P L D 1960 (W (PLP)

This is a petition under sections 491 and 561‑A, Cr. P. C. praying that the petitioner, Abdul Karim, be set at liberty from detention in the civil prison at Karachi.

2. The facts leading to his detention are that in 1957 the petitioner was intending to travel to Dacca by air, but was arrested by the Customs authorities at the Drigh Road Airport for veins in unlawful possession of smuggled gold valuing about one lac of rupees. The Collector of Customs decided to confiscate the smuggled gold and also imposed a personal penalty of on; lac rupees on the petitioner under section 167 (81) of the Sea Customs Act. The petitioner failed to pay the penalty imposed on him, with the result that on 1‑2‑60 he was arrested under the orders of the Collector of Karachi under section 157 of the Bombay Land Revenue Code and detained in the civil prison.

3. The main ground put forward in the petition is that the penalty levied by the Customs authorities is to be recovered by a Magistrate in the manner provided for the realization of fines and not by the Collector as an arrear of land revenue. At the hearing of the petition, Mr. Raymond, the learned Advocate appearing for the State, has contended that the petition proceeds on a misconception of the law which applies in the present case. He has pointed out that under section 193 of the Sea Customs Act, as amended by the Customs and Tariff Amend ment 'Act, 1957, a penalty imposed under the Sea Customs Act is to be recovered by the Collector as if it were an arrear of land revenue or a public demand. This being so, the very basis of this petition is knocked out. Mr. Manzoor, appearing for the petitioner, concedes this position, but raises certain other points, which may be briefly noticed.

4. In the first place, he contends that the penalty in the present case was imposed before the amended section 193 in question came into force. This section was enforced from 1‑7‑57 by a special notification of the Central Government. It seems to me, however, that the contention has no force, as the amended section 193 provides a procedure for realisation of unpaid amounts of penalties levied under the Sea Customs Act. If any amount is unpaid on the date this amended section came into force I cannot see what difference it makes whether the penalty was imposed at a date prior to 1‑7‑57. 1 would hold, therefore, that ,the procedure laid down in. section 193, i.e., realisation of an unpaid penalty as if it were an arrear " of land revenue, would apply irrespective of the fact whether the penalty was imposed or incurred before or after coming into force of the amended section, the only requirement being, that the penalty should have remained unpaid on the date the section came into force.

5. The next contention raised is that it should have been ascertained whether the petitioner had any means or ability to pay the penalty and was still unwilling to do so. It is stated by the learned counsel for the petitioner that the petitioner is only a poor labourer and, therefore, has no means to pay, and accordingly his detention in a civil prison will not serve any useful purpose for the State. For this proposition he relies on Order XXI, rule 40 and section 51 of the Code of Civil Procedure. The later section lays down certain limitations on the power of the Court to detain a defaulter in prison, and one of the limitations is that the Court should ascertain that the judgment‑debtor has or has had since the date of the decree, the means to pay the amount of the decree or some substantial part thereof, and refuses or neglects, or has refused or neglected to pay the same. Now, the power of the Collector Ito detain a defaulter in the civil prison in connection with his failure to pay an arrear of land revenue ‑is derived from section 157 of the Bombay Land Revenue Code of 1879. The section itself does not contain any limitation of the nature which is mentioned in section 51 of the Civil Procedure Code. The only limitation prescribed is regarding the period of detention, which is to be regulated by the period for which a judgment‑debtor could be detained in the civil prison in execution of a decree of a Civil Court for a debt equal in amount to the arrear of land revenue due by such defaulter. It appears to me that, if the intention of the framers of the Bombay Land Revenue Code, 1879, was to subject the power of detention conferred on the Collector to limitations of the kind laid down in section 51 of the Civil Procedure Code, they would have said so clearly and expressly. The only limitation they have prescribed is as regards the length of the period of detention. I am, accordingly of the view that the detention ordered under section 157 of the Sind Land Revenue Code, 1879, is not governed by the limitations otherwise contained in the Civil Procedure Code.) The result, therefore, is that it was not necessary for the Collector of Karachi to determine before hand the ability or means of the petitioner to pay.

6. It is clear, therefore, that the detention of the petitioner is in accordance with the law, i.e., the amended section 193 of the Sea Customs Act read with section 157 of the Bombay Land Revenue Code, 1879 and no case is made out for interference by this Court. The petition is dismissed. K. M. A. Petition dismissed.