Honble SINGH, J.–Heard the learned Public Prosecutor and the learned counsel for the non-petitioner No.2. (2). This petition under Section 482 Cr.P.C. is directed against the order dated 20th May, 1997 passed by the learned Civil Judge (Junior Division)-cum-Judicial Magistrate, Ist Class, Bikaner in Criminal Case No. 208/96, whereby he rejected the application of the petitioner and ordered that silver bars which had been seized by the police, may be given on ``supurdaginama to the Customs Department (non-petitioner no.2). (3). The facts of the case so far they are relevant for the disposal of this petition may be summarised as below:– (4). On 5 October, 1996 the Station House Officer of the Police Station Kotgate, Bikaner arrested the petitioner Ishwar Lal u/S. 109 Cr.P.C. At that time the petitioner was outside the Railway Station, Bikaner. At the time of his arrest, the petitioner was found carrying 19 silver bars, weighing 15,940 gms. At the time of his arrest, the petitioner was not carrying any document relating to the silver bars, which were found in the possession, During investigation by the police, the petitioner produced a photostat copy of the receipt issued by M/s. Shri Nath Corporation, Jodhpur, evidencing the sale of silver to the petitioner. The petitioner also produced the entries of accounts to show that he had taken loan for purchasing silver. The police officer examined Ishwar Lal, Surja Ram, Kailash Chandra, Suresh Kumar, Raja Ram, Kailash and Mathura Das during the investigation. After investigation, the Station House Officer of the Police Station came to the conclusion that it could not be established by the investigation that the silver which had been seized from the petitioner had been smuggled. The Station House Officer of the Police Station further stated in his report dated 18.11.96 that silver, which were recovered from the possession of the petitioner Ishwar Lal appears to be his property and that no other person or agency had submitted any document claiming the silver to be his property. (5). The petitioner Ishwar Lal submitted an application u/S. 457 Cr.P.C. before the learned Civil Judge (Sr.Div.) and Chief Judicial Magistrate, Bikaner praying that 17,295 gms. (5). The petitioner Ishwar Lal submitted an application u/S. 457 Cr.P.C. before the learned Civil Judge (Sr.Div.) and Chief Judicial Magistrate, Bikaner praying that 17,295 gms. silver, which he had purchased from M/s. Shri Nath Corporation, Jodhpur and which had been seized from him on 5th October, 1996 by the police officers of Police Station Kotgate, Bikaner u/S. 102 Cr.P.C. be returned to him as it belongs to him and no other person had made any claim in respect of the same. (6). An application was filed before the learned Chief Judicial Magistrate on behalf of the non-petitioner No.2. In that application it was alleged that silver had been obtained in contravention of Section 7(c) and 11 of the Customs Act, 1962 and that the silver, was liable to be seized u/S. 110 of the Customs Act, and therefore, a direction be given to the Station House Officer of the Police Station, Kotgate, Bikaner to hand over the silver seized by him to the Customs Department, Bikaner. (7). The learned Chief Judicial Magistrate called for the result of investigation conducted by the S.H.O. of the Police Station, Kotgate and considered the report submitted by him. The petitioner Ishwar Lal, who was represented by a counsel was heard and the non-petitioner no.2, who was represented by its counsel was also heard. After carefully considering the facts and circumstances of the case and the provisions of Section 110 of the Customs Act, the learned Chief Judicial Magistrate declined to pass any order u/S. 457 Cr.P.C. and held that so long the inquiry by the Customs Department was not completed, it was not proper to hand over the silver to either party. The officers of the Customs Department were permitted to inspect the silver under the supervision of the S.H.O. of the Police Station, Kotgate and two months time was given to the Custom Department to complete the inquiry. (8). Feeling aggrieved by the aforesaid order dated 4th December, 96 passed by the learned Chief Judicial Magistrate, Bikaner, the petitioner Ishwar Lal filed S.B. Cri. Misc. Petition No. 8/87 in this Court invoking the inherent jurisdiction of this Court u/S. 482 Cr.P.C. In his petition, he prayed that order dated 4th December, 96 passed by the learned Chief Judicial Magistrate be quashed and silver which had been seized from him should be ordered to be returned to him. (9). Misc. Petition No. 8/87 in this Court invoking the inherent jurisdiction of this Court u/S. 482 Cr.P.C. In his petition, he prayed that order dated 4th December, 96 passed by the learned Chief Judicial Magistrate be quashed and silver which had been seized from him should be ordered to be returned to him. (9). On 13th March, 97 after hearing both the parties, Honble Mr. Justice A.S. Godara passed an order in S.B. Cri. Misc. Pet. No. 8/97. The operative portion of the order reads :– ``Having regard to the totality of facts and circumstances discussed above, since the learned Chief Judicial Magistrate did not adjudicate and dispose of the prayer of the petitioner finally and instead he gave two months time to either party and, thereafter, to approach the com- petent court for appropriate order again and, as a result, this is appro- priate that the petitioner should again approach the competent subordinate court with a prayer for any appropriate order in regard to release of the silver to seized and, accordingly, it is ordered that he may move a fresh petition before the competent court accordingly and, the court before whom such an application is moved, after giving opportunity of being heard to the police as well as the Customs Authorities, as far as possible, shall dispose of such application,moved on behalf of the petitioner or any other concerned party, within 15 days of the presentation of the application, if any. (10). On 20th May, 97 the learned Chief Judicial Magistrate, Bikaner after hearing the parties gave a direction to the effect that silver which had been seized by the police officer be given to the Superintendent, Customs Department, Bikaner subject to his furnishing an undertaking that he will produce the same as and when directed to do so. Feeling aggrieved by this order, the petitioner has approached this Court again with a prayer that the impugned order dated 20th May, 97 passed by the learned Chief Judicial Magistrate be set aside and silver which had been seized from the petitioner be ordered to be returned to him. (11). Feeling aggrieved by this order, the petitioner has approached this Court again with a prayer that the impugned order dated 20th May, 97 passed by the learned Chief Judicial Magistrate be set aside and silver which had been seized from the petitioner be ordered to be returned to him. (11). The learned counsel for the petitioner has submitted that in the instant case, the impugned order was not justified, because there is not even an iota of evidence to suggest that the silver, which the petitioner was carrying with him and which had been seized from him had been smuggled into the country in contravention of any provision of the Customs Act. It is further submitted by him that the document submitted by the petitioner before the S.H.O. of the Police Station, Kotgate, Bikaner as well as the statement given by the Manage r of the firm from which they had been purchased, clearly show that the petitioner had purchased the silver bars (19 in number) from the firm M/s. Shri Nath Corporation, Branch Barli, district Jodhpur and therefore, there is ample evidence to show that the petitioner is entitled to possess the silver bars which had been seized from him on account of being the owner thereof and that there was no justification for directing the handing over of the silver bars to the non-petitioner no.2. (12). The learned counsel for the non-petitioner no.2 has submitted that in the instant case the version given by the petitioner that he had purchased the silver bars from M/s. Shri Nath Corporation, Jodhpur on 4th October, 96 was doubtful, because during inquiry it has been revealed that reservation was made by the peti- tioner in the railway train for going to New Delhi from Bikaner on 3rd October, 96 and that reservation was also made for return to Bikaner from New Delhi on 4th October, 96 and if the petitioner had gone to New Delhi on 3rd October and returned from New Delhi on October his story that he had purchased the silver bars on 4th October, 96 from Jodhpur would have to be treated as false. Relying on the afore- said circumstances, the learned counsel for the non- petitioner no.2 has submitted that the Customs Authorities of Bikaner are satisfied that an offence of smuggling silver has been committed by the accused-person and therefore, the silver bars which had been seized by the police in this case are liable to confiscation under the Customs Act and therefore, Custom Department is entitled to obtain the same. The learned counsel for the non-petitioner no.2 has therefore, supported the impugned order passed by the learned Chief Judicial Magistrate, Bikaner. (13). It is not disputed that in this case silver bars were seized by the S.H.O. of the Police Station, Kotgate, Bikaner in exercise of the powers conferred by Section 102 Cr.P.C. The actual seizure done by the above mentioned officer was not under sub-section (1) of Section 110 of the Customs Act. It is also not disputed that the competent customs authority have not passed any order under Section 110(1) of the Customs Act up to this date. Sub-section (1) of Section 110 of the Customs Act, 1962 provides that if the proper officer has reason to believe that any goods are liable to confiscation under this Act, he may seize such goods. Proviso given below sub-section (1) of Section 110 provides that where it is not practicable to seize any such goods, the proper officer may serve on the owner of the goods an order that he shall not remove, part with or otherwise deal with the goods except with the previous permission of such officer. (14). Since no order has been issued by the proper officer u/S. 110 of the Customs Act, 1962, it must be said that seizure by the custom officer has neither been ordered nor effected so far. The crucial question is whether the Customs Department can be said to be entitled to obtain possession of any goods even in those cases in which no order of seizure u/S. 110 of the Customs Act is passed by the proper officer. (15). After carefully going through the provision of the Customs Act and hearing both the parties, I am of the opinion that the right to obtain possession of any goods, accrues in favour of the proper officer only after the passing of the order u/S. 110 of the Customs Act and not before that. (15). After carefully going through the provision of the Customs Act and hearing both the parties, I am of the opinion that the right to obtain possession of any goods, accrues in favour of the proper officer only after the passing of the order u/S. 110 of the Customs Act and not before that. The powers u/S. 110 of the Customs Act are executive powers of the State. They are required to be exercised by the proper officer if the conditions laid down in Section 110 for the exercise thereof are fulfilled. The initiative as well as the responsibility for exercise of power u/S. 110 of the Customs Act is responsibility of the proper officer. It is for him to decide whether he should or should not make the order u/S. 110 of the Customs Act. His order is liable to be challenged in accordance with law, because it is well established that even if an executive authority is empowered to form an opinion about a certain state of things, the opinion is not final and it can be scrutinized by an appropriate court in appropriate proceedings. In the instant case, the Customs Officer has not cared to pass any order u/s. 110 of the Customs Act and since I have taken the view so long the order of seizure is not passed u/S. 110 of the Customs Act, the right to obtain possession of the goods does not accrue in favour of the proper officer, it must be held that so long the proper officer does not passed an order for seizure of the goods u/S. 110 of the Customs Act, after satisfying himself as to the conditions which are necessary for exercising the power of seizure, it cannot be said that the Customs Department is entitled to obtain the silver which had been seized in this case. Consequently, it must be held that the learned Chief Judicial Magistrate was not justified in directing the delivery of silver bars seized from the petitioner to the authorities of the Customs Department. (16). In the instant case the report of the Station House Officer of the Police Station, Kotgate, Bikaner shows that after investigation he came to the conclusion that the silver bars belong to the petitioner and that they had not been smuggled and that no other person had claimed them. (16). In the instant case the report of the Station House Officer of the Police Station, Kotgate, Bikaner shows that after investigation he came to the conclusion that the silver bars belong to the petitioner and that they had not been smuggled and that no other person had claimed them. The statement of witnesses recorded by the Customs authorities also shows that silver bars had been sold by M/s. Shri Nath Corporation to the petitioner on 4th October, 1996 and the petitioner had sub- mitted the receipt evidencing the sale of silver bars to him by M/s. Shri Nath Corporation. In these circumstances, it must be held that the petitioner is the person who is entitled to obtain the possession of the silver bars seized from him. It may be observed here that so far, seized currency notes, gold and silver (other than in form of ornament) is concerned, the law is well established that as soon, the delivery is effected, the title passes to the persons, who obtained possession of the delivery. Hence, a presumption can also be drawn that the person from whose possession gold, silver or currency notes were recovered is the person entitled to possess the same unless this presumption is rebutted by sufficient and cogent evidence. (17). For the reasons mentioned above, this petition deserves to be allowed. The impugned order dated 20th May, 1997 passed by the learned Chief Judicial Magistrate, Bikaner is hereby quashed and set aside. It is hereby directed that the silver bars which had been seized from the petitioner shall be returned to the peti- tioner on his furnishing a personal bond of Rs. 1,50,000/- undertaking to produce the silver bars in the Court or as per directions of the Court as and when called upon to do so. The bond shall remain in force for one year from the date of its execution. Meanwhile, the non-petitioner no.2 shall be competent to conduct such inquiry as may be deemed fit. Nothing contained in this order shall prevent the non-petitioner no.2 from exercising the statutory powers conferred by the Customs Act, 1962, if an occasion for exercise thereof should arise. _