1971 P Cr (PLP)

(e) The Customs Authorities have no jurisdiction to adjudicate in the matter.

7. A perusal of the prayer clause in Criminal Revision No. 629 of 1970, unmistakably shows that the revision petition is directed against the order dated the 17th May 1969, .passed by the Magistrate, which order has been confirmed by the order dated the 15th December 1969, passed by the Additional Sessions Judge. The contention raised in paragraph No. 12, (d) of Criminal Miscellaneous No. 2 of 1970 and reproduced in paragraph 6 (a) ante is without force.

8. The learned Magistrate, in his order dated the 17th May 1969 (right or wrong) directed that the betel‑nuts and the jeep be returned to the respondents. The Collector of Customs has come up in revision to have this order set aside and by order dated the 29th June 1970, the operation of that order has been suspended. Apparently, so long as the lis, namely, whether the betel‑nuts and the jeep are liable to adjudication by the Customs Authorities, remains undecided, the Customs Authorities shall not issue any show‑cause notice. In any case, if and when they issue the notice, the respondents may plead that the Customs Authori ties are incompetent to do so on account of the specific provisions of section 168 of the Customs Act, 1969. The decision shall be subject to appeal under section 193 and revision by the Central Government under section 196 of the Customs Act, 1969. It is indeed premature to examine this plea at this stage. The plea is, therefore, ignored.

9. Maulvi Ehsan‑ul‑Haq, learned counsel for the Collector, contended that :‑ (i) while dealing with the offence under section 167(81) of the said Act, the Magistrate had no jurisdiction to give any direction regarding the delivery of possession of the betel‑nuts and the jeep ; and (ii) the Customs Authorities have exclusive jurisdiction to make adjudication with regard to the betel‑nuts and the jeep. On the other hand, Mr. Zaheer Ahmad Khan, learned counsel for the respondents; contended that the Magistrate's finding that the betel‑nuts had been purchased by Abdul Ghafur respondent in open market from Rashid Brothers, who had purchased the same from the Customs Department, had become final, especially when no steps had been taken to have the acquittal set aside. He further contended that the Customs authorities were bound by that finding and were precluded from coming to a separate, independent finding to the contrary, namely, that the betel‑nuts had been imported in contravention of the statutory prohibition.

10. The offence in question is alleged to have been committed on the 4th March 1968, when the Sea Customs Act, 1878, and the Land Customs Act, 1924, were in force. The Customs Act, 1969, came into force on the 1st day of January 1970, repealing the Sea Customs Act and the Land Customs Act. It is manifest that on the date of the impugned order viz. 17‑5‑1969, the law applicable was the Sea Customs Act, 1878. In any case, in view of sections 220 and 221 of the Customs Act, 1969, read with section 6 of the General Clauses Act, 1897, so far as the offence in question is concerned, the law applicable shall be the Sea Customs Act, 1878, and the Land Customs Act, 1924.

11. The relevant provisions are: section 167 (Items Nos. 8 and 81), 168. (confiscation of "means of conveyance), 177‑A, (burden of proof), 178 (seizure of things liable to confiscation), 182 (adjudication of confiscations and penalty), etc. These provisions came up for examination in the following cases (1) Federation of Pakistan v. Sardar Ali P L D 1959 S C (Pak.) 25. (2) S. A. Haroon v. Collector of Customs, Karachi P L D 1959 S C (Pak.) 177. (3) Assistant Director, Customs v. Muhammad Afzal Khan P L D 1964 Pesh. 178. (4) Adam v. Collector of Customs P L D 1969 S C 446. (5) State v. Ghulam Jaffar P L D 1970 Pesh. 66: (6) State v. Ghulam Jaffar P L D 1970 Pesh.

134. It was held in the case `Federation of Pakistan v. Sardar Ali' after examining Item (81) of section 167 and section 177‑A of the Sea Customs Act, that possession simplieiter of banned goods was indictable. Once it was held that the import of any particular goods had been prohibited, the possession of the goods after the date of prohibition was punishable and it was for the possesser to show that the goods had been lawfully imported. "It was not incumbent on the prosecution to prove that the goods had actually been imported" In the case `Adam v. Collector of Customs', one Adam had been prosecuted as on his search he was found to be carrying contraband gold of foreign origin, weighing 300 tolas. The trial Court sentenced him to five years' rigorous imprisonment and further directed that the old and the car which were seized from the accused be disposed of by the Customs Authorities under the provisions of the Sea Customs Act. The convict preferred an appeal to the High Court which was dismissed. Concurrently with the prosecution of the accused in the Criminal Court the Customs Authorities served a notice on the accused to show cause against the confiscation of the aforesaid goods. Adam filed a writ petition contending that the criminal prosecution of the appellant after the adjudication proceedings for the forfeiture of the goods under the Sea Customs Act bad been initiated against him by the Customs Authorities, was illegal and without lawful authority as it amounted to his trial and punishment twice over for the same offence, thus infringing the prohibition against double jeopardy, which is enjoined by law and the principles of natural justice. That case fell under sec tion 167(8‑A). The penalty clause ran as follows :‑ "Such goods shall be liable to confiscation; and any person concerned in the offence shall, on conviction before a Magistrate, be liable to imprisonment for a term not exceeding six years . . . . . It was held as follows :‑ "It is quite plain that the penalty clause of this section is in two parts. The first part refers to the liability of the offending goods for confiscation and the second to the liability, to imprisonment and fine of the person concerned in the commission of the offence under the Act in respect of those goods. The Act contains special provisions whereby the Customs Authori ties are invested with powers to search and seize goods which are liable to confiscation under the Act. . . . . . Section 182, which provides for adjudication of confiscation and penalties in all cases covered by section 167 of .the Act, except Nos. 26, 72, 74, 75 and 76 prescribes the limits of the confiscation and the penalties that can be adjudged by different officers in the hierarchy of the Customs Department. . . . . . . . . . . . . . The intention of the Legislature is thus clear that the disposal of the goods seized under the Act is left entirely in the jurisdic tion of the Customs Authorities. The proceedings taken by the Custom Authorities for the confiscation of the goods are more in the nature of department proceedings which have, been characterized in English and American jurisprudence, as proceedings in condemnation of the goods for purposes of revenue and are regarded as proceedings of it civil nature despite their penal character, The Sea Customs Authorities are not a judicial tribunal, in the strict sense of that term nor can their verdict of confiscation of the goods be regarded as a punishment by the Court after regular trial for the purpose of supporting a plea of double jeopardy. On the other hand, the proceedings for the criminal prosecution of a person who commits an offence under the Act in relation to those goods, fall in a separate category. They are judicial proceedings for the determination of the guilt of the person concerned for commission of the alleged offence and entailing a punishment for the same. Both are concurrent remedies but each is independent of the other . . . . . . . But it is quite clear that the adjudication proceedings for then confiscation of the goods under the Act neither involve a criminal prosecution nor a punishment for an offence. No trial of the offender takes place for any offence nor is any punishment awarded to the offender. Therefore, no tion of double jeopardy arises when simultaneously or subsequently a trial is held to determine the guilt of the individual, who has been concerned in the offence in respect of the goods which are the subject‑matter of the adjudication proceedings. And since the proceedings for adjudication by the custom authorities and the criminal prosecution of the offender in the Court are not interdependent, they can 'proceed simultaneously and neither can remain under suspension for the sake of the other." On a parity of reasoning it, may be concluded that a trial of the accused person (regardless of the fact whether it ends in convic tion or acquittal) is no bar to subsequent adjudication proceedings by Customs Authorities. The law on the subject has been (comprehensively and exhaustively discussed in the case reported as State v. Ghulam Jaffar. The question referred to the Full Bench was as under:- "Whether the powers of confiscation under the Sea Customs Act survive to the Customs Authorities even in a case where the Magistrate acquits or discharges the accused holding the property not to be smuggled one or to have contravened any of the restrictions or prohibitions on its import?" It was held that the proceedings before the Customs Authorities were not judicial proceedings but were departmental proceedings, and the Customs Authorities were not Courts but were Domestic Tribunals. In this connection, reliance was placed on cases reported as Thomas Dass v. State of Punjab (A I R 1955 S C 375), Maqbool Hussain v. State of Bombay (A I R 1953 S C 325) and, Shew Pujan Indrasan Ltd. v. Collector of Customs (A I R 1952 Cal. 789). In the end the question referred to, above was answered in the affirmative. In view of the decision in the Full Bench case, the direction given by the Magistrate for return of gold pieces to the accused was set aside and, further, it was directed that the gold pieces will be at the disposal of the Customs Authorities for adjudication according to the provisions of the Sea Customs Act. (Vide P L D 1970 Pesh. 134). This case is on all fours with the matter in question.

12. The aforesaid conclusion may now be made applicable to the case in hand. The direction regarding return of the betel nuts and the jeep to the respondents, as given in the impugned order dated the 17th May 1969, is invalid and the same is hereby set aside. The betel‑nuts and the jeep shall be at the disposal of the Customs Authorities for adjudication under the provisions of the Customs Act, Revision Petition No. 629 of 1970 is accordingly accepted and Criminal Miscellaneous No. 2 of 1970 is dismissed. Order accordingly.