1969 PLP 208 (SCMR)

Mr. M. B. Zaman appearing is support of the appeal did not press the first ground for the reason that section 187‑A of the Sea Customs Act which provided that no Court shall take cognizance of any offence relating to smuggling of goods punish able under items 8 and 81 of the Schedule to section 167 except upon complaint in writing made by the Chief Customs Officer was repealed before the contraband goods were seized in the instant case. Also by Notification No. 77 issued by the Governor‑General‑in‑Council on 28th August 1937, under section 124 of the late Government of India Act, 1935, all police officers above the rank of a head constable and all members of Frontier Constabulary of the rank of non‑commissioned officer in the defunct province of the N.‑W. F. P., were under section 6 of the Sea Customs Act nominated to be Custom Officers for their respective jurisdiction and to exercise the powers conferred and to perform the duties imposed by the Sea Customs Act. In support of the second contention the learned counsel relied on section 182 of the Sea Customs Act which provides: "

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 and 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 deems appro priate." It was maintained that unless the officers of Custom adjudge confiscation of goods a Magistrate cannot take cognizance of the offence defined in item No.

81. The first branch of the argument does find support from the provisions of section 182 as the Sea Customs Act contemplates adjudication of confiscation and penalty by officers of the Custom and not by Magistrates. However, it does not follow that such an adjudication ,!qt precede `cognizance by the Magistrate. Under section 187 all offences other than those cognizable under section 187 by officers of Custom may be tried summarily by a Magistrate provided that in the cases mentioned in numbers 8 and 81 of the Schedule to section 167 so far as concerns special goods the offences shall be tried by a Court having powers not inferior to those of a Magistrate of Ist Class. As seen under action 182 officers of Custom are to adjudge if anything is liable confiscation and any person liable to penalty, but it lies into jurisdiction of Magistrates alone to try the offenders and pose them the punishment provided for in column 3 of m No. 81 vii. rigorous imprisonment up to six years or a fine .A exceeding five times the value of the goods or both and in addition to tile punishment of whipping. Section 187 is confined mode of trial and does not imply that offences cognizable by officers of Custom for adjudging if any goods are liable to confiscation or any person is liable to penalty excludes jurisdiction of a Magistrate from taking cognizance of the offence which in addition to `confiscation' and `penalty' is liable to be, punished with imprisonment, fine and whipping. It will be advantageous for proper construction of the entry in column 3 of item No. 81 to refer to the legislative changes introduced in it from time to time. The original entry was to the following effect "such goods shall be liable to confiscation, and the person concerned, in any such offence, shall be liable to a penalty not exceeding five times the value of the goods." The Amending Act XIV of 1958‑added the following "except that in the case of the export of special goods, such goods shall be liable to confiscation ; and any person concerned in any such offence shall, on conviction before a Court, be liable to imprisonment for a term not exceeding six years and not less than one month, and shall also be liable to fine." Lastly the Amending Ordinance VIII of 1963 in order to make the law more stringent provided as follows "such goods shall be liable to confiscation ; and the person concerned in such offence shall, on conviction before a Magis trate, be liable to imprisonment for a term not exceeding six years, or to a fin6 not exceeding five times the value of the goods, or to both, and in addition shall also be liable, if the Magistrate in his discretion so orders, to the punishment of whipping." Simultaneously section 187‑A was repealed and by virtue of the provisions of the Second Schedule to the Code of Criminal Procedure, the offence under item No. 81 being punishable with imprisonment for more thin three years became cognizable. The phrase: "Such goods shall be liable to confiscation" should be construed in goods light of the legislative changes mentioned above. According to the original entry officers of the Custom alone were to deal will, contraband goods, but it did not follow that unless they adjudged liability to confiscation and penalty the newly added penalties of imprisonment, fine and whipping were to remain in abeyance or if the Custom Authorities chose not to confiscate the goods the liability to imprisonment, etc. was B done away with. The word "and" after the clause "such goods shall be liable to confiscation" must, therefore, be read in disjunctive sense and not conjunctive sense as contended for by Mr. M. B. Zaman. It follows that the liability to prosecution under item 81 of the Schedule to section 167 of the Sea Customs Act before a Magistrate is not dependent on prior adjudication of liability to confiscation of goods by officers of the Custom. In this view the High Court has rightly declined to quash the proceedings commenced against the petitioners under item 81, section 167 of the Sea Customs Act notwithstanding the absence of adjudication by the officers of the Custom as to the liability of the goods seized. from their possession to confiscation‑ The appeal is, accordingly, dismissed. Appeal dismissed.