P L D 1964 (W (PLP)

3. After hearing Mr. Kamal Mustafa in support of the reference, Mian Zia-ud-Din, Advocate on behalf of Muhammad Afzal Khan respondent, and S. Ghazanfar Ali Shah, A. A. G. on behalf of the State at some length, and on perusal of the relevant sections of the Sea Customs Act, I have formed the opinion that the seizure has not been made the police under section 523, Cr. P. C., but has-been made by the customs Authorities purporting to Act under section 171 of the Act. The Magistrate who would take cognizance of the case had no jurisdiction, whatsoever of making any order in regard to the release of the truck. I now proceed to give my reasons. The Sea Customs Act, 1878, was enacted to consolidate and amend the law relating to the levy of sea customs duties. The hierarchy of the officials are the Customs Collector, who is the officer of Customs for the time being in separate charge of a custom-house, the Chief Customs Officer who is the Chief Executive Officer of the Sea Customs for a port and the Chief Customs Authority which is the Central Board of Revenue. Chapter XVI prescribes the offences and penalties. Section 167 provides the offences mentioned in the first column of the Schedule to be punishable to the extent mentioned in the 3rd column of the same with regard to the offences, and it is a common ground that the offence of which the respondent is being, tried falls under section 167, item 81, which, as amended by Ordinance LVIII of 1962, records the following entry in the column of penalties:

"such goods shall be liable to confiscation, and the person concerned in such offence shall, on conviction before a Magis trate, be liable to a fine not exceeding five times the value of the goods, or to imprisonment for a term not exceeding ten years and not less than three months, or to both." Section 168, among other things, renders also conveyances and animals used in removal, to be confiscated, as part of that section enacts that "every vessel, cart or other means of convey ance, and every horse or other animal, used in the removal of any goods liable to confiscation under this Act shall in like manner be liable to confiscation". Chapter XVII prescribes the procedure relating to offences, appeals, etc. Section 178 relates to seizure of things liable to confiscation and reads thus:- "Any thins liable to confiscation tinder this Act may seized in any place, either upon land or water, by any officer of Customs or other person duly employed for the prevention of smuggling." The next section, namely, section 179, prescribes the procedure as to how the things seized are to be dealt with, and it states that "all things" seized . . . under this Act shall, as soon as conveniently may be, be delivered into the care of any Customs. Officer authorized to receive the same. Section 180 is in two parts. The first part provides that "when anything liable to confiscation under this Act" are seized by the police officer on suspicion that they have been stolen, he may carry the things to the police station till such inquiry, and the second part directs (1) that after the seizure the police officer shall send notice of their seizure and detentions to the nearest custom house and (2) immediately after the dismissal of the complaint or the conclu sion of the inquiry or trial, he shall cause such things to be conveyed to, and deposited at, the nearest custom-house, to be there proceeded against according to law." It would be manifest from reading this section that even things liable to confiscation under the Act are seized by police on the suspicion of theft can be detained up till the inquiry by the police or the conclusion of the trial by the Court and after the conclusion of the inquiry or the trial the articles are to be sent to "the nearest custom house, to be there proceeded against according to law." In other words the Court cannot passed any order in regard to its disposal and this function is to be exercised exclusively by the Customs Authorities. The next important provision is section deals with adjudication of confiscations and penalties, and that section reads as follows:- "In very 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 exceed ing 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 a Custom -Collector and may confer on any officer such powers as it deems appropriate." It will be manifest from reading the language of section 182 that barring cases in items Nos. 26, 72, 74, 75 and 76 of section 167, cases covered by other items which are liable to confiscation or any person liable to penalty, such confiscation or penalty would be adjudged by the Customs Authorities, referred to in clauses (a), (b) and (c). Section 183 makes it incumbent on the officer ordering confiscation to give "the owner of the goods an option to pay in lieu of confiscation such fine as the officer thinks fit". Section 187 states that all offences against the Act, other than those cognizable under section 182 by officers of the Custom, may be tried by a Magistrate. The proviso to this section, however, enacts "provided that in the cases mentioned in Nos. 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 the first class."

4. Mian Zia-ud-Din, the learned counsel for the respondent relied very strongly on this proviso in support of his argument that since the offence admittedly fell under item 81 of section 167, the Customs Authorities had no jurisdiction whatsoever in regard to confiscation of any of the properties seized and the Magistrate alone was competent to make order in regard to release of the truck. The argument in my view is clearly mis-conceived, in that the sea Customs Act is a complete Code by itself and the perusal of the provisions quoted above clearly empower the Customs Authorities to search, arrest and detention for the levy of sea customs duties. Section 182 distinctly empowers the Customs Authorities referred to in clauses (a), (b) and (c) to order confiscation or penalty in every cases except cases mentioned in Nos. 26, 72, 74, 75 and 76 of section 167, and appeal from the order of a subordinate lies to the Chief Customs Authority as provided by section

188. Section 190 empowers the Chief Customs Authority to remit penalty or confiscation, and section 191 empowers the Central Government on applica tion of any person aggrieved by any decision or order passed under the Act by any officer of the Customs or Chief Customs Authority to file a revision petition. It is, therefore, abundantly clear that the power of confiscation vests exclusively in the, Customs Authorities, and the Magistrate who is called upon to try cases mentioned in items 8 and 81 of the Schedule to section 167, under section 187 of the Act is not at all empowered to make any order in regard to release of the vehicle in which smuggled goods had allegedly been carried. Such power is given to the Magistrate only when seizure is made under section 523 of the Cr. P. C., and not under the Sea Customs Act.

5. For all the foregoing reasons I accept the recommenda tions of the learned Sessions Judge and quash the order o release of the truck, and direct that the same be delivered to the Customs Authorities. K. B. A. Reference accepted.