1993 P Cr (PLP)

MUKHTAR AHMED JUNEJO, J.

A consignment of goods which were foreign made, was found by Railway Police on 13-8-1991 in a compartment of a train, which had reached Jacobabad Railway Station from Quetta. While the seizure was being effected by Railway Police nobody at the relevant time was prepared to own the goods. The goods in question were secured and seized under the Customs Act, as there was contravention of the Customs Laws and of the Import and Export Control Act, 1950. A general show-cause notice was issued on 1-5-1991 in respect of the seized goods. Petitioners Ali Marjan, Ghulam Siddique and Muhammad Tahir submitted a written reply to the show-cause notice before the Customs authorities and claimed ownership of the seized goods. The petitioners claimed having legally purchased the seized goods against valid receipts at Quetta. They also took plea in their written reply that the seized articles being available in open market, their seizure is illegal. Petitioners challenged competency of Railway Police to seize the goods in question and that also at Jacobabad Railway Station, which was not a notified area. Want of notice under section 171 of Customs Act was also pleaded in the written reply. None of the contentions raised or pleas taken found favour with the Assistant Collector Customs and Central Excise Sukkur, before whom the matter came: Under the impugned order dated 12-2-1992 the Assistant Collector Central Customs and Central Excise, Sukkur ... ordered outright confiscation of the goods in question. Hence this Constitution petition. Mr. Ghulam Muhammad Durrani learned counsel for the petitioners argued: (i) That the Railway Police was not competent to seize the goods in question under the Customs Act. (ii) That no notice under section 171 of the Customs Act was given to owners of the goods. (iii) That no show-cause notice under section 180 of the Customs Act was issued. Learned counsel for the petitioners referred to para. 1 of the counter -affidavit, where it was conceded that no notice under section 171 of Customs Act was given but it was explained that nobody claimed the goods and hence notice could not be given. In support learned counsel for the petitioners cited the cases of:-- (i) Muhammad Haroon and another v. Federation of Pakistan and others 1991MLD397, (ii) Shershah Industries Ltd. v. Government of Sindh and others P L D 1982 Kar. 653, (iii) Azizullah v. State P L D 1981 Kar. 250, (iv) Abdul Rauf and another, v. The State and Superintendent, Lands Customs 1983 P Cr. L J 19, (v) Abdul Majid Khan v. Collector of Customs, Karachi P L D 1976 Kar.

447. Mr. Abdul Rehman Baloch learned counsel for respondents 1 and 3 argued that the petitioners had not exhausted all the remedies available to them inasmuch as they had not preferred appeal to the Collector of Customs against the impugned order, dated 12-2-1992. In respect of notice under section 171 of Customs Act, learned counsel for respondents 1 and 3 argued that the same could not have been given because nobody was present to claim the goods. It was further argued that the receipts procured by the petitioners, in respect of the goods in question, had been obtained from unauthorized dealers and that the petitioners had failed to establish that proper Excise Duty and Customs Duty was paid on the goods in question. In the case of Muhammad Haroon and another 1991 M L D 397 a Division Bench of this Court referred to a notification by which Pakistan Railways Police was expressly excluded from the category of the officers of police who were entrusted with certain functions of Officers of Customs and it was held that the Railways Police was not competent to seize the refined silver or register the case about it. In our view the principle of laws enunciated in said case would apply to present case also. Obviously the officers who are not entrusted with the functions of Customs Officers cannot seize the, alleged smuggled goods. Under the circumstances seizure of the goods by Railways Police was illegal and unauthorized. In this view of the matter we do not think it necessary to discuss the other points raised on behalf of the petitioners. Consequently we accept this Constitution petition and declare the impugned order dated 12-2-1992 to have been passed without lawful authority and to be of no legal effect. Accordingly the goods in question will have to tae handed over to the petitioners as they have already submitted the receipts for l the same. There will be no order as to costs. N.H.Q./A-1380/K Petition accepted.