Research › Browse › Judgment

Madras High Court · body

1978 DIGILAW 364 (MAD)

Government of India v. B. R. Nagaraj

1978-06-12

M.S.NESARGI

body1978
Order.- This petition is directed against the judgment dated 20th July, 1977 passed by the Sessions Judge, Mysore, in Cr.A. No. 41 of 1975 confirming the order dated 29th January, 1975 passed by the Munsiff and Judicial Magistrate, First Class, Chamarajanagar, in C.C. No. 767 of 1971 so far as it related to disposal of the property concerned in the said case. 2. The relevant facts may be narrated as follows: The officers of the Intelligent Unit of the Central Excise, Mysore, searched the residential premises of the respondent on 20th May, 1970. New gold ornaments worth Rs. 6,400 and the old gold ornaments worth Rs. 1,080, which are M.Os. 1 to 61 in C.C. No. 767 of 1971, were seized on the ground that the respondent had contravened the provisions of section 27(1) of the Gold (Control) Act, 1968 (hereinafter referred to as ‘the Act’). The Assistant Collector of Central Excise held departmental adjudication as per the provisions in Chapter XIV of the Act and passed an order dated 21st July, 1971, confiscating the said gold ornaments. He gave option to the respondent to redeem the same on payment of redemption fine of Rs. 3,000. He also imposed a personal penalty of Rs. 250 on the respondent. The respondent preferred an appeal as per the provisions of section 80 of the Act and the appellate authority by it’s order dated 19th October, 1972, set aside the order of confiscation passed by the Assistant Collector of Central Excise, Mysore, so far as it related to the old ornaments, but confirmed the said order in respect of the new ornaments out of the aforementioned 61 items. The appellate authority reduced the redemption fine from Rs. 3,000 to Rs. 1,500. In the meanwhile, the Superintendent of Central Excise, Preventive and Intelligence Wing, Mysore, had filed a complaint in the Court, of the Munsiff-Magistrate, Chamarajanagar, and the same was registered as C.C. No. 767 of 1971. The offence alleged against’ the respondent was for contravention of section 27 (1) of the Act. The Magistrate acquitted the respondent and by exercising his power under section 452 of the Code of Criminal Procedure, directed delivery of the 61 items of gold ornaments to the respondent. The petitioner filed the aforementioned Crl.A. No. 41 of 1975 before the Sessions Judge, Mysore. 3. The Magistrate acquitted the respondent and by exercising his power under section 452 of the Code of Criminal Procedure, directed delivery of the 61 items of gold ornaments to the respondent. The petitioner filed the aforementioned Crl.A. No. 41 of 1975 before the Sessions Judge, Mysore. 3. The petitioner contended before the Sessions Judge that the order of confiscation passed by the appellate authority had become final under the provisions of the Act and it. view of that, the respondent was not entitled to possession of the gold ornaments covered by that order except by compliance with the conditions of that order and as such, the Magistrate had no power to direct return of those ornaments to the respondent by acting under section 452 of the Code of Criminal Procedure. The learned Sessions Judge has rejected this contention relying on the decision of the Madras High Court in Misrimal v. Union of India1. The said decision was rendered while dealing with the Customs Act. 4. Sri S.A. Hakeem, the learned Additional Standing Counsel for the Central Government, argued that the decision in Misrimal v. Union of India1, has been overruled in The Assistant Collector of Customs, Madras v. Misrimal2, and it has been held that properties confiscated under the provisions of the valid law and in regard to which the order of confiscation has become final, would not be covered by section 517 of the Code of Criminal Procedure, 1898. 5. Section 517 of the Code of Criminal Procedure, 1898 is equivalent to section 452 of the Code of Criminal Procedure, 1973. 6. In the said decision, the Division Bench of the Madras High Court has overruled the law laid down in Misrimal v. Union of India1. In my opinion though the said two decisions are rendered considering the provisions of the Customs Act, the principle laid down governs the provisions of the Act, vis-a-vis section 452 of the Code of Criminal Procedure. 7. In my opinion though the said two decisions are rendered considering the provisions of the Customs Act, the principle laid down governs the provisions of the Act, vis-a-vis section 452 of the Code of Criminal Procedure. 7. Section 452 of the Code of Criminal Procedure reads as follows: "(1) When an inquiry or trial in any criminal Court is concluded, the Court may make such order as it thinks fit for the disposal, by destruction, confiscation or deliverer to any person claiming to be entitled to possession thereof or otherwise, of any property or document produced before it or in its custody, or regarding which any offence appears to have been committed, or which has been used for the commission of any offence. (2) An order may be made under sub-section (1) for the delivery of any property to any person claiming to be entitled to the possession thereof, without any condition or on condition that fee executes a bond, with or without sureties, to the satisfaction of the Court, engaging to restore such property to the Court if the order made under sub-section (1) is modified or set aside on appeal or revision. (3) A Court of Session may, instead of itself making an order under sub-section (1), direct the property to be delivered to the Chief Judicial Magistrate, who shall thereupon deal with it in the manner provided in sections 457, 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 sub-section (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.“(Italics are mine). 8. Both the Act and the Code of Criminal Procedure are Central Acts. The Act has made provisions for confiscation of gold under section 71 and proceedings in regard to adjudication, appeal and revision in Chapter XIV. 9. 8. Both the Act and the Code of Criminal Procedure are Central Acts. The Act has made provisions for confiscation of gold under section 71 and proceedings in regard to adjudication, appeal and revision in Chapter XIV. 9. Section 84 of the Act reads as follows: ”Notwithstanding anything contained in any other law- (a) any order passed by the Administrator or the Central Government in revision; (b) subject to such order of the Government or the Administrator, any order passed on appeal, and (c) subject to the final order of the Central Government or of the Administrator in revision and the order on appeal, any order of adjudication of confiscation, fine or penalty, or any other decision given or order made under this Act, shall be final and shall not be called in question in any Court except in a High Court and except on a question of law.“ 10. Reading of section 84 of the Act makes it clear that the order of confiscation becomes final and cannot be called in question in any Court except in a High Court and except on a question of law. Therefore, when once such an order of confiscation becomes final, the property concerned vests in the Government and no other person is entitled to claim possession thereof. When this is so, the provisions of section 452 of the Code of Criminal Procedure would not be attracted. In this very connection, section 5(2) of the Code of Criminal Procedure, 1898, which is equivalent to section 4(2) of the Code of Criminal Procedure, 1973, is worthwhile noting. The said section reads as follows: ”(2) Trial of offences against other laws.- All offences under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.“ This section has been taken note of in the decision in The Assistant Collector of Customs, Madras v. Misrimal1. After taking note of this section, the Madras High. After taking note of this section, the Madras High. Court has held in regard to the offence under section 135(b) of the Customs Act, as follows: ”The offence with which the respondents were charged was under section 135(b) of the Customs Act and the procedure regulating the manner or place of investigating, inquiring into trying or otherwise dealing with the offence as prescribed under the Act has to be followed in preference to the procedure under the Code." 11. With respect, I agree with the above view. 12. In view of the foregoing, this position is allowed only in regard to those gold ornaments out of M.Os. Nos. 1 to 61, which are the subject-matter of the final order of confiscation, dated 19th October, 1972 passed by the appellate authority in this case. Only the other gold ornaments are to be returned to the respondent. This revision is disposed of accordingly.