Judgment Nagendra Prasad Singh, J : Civil Writ Jurisdiction Case No. 147 of 1974 has been filed by the petitioner for a writ of mandamus commanding the respondents to make over an Ambassador car, bearing registration No. BRE 4119, to him, which is at present lying in custody of the officers of the Excise Department at Muzaffarpur. 2. The case of the petitioner is that he is the owner of that car which is being run as a special taxi on a valid permit issued by the authorities concerned. The said car was seized by the Assistant Collector, Customs Division, Muzaffarpur in the morning of the 11th November 1973 on the National Highway while it was carrying passengers from Motihari to Samastipur via Muzaffarpur, on the allegation that it was going ahead of the cars carrying contraband articles, including non-duty-paid Ganja. The petitioner has asserted that no contraband article was found in his aforesaid car and, as such, there was no occasion for detaining the same and later keeping the same in the custody of the officers of the Excise Department. The petitioner has stated that, having learnt about the seizure of the car and its detention, he filed a petition before the Superintendent of Excise (respondent no. 2) on the 27th November, 1973. A copy of the said application is annexure "1" to the writ application. When' respondent no.' 2 did not agree to release the car, the petitioner filed a petition before the' Sub-divisional Magistrate, West Muzaffarpur on the 29th November, 1973 for release of the car. The Sub-divisional Magistrate called for a report from the respondent Assistant Collector, Customs (respondent no.4): and the respondent Superintendent of Excise (respondent no. 2). After several days, a report' was received from respondent no. 4, a copy of which is annexure "2" to the writ application. The learned Sub-divisional Magistrate, after having heard the parties, passed an order on the 14th December, 1973, directing that the car in question be released in favour of the petitioner after he furnished security of Rs. 20,000/with an undertaking to produce the same as and when required. Necessary security bond was executed oil the same day and filed before the Sub-divisional Magistrate, who directed that the car be handed over to Shree Bisheshwar Prasad Thakur, Advocate, brother of the petitioner. A copy of the said order is annexure "3" to the writ petition. 20,000/with an undertaking to produce the same as and when required. Necessary security bond was executed oil the same day and filed before the Sub-divisional Magistrate, who directed that the car be handed over to Shree Bisheshwar Prasad Thakur, Advocate, brother of the petitioner. A copy of the said order is annexure "3" to the writ petition. It is the further case of the petitioner that, in spite of the order passed by the Sub-divisional Magistrate and' security bond having been executed, the car was not handed over either to him or to his brother on the plea that the Sub-divisional Magistrate had no jurisdiction to pass the aforesaid order for release of the car. The petitioner, thereafter filed an application before' the Collector, Muzaffarpur (respondent no. 3) on the 3th January, 1974. A copy of the said petition is annexure "4" to the writ petition. The respondent Collector, by his order, dated the 10th January, 1974, rejected his application. A copy of the said order is annexure "5" to the writ application. According to the petitioner, the seizure of the car in question, on the facts and in the circumstances of the case, was ,wholly without jurisdiction and without any authority in law, and, as such, the respondents should be directed to hand over the car to him. 3. Criminal Revision No. 115 of 1974 has been filed by the State of Bihar for setting aside the aforesaid order of the Sub-divisional Magistrate, dated the 14th December, 1973 directing release of the car in favour of the petitioner, on the ground that the Sub-divisional Magistrate had no jurisdiction to pass that order. 4. The matter being connected, both these applications have been heard together and this judgment will govern them both. 5. 4. The matter being connected, both these applications have been heard together and this judgment will govern them both. 5. Learned Counsel for the petitioner in the writ application has urged that, under the provisions of the Bihar and Orissa Excise Act, 1915 (hereinafter referred to as the 'Act'), any officer of the Excise, Customs and other department has power to seize and detain any article which he has reason to believe to be liable to confiscation under this Act or any other law for the time being in force relating to the excise revenue, and detain and search any person upon whom, and any vessel, raft, vehicle, animal, package, receptacle, or covering in or upon which, he may have reasonable cause to suspect any such article to be. In this connection he has referred to section 70 of the Act, which reads thus: "Any of the following persons, namely,- (a) any officer of the Excise, Police, Salt, customs or land -revenue Department, or (b) any person empowered by the State Government in this behalf, by notification, may, subject to any restrictions prescribed by the State Government by rule mad e under section 89- (i) arrest without warrant any person found committing an offence punishable under section 47, section 49, section 55, or section 56 and (ii) seize and detain any article which he has reason to believe to be liable to confiscation under this Act or any other law for the time being in force relating to the excise-revenue; and (iii) detain and search any person upon whom, and any vessel, raft, vehicle, animal, package, receptacle or covering in or upon which, he may have reasonable cause to suspect any such article to be" learned Counsel has laid great stress on the words "has reason to believe to be liable to confiscation", and has urged that the authorities mentioned in clauses (a) and (b) of section 70 can seize and detain only such article which they have reason to believe to be liable to confiscation. This brings us to the question as to what are the articles which are liable to confiscation under the provisions of the Act. Learned Counsel has drawn our attention to section 66 of the Act. This brings us to the question as to what are the articles which are liable to confiscation under the provisions of the Act. Learned Counsel has drawn our attention to section 66 of the Act. Sub-section (1) of section 66 provides that the intoxicant materials, still, utensil, implement and apparatus in respect of or by means of which an offence under the Act has been committed is liable to confiscation. In the present context, sub-section (2) of section 66 of the Act is relevant, which reads as under :- "(2) Any intoxicant lawfully imported, transported, manufactured, in possession or sold along with, or in addition to, any intoxicant which is liable to confiscation under sub-section (1) and the receptacles, packages and coverings in which any such materials, still utensil, implement or apparatus as aforesaid is found, and the other contents, if any, of such receptacles or packages and the animals, carts, vessels, rafts or other conveyances used in carrying the same, shall likewise be liable to confiscation: Provided that- no animal, cart, vessel, raft or other conveyance as aforesaid shall be liable to confiscation unless the owner thereof is proved to have been implicated in the commission of the offence. " Thus it would appear that animals, carts, vessels, rafts or other conveyances used in "carrying" the aforesaid articles are also liable to confiscation. But the proviso to sub-section (2) places restriction on the aforesaid power in cases where the owner of the conveyance in question is not "implicated in the commission of the offence." Learned Counsel for the petitioner submitted that, under sub-section (2) only such conveyance can be confiscated which has been used in "carrying" the contraband article. According to learned Counsel in the present case there is no allegation that any contraband article was being carried in the car in question. In this connection learned counsel has drawn our attention to the report of the respondent Assistant Collector (Annexure "2"). In the said report, the Assistant Collector has stated :- "The party while checking on the National Highway noticed a special taxi no. BRE 4119 coming from Muzaffarpur side. Since this was a pilot vehicle, it was detained. There were two occupants in the said taxi besides the driver ......However so far as -the vehicle no. In the said report, the Assistant Collector has stated :- "The party while checking on the National Highway noticed a special taxi no. BRE 4119 coming from Muzaffarpur side. Since this was a pilot vehicle, it was detained. There were two occupants in the said taxi besides the driver ......However so far as -the vehicle no. BRE 4119 was concerned no contraband was recovered from the same and there was no case against the same under the Customs Act. But this vehicle no. BRE 4119 was handed over to the State -Excise authorities of Muzaffarpur on their requisition." From this statement it is obvious that no contraband article had been recovered from the car in question. In the body of the report the Assistant Collector has also mentioned that the checking party had information that three Ambassador cars were to Come in a convoy loaded with contraband goods and actually following the car of the petitioner three Ambassador cars did come. The first vehicle, according to the report, which came after the car in question, disobeyed the signal to stop it and passed away in great speed. It was chased, but could not be stopped by the party. After a while, the second car was sighted, and, in spite of best precautions taken to stop it, the drive managed to escape after dashing against the wheel of the jeep of the Customs party. Soon after, the third car of the convoy appeared and dashed against the jeep of the Customs party which was overturned injuring the driver and the other occupants thereof. This third car, bearing registration no. BRP 7200, and later apprehended a little away from the scene and it was seized by the authorities concerned. Thus, the information received by the Customs authorities that a convoy of three cars containing contrabands was to come was found to be correct. But the Assistant Collector has himself mentioned that those three cars were other than the car in question, because he has described this car as the piloting car containing no contraband article. In this view of the matter, the question is whether it can be said that this car was 'carrying' contraband, article within the meaning of sub-section (2) of section 66 of the Act and was liable to be confiscated. In this view of the matter, the question is whether it can be said that this car was 'carrying' contraband, article within the meaning of sub-section (2) of section 66 of the Act and was liable to be confiscated. In my opinion, even if the assertion of the Customs Department that the car in question was the pilot car be ,correct, then also it is difficult to hold that either on facts or in law this car could be deemed to be 'carrying' contraband article and as such was liable to be confiscated. Moreover, the petitioner has stated that he is the owner of the car but he has not been implicated in any manner in the commission of the alleged offence. This fact has not been controverted in the counter-affidavit filed on behalf of the State and as such we have to accept the statement of the petitioner that he is not an accused in the case. Thus, even under the proviso to sub-section (2) of section 66 of the Act, the car in question belonging to the petitioner is not liable to be confiscated. 6. Mr. Uday Sinha learned Standing Counsel appearing for the State, has, however, contended !hat, for the purpose of seizing or detaining any article or vehicle, in exercise of the powers under section 70 of the Act, it is not necessary that the article or the vehicle must be liable to be confiscated. This power can be exercised even if the officer concerned "has reason to believe to be liable to confiscation". According to learned Standing Counsel, if in the opinion of the officer concerned there is reason to believe that the article is liable to confiscation, he can exercise the power under section 70, although it may be ultimately found that the said article or vehicle was not liable to confiscation. In the instant case, according to the learned Standing Counsel, the Customs authorities had reason to believe that the car was liable to confiscation because it was acting as a pilot car of the other three cars which were alleged to be carrying contraband articles. In my" opinion, it is difficult to accept this argument of the learned Standing Counsel. In section 70 of the Act, there are three clause. In my" opinion, it is difficult to accept this argument of the learned Standing Counsel. In section 70 of the Act, there are three clause. Clause (i) empowers the authorities referred to in the section to arrest without warrant any person found committing an offence under the Act; under clause (ii), they can seize and detain any article which they have reason to believe to be liable to confiscation; and, under clause (iii), they can detain and search any person upon whom or any vehicle in which they may have reasonable cause to suspect any such article to be. In my judgment, when the car in question was detained and searched, the authorities concerned were exercising their power under clause (iii), and that power could be exercised if they had reasonable cause to suspect. The question of seizure could arise only if, after search, they had reasons to believe that the car was liable to be confiscated. On the facts of the present case, after the car was detained and searched, the authorities concerned did not find any contraband article therein and they were satisfied that it was not 'carrying' any contraband article within the meaning of section 66 (2). Then, there was no reason to believe that the said car was liable to confiscation under the provisions of the Act, or any other law for the time being in force relating to excise-revenue. Apart from that, it is not clear as to whether the Customs officers who detained the car in question had actually exercised their power of seizure under clause (ii) of section 70. In the report of the Assistant Collector (Annexure "2") there is a specific statement about seizure of vehicle no. ERP 7200 in which contraband Ganja had been found. There is no statement that they purported to seize or actually seized the car in question. It is simply stated that they detained it and after search it was handed over to the State Excise authorities on their requisition. In such circumstances, it may be validly urged that the car is in the custody of the Excise Department without any siezure. 7. It is simply stated that they detained it and after search it was handed over to the State Excise authorities on their requisition. In such circumstances, it may be validly urged that the car is in the custody of the Excise Department without any siezure. 7. Learned Counsel for the petitioner has further urged that the Excise authorities should have released the car after a specific order had been passed in respect there of by the Sub-divisional Magistrate on the 14th December, 1973 and this Court should-direct them to comply with the order passed by the Sub-divisional Magistrate. As already stated, the validity of the said order is being questioned by the State in the Criminal revision application. Learned Standing Counsel has submitted that the learned Sub-divisional Magistrate had no power under the Code of Criminal Procedure 1898 (hereinafter referred to as the 'Code') or under the provisions of the Act to pass any order for release of the car. In the Code, there are two specific provisions under which a Magistrate can order release of any article. They are section 516A and 523 of the Code Section 516A reads as follows:- "516A, When any property regarding which any offence appears to have been committed, or which appears to have been used for the commission of any offence, is produced before any Criminal Court during any inquiry or trial, the Court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial,. and, if the property is subject to speedy or natural decay, or if it is otherwise expedient so to do, the Court may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of," From a bare reference to section 516A, it is obvious that it is applicable when any property regarding which an offence appears I to have been committed, or which appears to have been used for the commission of an offence, is produced before any Criminal Court during any inquiry or trial, and the Court may exercise the power of disposal under the said section during the pendency of such inquiry or trial. On the facts of the present case, it cannot be said that the car in question had been produced before the learned Sub-divisional Magistrate. It is admittedly in the custody of the Excise authorities. On the facts of the present case, it cannot be said that the car in question had been produced before the learned Sub-divisional Magistrate. It is admittedly in the custody of the Excise authorities. Apart from that, the power could be exercised only during any inquiry or trial pending before the Court concerned. In die present case no inquiry or trial is pending before the Sub• divisional Magistrate. Under the provisions of the Act, the Excise officers have statutory right to enter and inspect at any time any premises and to arrest without warrant any person found committing an offence under the different section of the Act, to seize and detain any article which they have reason to believe to be liable to confiscation and to detain and search any person, place or vehicle which they have reasonable cause to suspect to have and to have contained any contraband article. 8. Under section 78 of the Act the Excise officers have power to investigate any offence. Under Sub-section (4) of section 78 of the Act, after completion of the investigation, if the officer concerned is satisfied that there wail sufficient evidence to justify forwarding of the accused to the Magistrate, he hail to submit a report to the Magistrate having jurisdiction to inquire into or try the case which shall be deemed to be a police report within the meaning of section 190 of the Code. Thus, till a report is submitted under sub-section (4) of section 78 of the Act, no proceeding is pending before the Sub-divisional magistrate, much less any inquiry or trial Section 80 (2) of the Act reads thus :- “(2) Articles seized under section 69, section 70, or section 72 and persons arrested under this Act, by persons or officers not having authority to release arrested persons on bail or on their own bond, shall be produced before or forwarded to- (a) the Collector or an Excise Officer empowered under section 77, sub-section (2), to investigate the case, or (b) the nearest Excise Officer who has authority to release arrested persons on bail or on their own bond, or (c) the officer in charge of the nearest police-station, whoever is nearer." Thus, under sub-section (2) of section 80 of the Act, when an article is seized, it is to be produced .before the Collector or an Excise officer empowered under sub-section (2) of section 77 or before the officer-in-charge of the nearest police-station. There is no question of its being produced before the Sub-divisional Magistrate. In my opinion, therefore, the provisions of section 516A of the Code are not applicable to the facts of the present case. 9. Section 523 of the Code is to the following effect: "523 (1) The seizure by any police-officer of property taken under section 51, or alleged or suspected to have been stolen, or found under circumstances which create suspicion of the commission of any offence, shall be forthwith reported to a Magistrate, who shall make such order as he thinks fit respecting the disposal of such property or the delivery of such property to the person entitled to 'the possession thereof, or, if such person cannot be ascertained, respecting the custody and production of such property. (2) If the person so entitled is known, the Magistrate may order the property to be delivered to him on such conditions (if any) as the Magistrate thinks fit. (2) If the person so entitled is known, the Magistrate may order the property to be delivered to him on such conditions (if any) as the Magistrate thinks fit. If such person is unknown, the Magistrate may detain it and shall, in such case, issue a proclamation specifying the articles of which such property consists, and requiring any person who may have a claim thereto, to appear before him and establish his claim within six months from the date of such proclamation." A bare reading of this section makes it clear that, after the seizure of any property by any police-officer, the matter has to be reported to the Magistrate who shall make such order as he thinks fit respecting the disposal of such property, or the delivery of such property to the person entitled to the possession thereof. This section also is not applicable in cases of seizure by the Excise or Customs authorities. No doubt, sub-section (3) of section 78 of the Act provides that, for the purposes of section 156 of the Code of Criminal Procedure, 1898, the area to which an Excise officer empowered under section 77, sub-section (2), is appointed shall be deemed to be a police station) and such officer shall be deemed to be the officer-in-charge of such station But, there is a specific provision in section 82 of the Act, more or less similar to section 523 of the Code, enjoining the Excise officers below the rank of Collector to make a report to the Collector or to an Excise officer regarding any arrest, seizure or search. Section 82 of the Act reads as follows : "82. Section 82 of the Act reads as follows : "82. When any Excise Officer below the rank of Collector, or any officer in-charge of a police-station, makes, or receives information of, any arrest, seizure or search under this Act, he shall, within twenty-four hours thereafter, make a full report of all the particulars of the arrest, seizure, or search or of the information received, to the collector, and to the Excise Officer (if any) empowered under section 77, sub-section (2), within the local limits of whose jurisdiction the arrest, seizure, or search was made." In view of section 82, the Excise Officer below the rank of Collector has to make a report regarding the seizure, search or arrest within twenty-four hours to the Collector and to the Excise Officer specially empowered he has not to report to the Magistrate like other police-officers. It has been specially provided in section 78 of the Act that certain powers of police-officers under the Code can be exercised by the Excise Officers. There is no mention of section 525 of the Code in section 78 of the Act. In my opinion, there is no question of applicability of the provisions of section 516A or section 523 of the Code vesting in the Magistrate jurisdiction to pass proper orders regarding release of articles, vehicles etc. seized under the Act. This view is supported by a Bench decision of this Court in M/s. Traders Syndicate V. State of Bihar1 where it was held that the Excise Act provides a complete procedure for investigation of offences under that 'Act and section 523 of the Code is not applicable. Learned Counsel for the petitioner has, however, urged that in the aforesaid Bench decision it was also held that the Magistrate can pass an order for release if the goods seized are in police custody, and that in the present case the car being in the custody of the Excise Officers, who are deemed to be police-officers under the Act, it should be taken that the car is in the custody of police-officers and, therefore, the learned Sub-divisional Magistrate could have exercised his power under section 81 of the Act. Section 81 is in the following terms:- "81. Section 81 is in the following terms:- "81. (1) All officers in charge of police-stations shall take charge of and keep in safe custody, pending the, orders of a Magistrate, or of the Collector, or of an Excise Officer empowered under section 77, sub-section (2), to investigate the case, all articles seized under this Act which may be delivered to them and shall allow any Excise Officer who may accompany such article to the police-station or who may be deputed for the purpose by an official superior, to affix his seal to such articles and to take samples of and from them. (2) All samples so taken shall be sealed with the seal of the officer in charge of the police station." Under this section a Magistrate can order release of goods kept in police-custody during the course of investigation. But from this section it is also clear that the article seized must be in the custody of "officers in-charge of police-stations". This will not include Excise Officers who are to be deemed to be police-officers for the purposes of exercising certain powers of investigation by virtue of section 78 of the Act, because in section 81 of the Act it is specifically mentioned that the officers in-charge of police-stations shall allow "any Excise Officer who may accompany such articles to the police-station or who may be deputed for the purpose by an official superior to affix his seal to such articles and to take samples of and from them". Thus, the officer in-charge of the police-station is distinct from an Excise Officer under the Act. The aforesaid Bench decision has also held that the Sub-divisional Magistrate is competent to order for release of the seized goods even during the course of investigation by an Excise Officer if the seized goods arc kept in police custody. It follows, therefore, that, if the goods are in the custody of the Excise Officers, the Sub-divisional Magistrate cannot exercise his power under section 81 of the Act. In the present case, the case of the petitioner is that the car is in the custody of the Excise Officers, which is also supported by the report of the Assistant Collector (Annexure "2"). In my opinion, therefore, the learned Sub-divisional Magistrate had no authority in law to direct release of the car in question and his order is without jurisdiction. 10. In my opinion, therefore, the learned Sub-divisional Magistrate had no authority in law to direct release of the car in question and his order is without jurisdiction. 10. But as I have already held that there' is no material on the record to show that the Customs Officers seized, the car in question in exercise of their power under section 70 of the Act, and even if it be taken for the sake of argument that they purported to seize it in exercise of that power, there being no reason to believe that the said car was liable to confiscation, any seizure purported to have been made is illegal and against the provisions of the Act. This aspect of the matter was considered by a Bench of this Court in M/s. Rara Brothers V. M. I. Dey2 (C. W. J. C. No. 890 of 1973, disposed of on the 5th December, 1973) where the Customs Officers had stopped a car carrying silver coins and bars and seized the car in exercise of their powers conferred under sections 110 (1) of the Customs Act. Section 110 (1) is more or less similar to section 70 of the Act and a Customs Officer can seize' any article if he has reason to believe that the goods are liable to confiscation under that Act: Section III of the Customs Act describes what goods and articles are liable to confiscation. Section 115 of that Act provides the circumstances under which the conveyance used for purpose of carrying the goods is liable to be confiscated. This section is more or less parallel to section 66 of the Act. The learned Judge in that case held that, on the facts of that case, it could not be said that the Customs authorities had reason to believe that the goods were liable to be confiscated and, as such, it was held that the seizure was illegal, and a writ of mandamus was issued directing the respondents in that case to return the silver goods and the car seized by the authorities concerned to the persons concerned. In this connection a reference can be made to a decision of the Bombay High Court in M. G. Abrol v. Amichand Vallamji3, where Shah, J. (as he then was), speaking for the Court, observed that "reasonable belief must exist in the mind of the officer seizing the goods at the time of the seizure itself. Subsequent acquisition of such belief can be of no avail". Thus, am of the opinion that when admittedly the car in question was not carrying any contraband article, it was not liable to be seized and, as such, any seizure made by the respondents is without any authority in law. 11. In the result, Criminal Revision No. 115 of 1974 is allowed and the order of the learned Sub-divisional Magistrate, dated the 14th December, 1973 is set aside. Civil Writ Jurisdiction case No. 147 of 1974 is also allowed and the respondents are directed by a writ of mandamus to release the car in question in favour of the petitioner. In the circumstances, there will be no order as to costs. A. N. Mukharji, J. -I agree Applications allowed.