in support of this revision. It appears to me that the order passed by the Magistrate releasing truck No. 2220 USN in favour of the opposite party Safdar Ali Khan on his furnishing two sureties of the amount of Rs. 20,000/- each was without jurisdiction. There was no case pending inquiry or trial before him nor was there any charge against the opposite party in respect of which investigation was proceeding. The jurisdiction of the Magistrate to pass an order in respect of custody of property which is the subject matter of an offence of which has been used for the commission of any offence is contained in Section 516-A and Section 523 of the Criminal Procedure Code. There was no case under investigation of the police in respect of the truck in question, nor was any case pending inquiry or trial before the Magistrate concerned. Consequently he had no jurisdiction to make an order for its custody.
(2.) The learned Counsel for the applicant pointed out that the Central Excise authorities suspected that the opposite party had used the said vehicle in smuggling excisable goods without paying duty and, therefore, they were entitled to confiscate the truck under Section 115(2) of the Customs Act (Act 52 of l962). That section enacts that any conveyance used as a means of transport in the smuggling of goods or in the carriage of any smuggled goods, shall be liable to be confiscated unless the owner of the conveyance proves that it was so used without his knowledge or connivance. Under Rule 203 framed under the Central Excise Act an officer-in-charge of a police station is empowered to take charge of and keep in safe custody, pending the orders of the Magistrate or of the adjudicating Central Excise Officer, all things seized under the Act. I am told that the Superintendent, Central Excise had entrusted the vehicle in question to the care of the police authorities under the above rule. Clause (3) of Rule 206 provides that anything seized by a Central Excise Officer may, pending the orders of the adjudicating Central Excise Officer, be released to the owner on taking a bond from him in the proper Form with such security as the Collector may require. Thus a specific remedy has been provided under the rules for release of the property seized. The opposite party instead of taking advantage of the provisions of clause (3) of Rule 206 approached the Magistrate and obtained an order from him for the release of the truck. The order thus obtained is wholly illegal and cannot be allowed to stand. The matter was brought up in revision before the Sessions Judge who upheld the order of the Magistrate on the ground that the excise authorities had not taken steps to pass proper orders despite time having been granted to them to do so. However, the order passed by the Magistrate being illegal it is necessary that possession of the opposite party be regularised in accordance with law.
(3.) Learned Counsel for the Excise Department has given an undertaking that the vehicle will be released in favour of the opposite party pending adjudication on condition that the latter executes a personal bond and also furnishes security in the sum of Rs. 20,000 in the shape of immovable property. The opposite party prays for and is allowed two months time to execute the necessary bond in accordance with Rule 206(3). I allow this revision in terms of the above order.;