1985 PLP 1829 (SCMR)

ASLAM RIAZ HUSSAIN, J.‑‑The petitioners seek leave to appeal against the judgment and order of a learned Single Judge of the Lahore High Court, dated 6th October, 1979 dismissing his writ petition (No. 5151 of 1978). The facts giving rise to the petition are, briefly, that on 11th February, 1975, the Custom Intelligence and Investigation Staff intercepted a truck, carrying foreign cloth, betelnuts, been leaves, batteries and some new tyres, which were suspected to have been smuggled into the country. The truck as well as the goods were seized. An F.I.R. was lodged on 10th April, 1975. The Deputy Collector, Central Excise issued a show‑cause notice to the petitioners as to why the seized goods should not be confiscated. It may be mentioned that petitioners Nos. 1, 2 and 1 were the driver, cleaner and owner of the truck respectively. Petitioner No. 4 who was joined subsequently, claimed to be the owner of the seized goods. The legal question that needs determination in this case is the meaning of the words 'notice given' as used in section 168(2) of the Customs Act, 1969. The said provision reads as follows: "S. 168(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 person from whose possession they were seized". The question involved in this case, briefly stated, is whether the words 'give notice' mean 'issue' notice to the accused or to 'effect service' of the notice on him. The learned counsel for the petitioners, relying on the wording of section 168(2) and section 180 of the Customs Act, together with the provisions of section 27 of the General Clauses Act (X of 1897) which creates certain rebuttable presumption with regard to service of notice sent by post, argued that the intention of the Legislature was clearly, that the party against whom action was sought to be taken should be put on notice as to what he is required to explain or show cause against. In other words the requirement, according to him, is that the notice must be served on the person concerned. On the other hand the learned Deputy Attorney‑General relied on the same provisions as well as section 215 of the Customs Act and the definition of word 'notice' as given in Black's Dictionary, argued that, in the context, the words 'give notice' refer only to the duty cast by the law to issue a notice to the accused persons and that to hold otherwise would amount to placing the premium on successful evasion of service by the accused persons. We feel this is a case of first impression, requiring and authoritative pronouncement by this Court. Leave is, therefore, granted to consider this question. Security in the sum of Rs.2,

000. The appeal shall be argued on the same record but the petitioners are permitted to file further documents, if they so desire. A. A. Leave granted.