Mohammad Serajuddin Vs. R. C. Mishra
 INSC 330 (24 November 1961)
CITATION: 1962 AIR 759 1962 SCR Supl. (1) 545
CITATOR INFO :
D 1965 SC 1 (11,12,19)
Customs-Seizure of documents-Warrant issued
by Magistrate-Custody of documents-If customs authorities entitled
to-Facilities for inspection- Sea Customs Act, 1878 (8 of 1878), s. 172,-Code
of Criminal Procedure, 1898 (Act 5 of 1898), s. 96, Schedule V Form VIII.
The respondent was suspected of having
exported dutiable goods in contravention of the Sea Customs Act and of having
secreted documents in connection therewith in two premises. An application was
made to the Chief Presidency 546 Magistrate under s. 172 of the Act for issuing
warrants to search the premises for the documents.
The warrants were issued and after search a
large number of documents were seized by the Customs authorities. They then
applied to the Magistrate to retain possession of the documents but he ordered
that the documents would remain in the custody of the court and that the
autuorities would be given facilities to inspect them. After having inspected
some of the documents the Customs authorities again applied to the Magistrate
for custody of the documents and in the alternative for allotment of a separate
room where they could inspect the documents in privacy, but the Magistrate
rejected both the prayers. On revision the High Court held that the Customs
authorities were entitled to the custody of the documents and directed that
they be handed over to them immediately.
Held, that the goods and documents seized
under a warrant issued by a Magistrate under s. 172 of the Sea Customs Act must
be produced before the Magistrate who issued the warrant and it is for him to
decide how the goods and documents shall be disposed of. He may make them over
the Customs authorities or keep them in his custody.
The second paragraph of s. 172 provides that
a warrant issued under s. 172 shall have the same effect as a search warrant
issued under the law relating to criminal procedure. The form prescribed by the
Code of Criminal Procedure requires the seized articles to be brought into
court, and the Magistrate has jurisdiction to decide about their custody. The
Magistrate's order that the documents should remain in his custody and be
scrutinised in his court was thus legal.
S. K. Sribastava v. Gajanand (1956) 60 C. W. N.
Calcutta Motor Cycle Co. v. Colleceor of
Customs (1955) 60 C. W. N. 67 and Collector of Customs v. Calcutta Motor and
Cycle Co. A. I. R.
1958 Cal. 682, not approved.
CRIMINAL APPELLATE JURISDICTION : Criminal
Appeal No. 158 of 1960.
Appeal from the judgment and order dated July 1, 1960, of the Calcutta High Court in Cr.
Revision No. 500 of 1960.
N. C. Chatterjee and P. K. Chatterjee, for
N. S. Bindra and T. M. Sen, for the
547 1961. November 24. The Judgment of the
Court was deliered by HIDAYATULLAH, J.-This appeal is by certificate under Art.
134 (1) (c) of the Constitution granted by the High Court of Calcutta against
its judgment and other dated July 1, 1960.
The appellant, Mohammad Serajuddin is the
managing partner of Messrs. Serajuddin and Co., of No. 19A, British Indian
Street and of p-16, Bentick Street, Calcutta. The said firm carries on business
as exporters of mineral ores, and also possesses some mines. The business of
the appellant involved the export of manganese ore. Till April, 1948, there was
no export duty on manganese ore. On April 19, 1948, export duty at ad valorem
rates was imposed on manganese ore. This was withdrawn in August, 1954, but was
re-imposed in September, 1956 and was withdrawn again in November, 1958. During
this period, the appellant exported manganese ore, among other mineral ores.
On November 28, 1959, an application was made
under s. 172 of the Sea Customs Act to the Chief Presidency Magistrate,
Calcutta requesting that warrants be issued to search the two premises already
mentioned, on the allegation that documents relating to and connected with
"illegal exportation of dutiable goods which were actually exported in
contravention of the Sea Customs Act" were secreted in the above premises.
The Chief Presidency Magistrate issued two warrants returnable on December 5,
1959. Subsequently, time for return was extended to December 15, 1959. It
appears that the search was carried with somewhat undue zest, and the Chief
Presidency Magistrate, on December 12, 1959, limited the search to documents
relating to manganese ore and also fixed the time of the day during which the
search could be made. Meanwhile, applications for withdrawal of the search
warrants were unsuccessfully made by 548 the appellant, and, in the end, the
Customs authorities seized 959 documents, registers, books, etc. The Customs
authorities wished to retain these documents in their own custody for the
purpose of scrutiny, and on December 15, 1959, an application was made to
obtain this permission.
On the same day, the appellant also applied
for return of documents unconnected with the export of manganese ore and for
retention of the remaining documents in the, custody of the Court. The Chief
Presidency Magistrate passed an order the same day that the documents would be
kept in the custody of the Court and the Customs authorities would be given
facilities to inspect them in the Court premises. This inspection commenced on
December 17, 1959.
We may now pass over applications made by the
appellant for the return of documents unconnected with manganese ore and by the
Customs authorities for extension of time and for handing over all the
documents to them. Suffice it to say that the Magistrate declined both the
requests, and extended time for inspection till April 9, 1960.
On February 6, 1960, the Customs authorities
filed a last application for getting custody of the documents and for certain
facilities for proper inspection in secrecy, if the inspection was to be done
in the Court premises. This application was summarily dismissed by the
Magistrate the same day.
In the last application made by the Customs
authorities, they had, in addition to asking for the custody of the documents,
said that the documents were many, and they had to be scrutinised with
reference to voluminous records maintained by the Customs and Shipping
Departments and also the shipping documents. They also said that certain
witnesses and informers had to be questioned, and that it was not possible to
complete the work within reasonable time, if the inspection had to be carried
on, not only during Court hours but 549 in the presence of the representatives
of the appellant. They had, in the alternative, asked for a separate room where
the scrutiny and discussions between the Customs Officers could take place in privacy
and for facilities for inspection of the records even after Court hours,
because during the day, the staff at their disposal was limited. Both these
matters, of courses were disposed of summarily; but the learned Magistrate had,
in his earlier orders, said that he could give them only such room as he could
spare, since he had not unlimited accommodation at his disposal. The Magistrate
also observed that he was, in no event, allowing the Customs authorities to
take the documents away, which had been seized as a result of warrants issued
by him. He claimed that the documents belonged to him, and could be inspected
only as, when and where he ordered.
Against the order of the Magistrate, an
application for revision was filed by the Customs authorities in the Calcutta
High Court. According to the practice of that High Court, the Chief Presidency
Magistrate was also called upon to show cause against the application. He
showed cause on the same lines. The application in revision was disposed of on
July 1, 1960 by the High Court, and it is that order which is appealed against,
The High Court, in its order, observed that
the Chief Presidency Magistrate had "placed real difficulties in their way
of speedily and properly finishing the task of scrutinising the documents"
that due consideration was not given by the Chief Presidency Magistrate to this
expect of the case, and holding that the Customs authorities under the law were
entitled to the custody of the documents seized, ordered that all the documents
(bar 63 documents) should at once be handed over to the Customs authorities,
with an imperative direction to 550 complete the scrutiny of the documents
within three months from the date the order of the High Court reached the Chief
In this appeal, two questions arise. The
first is whether the Customs authorities are entitled to the custody of records
seized by them under a search warrant issued under s.172 of the Sea Customs Act,
and the Magistrate cannot deny them the right to carry away the documents for
their scrutiny. If the answer to this question is in the negative, a second
question arises whether the order of the Chief Presidency Magistrate gave inadequate
facilities to the Customs authorities for inspection and scrutiny of the
We shall deal with the question of law first.
The Customs authorities claim that the
documents seized by them can be retained by them for performing their statutory
duties. They say that there is no difference between contraband goods and
documents relating to contraband goods, and the same procedure should apply.
when goods are seized without a warrent, the Customs authorities are not
required under the Act to make them over to a Magistrate; when documents or
goods are seized on a warrant, they can only enter the premises for effecting a
search, armed with the warrant of a Magistrate. According to the Customs
authorities, once a Magistrate has issued a warrant, his connection with the
search comes to an end, and whatever is seized as a result of the search is to
be disposed of by the Customs authorities in the discharge of their duties to
adjudicate whether any contraband goods have been brought into the country against
the Customs law.
It is contended that just as the goods seized
by them under the Act are not required to be produced before a Magistrate, so
also documents seized under a warrant from a Magistrate need not be produced
before him. They concede, however, that a Magistrate has jurisdiction 551 over
his warrant, which he can withdraw, annul or modify.
It appears that, in the Calcutta high Court,
there is a conflict of opinion on this point, which arises on two exprects of
s. 172 of the Sea Customs Act. That section reads:
"Any Magistrate may, on application by a
Customs collector, stating his belief that dutiable or prohibited goods or any
documents relating to such goods are secreted in any place within the local
limits of the jurisdiction such Magistrate, issue a warrant to search for such
goods or documents.
Such warrant shall be executed in the same
way, and shall have the same effect, as a search-warrant issued under the law
relating to Criminal Procedure." In an unreported case of the Calcutta
High Court, Calcutta Motor & Cycle Co. v. Collector of Customs (1),
Debabrata Mookerjee, J., has held that search warrants must be issued, when the
Customs Officer states his belief etc., and the Magistrate is not required to
form his own opinion. He has further held that warrants issued under s. 172 are
not impressed with all the characteristics and features of a warrant under s.
96 of the Criminal Procedure Code, and that the form of the warrant prescribed
under the Code can be suitably changed under s. 555 of the Criminal Procedure
Unfortunately, the judgment of Mookerjee, J.,
was not produced before us, and the above is a summarry made in the judgment
The matter also came before the High Court in
two other cases, and the judgments can be read in some unauthorised reports. In
Calcutta Motor Cycle Co. v. Collector of Customs (2), Sinha, J., dealt with the
matter under Art. 226 of the Constitution. The view of Sinha, J., was upheld by
the Division 552 Bench in Collector of Customs v. Calcutta Motor & Cycle
Co. (1). It is held in that case that a general seach warrant without
specifying the goods or documents is a good warrant, and that the warrant for
search implies the power to seize goods and documents. Sinha, J. also observes
obiter that the goods or documents seized as a result of the search need not be
produced before the Magistrate, and may be retained by the Customs authorities,
and, further, that the warrant should be suitably amended enable the Customs
authorities not only to search for goods or documents but also to seize them.
In S. K. Sribastava v. Gananand (2), Sen, J., dissent from the observations of
Sinha, J., and holds that when goods or documents are seized in execution of a
search warrant, the ultimate disposal of the books and papers must be unde the
Magistrate's order, and that there is nothing in the Sea Customsd Act to show
that the Customs-collector is the final authority to dispose of the papers and
books. he also does not accept the contention that, as there is no pending
proceeding in the Court, the production of the goods and documents seized is
not necessary before the Court. He further holds that the Magistrate has the
power to insist that the inspection shall be completed within a reasonable
time, and papers and books not required for the purpose of the case are
returned promptly to the party. At p. 1078, the learned Judge observes:
"After seizure by the police in
execution of the search warrant, the goods and documents must normally be
produced before the court issuing the search warrant.
That is implied by the issue of a search
warrant by a Magistrate for search of a place within his jurisdiction and is
expressly provided for in the prescribed forms for search warrant under
sections 96 and 98 of the Code." In the judgment under appeal, the view
expressed by Sinha, J., has been preferred. The learned Judge has referred to
the language of s. 172, and has contrasted it with the language of s. 96 of the
Code. He observes that the words "wherein the court has reason to
believe" do not occur in s. 172 of the Sea Customs Act, and the
Magistrate, therefore, has no discretion but to issue the search warrant in
spite of the words "may issue" in that section. He however, goes on
to say that the magistrate, in issuing the search warrant, acts judicially, and
may examine whether the belief is really entertained by the Customs Officer or
not, or whether there is any mala fide action. Except for these two matters,
the magistrate has no other discretion. Once the documents have been seized,
the second paragraph of s. 172 begins to operate, and the magistrate's
responsibility is at an end. He agrees with Debrabata Mookerjee, J., that all
the provisions of the Code do not apply, and after seizure, the action of the
Customs authorities is independent and uncontrolled by the Code. He, however,
concedes that "the ultimate responsibility" of the Magistrate and his
"overall control" still remain.
But he states that "the immediate
control" must remain with the Customs authorities, who need not produce
the documents before the Magistrate, because seizure would be meaningless, if
they did not have the power to scrutinise and inspect the documents in their
The pendency of a proceeding before a
magistrate as a condition precedent to the issue of a warrant is no longer a
matter for consideration, after the decision of the Privy Council in Clarke v.
Brojendra Kishore Roy Choudhury (1). A Magistrate thus has jurisdiction the
moment an application for warrant is made before him, and proceedings on that
application can be said to have started under the Code.
Section 172 of the Sea Customs Act by 554 its
second paragraph brings into operation the provisions of the Criminal Procedure
Code, and, therefore, the Magistrate's jurisdiction is both under s. 172 of the
Sea Customs Act and the Criminal Procedure Code. There can be no doubt also
that unlike s. 96, the magistrate is to be guided by the belief on the on the
Customs authorities, though he may prevent undue harassment in cases, where it
can be seen that the belief is not entertained by the Customs officer or his
action is mala fide. The Magistrate is certainly entitled to satisfy himself about
the belief of the Customs Officer, himself about the belief of the Customs
Officer, but is not required to make up his own mind independently of that
belief. To this extent only is the matter in the control of the Magistrate,
before he issues the warrant. After the warrant' is issued, it is an order of
the Magistrate enabling the Customs athorities to take action, for without
warrant, they cannot enter any house or premises. The warrant of the
Magistrate, so to speak, opens the door for entry into a house or premises, and
the authority to do so is based upon the Magistrate's order. The forms
prescribed under the Code require that articles seized as a result of the
warrant should be brought into Court, and a Magistrate, who issues a search
warrant, is entitled to see that his warrant is not abused, and has been
properly executed. In a suitable case, of course, a Magistrate may amend the
warrant dispensing with the production of the goods or documents before him.
That, however, would be in a clear case only;
but if the Magistrate so desires, he need not
amend the form, and may keep the control of the goods or documents in himself.
This he may find necessary to do, so that the warrant issued by him is not
abused or made the instrument of harassment. A condition, therefore, in the
warrant that the goods or documents should be produced before the Magistrate
must be complied with, and once the goods or documents have been produced
before 555 the Magistrate, it is for him to decide, in the circumstances of
each case, whether he would make them over to the Customs authorities or not.
Where the Customs authorities have been somewhat indiscriminate in their
seizure, the Magistrate may find it necessary to have the goods or documents
serutinised under his control, so that goods or documents not really subject to
the Sea Customs Act are not retained for an unduly long period.
The words "ultimate responsibility"
and "overall control" used in the judgment under appeal would mean
nothing, if they did not imply the power of the Magistrate, to which we have
referred. If they mean anything, they mean the power of the Magistrate to see
that his own warrant is not used in a manner which he did not contemplate. The
second paragraph of s. 172 of the Sea Customs Act, which applies the Criminal
Procedure Code, says that the warrant shall be executed in the same way and
shall have the same effect as a search warrant issued under the Criminal
Procedure Code. The execution of a warrant is one thing, and its effect is
In talking of the effect, s. 172 of the Sea Customs
Act intends to apply not only the Criminal Procedure Code but also the forms
prescribed, and if the form says that the goods or documents should be produced
before the Magistrate to be dealt with under his direction, then that effect
necessarily flows from the words of that section.
In our opinion, the view expressed by Sen,
J., is correct.
In view of what we have said above, it is
clear that the Magistrate's order that the 959 documents, which were seized,
should remain in his custody and be scrutinised in his Court, was also correct.
No doubt, the documents seized are many, and a still more voluminous record
will have to be gone into, to find out the relevance of the documents seized.
But that is a matter of detail bearing upon 556 the scrutiny and inspection of
the seized documents and not upon their custody. If difficulties arise, (and
they must have), they are capable of being removed by a judicious action on the
part of the Magistrate and collaboration the part of the Customs authorities.
This is a matter of expediency rather than of law. In our opinion, though the
learned Magistrate was legally right in retaining control over the documents
seized, he was unduly narrow in his view in affording facilities for inspection
and scrutiny. Perhaps, his action was some what justified, if one looks only at
the inordinate delay and the leisureliness with which the inspection was being
made. But Magistrates, even though they may desire expedition, must not
frustrate other departments of Government in discharging their legitimate
duties under the Act.
On this part of the case, learned counsel for
the Customs authorities was very frank and accommodating. He said that the
Customs authorities are not keen on the custody of the documents but only on
their proper inspection in privacy, because they have to bring in various
documents for comparison and have to examine witnesses and informers. He said
that if a separate room in the Court premises were given to the Customs
authorities, and they were allowed to have inspection even after Court hours,
they would be able to complete the inspection within three to four months time.
The difficulties of the Customs anthorities are also many. Their supervisory
staff has to deal not only with this case but many others, and in view of the
volume of records which they have to go through in connection with this case,
it is obvious enough that time would be needed.
In our opinion, we must discharge the order
of the learned Judge that the documents be handed over to the Customs
authorities. The Magistrate is right in keeping these documents in his immediate
custody; but we must direct that due facilities for inspection should be
afforded to the Customs authorities in the shape of a separate room and
suitable furniture and time extended beyond the ordinary Court hours.
Inspection should be carried on in the presence of a Court official, and
adequate privacy for questioning witnesses etc., should be afforded to the
Customs authorities, whenever they find it necessary. In our opinion, if these
facilities are granted-and we direct that they be granted-a period of four
months from the date this order reaches the Magistrate should prove enough. We,
therefore, set aside the order for the handing over of the documents to the
Customs authorities, and make a direction for the disposal of the records, as
stated above. We may add that this order does not apply to the 63 documents,
which the Customs authorities have already agreed to return to the party.