1991 PLP 647 (SCMR)

reference. ________________________________________________________________________ "

89. If any person without Such goods shall be liable to General lawful excuse, the proof of confiscation and any person which shall be on such person, concerned in the offence shall acquires possession of, or is in be liable to a penalty not any way concerned in carrying, exceeding ten times the value removing depositing, harbour‑ of the goods " ing, keeping or concealing or in any manner dealing with smuggled goods or any goods with respect to which there may be reasonable suspicion that they are smuggled goods: ______________________________________________________________________ So far as the question of confiscation of goods is concerned, Section 168 lays down to the relevant extent:‑‑ "

168. Seizure of things liable to confiscation.‑‑(1) The appropriate officer may seize any goods liable to confiscation under this Act ... ... ... .... ... ... ... (2) Where any goods are seized under subsection (1) and no show‑cause notice in respect thereof is given under section 180 within two months of the seizure of the goods, the goods shall be returned to the persons from whose possession they were seized: Provided that the aforesaid period of two months may, for reasons to be recorded in writing, be extended by the Collector of Customs by period not exceeding two months." Section 180 which has been referred to in the provisions above‑cited lays down:‑‑ "

180. Issue of show cause notice before confiscation of eoods or imposition of penalty.‑‑No order under this Act shall be passed for the confiscation of any goods or for imposition of any penalty on any persons, unless the owner of the goods, if any, or such person‑‑ (a) is informed in writing (or if the person concerned consents in writing orally) of the grounds on which it is proposed to confiscate the goods or to impose the penalty; (b) is given an opportunity of making a representation in writing F(or if the person concerned indicates in writing his preference for it orally) within such reasonable time as the appropriate officer may specify, against the proposed action; and (c) is given a reasonable opportunity of being heard personally or through a counsel or duly authorised agent:" A perusal of these provisions shows that a show‑cause notice must be issued under Section 180 of the Customs Act before any order of confiscation of goods or an order of imposition of penalty is passed. Section 168(2) of the Customs Act, however, provides that where the goods are liable to confiscation a show‑cause notice must be issued within two months of the seizure of the goods which may be extended by another period of two months; otherwise the goods I shall be returned to the person from whose possession they were seized. The question of imposition of penalty is not dealt with under Section 168(2) of the H said Act. Therefore, it does not appear to be correct to say that the failure to issue a statutory notice within the requisite period which is essential before any order of confiscation of goods can be passed also results in absolving the said party from the liability of imposition of penalty, even though a notice was issued why penal action under section 158(89) should not be taken, though on a date after two months of seizure of goods. Indeed the question whether the provisions of section 180 are controlled by the provisions of section 168(2) has been discussed in some detail in Messrs Sikandar an Brothers v. Government of Pakistan through Member (Judicial), Central Board of Revenue and another (PLD 1986 Kar.373) wherein it was inter alia observed:‑‑ "Section 168 of the Customs Act enacts provision relating to the seizure of goods, while section 180 makes provision for issue of show‑cause notice for confiscating of goods. Seizure of goods and confiscation of the same are distinct and different matters. Seizure would mean taking possession. The ordinary rule is that no goods or property of any citizen can be seized and he cannot be deprived of its user. In departure of this rule, section 168 of the Customs Act empowers the appropriate officer that when any goods are liable to confiscation, to seize the same. When subsection (1) of section 168 has empowered the appropriate officer the special right to seize such goods, its subsection (2) places a corresponding obligation on him that in the event of seizure of goods he is bound to proceed for adjudication of confiscation of the goods at an early date. In order to see that the appropriate officer should not retain such goods after seizure of the same and deprive the owners of their user, subsection (2) of section 168 requires that a notice, as required under section 180 of the Act, should be given to the person from whom goods had been seized, within a period of two months, and if such notice is not given to him the goods must be returned to him. The word `return' would mean to pass back or to release the same from seizure. But it would not tantamount to lessor of the liability of the goods from confiscation under the provisions of the said Act. Therefore, subsection (2) of section 168, makes provision for curtailment of the period during which seized goods can be retained for issuance of notice under section 180(a). Once the said notice is issued within the period prescribed under section 168(2), the goods seized can be retained till the adjudication of the confiscation proceedings. So, the failure on the part of the Customs Officers to issue notice within the period contemplated by subsection (2) or proviso thereto, of section 168, would certainly clothe the person, from whom the goods have been seized with the right to claim the return of the same but it does not, set at naught the provision of section 180 and will not deprive the Customs Officers to issue notice under section 180 for the obvious reason that it (section 180) does not prescribe any time limit for issuance of such notice. All that it provides is that no order under the said Act shall be passed for the confiscation of any goods or for imposition of any penalty on any person unless the owner of the goods, if any, is informed in writing under clause (a) and is given an opportunity of making a representation under clause (b) and is given a reasonable opportunity of hearing under clause (c). There is nothing in tear the said section from which an inference can possibly be drawn that the said notice contemplated by clause (a) of section 180 is subject to the provision contained in section 168 of the Act. As such, it would not be proper to import the limitation of two months prescribed by subsection(2) of section 168 which can be extended for a further period not exceeding two months, vide proviso to the said subsection (2) into the provisions of section 180 of the said Act. Clearly, section 180 does not prescribe any time limit for issuing the show‑cause notice and it is not permissible to go into the intention of the Legislature for not making provision for such a time limit in it. Therefore, it would not be legitimate to curtail the extent and scope of section 180 of the Act, which, does not contain any time limit for issuance of show‑cause notice by saying that in view of the provisions of subsection (2) of section 168, the said notice must be issued within sixty days of the seizure of the goods or within the duly extended period of not more than sixty days thereafter. In that view of the matter, it cannot be maintained that a notice, as required under clause (a) of section 180 of the said Act is illegal, simply because it had ' not been issued within sixty days or the extended period contemplated by subsection (2) of section 168 of the said Act." I agree with the above reasoning and approach of the learned Judges `of the Sindh High Court and would hold that as a show cause notice was duly issued by the Customs Authorities requiring him to show cause why the goods should not be confiscated and a penalty not imposed, the order imposing the penalty could, in these circumstances be passed even though the goods were not confiscated and had to be returned on account of the lapse of the Customs Authorities in issuing the notice more than 2 months after the seizure of the goods, which lapse rendered the return of the goods necessary as per provisions of section 168 (2) of the Customs Act. Ch. Ijaz Ahmad, learned Deputy Attorney‑General, however, very fairly brought to our notice the judgment of a learned Single Judge of the Lahore High Court (my learned brother Rustam S. Sidhwa, J., while sitting in the High Court) in Muhammad Sarwar v. Federal Government of Pakistan and others (1988 P Cr. LJ 213), wherein a somewhat contrary view appears to have been expressed. On perusal of the said judgment I am of the opinion that the view expressed therein is based on its own peculiar facts and circumstances and that the said decision is not here directly in point. I would, therefore, accept this appeal, set aside the judgment of the High Court dated 16‑8‑1983 and restore the order of the Central Board of Revenue dated 22‑9‑1976 passed in revision imposing the penalty of Rs.8,

000. Since the respondent has not contested this appeal, there shall be no order as to costs. M.B.A./J‑83/S Appeal accepted.