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The word ‘Magistrate’ under S. 110(IB) & (IC) refers to ‘Executive Magistrate’, Not a Judicial Magistrate: Delhi HC [Read Order]

Certification of the correctness of the inventory of the seized goods under s. 110(IB) & (IC) shall be done by an ‘Executive Magistrate’, Not a ‘Judicial Magistrate’, says Delhi High Court.

The division bench of the Delhi High Court in Department of Customs v. Ram Mohan Gulati and Ors, held that the certification of the correctness of the inventory or taking of photographs of the seized goods or drawing representative samples of the seized goods under Section 110(IB) & (IC) shall be done by an “Executive Magistrate” since such proceedings are in the nature of administrative or executive.

While interpreting the provisions of s. 110(IB) and (IC), Justice R. K Gauba held that the term “Magistrate” said in the said section refers to an “Executive Magistrate”, and not a Judicial Magistrate.

The petitioner, Department of Customs seized the goods pertaining to the respondent and lodged a criminal complaint before the Additional Chief Metropolitan Magistrate (ACMM), New Delhi. Subsequently, the petitioners moved an application praying for an inventory to be prepared of the seized items under Section 110 (1B) of the Customs Act, 1962. The ACMM rejected the application for want of jurisdiction and directed the petitioners to approach the appropriate forum in view of the Delhi High Court decision in Directorate of Revenue Intelligence vs. State.

Under Section 110 of the Customs Act, 1962, the seizure of goods, documents or things is made by a proper officer who is duly empowered to take such action in law. At the time of seizure, the said proper officer is expected to prepare an inventory of the goods seized, such inventory to contain all requisite details including their description, quality, quantity, marks, numbers, country of origin and other particulars relevant to their identity. The provisions contained in sub-Section (1B) and (IC) of the Section 110 of the Customs Act, 1962 enjoin upon the Magistrate before whom an application thereunder is made to allow the same as soon as possible, he having three courses open to him. He can either certify the correctness of the inventory so prepared or have photographs of the seized goods taken in his presence and certify such photographs as true or he may allow representative samples to be drawn in his presence and, thereafter, certify the correctness of list of samples thus drawn.

The bench noted that since the expression “Magistrate” is not defined in the Customs Act, it has to be understood with reference to the nature of the proceedings entrusted by the afore-quoted provisions.

In view of section 3(4) of the Criminal Procedure Code, the bench observed that the above proceedings are not adjudicatory in nature so as to involve appreciation or sifting of evidence or formulating any decision which might expose any person to any punishment or penalty or detention in custody or to put him on trial before any court. “The preparation of an inventory at the time of seizure is a step in investigation by the customs authorities under the Customs Act, 1962. The objective of the proceedings envisaged in sub-Section (1B) and sub-Section (1C) of Section 110 is to have reconfirmation of the correctness of such inventory and, if possible, to de-burden the investigating agency of the responsibility of retaining the entire goods thus seized and, instead, to preserve only what is absolutely necessary which may be in the form of photographs of the goods or their representative samples. This is clear, inter alia, from the further provisions contained in other clauses of Section 110 as also by Section 110-A of the Customs Act, 1962.”

It was therefore, concluded that the exercise of certification of the correctness of the inventory or taking of photographs of the seized goods or drawing representative samples can be nothing but an exercise which is administrative or executive in nature within the meaning of clause (b) of sub-Section (4) of Section 3 Cr.P.C. accordingly, the bench held that the word “Magistrate” appearing in Section 110 (IB) and (1C) of the Customs Act, 1962 must be interpreted so as to be read as a reference to an Executive Magistrate and not to a Judicial Magistrate or a Metropolitan Magistrate.

Read the full text of the Order below.

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