Tej Bahadur Singh v. State — 1974 DIGILAW 248 (CAL)

JUDGMENT 1. THIS Rule is at the instance of the claimant-petitioner. Tej Baharur Singh, directed against an order dated the 6th September, 1973 passed by Sri N. Maitra, Presidency magistrate, 5th Court, Calcutta, in case no. P.R. 1131 of 1973, allowing the customs officials to seize the lorry No. WBK-8460 in connection with the Customs case, with the direction that the lorry be produced in court on call in connection therewith; and further cancelling the bond furnished by the claimant-petitioner as soon as the lorry was seized. 2. THE case is a short and simple one arising out of a prayer made before the court, on behalf of the Customs officials for permission to seize a lorry, being lorry No. WBK-8460, inter alia, on the ground that it carried some smuggled copper lumps imported from bangladesh. The brother of the claimant-petitioner is the registered owner of the lorry No. WBK 8460 and the applicant was authorised by his brother to ply the lorry as public carrier. On the 15th December, 1972 when the driver of the said lorry, one Satdeo Rai, was coming back to Calcutta and the lorry had arrived in front of M/s. New indian Roadways at 155/c, Mahatma gandhi Road, an officer attached to the detective Department along with a force surrounded the lorry and seized 52 bundles purported to belong to one kanti Bhusan Saha, who was arrested along with one Md. Osman and the driver of the lorry under section 54 of the Code of Criminal Procedure. The lorry was also seized and on coming to know about it the applicant filed a petition in the court of the Addl. Chief presidency Magistrate, Calcutta, on the 28th December, 1972 for returning the lorry to him. On the 13th January, 1973 by an order passed by the learned additional Chief Presidency Magistrate, calcutta, the seized lorry was kept in the custody of the applicant on his executing a bond of Rs. 50,000/- undertaking to produce the same on call. The bond was executed and accepted on the 13th January, 1973. On completion of the investigation, the police submitted a challan on the 11th June, 1973 under section 54a of Act IV of 1866 against the aforesaid Kanti Bhusan Saha. The driver Satdeo Rai and the co-accused md. Osman were discharged on the prayer of the police. The bond was executed and accepted on the 13th January, 1973. On completion of the investigation, the police submitted a challan on the 11th June, 1973 under section 54a of Act IV of 1866 against the aforesaid Kanti Bhusan Saha. The driver Satdeo Rai and the co-accused md. Osman were discharged on the prayer of the police. On or about the 30th July, 1973 Sri S.K. Lodh, Inspector of Customs, West Bengal, filed an application in the court of the learned presidency Magistrate, 5th Court, Calcutta, to whom the case was transferred, praying for permission to seize the abovementioned lorry under section 110 of the Customs Act. By an order dated the 6th September, 1973 the prayer was allowed and the bond was cancelled. The said order has been impugned and forms the subject-matter of the present rule. Mr. Dilip Kumar Dutta, Advocate (with Mr. D.P. Bagaria, and Miss meera Mullick, Advocates) appearing in support of the Rule made a submission of three dimensions. He contended in the first instance that the impugned order amounts to the passing of a second order under section 523 Code of criminal Procedure and the same is not only dehors the provisions of the statute but also against the principles of natural justice. Mr. Dutta next contended that the learned Presidency Magistrate's order was substantially based on the factum of a wrong mention of the number of the lorry in the bond trying thereby to mislead the Court. The third and last dimension of Mr. Dutta's contentions relates to the merits of the order passed on the 6th September, 1973 viz., the absence of any reasons mentioned in the application of the Customs Officer for believing that the articles in question are liable to confiscation under the Act and also the absence of the requisite satisfaction on the part of the court before directing the delivery of the vehicle. Mr. Balai chandra Roy, Advocate, appearing on behalf of the Customs authorities joined issue. Mr. Roy submitted that even if the mistake in the number of the lorry given be not wilful, there is no force behind the other submissions of Mr. Dutta relating to the legality of a second order passed under section 523 and the maintainability of the order dated the 6th September, 1973 as being not a speaking order based on the requisite satisfaction enjoined under the statute. Mr. Dutta relating to the legality of a second order passed under section 523 and the maintainability of the order dated the 6th September, 1973 as being not a speaking order based on the requisite satisfaction enjoined under the statute. Mr. Jogesh Chandra Sinha, advocate, appearing on behalf of the state also opposed the Rule, Mr. Sinha submitted that on the terms of the bond the Court has the right to enforce the production of the lorry in Court and make it over to the party legally entitled to the same and as such the impugned order is not in non-conformance to any provision of law or of any procedure established by law. 3. AS to the error in the number of the lorry, the number as mentioned in the bond is WBK-8640. Mr. Dutta submitted that the petitioner is an illiterate person who can sign his signature in Hindi but does not know English and therefore the typographical error that crept in the bond could not be detected by him. While he conceded that this was an unfortunate mistake, he contended that it wag not willful but made bona fide and in any event, it did not constitute a ground for rejecting the prayer of the petitioner, as the learned Magistrate appears to have done. Mr. Roy also conceded in his fairness that he was not pinpointing this error in number as the ground on which alone the prayer made on behalf of the Customs authorities should be allowed and the objection raised on behalf of the present applicant be jettisoned but that he pressed the other two points raised by him in reply to Mr. Dutta's contentions. 4. NOW to a consideration of the other two contentions raised by Mr. Dutta on behalf of the claimant-petitioner and the replies thereto given by mr. Balai Chandra Roy, appearing on behalf of the opposite-party No. 2 and mr. Jogesh Chandra Sinha appearing, on behalf of the State. The first such contention is that no second order is enjoined under the statute and is dehors the provisions of section 523 of the Code. The steps of reasoning of mr. Balai Chandra Roy, appearing on behalf of the opposite-party No. 2 and mr. Jogesh Chandra Sinha appearing, on behalf of the State. The first such contention is that no second order is enjoined under the statute and is dehors the provisions of section 523 of the Code. The steps of reasoning of mr. Dilip Kumar Dutta are that if the earlier order is found fault with, the obvious remedy of the party aggrieved is to file a revisional application for setting it aside and so long as that was not done, the order remains and the court which passed that earlier order cannot legally pass any other order on a subsequent application under section 523 of the Code of Criminal Procedure. Mr. Balai Chandra Roy joined issue and contended that the point involved is not so much the consideration of a subsequent prayer under section 523 and a second order being passed thereunder but of giving effect to the earlier order in view of the facts and circumstances cropping up. Mr. Sinha also supported this submission of Mr. Roy. On an anxious consideration of the submissions made and the materials on the record, I ultimately hold that the order passed by the learned Magistrate on the 6th September, 1973 does not amount to a second order passed under section 523 in terms but is only an ancillary order passed in the backdrop of the earlier order made by the court on the 13th January, 1973 and that it would be apparent from the terms thereof that the learned Magistrate was enforcing the bond executed on the earlier occasion. A court of law is also a court of justice having untramelled powers to give effect to prayers mane in the interest of justice. The lorry in question continued to be under the court's custody when the order was passed and the Customs officials merely relied on the provisions of the special statute whereby if there are reasons to believe that any goods are liable to confiscation under the Act they could do so As the articles liable to confiscation were already under the custody of the court, the Customs authorities applied to the court for necessary orders to give effect to the provisions of the statute and the learned Presidency Magistrate only allowed the same. Therefore there is no question of any second order being passed under section 523 and of any consequent non-conformance to the provisions of the statute. This dimension of Mr. Dutta's contention accordingly fails. The next and last dimension of mr. Dutta's submission consists of two facets. Firstly, as to whether the application filed on behalf of the Customs authorities did or did nor mention reasons to believe on the part of the customs officers that the articles in question are liable to confiscation under the customs Act, 1962. I have given my anxious consideration to the application filed in this behalf by the Customs authorities on the 30th July, 1973 and on going through the averments therein, i am unable to agree with Mr. Dilip kumar Dutta that such reasons to believe have not been given. These have been clearly mentioned in the petition and it is not for me to decide at this stage whether such averments are warranted or not. There is, therefore, no force behind the first facet of the last dimension of Mr. Dutta's contention. 5. NOW to a consideration of the second facet of the last dimension of the submissions. Mr. Dutta contended that the order passed by the learned presidency Magistrate cm the 6th September, 1973 is not a speaking order but has proceeded merely on the basis of the application made by the Customs and a reference to the provisions of a particular section of the Customs Act, 1962. The position in law is that the court has to be prima. jade satisfied before passing the necessary orders. Mr. Balai chandra Roy, Advocate, appearing on behalf of the Customs authorities, submitted that such satisfaction is writ large on the face of the order and the very fact that the learned Presidency magistrate allowed the prayer upon a reference to the relevant provisions of the Customs Act, clearly established that the court was so satisfied. It is difficult to agree with the submissions of Mr. Roy. Judgments and statutes may not be construed as a theorem of euclid but the principles of liberal interpretation is not always the best method of ascertaining the intention behind the judgments. A reference may be made to the observations of Lord halsbury, though made in a different context, in the case of Eastern Photographic co. Roy. Judgments and statutes may not be construed as a theorem of euclid but the principles of liberal interpretation is not always the best method of ascertaining the intention behind the judgments. A reference may be made to the observations of Lord halsbury, though made in a different context, in the case of Eastern Photographic co. reported in 1893 A.C. page 571 that ''the principle of liberal interpretation is not always the best method of ascertaining the intention of the parliament. "Each case therefore must depend on its own facts and it cannot be overlooked that in the instant case a motor vehicle was seized and seized quite some time before. The matter came to court and on an application filed on behalf of the present applicant, the learned Additional Chief Presidency magistrate, by his order dated the 13th June, 1973, directed the said vehicle to be delivered to the applicant on his executing a bond. The lorry was delivered on executing the bond and that closed the first chapter. In July 1973 the Customs authorities filed an application in the court of the learned presidency Magistrate, 5th Court, for permission to seize the said lorry no. WBK-8460, under section 110 of the Customs Act, 1962. It is undoubtedly true that a conflict between the customs authorities and the police must be avoided and it is also just and proper that the intention of the legislature must be given effect to. But the point involved on ultimate analysis is the procedure or the manner in which the said intention is to be implemented. The answer to that would be the answer to the case. It cannot be overlooked that the vehicle is now in the custody of the court and under its orders the same has been delivered to the present petitioner on a bond, undertaking to produce the same in court whenever the applicant was called upon to do so. The Customs authorities, in such circumstances, applied to the court as otherwise there may be a contumacious disregard of its order. If the vehicle was not previously seized and delivered, the satisfaction of the customs officer would have been sufficient for the purpose of bringing the case within the ambit of section 110 and for the matter of that, under section 115 (2) of the Customs Act. If the vehicle was not previously seized and delivered, the satisfaction of the customs officer would have been sufficient for the purpose of bringing the case within the ambit of section 110 and for the matter of that, under section 115 (2) of the Customs Act. The circumstances however are different as already stated above and therefore in order to justify an order for returning back the vehicle to the Customs authorities, the court has to be satisfied prima facie that section 110 of the customs Act was attracted to the case. Mr. Balai Chandra Roy submitted that the court was in fact satisfied as otherwise it would not have passed the impugned order. The factum of satisfaction however which is the sine qua non of tine provisions, must cross the realm of hypothesis and conjectures and in order to be a proper order under the law, it must be a speaking order, ex facie bringing to light that the learned magistrate was passing the order on being satisfied that section 110 of the Customs act was attracted to the case. Anything short of that would be long off the mark. A reference in this context may be made to the case of Deputy superintendent, Customs, Preventive, west Bengal v. Sitaram Navsaria and anr. reported in A.I.R. 1968 Cal. 274. Mr. Justice T.P. Mukherji while deprecating a conflict between the order of the Magistrate and a statutory power of the Customs authorities under the customs Act, observed that "the Magistrate, on being satisfied prima facie that section 110 of the Customs Act would be attracted to the case, may very well direct the seized goods to be made over to the Customs authorities for being dealt with by them in accordance with law. "I agree with the same and I hold that in the facts and circumstances of the case, the learned presidency Magistrate instead of proceeding merely on the basis of the application filed on behalf of the Customs authorities and the provisions in the statute, should have held that he was satisfied prima facie that section 110 of the customs Act was attracted to the case. He failed to do so and proceeded to find that the applicant misled the court because of the incorrect number given in the bond. He failed to do so and proceeded to find that the applicant misled the court because of the incorrect number given in the bond. As I have already observed, the learned Presidency Magistrate might have, in fact been satisfied but in order to help the appellate or the revisional court to ascertain whether there was indeed such a satisfaction on his part the same should have been recorded specifically and in the absence thereof, it is not a speaking order. I accordingly uphold the second facet of the last dimension of Mr. Dutta's submission. I make it clear however that I have made no observations on the merits of the case and the same will be decided in due course by the court below. 6. IN the result, the order dated the 6th September, 1973 is set aside and i direct that the application filed by the opposite-party No. 2 in the court below on the 30th July, 1973 be disposed of in accordance with law and on merits, after giving to the respective parties an opportunity of being heard, within a fortnight from the date of receipt of the notice of arrival of the records in the court below. The Rule is disposed of accordingly. The Records shall go down as early as possible. Order set aside.