Judgment : In this case the petitioner has challenged the seizure of three bags of broken brass by the respondent authorities. According to the petitioner he carries on business of manufacturing brass utensils. He had purchased the broken brass from dealers at Maida on 10th August, 1992 and on 12th August, 1992 booked them on the Railways for Nabadwip Dham. The goods were scheduled to arrive at Nabadwip Dham on l4th August, 1992. On that date at 2 O'clock in the morning the respondent authorities seized the three bags after giving a receipt to the Station Master at Nabadwip Dham. The petitioner's complaint is that in spite of repeated requests the respondent authorities were refusing to release the broken brass to the petitioner. 2. The petitioner has annexed inter alia copies of the two Railway receipts covering the three bags in question. He has also annexed a letter dated 13.9.92, written by the Station Superintendent, Nabadwip Dham in answer to his letter dated 13.9.92. The Station Superintendent in his letter has said that the three bags which had been booked by the petitioner had been seized by the Preventive Post at Ranaghat who had given a letter to the Station Master at Nabadwip Dham for seizing the consignments as they were suspected of being contraband goods. The letter further records "that the consignment was not opened and checked here but reweighed respectively which I recorded in the seized memo and taken away from ASM on duty......... ...". 3. The writ application was moved on 6th January, 1993. The matter was directed to appear on the next Wednesday marked "For Orders". On 18th January, 1993 directions were given for filing of affidavits. The respondent authorities were to file their affidavit-in-opposition within two weeks from date which would mean by 1st February 1993. They did not do so. On 11th February, 1993 the matter appeared in the list. Certain samples of what the respondents claim were contained in the three bags were produced. The samples which were produced included items such as old buttons and buckles etc which appeared to have been manufactured outside the country. The petitioner however, disclaimed that the samples had been taken from his consignments. No affidavit was however, filed by the respondent authorities. Certain samples of what the respondents claim were contained in the three bags were produced. The samples which were produced included items such as old buttons and buckles etc which appeared to have been manufactured outside the country. The petitioner however, disclaimed that the samples had been taken from his consignments. No affidavit was however, filed by the respondent authorities. The respondent authorities handed over certain documents which showed that in spite of repeated efforts on the part of the respondents' advocate, no instructions had been forthcoming from the respondent authorities. As a last chance time was given to the respondent authorities to file their affidavit-in-opposition by 16th February, 1993. The matter was directed to appear in the list on 24th February, 1993. The respondents affirmed an affidavit only on 22nd February, 1993. No extension had been obtained from this Court and the petitioner rightly refused to accept the copy sought to be served upon him out of time. The matter was drawn to the Court's attention and the petitioner was given the liberty to accept the copy of the affidavit-in-opposition and file his reply without prejudice. 4. There is no explanation forthcoming from the respondent authorities as to why there was such a delay in the preparation of the affidavit which in substance covers about seven pages. Strictly speaking, as no extension of time had been granted by the Court, the affidavit should not be considered. However, in order to do complete justice to the case I allow the respondents to use the affidavit. The respondents, however, will pay the costs for the delay to the petitioner assessed at 20 gms. 5. The respondent authorities have contended that upon the receipt of information the Customs Officers of Ranaghat Preventive Post went to Nabadwip Dham Railway Station on 14th August, 1992. A detention memo was issued to the Station Master for detaining the train for checking under section 106 of the Customs Act, 1962. The train arrived at 02.00 Hours in the night. The Guard Brake Van was opened in the presence of the Guard and Station Master. Three Hessain Bags were found containing bhangri (Brass scrap). It is further alleged in the affidavit-in-opposition that in the presence of the Guard and Assistant Station Master one of the gunny bags was opened and found to contain foreign brass scrap and "as such were contraband goods". Three Hessain Bags were found containing bhangri (Brass scrap). It is further alleged in the affidavit-in-opposition that in the presence of the Guard and Assistant Station Master one of the gunny bags was opened and found to contain foreign brass scrap and "as such were contraband goods". The Customs authorities allegedly made a 'prayer' to the Station Master to hand over the contraband goods. This was granted by the Station Master. The bags were then taken to Ranaghat and a receipt was given to the Station Master. The Station Master was requested, according to the respondent authorities, that the man who booked the contraband goods should meet the Customs Officers at Ranaghat Customs Office to establish the ownership of the contraband goods. The Customs Authorities state that after waiting for three days and as no-one had come forward to claim the goods, on 17th August, 1992, the remaining two bags Were opened. These were also found to contain foreign marked brass scraps. The goods were accordingly seized and an inventory prepared under section 110 of the Act which was signed by two witnesses. It is further stated that on 17.8.1992 show-cause notices were issued, one of which was hung on the Notice Board of the Customs Office, Ranaghat and four copies were sent to Officers mentioned in the show-cause notice. 6. At the hearing the petitioner contended : 1) The seizure had taken place at the Nabadwip Dham Station. The submission of the respondent authorities that the seizure had taken place on 17th August, 1992 at Ranaghat was incorrect. It is submitted that in that event the Customs Authorities had removed the goods from the Nabadwip Dham Station, without effecting seizure and that this would tantamount to theft. 2) In any event, the Customs Authorities had no jurisdiction to open the bags behind the petitioner's back. It is said that in terms of the consignment note the consignee/consignor could claim compensation for non-delivery up to six months from the date on which delivery should have been effected. It is submitted that the Customs Authorities should have been waited at least for six months before opening the bags. 7. On behalf of the respondent authorities it has been contended : 1) No case of mala fide had been made out in the petition against any Officer. It is submitted that the Customs Authorities should have been waited at least for six months before opening the bags. 7. On behalf of the respondent authorities it has been contended : 1) No case of mala fide had been made out in the petition against any Officer. 2) The goods seized were prima facie contraband in the sense that even if they were not prohibited under the Import & Export Policy they could have been brought into the country invalidly. 3) Only delivery had taken place on 14th August, 1992 by the Customs Authorities but the seizure was effected on 17th August, 1992. The Customs Authorities were justified in opening the bags and preparing the inventory as the petitioner never approached the Customs Officers even when he did not obtain delivery of the goods. The Court's attention has been drawn to paragraph 9 of the petition where the petitioner had alleged that he had requested the Customs Authorities for release of the goods, It is submitted that the averments are wholly vague and in any event, unbelievable, particularly when the petitioner had written a letter to the Railway Authorities. 8. The records of the case were produced by the respondent authorities before this Court. These consisted of a memo dated 14.8.92 addressed by the Officer-in-Charge to the Station Master, Nabadwip Dham relating to the detention of the Train No. 332 Down; a letter dated 14.8.92 addressed by the Officer-in-Charge, Ranaghat Preventive Post to the Station Master Nabadwip Dham Railway Station which reads as follows :- "Sub. : 3 (three) packages containing contraband goods taken by Customs, Ranaghat. This is for your kind information that 3 (three packages booked from MLDT to Nabadwip Dham Rly. Station Vide parcel way Bill in PE 915285 & PE 915287 by one Shri Ratan Karmakar in 348 Down Train had been taken by Customs, Ranaghat as for some contained goods in contraband nature. Consignment found: 194 Kg. (in two bags) 92 Kg, ( in one bag )." 9. Apart from these documents there is a Notice-cum-show cause notice signed by one K. Dutta on 17th August, 1992 being the Inspector of Customs as the seizing officer as well as an inventory of the goods seized under section 110 which reads as follows :- Description of Quantity Value goods goods seized Number/or Weight seized Bhangri (brass scrap) 264 Kgs. Apart from these documents there is a Notice-cum-show cause notice signed by one K. Dutta on 17th August, 1992 being the Inspector of Customs as the seizing officer as well as an inventory of the goods seized under section 110 which reads as follows :- Description of Quantity Value goods goods seized Number/or Weight seized Bhangri (brass scrap) 264 Kgs. Rs 26,400/- Broken Brass Scrap, said to be of foreign origin. Rs. 26,400/- as well as seizure report dated 17th August, 1992 also signed by K. Dutta. 10. There is also a typed document with the heading "Brief facts of S/Case No. 46/Imp/Uncle/Cus/Ran/P.P./92 dated 14.08.92". This statement has been signed by K. Dutta on 17.8.92 as the Seizing Officer. The statement records that on the basis of "strong intelligence" the Customs Officer of Ranaghat Preventive Post went to Nabadwip Dham Railway Station. Apart from setting out the facts which have been recorded above, it is recorded that seven Officers participated in the seizure. 11. In my opinion the seizure of the petitioner's consignment cannot be sustained. 12. The procedure for effecting a seizure has not been expressly specified in the Customs Act, 1962 (referred to as the Act. Normally a seizure is consequent upon a search conducted under Section 105 of the Act. Section 105(2) provides that the provisions of the Code of Criminal procedure 1898 relating to searches shall, so far as may be, apply to searches under that section, The Code of Criminal Procedure 1973 has replaced the Code of 1898. The relevant provisions in the 1973 Code are section 165 and section 100. 13. Section 165 deals with a search by a police officer. Section 100 deals with persons in charge of a closed place to allow search. Subsection 4 of section 165 incorporates the general provisions of search in section 100 to searches by a police officer. The relevant provisions in the 1973 Code are section 165 and section 100. 13. Section 165 deals with a search by a police officer. Section 100 deals with persons in charge of a closed place to allow search. Subsection 4 of section 165 incorporates the general provisions of search in section 100 to searches by a police officer. The general provisions relating to searches are : "(1) Whenever any place liable to search or inspection under this Chapter is closed, any person residing in, or being in charge of, such place, shall on demand of the officer or other person exequting the warrant, and on production of the warrant, allow him free ingress thereto, and afford all reasonable facilities for a search therein." "(4) Before making a search under this Chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do. (5) The search shall be made in their presence, and a list of all things seized in the course of such search and of the places in which they are respectively found shall be prepared by such officer or other person and signed by such witnesses; but no person witnessing a search under this section shall be required to attend the Court as a witness of the search unless specially summoned by it." 14. In this case the seizure was admittedly conducted after a search under Section 106 of the Custom Act, 1962 which confers power on the proper officer to stop and search conveyances. It has not been contended that the provisions relating to searches in the Criminal Procedure Code are not applicable to searches under section 106. Indeed it would be difficult to do so. Section 105 deels with searches in general in "any place". This would cover searches in a conveyance as well. There are no words of limitation used in section 105 in respect of the word "place". The power in section 106 is in addition to the power conferred under section 105. Indeed it would be difficult to do so. Section 105 deels with searches in general in "any place". This would cover searches in a conveyance as well. There are no words of limitation used in section 105 in respect of the word "place". The power in section 106 is in addition to the power conferred under section 105. In other words, in respect of conveyances the proper officer would be empowered to do certain acts in addition to those provided under section 105, this additional power would not take section 106 out of the purview of searches conducted under section 105 nor would the procedure prescribed be inapplicable to seizure consequent upon such search under section 110 of the Act. 15. Apart form this there are two other reasons why I am of the view that the safeguards provided in section 100 of the Criminal Procedure Code are to be allowed even in respect of seizures under the Act. 16. If the search is to be conducted in the presence of two independent witness, to hold that no witnesses were necessary at the time of seizure would make the entire object of the search being conducted in the presence of two witnesses meaningless. The requirement of the search and preparation of seizure list in the presence of two independent witnesses an arbitrary exercise power by the authorities concerned and would in my view be another aspect of fair play in action. 17. The provisions in section 100 of the 1973 Code which lay down that seizures must be made in the presence of two independent inhabitants of the locality and that a list of things seized shall be prepared by the seizing officer and signed by such witnesses are the minimum safeguards to what would otherwise be an uncontrolled invasion of person's rights. As noted by the Special Bench in the case of (1) Emperor v. Kwehew & Ors. 1907 (7) QLJ at 483, the provisions of a seizure list being prepared in the presence of a witness by two independent persons is : "So that the invasion of the private right may be attended with as much fairness and may convey such sense of fairness as it is possible to secure." 18. 1907 (7) QLJ at 483, the provisions of a seizure list being prepared in the presence of a witness by two independent persons is : "So that the invasion of the private right may be attended with as much fairness and may convey such sense of fairness as it is possible to secure." 18. As their Lordships went on to observe that otherwise how can a person whose property is searched and how can the public have implicit confidence that a search had been fairy and properly done and that articles said to have been found were really there. 19. The need for search and seizure in the presence of independent witnesses cannot be over-emphasized. The presence of the witnesses would negative any possibility either real, anticipated or suspected of the seizing officer's removing any of the seized articles or of planting evidence. 20. In the light of this process of reasoning the Court would have to read the requirement for presentation of the seizure list in the presence of two witnesses into section 110 in order to put a rational and constitutional construction on that section. Without the presence of the independent witnesses, the seizing officer could unilaterally without any restriction declare certain goods as having been found in a place or in a conveyance without any possibility for the owner of the goods to prove to the contrary. This would be a denial of a proper opportunity to the owner of the goods to set up his defence and would be a violation of the principles of natural justice. 21. The Supreme Court has repeatedly read in words in a statute in order to give a rational and reasonable construction to it. 22. In the recent decision of (2) C.B. Gautam v. Union of India and Ors., 1993(1) SCC 78 , the Supreme Court had to consider the provisions of Chapter XX-C of the Income-Tax Act, 1961 which provides for pre-emptive right of purchase in the Central Government. As the sections stood in chapter XX-C, there was no provision for the affected parties being given an opportunity to be heard before an order for purchase was made. As the sections stood in chapter XX-C, there was no provision for the affected parties being given an opportunity to be heard before an order for purchase was made. The Supreme Court held that the requirement of an opportunity to show cause before an order for purchase was made by the Central Government was to be read into the provisions of chapter XX-C firstly because : "not to read the requirement of such an opportunity would be to give too literal and strict an interpretation to the provisions of Chapter XX-C and in the words of Judge Learned Hand of the United State of America 'to make a fortress out of the dictionary'." 23. Secondly, because there was no express provision in Chapter XX-C barring the giving of a show cause notice or an opportunity to be beard and thirdly because : "the observance of principles of natural justice is the pragmatic requirement of fair play in action." 24. See also (3) Express Newspapers Limited v. Union of India and Ors, AIR 1958 SC 578 ; (4) Charanlal Sahoo v. Union of India, AIR 1990 SC 1480 . 25. The requirement for the search and seizure to be conducted in the presence of independent witnesses is in my view "the pragmatic requirement of fair play in action" and an imperative condition without which neither search nor the seizure could be sustained. 26. Finally, If these were any doubt regarding the need for the presence of independent witnesses, it must be resolved with reference to the manner in which the respondent authorities have understood the extent of their power under Section 110 of the Act. The respondent authorities have in fact, accepted the requirement for the presence of independent witnesses at the time of seizure. That is why they were at point to obtain the signature of two witnesses when they opened the Hessain bags on 17th August, 1992 and to prepare a seizure list signed by them. 27. The question is when did the seizure take place? If it was on 14th August, 1992 at Nabadwip Dham railway station they did not follow the procedure prescribed. If the seizure took place on 17th August, 1992, they did. 28. 27. The question is when did the seizure take place? If it was on 14th August, 1992 at Nabadwip Dham railway station they did not follow the procedure prescribed. If the seizure took place on 17th August, 1992, they did. 28. "Seizure" in the context of the Act has been judicially defined as to "take possession of contrary to the wishes of the owner" (See (5) Gain Chand v. State of Punjab, AIR 1962 SC 496 ). 29. Applying the definition to the facts of this case there can be no doubt that the seizure was effected on 14th August, 1992 at Nabadwip Dham Railway Station. The possession of the bags was taken by the Officer-in-Charge. Ranaghat Preventive Post form the Railway Station. This was sufficient exercise of dominion over the goods of amount to seizure. In the notice-cum-show cause the date of seizure is mentioned as 14th August, 1992. In the Inventory of goods seized, against the date and time of seizure, the date has been given as 14th August, 1992. In the form DRI-2, however, the word 'seizure' has been deleted and "detection" has been inserted. However it may be described in the documents produced by the respondents, the fact remains that the Custom Authorities took possession of the goods on 14th August, 1992 form Nabadwip Dham Railway Station and kept the Same in their custody. This act cannot but be termed seizure. There is no other provision under the Custom Act 1962 which would authorize the Customs Officers to take possession of goods in the manner done in this case. 30. The date of seizure being 14th August, 1992 and the place of seizure being the Railway Station, there can be no doubt that the Custom Authorities did not even/attempt to comply with the requirements delineated above. There is no record that the research under Section 106 of the Guard Brake Van in 348 Down was done in the presence of any witness. No seizure list was prepared, although according to the respondent’s affidavit, one of the bags was opened on that date at the railway station. Therefore neither the search nor the seizure can be justified. In fact the action of the seizing Officer was so irregular that which ever way it is looked at it cannot be sustained. No seizure list was prepared, although according to the respondent’s affidavit, one of the bags was opened on that date at the railway station. Therefore neither the search nor the seizure can be justified. In fact the action of the seizing Officer was so irregular that which ever way it is looked at it cannot be sustained. If there was no seizure on 14th August, 1992 the seizing officer took possession of bags form the Station Master without authority of law. If there was a seizure on 14th August, 1992 at Nabadwip Dham no inventory list was prepared in the presence of independent witnesses. However I am not prepared to accept the version of the incident of the 14th August, 1992 as put forward by the respondents. The receipt granted by the Station Master at Nabadwip Dham to the seizing Officer and relied upon by the respondent certainly does not refer to the contents of the bags in any manner whatsoever. If the bags had indeed been opened one could have expected a description of the contents. All that is referred to is the weight of the bags. The letter written by the Station Superintendent to the petitioner also appears to support the case of the petitioner that the bags were not opened at all but were only weighed at Nabadwip Dham Rly. Station. 31. It is well established that at the time when seizure is effected under Section 110 of the Custom Act the seizing officer must have reason to believe that the goods were liable to confiscation under the Customs Act, 1962 (See (6) M.G. Abrol v. Minchand, AIR 1961 Bom. 227 ). There is no evidence of any such belie having been formed by the Seizing Officer on 14th August, 1992. In fact, if the bags were not opened on 14th August, 1992 the seizing officer could not form the necessary belief that the goods were liable to confiscation. 32. Even the affidavit-in-opposition on behalf of the respondent authorities has been affirmed by one K.K. Sengupta who, at least form the records, was not present when the seizure took place on 14.08.92 at all, Strangely the relation of the incidents which took place on 14.08.92 at Nabadwip Dham Railway Station have been took place on bring true to his knowledge. The basis of the belief of the seizing officer justifying the seizure is thus not disclosed. 33. The basis of the belief of the seizing officer justifying the seizure is thus not disclosed. 33. Apart from the patent irregularity in the entire procedure there are other aspects of this case which have not been adequately explained to this Court. The detention memo relied upon by the respondent authorities in respect of the search in question relates to Train no. 332 Down whereas it is the admitted case that the bags had been booked and were being carried form Malda to Nabadwip on 348 Down. 34. The circumstance under which the goods were seized are also strange. The alleged "strong information" received by the seizing officer cannot be accepted as a basis for initiating a search. What was the "strong information"? The Court cannot surmise as to the nature of the information. Even the inventory which was prepared on 17th August, 1992 is most unsatisfactory. There was no proper description of the inventorised goods. How many pieces were there? How many of them contained foreign markings? What was the nature of the foreign marks? The seizure list merely says bhangri (Broken Brass) "said to be" of foreign origin. Who said they were of foreign origin? This is far form saying that the goods were of foreign origin. 35. In many view the seizing officer has by himself created a situation where a fair adjudication cannot at all be held. 36. The petitioner is wholly justified in contending that it would be impossible for the petitioners now to prove that the pieces of Brass containing foreign markings producted by the respondents before this Court did not being to his consignments. 37. In the circumstances stated, the writ application must be allowed. The respondent authorities are directed to return the 3 hessian bags and their contents referred to in the letter dated 13.9.92 written by the Officer-in-Charge, Ranaghat Preventive Post to the Station Mater Nabadwip Dham Railway Station forthwith and in any event not later than a week from date. In addition to the costs of 20 G.Ms. on account of the delay in filing the affidavit in opposition, the respondents will pay the costs of this application to the petitioner which is assessed at 30 G.Ms. All costs are to be paid to the petitioners Advocate on Record within a week from date. 38. In addition to the costs of 20 G.Ms. on account of the delay in filing the affidavit in opposition, the respondents will pay the costs of this application to the petitioner which is assessed at 30 G.Ms. All costs are to be paid to the petitioners Advocate on Record within a week from date. 38. Prayer for stay of the operation of this order on behalf of the learned advocate appearing for the respondents is granted for a period of two weeks form date. 39. Registrar, Appellate Side, is directed to return the sealed enveloped containing brass samples to the learned advocate on record for the respondents. Let a xerox copy of this order be given to the learned advocate appearing for the petitioner on his usual undertaking.