BHARGAVA, J. - (1.) THIS petition under Section 482 Cr. P. C. has been filed for quashing the order dated 22. 6. 1991 passed by the S. D. M. Nagaur, refusing to give the delivery of Maruti Gypsy on Supurdginama and also for quashing the order dated 12. 6. 1991 passed by the Special Magistrate, Economic Offences, Jaipur.
(2.) AS per the facts mentioned in the memo of petition, on 13. 4. 1991, the police party of Police Station Nagaur apprehended the petitioner along with others and also recovered Indian currency worth Rs. 2. 45 lacs from Dwarka Das from Room No. 18 of the Hotel and also seized Maruti Gypsy u/s 102 Cr. P. C. which was parked outside the hotel. The statement of the petitioner was also recorded under threat and coercion. A case No. 26/91 State V. Dwarka Das and others was registered u/s 109 Cr. P. C. The petitioner moved an application before the learned S. D. M. for giving the vehicle to him on Supurdginama, who vide his order dated 22. 6. 1991 ordered that the vehicle had been seized u/s 102 Cr. P. C. therefore, notice may be issued to the Station House Officer, Nagaur that if the vehicle is not required in this case and any other case and if the said vehicle is not connected with any customs case, the same may be handed over to the petitioner and the matter was fixed for 15. 8. 91. Meanwhile, the police handed over the custody of the Maruti Gypsy vehicle to Customs Department. Thereafter, the petitioner moved an application u/s 457 Cr. P. C. in the Court of Special Judicial Magistrate (Economic Offences) and prayed that the vehicle may be handed over to him on supurdginama. The learned Magistrate vide his order dated 12. 6. 1991 rejected the said application u/s 457 Cr. P. C. and did not hand over possession of the vehicle to the petitioner. It is against this order that the present petition has been filed by the petitioner in this court. Notices were issued. Customs Department has put in appearance through Shri K. N. Shrimal, Advocate. Arguments have been heard. Learned counsel for the petitioner has very vehemently submitted that in the present case the vehicle was seized u/s 102 Cr. P. C. and was lateron handed over to the Customs Department. The learned Magistrate had no authority or power or jurisdiction to hand over the vehicle to the Customs Department. Moreover, nothing has been recovered from the vehicle; no secret chamber has been found in the car which might have been utilised for carrying contraband or smuggled goods and the vehicle is not involved in any criminal offence, whatsoever. The petitioner being the registered owner the vehicle should be handed over to him on Supurdginama otherwise, the vehicle which is lying in open without any care will become of no use. Moreover the petitioner has not received any notice for confiscation of the vehicle and even if the Department has given any notice, it is of no avail because the vehicle cannot be seized in view of Sec. 115 (2) of the Customs Act as the conveyance was not used as a means of transporting or smuggling of any goods or in the carriage of any smuggled goods nor was there any evidence for the same. Moreover, even if the vehicle was used for such purpose, the owner of the vehicle has to be given an option to pay in lieu of the confiscation of the conveyance, a fine not exceeding the market price of the goods which are sought to be smuggled by the vehicle. He has placed reliance on Bhanu M. Vakil V. Chandra Oshiram Keswani and another (1) wherein his lordship has discussed the scope of Sec. 482 Cr. P. C. vis-a-vis revisional jurisdiction u/s 397 and 399 Cr. P. C. and has observed that if the order is shown to be illegal or improper, the court should exercise its discretion u/s 397 or 399 Cr. P. C. If the High Court finds it necessary for the prevention of abuse of the process of court or for securing the ends of justice,sec. 482 Cr. P. C. empowers the High Court to exercise its inherent jurisdiction and powers and in that case, there can be no limitation in the exercise of that power. On the other hand, learned counsel for the Customs Department, Shri K. N. Shrimal, Advocate has also very vehemently argued that Sec. 151 of the Customs Act provides that a police officer is required to assist the officers of Customs Department. He has also drawn my attention to Sec. 127, Customs Act which provides that the award of any confiscation or penalty under the Act by an officer of customs shall not prevent the infliction of any punishment to which the person affected thereby is liable under the provisions of Chapter XVI of the Act or under any other law Sec. 124 of the Customs Act provides for issue of show cause notice before confiscation of goods. He has submitted that a notice had been sent u/s 124, Customs Act on 10. 10. 1991 by registered post but the petitioner refused to accept the same and therefore, it should be taken that the notice u/s 124, Customs Act had been served on the petitioner. He has placed reliance on Assistant Collector, Customs, Jaipur V. Surajmal (2) wherein this Court has held that the Magistrate has no jurisdiction to make orders with respect to the goods seized by the Customs Officer and liable to confiscation under the provisions of the Customs Act at least before launching of criminal prosecution. He has further placed reliance on Supdt. of Customs and Central Excise, Vapi V. Raichand Lakamsingh Shah (3) wherein also it has been held that where a police officer had seized the vehicle and conveyed the same to customs house and subsequently same was seized by the custom officer in exercise of powers u/s 110, Customs Act on the ground that the goods which were carried in the vehicle were smuggled goods, the Magistrate cannot order the Supdt. Customs and Central Excise to return the vehicle to the person who claims to be the owner of it, on Supurdginama. Reliance has further been placed on a decision of Bombay High Court in Basant Lal V. Union of India (4) wherein their lordships have also held that the officer before seizing the goods should entertain a belief and not a mere suspicion that the goods are liable to confiscation. Reliance has also been placed on Asstt. Collector of Customs V. Smt. Maria Rege. & others (5) wherein his lordship has held that customs officer is not a police officer and therefore the Magistrate has no jurisdiction to order disposing of the property u/s 457 Cr. P. C. He has further drawn my attention to P. O. Thomas V. Union of India (6) wherein also Kerala High Court has held that the Magistrate has no power to issue directions to customs authorities for return of passport and seized goods and the inherent powers of the High Court u/s 482 Cr. P. C. could not be invoked.
(3.) HE has further placed reliance on Remopaul V. Union of India (7) wherein it has been held that the order of confiscation u/s 452 (1) Cr. P. C. of foreign currency seized from the petitioner, who was facing trial u/s 135, Customs Act, was illegal. Reliance has also been placed on Asstt. Customs Collector V. Tilak Raj (8) wherein also, it has been held that the Magistrate had no jurisdiction to return the car u/s 523 Cr. P. C. when the car was recovered by the Customs Deptt. Customs Officer cannot be regarded as police officer within the meaning of Sec. 523 Cr. P. C. I have gone through the impugned orders as also the authorities relied by learned counsel for the parties. ;