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2001 DIGILAW 479 (ALL)

Eastern Road Carriers Ltd. v. State Of U. P.

2001-05-14

B.K.RATHI

body2001
JUDGMENT : - B.K. Rathi 1. THE petitioner is a Transport Company. Its truck was carrying 340 bags of tea, which was loaded from Tinsukia on behalf of M/s. Rossell Industries Ltd., and was to be taken to Tundla in the godown of M/s. Hindustan Lever Ltd. It is contended that Kamla Singh, driver of the truck, out of sheer greed, probably loaded some contraband material in the truck during the journey. That the said truck was intercepted by the customs authorities on 23.10.2000 and it is alleged that 250 kgs. of Nepali Ganja was recovered from the truck which was concealed in the tea bags. THE truck along with the goods were, therefore, seized. THE statement of the driver Kamla Singh was recorded under Section 107/108 of the Customs Act. 2. THE petitioner being a transporter moved an application for release of 340 bags of the tea. It is contended that the above tea was being transported after obtaining gate pass and invoice for removal of excisable goods No. 116 dated 14.10.2000. That the tea is a perishable item. That truck was transporting the tea with proper papers and authority. That there is no fault of the petitioner and he had no knowledge that the driver loaded the Nepali Ganja in the truck. That therefore, the tea should be released in favour of the petitioner. The application for release was rejected by the Special Judge, N.D.P.S. Act, Azamgarh by order, dated 4.4.2001, Annexure-6 to the petition. Therefore, the petitioner has approached this Court under Section 482, Cr. P.C. 3. I have heard Sri Manish Tiwary, learned counsel for the petitioner and Sri S. K. Singh, learned counsel for the opposite party No. 2. 4. IT is contended by the learned counsel for the petitioner that the petitioner is a transport company having contracts with various multi-national companies. That the goods of M/s. Rossell Industries Limited were being transported to M/s. Hindustan Lever Limited. Both of them are multi-national companies. IT is contended that there were valid papers, gate pass and invoices for removing of exisable goods. IT is further argued that statement of the driver Kamla Singh was recorded under Section 107/108, Customs Act, in which he stated that during the journey he took one passenger who put the contrabaned Ganja in the truck without his knowledge. IT is contended that there were valid papers, gate pass and invoices for removing of exisable goods. IT is further argued that statement of the driver Kamla Singh was recorded under Section 107/108, Customs Act, in which he stated that during the journey he took one passenger who put the contrabaned Ganja in the truck without his knowledge. That, therefore, according to his statement, there was no fault on the part of the petitioner and it was in the truck without the knowledge and consent of the petitioner. That, therefore, the tea should be released as it is a perishable item. As against this, it has been argued by Sri S. K. Singh learned counsel for the Union of India that Section 119 of the Customs Act, 1962 provide for the confiscation of the goods used for concealing of smuggled goods. It has been argued that the tea bags were used for concealment of the Ganja and, therefore, they are also liable to be confiscated. It is further contended that notice regarding confiscation under Section 124 of the Customs Act has been issued to the petitioner of which no reply have been submitted. It is further contended that Section 451, Cr. P.C. does not apply, and the Court has no jurisdiction to release the goods seized by the customs authorities. 5. I have considered the arguments. It is admitted to the petitioner that notice of confiscation under Section 124 of the Customs Act has been issued to the petitioner. However, admittedly this notice has been issued on 10.4.2001. The contention of the learned counsel for the petitioner is that the reply is under preparation and he will suitably reply the same. It is further argued by Sri Manish Tiwary that the tea is a perishable item. That during the confiscation proceedings under Section 124, it may perish and may become useless. That it will take long time in the procedure for confiscation and in the meantime the tea shall perish. That, therefore, the goods should be released on furnishing proper security. 6. THE argument that Section 451, Cr. P.C. does not apply to the articles seized by the customs department does not appear to be correct. Regarding this, it has been argued by Sri S. K. Singh that Section 5, Cr. P.C. protects special jurisdiction of the Court under the special law. That, therefore, Section 451 does not apply. 6. THE argument that Section 451, Cr. P.C. does not apply to the articles seized by the customs department does not appear to be correct. Regarding this, it has been argued by Sri S. K. Singh that Section 5, Cr. P.C. protects special jurisdiction of the Court under the special law. That, therefore, Section 451 does not apply. It is contended that Section 52 of the N.D.P.S. Act provide a special procedure regarding the disposal of the article seized. From perusal of Section 52, it does not appear that the article seized cannot be disposed of by the Magistrate under Section 451, Cr. P.C. and it does not exclude its application to the articles seized under the Customs Act or N.D.P.S. Act. On the other hand, Section 36C in the N.D.P.S. Act provide for the application of the provisions of the Code of Criminal Procedure, save as provided in the Act. Therefore, Section 451, Cr. P.C. applied and it is not correct that Court has no jurisdiction to release the property. 7. NOW coming to the question whether tea bags should be released in favour of the petitioner. It appears that Chapter 14 of the Customs Act deals with confiscation of the goods. Section 119 provides : "Any goods used for concealing smuggled goods shall also be liable to be confiscated." 8. THE question of confiscation is to be decided under Section 124 of the Act and that order can be challenged in appeal under Chapter 15 of the Act. However, the prima facie Court should see whether the goods are liable for confiscation and whether the same can be released. Prima facie, it appears that Section 119, Customs Act does not apply to the goods in question. It provides regarding confiscation of the goods used for concealing of the "smuggled goods". The smuggled goods have not been defined in the Act. "Smuggling" has been defined under clause (39) of Section 2 of the Customs Act which means any goods liable to be confiscated under Sections 111 and 113 of the Act. Sections 111 and 113 provide for confiscation of the goods improperly imported or attempted to be imported. The improperly imported goods are the goods on which the customs duty is payable under the Customs Act. However, on Ganja no custom duty is payable. Sections 111 and 113 provide for confiscation of the goods improperly imported or attempted to be imported. The improperly imported goods are the goods on which the customs duty is payable under the Customs Act. However, on Ganja no custom duty is payable. Ganja cannot be said to be smuggled goods and Section 119, Customs Act prima facie has no application. 9. THE other reason is that the Customs Act deals with the goods on which the custom duty is payable. Though the customs authorities have also right to seize the Narcotic Drug or Psychotropic Substance but it is very doubtful that Section 119 shall apply to those articles on which custom duty is not payable, and whether they can be said to be smuggled goods. Therefore, prima facie it appears that the Ganja is not smuggled goods and tea bags used for concealing it cannot be confiscated. 10. IT is also necessary to refer to clause (3) of Section 60 of the N.D.P.S. Act which reads as follows : "Section 60 (3). Any animal or conveyance used in carrying any narcotic drug or psychotropic substance, or any article liable to confiscation under sub-section (1) or sub-section (2) shall be liable to confiscation, unless the owner of the animal or conveyance proves that it was so used without the knowledge or connivance of the owner himself, his agent, if any, and the person-in-charge of the animal or conveyance and that each of them had taken all reasonable precautions against such use." There is identical provisions under clause (2) of Section 115 of Customs Act. The evidence collected by the customs authorities under Sections 107 and 108 of the Act does not show that the Ganja was being transported with the knowledge or connivance of the petitioner. The statement of the driver who was arrested at the spot recorded under Sections 107 and 108 of the Act also does not show that the petitioner had knowledge of Ganja in the truck. If it is so, the above clause will apply and it is doubtful whether the goods can be confiscated under Section 119 of the Customs Act. 11. THERE is also no doubt that the tea is a perishable item and can perish within the time taken in confiscation proceedings causing loss to the petitioner. If it is so, the above clause will apply and it is doubtful whether the goods can be confiscated under Section 119 of the Customs Act. 11. THERE is also no doubt that the tea is a perishable item and can perish within the time taken in confiscation proceedings causing loss to the petitioner. The petitioner is ready to furnish security to the extent of the value of the goods which according to the parties is about eight lacs. 12. THE petition is, therefore, fit to be allowed. It is, accordingly allowed and the tea in question shall be released in favour of the petitioner on his furnishing sufficient security to the extent of Rs. eight lacs with an undertaking that in case order for confiscation under Section 124 is passed, the petitioner shall pay price of the goods and it may be realised from him as well as from surety. It is further made clear that the confiscation proceedings may continue and shall be decided on merits without being influenced by any observation made in the body of the judgment. The petition is, accordingly, disposed of.