P (PLP)

The facts of this case are very simple. "Ratna Sagar," a country craft, arrived at Karachi on the night between 18th and 19th May 1948 carrying goods. According to the Customs Rules a craft arriving at Karachi from outside has to anchor at the Napier Mole but "Ratna Sagar" was, contrary to the rules, taken to and anchored opposite to the Bhit Island. Appellant Ayoob was the tindal and appellant Bawla one of the boatmen employed on the boat. On getting some information the Chief Inspector of Customs, Mr. Undy, went to the boat and carried out a search. Appellant Bawla was found there on the boat at the time but appellant Ayoob and some of the other boatmen had left the boat. While the search vas being' carried out appellant Ayoob arrived. Then bags containing six maunds and four seers of Ganja were found on the boat. Appellant Ayoob admitted that he was in charge of the craft, threw himself at the feet of the Inspector, and pleaded that he had only been informed of Ganja having been brought on board the craft some four hours after they had left Jamnagar by appellant Bawla‑ Appellant Bawla contended that at Jamnagar, one Ibrahimali had asked him to carry the goods for him as he was travelling by air. Appellant Bawla made a statement to the effect that Rs. 850 had been paid by him to the tindal, that is the appellant Ayoob, for carrying the goods. Witnesses Nakani and Yousif were present at the time when the Ganja was secured and the appellants made the admissions. The evidence of the Inspector Mr. Undy and witnesses Hakani and Yousif clearly proved the case 'against the appellants. Mr. Sheikh, tae learned advocate who appears on behalf of the appellants, attempted to argue that the statements alleged to have been made by the two appellants to the Inspector were inadmissible in evidence because they were made while the appellants were in Police custody. There is no substance in this contention because it is clear that the statements were trade when the Customs Officials went to the boat and secured the bags long before the Police were sent for. Customs Officials of course are not Police Officers and statements made by them are not covered by section 162 of the Criminal Procedure Code. 11 view of the evidence it is quite clear that the appellants were rightly convicted. Mr. Sheikh contended that the sentence passed against the appelants of ten mouths rigorous imprisonment was an excessive sentence, and he further contended that the order confiscating the boat "Ratna Sagar" was justified, and would work a at hardship which was far greater than the facts of this case would Justify. In view of the large quantity of Ganja which was secured, and the great probability that this was not the first occasion when the appellants indulged in the highly profitable business of smuggling Ganja, the sentence of ten months rigorous imprisonment does not appear to me to be excessive. Mr. Tufail Ali, the Assistant Public Prosecutor who appears in this case on behalf of the Crown, contended that it was not open to this Court to alter the order passed by the Magistrate under section 55 and 54 of the Abkari Act regarding the confisca tion of the boat. He contended that the present appeals, being appeals by convicted persons under section 408 of the Criminal Procedure Code, had to be regarded as appeals only against the orders convicting and sentencing the appellants, that each of these two appeals was an appeal from a conviction ", and not "an appeal from any other order " and he contended that sub‑clause (c) of clause (1) of section 423 Criminal Procedure Code did not therefore, apply, and t, was only sub‑clause (b) which applied. He contended, therefore, that sub‑clause (b) did not cover the order of confiscation passed by the Magistrate this Court had no jurisdiction to interfere, however unjust that order' might appear to be. It is clearly impossible to accept this contention. When a person convicted by a Magistrate has a right of appeal under section 408 of the Criminal Procedure Code, his appeal is clearly against all orders passed against him by tile Magistrate and not only against the order convicting the appellant. The order of conviction would fall under sub‑clause (b) of clause (1) of section 423 of the Criminal Procedure Code, and that sub‑clause only deals with the powers of the appellate Court relating to the order of conviction. The powers of the appellate Court relating to any other order at may have been passed by the Magistrate are conferred by sub‑clause (c). The powers of the appellate Court conferred by all the sub‑clauses of clause (1) are clearly all powers which the appellate Court may, in so far as they are applicable, exercise on the same appeal, and there is nothing is section 423 to justify the contention that when an appellate Court exercises its powers under one of the sub‑clauses the other sub‑clauses necessarily cease to have any application. The present appeals are not only appeals from orders convicting the appellants but also appeals from the order confiscating the boat and the powers conferred by clauses (b), (c) and (d), may all be exercised in such an appeal. The order confiscating the boat " Ratna Sagar " without any option to the appellants does appear to me to be one which would inflict an excessive hardship on the appellants. Section 55 of the Abkari Act empowers a Magistrate to decide that certain articles were liable to confiscation. " Under section 54 and in the case of any articles other than an excisable article or help, to give the owner an option to pay such fine as the Magistrate deems fit in lieu of confiscation." No such option was given in this case. Mr. Sheikh contends that the boat "Ratna Sagar " is worth more than Rs. 10,

000. There is no evidence on the record to show whether this statement is correct, but in any case the value of the boat which used to ply between Jamnagar and Karachi must be considerable. It is also pointed out that the confiscation of the boat would result in great hardship not only to the two appellants but also to those who depend on the profits made by plying the craft. In my view the order of the Magistrate should be modified by giving the appellants an option to pay a fine of Rs. 1,000 in lieu of confiscation. In view of the order regarding the confiscation of the boat, I set aside the order passed by the Magistrate imposing a fine of Rs. 100 against each of the two appellants. It has already been pointed out above that the Magistrate omitted to mention what imprisonment the appellants were to undergo in default of the payment of the fine of Rs. 100 which was ordered. The result is that the convictions of the appellants under section 43 (3) of the Abkari Act are upheld, and also the sentence passed against each of them of ten months rigorous imprisonment. With regard to the boat "Ratna Sagar", the Magistrate's order confiscating the boat is modified to the extent that the appellant will have the option to pay Rs. 1,000 as fine in lieu of the confiscation. Mr. Sheikh states that the Magistrate's order was construed by the Customs authorities as confiscating not only the boat " Ratna Sagar" but also all the articles and goods which were in the boat. This was not justified by the order passed by the Magistrate which makes no mention of the contents of the boat, and the appellants are in any case entitled to remove whatever there was in the boat other than the ten bags of Ganja. With this modification these appeals are dismissed. K.M.A. Appeals dismissed.