Magistrate Can't Use Power U/S 451/457 Cr.P.C. When Trial Or Inquiry Has Not Been Set In Motion: Meghalaya High Court

While setting aside the order of the Magistrate under such Sections, the Single Judge Bench of Justice W. Diengdoh observed,

"…at the time of passing of the original impugned order, the matter was still under investigation by the Customs officials and the stage of prosecution has not yet commenced as evident from the fact that the relevant sanction for prosecution by the Principal Commissioner of Customs or Commissioner of Customs have not yet been issued to enable the Court to take cognizance of the offence. Therefore, the learned Magistrate in the absence of a trial or inquiry could not have passed the said impugned order under Section 451/457 Cr.P.C."

Brief Facts:

On the basis of specific information, the officers of the Directorate of Revenue Intelligence, Shillong Regional Unit had intercepted three trucks on 09.04.2021 near Thangshalai village, NH-6, East Khasi Hills District of Meghalaya between 06.00 hours and 06.15 hours. On being searched, a total number of 1500 bags of foreign origin black pepper weighing about 75,000 KGs were seized. The three drivers and two helpers were arrested and the said trucks were also seized under the relevant provisions of the Customs Act, 1962 ("the Act").

Owners of the trucks (the respondents herein) then moved an application under Sections 451/457 Cr.P.C. before the Court of the Judicial Magistrate First Class, Shillong and the learned Magistrate vide an order dated 20.07.2021 allowed the application and directed that the said vehicles be released on a bond of ₹ 1,00,000/- (Rupees one lakh) each. The said order was then assailed by the petitioner department before the learned Sessions Judge, Shillong by way of criminal revision petitions. After hearing the parties, the Sessions Judge dismissed the petitions holding that there is no jurisdictional infirmity with the order of the Magistrate. Aggrieved by the said order, the petitioner approached the High Court under Section 482, Cr.P.C.

Contentions of the Petitioner:

Senior Counsel Dr. N. Mozika, who appeared for the petitioner, submitted that the main grievance of the petitioner is the erroneous manner in which the learned Magistrate had assumed jurisdiction in releasing the said trucks which he could not have done given the fact that there is an express provision for release of the goods under Section 110-A of the Customs Act, which empowers the proper officer who has caused seizure of the same under Section 110 to release the seized goods.

He has further contended that the "Customs Act" is a special Act. Also, there are specific provisions as regard arrest and seizure, particularly Section 104 which empowers the competent Custom Official to arrest any person suspected to have committed certain offences under the Customs Act and Sections 110 and 110-A deal with the power of seizure and release of the seized goods. Therefore, exercise of powers under the code of criminal procedure by the learned Magistrate is without jurisdiction for which the original impugned order cannot be held as valid.

He also stressed upon another aspect by placing reliance on the judgment of the Delhi High Court in Directorate of Revenue Intelligence v. PRK Diamonds Pvt. Ltd & Anr, 2019 SCC Online Del 8226, that the case was still at the stage of show cause and prosecution was yet to be launched. Under Section 137 of the Act, the sanction of the Principal Commissioner has to be obtained which will be followed by filing of a regular criminal complaint whereupon, the learned Judicial Magistrate will then assume jurisdiction. As such stage had not arrived at the time of passing of the impugned order by the learned Magistrate, the powers under Section 451/457 Cr.P.C. could not have been exercised.

Contentions of the Respondents:

Advocate J. Shylla, appearing for the respondents, contented that an official of the petitioner's department has filed a preliminary complaint before the learned Chief Judicial Magistrate, Shillong making specific prayer for sending the accused persons to judicial custody and at the same time has also made a prayer for grant of custody of the seized goods. Therefore, it is a clear indication that the Custom Officials had submitted the custody of the seized goods to the jurisdiction of the Magistrate. Under the circumstance, the owners of the said trucks had no option, but to approach the learned Magistrate with an application under Section 451/457 Cr.P.C. for interim release of the trucks which was allowed.

However, he fairly submitted that, in the event that the Court finds that the Magistrate had no jurisdiction to pass the impugned order, the respondents may be allowed to approach the competent authority under Section 110-A of the Customs Act.

He further cited the law laid down in Sunderbhai Ambalal Desai v. State of Gujarat, (2002) 10 SCC 283, wherein the Apex Court has held that seized articles should not be kept in custody for more than 15 days to one month. Hence, considering the peculiar circumstances and taking into consideration the fact that the said trucks were in custody for more than nine months contrary to the direction the Supreme Court, he requested that if approached under Section 110-A of the Customs Act, the competent Custom Official may cause release of the seized trucks at the earliest and to also relax the conditions, particularly the security deposit which may be fixed reasonably.

Observations of the Court:

The Court relied upon the case of PRK Diamonds Pvt. Ltd (supra), wherein it was held that for the applicability of Section 451 of the Cr.P.C, an inquiry or trial has essentially to be in progress. Here, at the time of passing of the original impugned order, the matter was still under investigation by the Customs officials and the stage of prosecution had not yet commenced as evident from the fact that the relevant sanction for prosecution by the Principal Commissioner of Customs or Commissioner of Customs had not been issued to enable the Court to take cognizance of the offence. Therefore, it was held that the learned Magistrate in the absence of a trial or inquiry could not have passed the said impugned order under Section 451/457 Cr.P.C.

It further held that in Section 110-A of the Act, it has been specifically laid down that the proper officer is empowered to release the seized goods to the owner on taking a bond from him and thus, there was no necessity to approach the Magistrate to employ Section 451 of the Cr.P.C. for the purpose of release of such goods. It observed,

"It may be mentioned that the Customs Act, 1962 is a special Act while the Code of Criminal Procedure deals with the general law. It is also well settled that the provisions of the Special Act will override the provisions of the general law as in the case in hand. The principles of the latin maxim of "generalia specialibus non derogant", i.e., general law yields to special law should they operate in the same field on same subject will be applicable here."

Consequently, the Court concluded that the Magistrate had acted without jurisdiction while passing the impugned order and thus, an abuse of the process of the court had been occasioned. The same was thereby set aside and quashed. The respondents are also set at liberty to approach proper authority under Section 110-A of the Act for the release of their trucks, which is directed to be duly considered and expeditiously disposed of.

Case Title: Directorate of Revenue Intelligence, Shillong Regional Unit, Shillong v. Shri Ajay Babu Manda

Case Number: Criminal Petition No(s). 1-2 of 2022

Date of Judgment: 17 February 2022

Coram: Justice W. Diengdoh

Citation: 2022 LiveLaw (Meg) 4

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