Remo Paul Altoe v. Union of India

GUPTA, J.-This appeal is by special leave, from a judgment of the Calcutta High Court, this Court in granting special leave limited the appeal to only one ground, whether the trial court had power to order confiscation of the goods found in appellant's possession while con-victing him-under section 135 of the Customs Act.

The facts relevant for the purpose of the appeal are these. The appellant is a foreigner who arrived at Calcutta by air from Bangkok on June 28, 1975. On a search of his room in the hotel where he was staying in Calcutta, the Customs authorities found in his possession 1701 U.S. dollars and 4400 Canadian dollars which they seized as. smuggled goods. On September 23, 1975 an Assistant Collector of Customs filed a petition of complaint in the court of the Chief Metro-politan Magistrate, Calcutta, alleging, inter alia, that the appellant had brought in the foreign currency seized from his possession in violation of section 13(1) of the Foreign Exchange Regulation Act, 1973 and was therefore liable to be convicted under section 135 of the Customs. Act, 1962. Section 13 (I) of the Foreign Exchange Regulation Act, 1973 imposes restrictions on bringing or sending into India any gold or silver or any foreign exchange or any Indian currency. Section 67 of that Act provides :

"Application of the Customs Act, 1962. The restrictions imposed by or under section 13, clause (a) of sub-section (I) of section 18 and clause (a) of sub-section (1) of sec-tion 19 'shall be deemed to have been imposed under section 11 of the Customs Act, 1962, and all the provisions of that Act shall have effect accordingly."

Section 11 of the Customs Act, 1962, to which section 67 of the· Foreign Exchange Regulation Act, 1973 refers, antl\orises the Central Government to prohibit the import or export of goods of specified description for purposes mentioned in the section; one of the purposes mentioned in clause (u) of section 11 (2) is the prevention of the contravention of any law for the time being in force. Section 111 of the Customs Act lists the various goods brought in from any place outside India which "shall be liable to confiscation", clause (d) of the section mentions inter alia goods which are imported contrary to any prohibition imposed by or under the Customs Act or any other law for the time being in force. Section 135 of the Cu"stoms Act pro-vides the punishment for fraudulent evasion of duty or prohibition imposed in relation to any goods under the Customs Act or any other law for the time being in force, and also for acquiring possession or in any way dealing with goods which the person concerned knows are liable to confiscation under section 111.

The Metropolitan Megistrate convicted the appellant under sec-· tion 135 of the Customs Act and sentenced him to pay a fine of Rs. 2000/-, in default to suffer rigorous imprisonment for six months. Th"" Magistrate further ordered that the "goods involved in this case are confiscated to the State, if not already confiscated". The Calcutta High Court in revision affirmed the appellant's conviction but reduced the sentence of fine to Rs. 500/-, and affirmed the order of confiscation of the dollars. It is contended that the Magistrate had no power to order confiscation of the currency and the High Court was in error in affirming that order, -

The order of confiscation was presumably made under section 452(1) of the Code of Criminal Procedure, 1973. Section ·t52(1) provides :

Order for di.sposal of Property at conclusion of trial :

"When an inquiry or trial in any Criminal Court is con-cluded, the Court may make such order as it thinks fit for the disposal, by destruction, confiscation or delivery to any per-son claiming to be entitled to possession thereof or otherwise, of any prOperty or document produced before it or. in its cus· tody or regarding which any offence appears to have been committed, or which has been used for the commission of any offence."

Confiscation under section 452 (1) is one of the modes of disposal of property after an inquiry or trial in a criminal court is concluded. The contention of the appellant is that operation of this general provision is excluded by the special provisions for confiscation of goods con-tained in chapter XIV of the Customs Act, 1962. Chapter XIV of the Customs Act which includes section 111 to section 127 deals with ccnliscation of goods and conveyances and imposition of penalties. We have already referred to section 11 under which goods improperly im-ported shall be liable to confiscation. Section 112 provides for penal-ty for improper importation of goods. Such Conliscation or penalty is adjudged under section 122. Section 124 states that no order con-fiscating any goods or imposing any penalty on any person shall be made except on notice to the person concerned and only after giving him an opportunity of making a representation and also an opportunity of being heard in the matter. Under section 125 the officer adjudging a case of importation or exportation of any goods which is prohibited under the Customs Act or any other law, has a discretion to give to the owner of the goods an option to pay in lieu of confiscation such fine as the officer thinks fit. Section 126 lays down that on confiscation the goods shall vest in the Central Government and that the officer ad-judging confiscation shall take and hold possession of the confiscated goods. Section 127 makes it clear that the award of any confiscation or penalty under the Customs Act does not prevent the infliction of any punishment to which the person concerned is liable under chapter XVI of the Customs Act or under any other law. Section 135 is in chapter XVI.

The Customs Act thus provides that contraband goods "shall be liable to confiscation" and also lays down a detailed procedure for the confiscation of such good·s. The appellant contends that the special provisions of the Customs Act regarding the confiscation of goods seiz-ed under that Act make the general law as to disposal of property con-tained in section 452(1) of the Code of Criminal Procedure inapplica-ble in respect of such goods. According to the respondent Union of India, Customs authoritie·s and the criminal court have concurrent juris-dictions in the matter. However, we do not find it necessary to answer the question in this appeal which, in our opinion, should succeed on a short point. An order for the disposal of any property under scctio11 452 (I) of the Code of Criminal Procedure is necessary where the pro-perty remains to be disposed of by the court after the inquiry or trial is over. In th~ present case it appears that the foreign currency seized from the appellant was not produced before the Magistrate and was not in the custody or control of the court when the order of confisca-tion was made. There was thus no necessity or occasion for the court to make an order for disposal of any property; the order of the magis-trate that the goods involved in the case are confiscated "If not already confiscated" clearly shows that he was not aware what had hapencd to the goods which were in the control of the Customs authorities. It is true that the foreign currency seized from the appellant's possession was property in respect of which an offence was committed, but this fact alone did not call for an order under section 452 ( 1) in the circum-stances of the case, and that order passed, besides being unwarranted, is likely to create complications if in respect of the foreign currency a proceeding under the Customs Act is pending or the Customs authori-ties have made any order with which the magistrate's order is inconsis-tent. We therefore allow the appeal and set aside the order of confis-cation passed by the magistrate and affirmed by the High Court.

Mr. Kohli, learned counsel for the appellant, prays that the Customs authorities should be directed to return to appellant the currency seiz-ed from his possession. How the Customs authorities have dealt with tk property, whether the appellant is entitled to have the foreign cur-rency seized from his poscssion returned to him under any provision of the Customs Act, are not questions that arise for consideration in this appeal. The record of the case also does not contain any material upon which we could give any direction in the matter even if we wanted to. However, as this is an old case, we hope that the Customs autho-rities will take a decision in this matter according to law as early as possible.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 191 cf 1977.

Appeal by Special Leave from the Judgment and Order dated 6-12-76 of the Calcutta High Court in Cr!. Revision No. 1111 /76.

R. L. Kohli and S. K. Sablwrwal for the Appellant.

Soli J. Sorabjee and Addi. Solicitor General Girish Chandra for the Respondent.