Biramani Sahu Vs. Collector, Custom and Excise and ors.

Biramani Sahu vs Collector, Custom and Excise and ors.

Type Court Judgment Court Orissa Decided Apr 11, 1979

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Citation: sooperkanoon.com/528606
Court: Orissa High Court
Judge: S. Acharya and ;J.K. Mohanty, JJ.
Decided On: Apr 11, 1979
Subject: Criminal

Case Summary

AI-generated summary - not the official court judgment text.

- MOTOR VEHICLES ACT, 1988 [C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal ...

Key legal issue: Criminal

Parties & Advocates

Appellant / Petitioner

Biramani Sahu

Respondent

Collector, Custom and Excise and ors.

Legal References

Reported In: 48(1979)CLT101; 1980CriLJ54

Excerpt

.....extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - 4. from the counter filed on behalf of opposite parties 1 and 2 it appears that these opposite parties kept the seized goods in the district treasury at sambalpur for..........be appointed and private warehouses may be licensed.there is nothing on record to show that either the district treasury at sambalpur or the sambalpur divisional office of the customs department, in which the said articles and goods were kept, was ever appointed or licensed as a public or private warehouse under the provisions of section 57 or 58 of the act. the goods were seized from the petitioner's premises. so it was for the department to make arrangements for the storage and proper upkeep of the said articles. as the goods were kept in the above-mentioned places and not in any warehouse, charges for storage and upkeep etc. of the same could not have been levied on the petitioner under section 63 of the act.mr. p.c. misra, the learned counsel appearing for opposite parties 1 and 2 could not show any legal provision under which the petitioner in the facts and circumstances of this case could be made legally liable to pay the said charges.5. on hearing the counsel appearing for the parties we are satisfied that the order in annexure 5 directing the petitioner to deposit the aforesaid amount of rs. 4,379.96 p. was not legal. accordingly, the order in annexure 5 so far as it relates to the payment of the said amount is quashed.the writ petition is accordingly allowed. in the circumstances of the case, each party to bear his own costs.j.k. mohanty, j.6. i agree.

Full Judgment

S. Acharya, J.

1. Certain goods and some cash were seized from the petitioner by the officers of opposite parties 1 and 2 on 26-9-1976. By Annexure 5, dated 30-6-1977, the petitioner was informed to take delivery of the goods seized from him, excluding the seized primary gold and the trunk from which gold was recovered, on depositing Rs. 4,379.96 Paise towards the expenditure incurred for transportation, storage, security arrangement etc. for the said valuables.

2. The learned Counsel appearing for the parties state that the silver articles which had been seized have been handed over to the Income-tax Department and the seized cash has been returned to the petitioner, but the seized primary gold is still with the Customs Department.

3. The petitioner by this writ petition has challenged only the portion of the order in Annexure 5 directing him to pay the above-mentioned amount.

4. From the counter filed on behalf of opposite parties 1 and 2 it appears that these opposite parties kept the seized goods in the District Treasury at Sambalpur for some time, but on the objection of the District Magistrate, Sambalpur, the seized goods were removed to the Divisional Office of the Customs Department at Sambalpur for safe custody. The above-mentioned amount of Rs. 4,379.96 has been demanded from the petitioner on account of expenditure incurred by the Customs Department for storing the said goods at different places as stated above. It is quite evident from the counter that the said goods were not kept in any 'warehouse' as defined under the Customs Act, 1962. 'Warehouse' has been defined under Sub-section (43) of Section 2 of the Customs Act (hereinafter referred to as the 'Act') as follows:

'Warehouse' means public warehouse appointed under Section 57 or a private warehouse licensed under Section 58.

Warehoused goods' as denned under Sub-section (44) of Section 2 of the Act mean goods deposited in a 'warehouse'.

There is nothing in the counter filed on behalf of opposite parties 1 and 2 to show that the seized goods in this case were ever stored in any warehouse. Annexure A attached to the counter does not show any rent or expenses incurred by the Customs Department for storing the said articles in a warehouse.

Section 9 of the Act provides that -

The Board may, by notification in the Official Gazette, declare places to be warehousing stations at which alone public warehouses may be appointed and private warehouses may be licensed.

There is nothing on record to show that either the District Treasury at Sambalpur or the Sambalpur Divisional Office of the Customs Department, in which the said articles and goods were kept, was ever appointed or licensed as a public or private warehouse under the provisions of Section 57 or 58 of the Act. The goods were seized from the petitioner's premises. So it was for the department to make arrangements for the storage and proper upkeep of the said articles. As the goods were kept in the above-mentioned places and not in any warehouse, charges for storage and upkeep etc. of the same could not have been levied on the petitioner Under Section 63 of the Act.

Mr. P.C. Misra, the learned Counsel appearing for opposite parties 1 and 2 could not show any legal provision under which the petitioner in the facts and circumstances of this case could be made legally liable to pay the said charges.

5. On hearing the counsel appearing for the parties we are satisfied that the order in Annexure 5 directing the petitioner to deposit the aforesaid amount of Rs. 4,379.96 P. was not legal. Accordingly, the order in Annexure 5 so far as it relates to the payment of the said amount is quashed.

The writ petition is accordingly allowed. In the circumstances of the case, each party to bear his own costs.

J.K. Mohanty, J.

6. I agree.

Same Court & Year Orissa · 1979 Same Parties Biramani Sahu vs Collector, Custom and Excise and ors. Same Subject Criminal Same Judge S. Acharya and ;J.K. Mohanty, JJ.

Criminal