1981 P Cr (PLP)

"Liability of illicit articles to confiscation.

(1) Whenever any offence has been committed which is punishable under Chapter III, the dangerous drug, materials, apparatus and utensils in respect of which or by means of which such offence has been committed, shall be liable to confiscation. (2) Any dangerous drug lawfully imported, transported, manufactured, possessed or sold along with or in addition to, any dangerous drug which is liable to confiscation under subsection (1) and the receptacles, packages and converings in which any dangerous drug, materials, apparatus or utensils liable to confiscation under sub section (1) is found, and the other contents, it any, of sue receptacles or packages and the animals, vehicles, vessels and other conveyances used in carrying the wine, shall likewise be liable to confiscation: Provided that no animal, vehicle, vessel or other conveyance shall be liable to confiscation unless it is proved that the owner thereof knew that the offence was being, or was to be or was likely to be committed. Sections 182 and 183 of the Sea Customs Act: Section

182. Adjudication of confiscation and penalties.-In every case, except the cases mentioned in section 167, Nos. 26, 72, 74, 75 and 76, in which under this Act anything is liable to confiscation or any person is liable to penalty, such confiscation or penalty may be adjudged- (a) without limit, by a Deputy Commissioner or Deputy Collector of Customs, or a Customs Collector ; (b) up to confiscation of goods not exceeding two thousand five hundred rupees in value and imposition of penalty not exceeding one thousand rupees, by an Assistant Commissioner or Assistant Collector of Customs; (c) up to confiscation of goods not exceeding two hundred and fifty rupees in value and imposition of penalty not exceeding fifty rupees, by such other subordinate officers of Customs as the Chief Customs authority may from time to time empower in that behalf in virtue of their office: Provided that the Chief Customs authority may limit the powers of any officer performing the duties of Customs Collector and may confer on any officer such powers as it deemed appropriate. Section

183. Option to pay, fine in lieu of confiscation. Whenever confiscation is authorised by this Act, the Officer adjudging it shall give the owner of the goods an option to pay in lieu of confiscation such fine as the officer thinks fit. The words, "shall be liable to confiscation" inherently include the intention of the Legislature that the vehicle used in the transportation of the goods, could not stand automatically confiscated but after using the discretion, as vested in the authority judicially, and in exercise of the principles of natural justice. The facts of Haji Abdul Razzak',s case are different. The confiscated Pick-Up in that case was alleged to have been stolen. The case about its loss was also enquired into by the police, who, after completing the investigation reported that the case was found to be true, but the culprits could not be traced." The owner of the Pick-Up was not found either in possession. of the contraband goods, or driving the Pick-Up knowing that the Pick Up contained the contraband goods. Therefore, the owner of the Pick-Up, had proved that he did not know about the alleged offence of smuggling was being, or was to be, or was likely to be committed. It is therefore clear that each case carries with it, its own background and circumstances, on which the judicial interpretation is based.

7. Another case of Harry Edward O'Neil (P L D 1975 Kar. 54) was cited by the learned Sessions, Judge, in support of the same view. The facts of that case are also different and distinguishable. The applicant O'Neil was an educationist from United States of America. He was on a teaching assignment to different countries for a period of one year. He came to Pakistan driving a Station Wagon which he had garraged with M/s. Shah Nawaz Ltd., West Wharf, Karachi for repairs. On information received by the Excise Intelligence Officer, the Station Wagon was searched and 59 gallons of Liquor was recovered from the base of the said Station Wagon. The liquor was seized and the case registered against him under section 43(3) of the Abkari Act. At the trial, the applicant admitted the presence of liquor in his Station Wagon and contended that he had failed to pay the excise duty as no such duty was leviable, in his country, and he was unaware of the. Excise Laws of Pakistan. He pleaded guilt, to the charge. Consequently he was convicted arid sentenced, till the rising of the Court and to pay a fine of is. 1,000 in default to suffer R. I. for two months. The wagon was confiscated unless in lieu thereof, the applicant paid a penalty of Rs. 4,25,000 being the local market value of the Station Wagon. In that case, it was observed that there was absence of knowledge and the complicity of the owner in the commission of the crime. The Station Wagon was released from confiscation The case was based exclusively on the point of non-payment of excise duty payable on liquor. The entire case was based on technical requirements of the Excise Act. In the instant case, the facts are different. The respondents No. 1 is the owner of both, the Land Rover, as well as, the Caravan. He had intentionally concealed the Charas, in the driving shaft and the refrigerator, fitted in the Caravan and was actively concerned with the commission of the offence of smuggling of the dangerous drug, to which charge, he bad pleaded guilty.

8. I have heard the learned counsel for Pakistan Narcotics Board at Karachi, Mr. Raja Qureshi and Mr. Rustam J. E. Kaikobad for the respondent No.

1. Mr. Raja Qureshi, after giving the facts, has taken me through the provisions of section 33 of the Act and has argued that the "Charas" was concealed in the shaft and the refrigerator, fitted in the Caravan, which was being pulled by the Land Rover. He has emphasised the point that without the Land Rover, the Caravan, by itself, could not be used for transportation. He has therefore, contended that the Caravan and the Land Rover could safely be said to have comprised of one unit, for transportation. When the Charas was found concealed in the shaft of the Caravan, both, the Caravan, as well as, the Land Rover, are liable to be confiscated, as being of one unit, though they have two different registration number plates. He has referred to the words, used "conveyances" in section 33 of the Dangerous Drugs Act, and has explained that the word "conveyance" indicated the vehicle as a unit, for conveyance for transportation.

9. On the other hand, Mr. Rustam Kaikobad has submitted that-- (a) no notice before confiscation was given, which rendered the entire procedure of confiscation of the Land Rover, illegal; (b) that the Caravan and the Land Rover are two separate units and the Land Rover is ordinarily used like a railway engine, pulling the bogies. He has contended that the Land Rover bearing separate registration number, as a vehicle, could not be classed, as one unit, with the Caravan, which carried a separate registration number. He has further submitted that the Caravan could be attached to any vehicle and would not necessarily become the part and parcel of the vehicle pulling it. He has relied upon the case of Sulleman reported in P L D 1962 Lah. 11.

10. As regards the non-issue of show-cause notice, he has referred tot the same case of the Supreme Court of Haji Abdul Razzak referred to hereinabove. On perusal of the provisions of the Dangerous Drugs Act, the learned counsel Mr. Kaikobad has not been able to point out any provision about the issue of notice, before confiscation of the property, as is provided in the Sea Customs or the Customs Act. However, the confiscation order was passed at the end of the trial, during which, the respondents were expected to be legally advised, about the consequential result of the proceedings, particularly, when the respondents had pleaded guilty to the alleged charge. Notice is an intimation or information or a warning of the proceedings against a party, for the purpose of preparing and explaining its side of the case, and contesting the merits of the matter, on law, as well as facts, at issue. In this case the respondents had sufficient notice.

11. The next point argued by Mr. Kaikobad is that the Caravan, from which "Charas was recovered, is a separate vehicle. He has no objection to the confiscation of the Caravan. Whereas, the Land Rover which was pulling the Caravan, is stated to be a different vehicle and a separate Unit. It is therefore argued that it should be released from confiscation, as it is not the part of the Caravan because it bears another registration number, and it alone costs about Rs. 60,000.

12. The material question involved is, whether the Caravan by itself is a separate unit and can independently be moved and used for conveyance. It has no engine of its own. The answer is in the negative. Unless another vehicle with an engine, pulls the Caravan, it cannot be separately, by itself, used for conveyance. It therefore impliedly becomes one unit, with any other vehicle, that moves it. If the Charas was not detected and recovered, the same Land Rover, would have pulled the Caravan, contain ing the Charas, out of Pakistan. For the purpose of section 33 of Dangerous Drugs Act, wherein, it is provided that materials, apparatus and utensils, in respect of which, or by means of which, such offence has been committed, shall be liable to confiscation. The Land Rover is the means, by which the Caravan, was pulled and driven for the purpose of smuggling of the Charas. It is correct that the words, "liable to confiscation" do not mean automatic confiscation and further that they do vest the authorities with a judicial discretion, which must be exercised upon correct principles of natural justice. Under item (12-A) of sections 167 and 168 of the Old Sea Customs Act, it was not obligatory for the Customs Authorities to confiscate the vehicles or any conveyance used for removing of the contraband goods. It was open to them to consider all the mitigating circumstances at the earliest possible moment to do justice. The guilt of the respondent in the instant case has been fully established. The confiscation of the Land Rover and the Caravan was justifiable and proper. As a result of the above discussion, I find the order of confiscation of the Land Rover to the State, passed by the learned Magistrate, Karachi (East) is correct and legal. I allow the application and set aside the order of release of Land Rover from confiscation, passed by the learned Sessions Judge, Karachi. The Land Rover stands confiscated to the State. Revision allowed.