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Gujarat High Court · body

1987 DIGILAW 93 (GUJ)

H. S. LASKARI, SUPERINTENDENT OF CUSTOMS, JUNAGADH v. STATE

1987-09-14

B.S.KAPADIA

body1987
B. S. KAPADIA, J. ( 1 ) THE present application is filed by the Superintendent of Customs Junagadh against the order dated 5-6-1987 passed by the learned Chief Judicial Magistrate Junagadh which is annexed to the application as Annexure-C. In the said order a sum of Rs. 2 100 was ordered to be paid to Shri J. A. Dholakia and Shri L. N. Gajra Judicial Magistrate First-Class Junagadh each by way of remuneration for the work done by them under Sec. 110 (1b) of the Customs Act and Customs and Central Excise Department Junagadh was ordered to deposit a sum of Rs. 4 200 in She Court within 15 days from the date of the said order. ( 2 ) IN view of the fact that the order was passed in favour of the learned Judicial Magistrates First Class Shri J. A. Dholakia and Shri J. N. Gajra they were ordered to be joined as party-respondents and accordingly they were joined as respondents Nos. 2 and 3. They have not filed any appertains and they have stated that they will submit to the orders of this Court. In the said order the learned Chief Judicial Magistrate has pointed out that the said Magistrates have worked in all for six days totalling to 38 hours and 30 minutes they have spent 12 hours for preparing the inventory report and list of sample and worked more than 50 hours and there were contraband articles worth Rs. 1 70 0 0 It is also pointed out in the said order that this work of making inventory does not fall within the scope of the duty of the judicial officers and that they have worked after office hours and as far as possible during holidays and therefore remuneration should be paid to them. Therefore in his opinion it would be proper to award Rs. 300. 00 per day to each Magistrate as each of them has worked for seven days. ( 3 ) LEGALITY of the said order is challenged in this application by Mr. S. D. Shah the learned Advocate appearing on behalf of the Customs Department. He submits that Sec. 110 of the Customs Act is amended in the year 1986 and new sub-secs. (1a) and (1b) have been introduced and under the newly introduced sub-sec. ( 3 ) LEGALITY of the said order is challenged in this application by Mr. S. D. Shah the learned Advocate appearing on behalf of the Customs Department. He submits that Sec. 110 of the Customs Act is amended in the year 1986 and new sub-secs. (1a) and (1b) have been introduced and under the newly introduced sub-sec. (1) of Sec. 110 (1b) the proper officer is required to prepare the inventory of the goods and is also required to make an application to the Magistrate for certifying the correctness of the inventory so prepared or taking in the presence of the Magistrate photographs of such goods and certifying such photographs as true or for allowing to draw representative sample of such goods in the presence of the Magistrate and certifying the correctness of any list of samples so drawn. According to Mr. Shah the newly introduced sub-secs. (1a) and (1b) of Sec. 110 of the Act clearly imposes the duty on the Magistrate and that no provision is made for giving additional remuneration to the Magistrate in the whole of the Customs Act and in that view of the matter the impugned order is patently contrary to law. ( 4 ) WITH a view to appreciate the contentions raised by Mr. Shah it is necessary to reproduce the relevant portion of the newly added sub-secs. (1a) (1b) and (1c) of Sec. 110 of the Customs Act:" (1a ). The Central Government may having regard to the perishable or hazardous nature of any goods depreciation in the value of the goods with the passage of time constraints of storage space for the goods or any other relevant considerations by notification in the Official Gazette specify the goods or class of goods which shall as soon as may be after its seizure under sub-sec (1) be disposed of by the proper officer in such manner as me Central Government may from time to time determine after following the procedure hereinafter specified. (1b ). Where any goods being goods specified under sub-sec. (1a) have been seized by a proper officer under sub-sec. (1b ). Where any goods being goods specified under sub-sec. (1a) have been seized by a proper officer under sub-sec. (1) he shall prepare an inventory of such goods containing such details relating to their description quality quantity mark numbers country of origin and other particulars as the proper officer may consider relevant to the identity of the goods in any proceedings under this Act and shall make an application to a Magistrate for the purpose of- (A) certifying the circuitries of the inventory so prepared; or (B) taking in the presence of the Magistrate photographs of such goods and certifying such photographs as true; or (C) allowing to draw representative samples of such goods in the presence of the Magistrate and certifying the correctness of any list of samples so drawn. (1c ). Where application is made under sub-sec (1b) the Magistrate shall as soon as may be allow the application. (2) Where any goods are seized under sub-sec. (1) and no notice in respect thereof is given under clause (a) of Sec. 124 within six months of the seizure of the goods the goods shall be returned to the person from whose possession they were seized;provided that the aforesaid period of six months may on sufficient cause being shown be extended by the Collector of Customs for a period not exceeding six months. (3) The proper officer may seize any documents or things which in his opinion will be useful for or relevant to any proceeding under this Act. (4) The person from whose custody any documents are seized under sub-sec. (3) shall be entitled to make copies thereof or take extracts therefrom in the presence of an officer of customs. ( 5 ) FROM perusal of the sub-sec. (1b) it is clear that the inventory of the goods is to be prepared showing all the details with regard to the description quality quantity mark numbers country of origin etc. and With a view to certify the correctness thereof an application is to be made to the Magistrate and when such application is made under sub-sec. (1c) the Magistrate has to grant the same application. ( 6 ) (B) of sub-sec. (1b) also provides that taking photographs of such goods is to be done in the presence of a Magistrate and they are to be certified as true. (1c) the Magistrate has to grant the same application. ( 6 ) (B) of sub-sec. (1b) also provides that taking photographs of such goods is to be done in the presence of a Magistrate and they are to be certified as true. They have also to draw the representative samples of such goods in the presence of the Magistrate and the Magistrate has to certify the correctness of any such list of samples. The Central Legislature has therefore imposed a duty on the Officer to make such an application at the time of preparing the inventory and it also made a mandatory duty on the Magistrate to allow such application. What that is so it cannot be said that it is not the statutory duty of the Magistrate or it does not come within the scope of the duties to be discharged by the learned Magistrates. To charge remuneration for doing something which is required to be done under the statute when it is done beyond the office hours or the Court hours is unheard of. Nowhere it is laid-down that the Magistrates and Judges have to do home work for expeditious disposal of matters. Still they have to do that work and they do it. When they do so they cannot claim any additional remuneration. Judges and Magistrates are Judges and Magistrates for all the twenty four hours in a day. They are always on their duty even beyond the Court hours. They cannot claim over-time charges. Similarly the same other statute the Adulteration Act also prescribes a duty on the Magistrates under sub-rule (3) of Rule 4 of the Food Adulteration Act to verify personally that the samples sent by the Local authority are intact or not and when the Magistrate does that work it cannot be said that he is not doing his statutory duty and therefore certainly he cannot claim additional remuneration. Similarly Judges are at times appointed as One-Man Commission or otherwise under Commissions of Inquiry Act 1952 as a fact finding authority and here also they cannot claim additional remuneration. It is not befitting the post and status of a Judicial Officer to claim any such remuneration. It is not only improper but illegal to claim any such additional remuneration. If such remuneration is claimed and or allowed it is the first step or the beginning of deterioration of character of the Judicial Officers. It is not befitting the post and status of a Judicial Officer to claim any such remuneration. It is not only improper but illegal to claim any such additional remuneration. If such remuneration is claimed and or allowed it is the first step or the beginning of deterioration of character of the Judicial Officers. The net effect would be that for getting additional remuneration all such judicial officers would thereafter crave for getting such work and for they would do their work in such a way that they can claim over-time charges for doing work beyond Court hours. Such practice of granting additional-remuneration to the Judicial Officers is highly deprecated. It is illegal and improper. Under the circumstances the order of paying remuneration for doing alleged extra work outside the Court hours granted by the Chief Judicial Officer under the impugned order is hereby set aside. Rule is accordingly made absolute. Order set aside. .