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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

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. These were upheld by the High Court of Meghalaya through the Single Judge Bench of Justice W. Diengdoh in the case of Directorate of Revenue Intelligence, Vs. Shri Ajay Babu Manda (Crl.Petn. No. 1 of 2022)

Crux of the case is based on specific information, officials of the Directorate of Revenue Intelligence, Shillong Regional Unit seized three trucks on 09.04.2021 near Thangshalai district, NH-6, East Khasi Hills District of Meghalaya between 06.00 hours and 06.15 hours. During the search, a total of 1500 bags of black pepper weighing 75,000 KG were seized. Three drivers and two assistants were arrested, and the said trucks were confiscated under the relevant provisions of The Customs Act, 1962. Truck owners (Respondents herein) then submit an application under Section 451/457 Cr.P.C. before the Judicial Magistrate First Class, Shillong and the learned Magistrate on the order dated 20.07.2021 authorized and directed that the said vehicles be issued with a bond of ₹ 1,00,000. The said order was then reviewed by the applicants’ department before a learned Sessions Judge, Shillong, on how to review criminal applications. After hearing the parties, the Sessions judge dismissed the application for any serious misconduct on the part of the Magistrate’s order. Disappointed by the said order, the applicant went to the High Court under Section 482, Cr.P.C.

The Counsel appearing for the petitioner, said the main complaint of the applicant was the erroneous manner in which the Magistrate had assumed jurisdiction to release the said trucks which he could not do because there was a provision for the release of trucks. goods under Section 110-A of the Customs Act, which empowers the appropriate officer holding the same under Section 110 to release the seized property. He also emphasized another point in relying on the Delhi High Court ruling in Directorate of Revenue Intelligence v. PRK Diamonds Pvt. Ltd & Anr, (2019 SCC Online Del 8226), that the case was still on display and prosecution was to be filed. Under Section 137 of the Act, the punishment of the High Commissioner should be met with a follow-up to a common criminal complaint in which, Magistrate will then relinquish administrative power. As that section had not yet arrived at the time of the passing of the order opposed by the learned Magistrate, the powers under Section 451/457 Cr.P.C. could not be used.

Learned counsel for the respondents, satisfied that the petitioner’s chief of staff had lodged a complaint with the Chief Justice, Shillong, has filed a motion for the defendants to be remanded in custody and at the same time offered a plea for permission. for the storage of seized property. Therefore, it clearly indicates that Custom Officials has transferred the custody of the seized property to the Magistrate’s powers. Under the circumstances, the owners of the said trucks had no choice, but consulted with an educated Magistrate with the application under Section 451/457 Cr.P.C. to temporarily release trucks. He also quoted the law imposed on Sunderbhai Ambalal Desai v. State of Gujarat, (2002) 10 SCC 283), in which the Supreme Court ruled that confiscated documents should not be kept in custody for more than 15 days to one month. Therefore, considering the exceptional circumstances and taking into account the fact that the said trucks were kept in custody for more than nine months contrary to the direction of the Supreme Court, he requested that if it is not addressed under Section 110-A of the Customs Act, Customs should be appropriate. The official may arrange for the release of the seized trucks in advance and relax the conditions, especially the security deposit that may be reasonably adjusted.

The Single Judge Bench of Justice W. Diengdoh relied upon the case of Directorate of Revenue Intelligence v. PRK Diamonds Pvt. Ltd, 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 leamed 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, Le, general law yields to special law should they operate in the same field on same subject will be applicable here.”

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Judgement reviewed by Himanshu Ranjan

 

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