M.A.A. Khan, J. - (1.) -The common question involved in ail these four petitions under section 482 Cr.PC. is whether a Magistrate has the discretionary power under section 457 Cr.PC. to release a property which is "liable to confiscation" under the provisions of the Customs Act, 1962 (the "Customs Act") when such property is initially seized by a police officer but the custody, control and possession thereof has subsequently been delivered by such police officer to the proper officer (a Customs Officer) under the Customs Act.
(2.) The learned counsel for the Union of India and the Customs Department have vehemently urged that the Customs Act which makes provisions for the arrest and detention of the offenders against that Act and search and seizure of properties, liable to confiscation, being a special law over rides the provisions of the Code Criminal Procedure, 1973 (Cr.PC ), which is a general law, in regard to the disposal of properties seized and liable to confiscation. The learned counsel placed reliance on a number of decisions of this Court as well as of other High Courts and the Apex Court namely : 1. Asstt. Customs Collector v. Tilak Raj, AIR 1969 Delhi 301 2. Superintendent, Customs & Central Excise v. Ram Chand, AIR 1970 SC 1065 3. lllias v. Collector of Customs, Madras, AIR 1970 SC 1065 4. Susanta Kumar Adhikari & others v. State of West Bengal, 1983 Cr.LJ 772 (Cal.) 5. RO. Thomas & Ors. v. U.O.I., 1990 Cr.LJ 1028 (Ker.) 6. Sup. of Customs & Central Excise Nagercoil v. R. Sunder, 1993 Cr.LJ 956 (Mad.) 7. Bhana Bhai Khalpa Bhai v. Collector of Customs & Anr., 1994(1) Crimes 941 (SC) 8. Asstt. Collector, Customs v. Surajmal, 1974 RLW 15 (Raj.) 9. Ghanshyam Soni v. V/s. U.O.I., (S.B. Cr. Misc. Pet. No. 614/91) Raj. decided on 12.7.91.
(3.) The learned counsel for Sukhdev Singh Ayub Ali and Satyanarain Respondents, on the other hand, urged with same industry and vehemence that once a property, may be it is liable to confiscation under the provisions of the Customs Act, has been seized by the police in accordance with the provisions of the Cr.PC. and, for that matter, even by a Customs Officer under the provisions of the Customs Act, a Magistrate has the power to entrust its supardgi under section 457 Cr.PC. for the period prior to inquiry or trial and under section 451 Cr.PC. during the period of the pendency of the inquiry or trial and the final disposal thereof under section 452 Cr.PC. at conclusion of trial. The learned counsel submitted that the provisions of the Customs Act do not at all come in the way of the Magistrate in the exercise of his discretionary powers under sections 457, 451 & 452 Cr.PC. and since the learned Magistrate had, in the present cases, exercised his discretionary power under section 457 Cr.PC. in a judicial manner this court should not interfere with his order. In support of their arguments the learned counsel relied upon several decisions including the followings : 1. Gyan Chand v. State of Punjab, AIR 1962 SC 496 2. Asstt. Collector Customs v. M. Ibrahim Peerzada, 1970 Cr.LJ 1305 (Guj.) 3. Misrimal Hans Raj v. U.O.I., 1975 Cr.LJ 1617 (Mad.) 4. Union of India v. Karambhai Umer Bhai Qureshi, 1979 Cr.LJ 1172 (Goa, Daman & Dieu) 5. Asstt. Collector Customs v. Sheikh Abdul Karim, 1990(47) ELT 505 (Bom.) 6. Directorate of Enforcement v. Deepak Mahajan. 1994(70) E.L.T. 12 (SC) 7. Ganeshi Bhai Soni v. State of Raj. & Ors. (afore- mentioned) 8 Rahim Khan v. U.O.I (SB Cri. Misc. Pet. No. 169/91 decided by Raj. High Court on 14.2.91) 9. Ramzan Khan v. State of Raj. & Ors., (SB Cri. Misc. Pet. No. 282/92 decided by Raj. High Court on 10.4.92) 10. Ramzan Khan v. State of Raj. & Ors., (SB Cr. Misc. Pet No. 744/92 decided by Raj. High Court on 4.6.92 in SB Cr. Misc. Pet. No. 282/92). I studied the cases, cited at Bar before me, in the light of the relevant provisions in the Customs Act and the Code of Criminal Procedure, 1973.;