Case: Ashok Metal Corporation Vs. The Senior Inspector of Police and Others

458 and 459.(4) Except where the property is livestock or is subject to speedy and natural decay, or where a bond has been executed in pursuance of subsection (2), an order made under sub-section (1) shall not be carried out for two months, or when an appeal is presented, until such appeal has been disposed of.(5) In this section, the term "property" includes, in the case of property regarding which an offence appears to have been committed, not only such property as has been originally in the possession or under the control of any party, but also any property into or for which the same may have been converted or exchanged, and anything acquired by such conversion or exchange, whether immediately or otherwise."15. For getting interim custody of such property under section 451 of the Code, the petitioner or Devang will have to satisfy the Magistrate as per section 124 of the Maharashtra Police Act as already observed. Provision of section 452 of the Code shows that there is power with the Magistrate to make order of disposal of such property at the conclusion of the trial and the Magistrate is expected to ascertain whether the property is liable to confiscation.16. In view of the aforesaid provisions, when the case is filed under section 124 of the Maharashtra Police Act and the record shows that property is notified goods of foreign origin, was covered under the provisions of the Customs Act, the Magistrate is expected to ascertain as to whether the property needs to be dealt with under the provisions of the Customs Act. There is separate machinery provided under the Customs Act 1962 for confiscation of such property. In section 151 of this Act it is specifically provided that police is empowered to assist the Customs Department when such a case is detected. Thus, in ordinary course such property is required to be handed over to Customs Department.17. In view of the aforesaid provisions of law and the power given to the Customs Department of making investigation, it is not possible to give interim custody to the petitioner. The aforesaid material shows that trial of the case for offence punishable under section 124 of the Maharashtra Police Act needs to be concluded.18. The learned counsel for the petitioner made submissions that notice as provided under the Customs Act needs to be given within six months from the date of seizure and after such period the petitioner will be entitled to get the custody in ordinary course if the notice is not given. Relevant material is already quoted by this Court and it shows that the seizure from the employee of present petitioner is made by police under the provision of the Code and seizure is not made under the provisions of the Customs Act. There is power given to Customs Officer to make investigation of such case irrespective of the registration of the crime and filing of the case for offence punishable under section 124 of the Maharashtra Police Act and that has nothing to do with the limitation of six months to issue notice for confiscation. Even if it is presumed that the presumption provided under section 123 of the Customs Act cannot be used, the other provisions are there empowering the Customs Officer to make investigation and file the case. Further the provisions of Cr.P.C. and the Customs Act can be used for confiscation of such gold.19. The term "reason to believe" is used in section 124 of the Maharashtra Police Act and also in section 110 of the Customs Act. At present there is material of aforesaid nature against the petitioner and the explanation given by the petitioner is not at all plausible. In view of these circumstances this Court holds that at this stage it is not possible to give custody of the gold to the petitioner. Further it cannot be said that the arrest of Devang was illegal and the Customs Officers need to be prevented from making investigation or taking steps for confiscation. In the case reported as AIR 1975 SC 160 (Champaklal Ganeshmal v. State of Maharashtra) provision of Section 124 of the Bombay Police Act, now Maharashtra Police Act, is discussed. Following observations are made by the Honble Apex Court in para 7 of the report:-"7. . . . It can hardly be disputed that when anything is imported into the country clandestinely in violation of import or customs regulations it is fraudulently obtained, that is obtained by committing a fraud on the regulations. Smuggled goods are clearly goods fraudulently obtained. .... The plain language of the section stops short at describing the property as "stolen property or property fraudulently obtained" and does not go on to add the words "by him". . . . if the property were stolen or fraudulently obtained by the accused, that would be a distinct and independent offence under the Indian Penal Code or the Customs Act, . . . and it would not be necessary to make it an offence over again under Section 124 of the Bombay Police Act. . . . If the property is capable of being described as "stolen property" or "property fraudulently obtained" by whomsoever it might have been stolen or fraudulently obtained that would be sufficient to comply with the requirements of the section. . . . it is the possession by the accused of property which bears the attribute or characteristic of stolen property or property fraudulently obtained, that is made penal. . . . the explanation given by the appellant for his possession of the wrist watched was unsatisfactory and the High Court was right in taking the view that the appellant had failed to account for the possession of wrist watches to the satisfaction of the Court. "20. Case is already filed under section 124 of the Act against Devang and so this Court holds that the observations made by the Apex Court can be used against Devang if he fails to explain the things.

Court's decision (1 = petition accepted / positive for appellant, 0 = rejected / negative): 0

Reasoning from the judgment:
0[ds]18. The learned counsel for the petitioner made submissions that notice as provided under the Customs Act needs to be given within six months from the date of seizure and after such period the petitioner will be entitled to get the custody in ordinary course if the notice is not given.Relevant material is already quoted by this Court and it shows that the seizure from the employee of present petitioner is made by police under the provision of the Code and seizure is not made under the provisions of the Customs Act. There is power given to Customs Officer to make investigation of such case irrespective of the registration of the crime and filing of the case for offence punishable under section 124 of the Maharashtra Police Act and that has nothing to do with the limitation of six months to issue notice for confiscation. Even if it is presumed that the presumption provided under section 123 of the Customs Act cannot be used, the other provisions are there empowering the Customs Officer to make investigation and file the case. Further the provisions of Cr.P.C. and the Customs Act can be used for confiscation of such gold.19. The term "reason to believe" is used in section 124 of the Maharashtra Police Act and also in section 110 of the Customs Act. At present there is material of aforesaid nature against the petitioner and the explanation given by the petitioner is not at all plausible. In view of these circumstances this Court holds that at this stage it is not possible to give custody of the gold to the petitioner. Further it cannot be said that the arrest of Devang was illegal and the Customs Officers need to be prevented from making investigation or taking steps for confiscation. In the case reported as AIR 1975 SC 160 (Champaklal Ganeshmal v. State of Maharashtra) provision of Section 124 of the Bombay Police Act, now Maharashtra Police Act, is discussed. Following observations are made by the Honble Apex Court in para 7 of the. . . It can hardly be disputed that when anything is imported into the country clandestinely in violation of import or customs regulations it is fraudulently obtained, that is obtained by committing a fraud on the regulations. Smuggled goods are clearly goods fraudulently obtained. .... The plain language of the section stops short at describing the property as "stolen property or property fraudulently obtained" and does not go on to add the words "by him". . . . if the property were stolen or fraudulently obtained by the accused, that would be a distinct and independent offence under the Indian Penal Code or the Customs Act, . . . and it would not be necessary to make it an offence over again under Section 124 of the Bombay Police Act. . . . If the property is capable of being described as "stolen property" or "property fraudulently obtained" by whomsoever it might have been stolen or fraudulently obtained that would be sufficient to comply with the requirements of the section. . . . it is the possession by the accused of property which bears the attribute or characteristic of stolen property or property fraudulently obtained, that is made penal. . . . the explanation given by the appellant for his possession of the wrist watched was unsatisfactory and the High Court was right in taking the view that the appellant had failed to account for the possession of wrist watches to the satisfaction of the Court. "20. Case is already filed under section 124 of the Act against Devang and so this Court holds that the observations made by the Apex Court can be used against Devang if he fails to explain the things.