1988 P Cr (PLP)

Raja Muhammad Akram for Appellant. Syed Niaz Ali Shah, Standing Counsel for Federal Government with Mr. Iftikhar Qutab A.C. Custom for Respondent. Dates of hearing: 25th, 26th, 27th, 28th October; 1st and 11th November, 1987. This is a constitutional petition filed by Muhammad Sarwar, petitioner, seeking a declaration that the order of the Deputy Collector of Customs, Lahore respondent No.4, dated 13-12-1986, the order of the Collector of Customs (Appeals) Lahore, respondent No.3, dated 3-1-1985 and the order of the Government of Pakistan passed by the Additional Secretary, Ministry of Finance, respondent No.1 dated 20-4-1986, confiscating the gold bullion of the petitioner and imposing penalty on him be declared null and void as having no legal effect, that the respondents be directed to return the gold seized to the .petitioner or its market price alongwith such amounts as this Court deems fit and proper for its wrongful use and that any other relief that this Court may deem fit and proper may be granted to the petitioner.

2. The brief facts of the case are that on 29-8-1976 at 6.00 a.m. Mr. Sultan Muhammad Asghar, Deputy Superintendent of Police, New Anarkali Circle (with powers of a Collector of Customs) went to Nea Ravi Bridge, Lahore, in pursuance of a secret information. At the bridge he found Haji Muhammad Aslam DSR Rangers, Captain Abdul Jabbar and other officials of the Pakistan Rangers. At 9.00 a.m. car No. LEO-8254 came towards the bridge from the side of the Lahore city, which was stopped by Sultan Muhammad Asghar, Deputy Superintendent of Police, near the toll tax booth. At that time, Muhammad Sarwar, the present petitioner, was at the wheel of the car and one Israr Iqbal was sitting with him on the front seat. The Deputy Superintendent of Police wrote down grounds for the search of the car under section 171 of the Customs Act, a copy of which he gave to Muhammad Sarwar, petitioner, and searched the car in the presence of Haji Muhammad Aslam, Deputy Superintendent of Police, Muhammad Tufail, a member of the public, Zulfiqar Ali, SI Rangers and Muhammad Zaffar ASI. Muhammad Sarwar, petitioner, opened the dicky of the car, from which two jackets containing 100 rennies each of gold were recovered. Each renie weighed 10 tolas and the total weight of 200 rennies was 2000 tolas. This gold was taken into possession. Two bundles of Pakistan currency notes of the denomination of Rs.100 amounting to Rs.2,00,000 were also recovered and taken into possession. The rennies recovered bore the following seals:- "Johnson Methy 999.0 London 10 Tolas" "Credit 999.0 Suisse 10 Tolas Other articles were also found from the dicky of the car, but this need not detain me any further, as it is not relevant to this case. The Deputy Superintendent of Police drafted a complaint under section 156 (1) (89) of the Customs Act and sent it to Police Station Shahdara, for the registration of a case. He arrested Muhammad Sarwar, Petitioner, and Israr Iqbal, co-accused.

3. After arrest at the Ravi Bridge, Muhammad Sarwar, petitioner, led the Police Officer and other officials of Pakistan Rangers to Bungalow No.137-P Gulberg-III, Lahore, from where cash amounting to Rs.95, 67,705, and a Volks Wagon Car No. KCC-4031 were recovered.

4. Later, Muhammad Sarwar, petitioner, took the police party and the Rangers to Bungalow No.5/A-1, Model Town, Lahore, where Sultan Muhammad Asghar, Deputy Superintendent of Police, prepared grounds of search Ex.PB and served a copy thereof to Muhammad Sarwar, petitioner. The petitioner there led to the recovery of 600 rennies of gold each weighing 10 tolas lying in his jackets in an almirah of his residential room. Car No. MY-574 was also recovered from the garage of the bungalow. A mare was also recovered from the servant quarter. Other articles were also recovered, but not being relevant to this case, I need not discuss them. 600 gold rennies recovered in this case bore the above foreign marks as also the under-noted marks:

"Swiss Bank Corporation 999.0" "Johnson Mathy 999.0 Kib Dib 10 Tolas."

4. Later, Muhammad Sarwar, petitioner, took the police party and the Rangers to quarter No.140 in Block No.11, Township Scheme, Lahore, occupied by his brother Atta Muhammad. Sultan Muhammad Asghar, Deputy Superintendent of Police, recorded the grounds for effecting search, a copy whereof he served on Atta Muhammad accused. He recovered cash amounting to Rs.10,00,000 and 15 wooden boxes containing 8555 watches, which were taken into possession.

5. Three separate cases were instituted against Muhammad Sarwar, petitioner, and some others. The first case No. 170 of 1977 was in respect of the recoveries made at the Ravi Bridge and from house. No.137-P, Gulberg-III, Lahore) of Muhammad Sarwar, petitioner; the second (case No.168 of 1977) in respect of the recoveries made from the house of the petitioner at 5/A1, Model Town, Lahore, and the third (case No.169 of 1977) in respect of the recoveries made from the house of the petitioner's brother, Atta Muhammad, from quarter No.140, Blook No.11, Township Scheme, Lahore. In each of these cases Muhammad Sarwar, petitioner, alongwith others were tried for offence under section 156 (1) (89) of the Customs Act, 1969. Challans in respect of these three cases were submitted to the Court of the Special Judge, Customs, Lahore, on 25-1-1977.

6. Muhammad Sarwar, petitioner, in reply to the charges filed against him in all the above three cases inter alia admitted that he was intercepted by the police and Rangers at the Ravi Bridge, where only Rs.2,00,000 were recovered from his brief-case lying in the car. He denied that any gold was recovered from his car. He further admitted that after his arrest, during the interrogation, he disclosed that he had gold weighing eight thousand tolas at his residence No.5/A Model Town, Lahore, and Pakistan currency valuing Rs.95,67,705.- at his bungalow No.137-P Gulberg-III, Lahore, which the police took into possession alongwith the two cars and a mare. He alleged that the gold and Pakistan currency notes were not smuggled property and that the car had not been used for smuggling. He further stated that he had nothing to do with Muhammad Asghar of Seth Abid Hussain and that the police falsely showed the recovery of 2000 tolas of gold from his car at the Ravi Bridge. He denied that he led the police to the house of Atta Muhammad, or that he got recovered anything from the house of his brother.

7. At the trial, the prosecution produced a large number of witnesses in proof of its allegations in all the three cases. Statements of certain Court witnesses were also recorded. In answer to interrogatories under section 342, Cr.P.C. Muhammad Sarwar, petitioner, took up the same stand which he had taken earlier, when answering the charges.

8. In defence Muhammad Sarwar, petitioner produced Sadat Ali Khan, Advocate Income Tax Practitioner, DW3 who stated that in 1976, Muhammad Sarwar, petitioner, had come to him to file a declaration of his hidden income which he had so done. The said hidden income inter alia included gold in the shape of bars weighing 8000 tolas, gold in the shape of ornaments weighing 130 tolas and cash in hand and Bank amounting to 1,30,00,

000. He also stated that the petitioner paid income tax amounting to Rs.42,00,000 on the declaration made in respect of his hidden income. He tendered and got exhibited various documents in proof of the said declaration of hidden income. Bashir Ahmad, Accountant Lahore Race Club, PW4 appeared to prove that the petitioner owned three horses which ran the Race Club. Ismail Ahmad Bagasarwala, Member of the Stook Exchange, Karachi, and Karachi Cotton Association Ltd. DW5 appeared and proved that the petitioner had made a profit of Rs.21,00,000 on the Cotton and Stock Exchanges during the year 1976. He produced documents in the said connection. Syed Bashir Ahmad DW6 appeared and proved that the petitioner was also carrying on car business as a financer and dealer at Lahore. He stated that the petitioner had earned Rs.14,00,000 to Rs.15,00,000 during the last fourteen years. Khalid Javed Butt, Jeweller of Soha Bazar, DW7 appeared and proved that he had sold gold ornaments weighing about 8,500 tolas worth Rs.19,00,000 to Rs.20,00,000 to the petitioner during the period 1970 to 1973. He admitted and proved the bills tendered by the petitioner in the said connection. Muhammad Latif, Jeweller of Soha Bazar, DW8 appeared and proved that the petitioner in 1976 had got refined gold ornaments weighing 8500 tolas from him and had got the refined gold converted into gold renies, with seal marks thereon of foreign firms similar to those found of the gold recovered from the petitioner, for which he had charged Re.l per tola for refining and Re.0.50 per tola for affixing seals bearing foreign markings.

9. During the recording of the evidence of Muhammad Latif DW8, who claimed that Muhammad Sawar, petitioner, had brought ornaments weighing 8500 tolas, which he had refined and converted into roughly, 800 gold renies of 10 tolas each, on which he had affixed the foreign markings as were found by the police and Rangers on the renies secured from the petitioner, the Special Judge Customs, on an application filed by the accused that they be allowed to demonstrate the process of refining and affixing of foreign seals on the gold, ordered that a demonstration of refining and sealing process be conducted in the presence of Mr. N.M. Butt, Superintendent, Assay Office, Mr. Ajmal Waheed, PDSP FIA, Mr. Abdul Ghaffar, Legal Advisor Rangers, the accused persons and their counsel Zaheer Ahmad Khan and Khawaja Iqbal. The said demonstration was conducted on 31-1-1979, whereafter the statement of Mr. N.M. Butt, Superintendent Assay Office, Pakistan Mint, CWZ was recorded, who confirmed that Muhammad Latif DW8, with the help of his son, had before the whole group converted some gold bangles and a piece of gold into three gold renies Exs. Dl, D2 and D3 and affixed the foreign seals thereon of the type found on the gold renies recovered from the petitioner and that after comparing the same with the gold renies belonging to the case property, he had found close resemblance between the two. He also added that he could not distinguish between them and could not find any difference in them. Notwithstanding a number of questions put to elicit distinctive features distinguishing the two, the said witness confirmed that there was no patent difference between the two sets.

10. After hearing the arguments in the three criminal cases before him, the learned Special Judge Customs inter alia came -to the following conclusions: - (1) That since the statement of Sultan Muhammad Asghar DSP PW3 to the effect that 200 gold renies of 10 tolas each were recovered from the car of the petitioner at the Ravi Bridge stood contradicted by the statement of Muhammad Tufail CW1, who was the public witness associated by the former to witness the recovery, who had stated that no gold was recovered from the car, but that when the police and Rangers party visited the house of the petitioner, they recovered 800 renies of gold of 10 tolas each from there, that 200 gold renies were not recovered from the petitioner on the Ravi Bridge but that all 800 gold renies recovered in the two cases (Case No.170 of 1977 and Case No. 168 of 1977) were recovered from -the petitioner's house at Lahore. (2) That no offence stood committed by the petitioner in respect of the cash and other documents recovered from him at the Ravi Bridge. (3) That from the statements of Mr. Saadat Ali Khan, Income Tax Practitioner DW3, Bashir Ahmad, Accountant, Lahore Race Club, DW4, Ismail Ahmad Bagasarwala, Member, Karachi Stock Exchange and Karachi. Cotton Association DW5, Syed Bashir Ahmad businessman DW6, Khalid Javed Butt, Jeweller Soha Bazar DW7, Muhammad Latif, Jeweller Soha Bazar PW8 and Mr.N.M. Butt, Superintendent, Assay Office, Pakistan Mint CW2, it stood clearly established that the petitioner was a man of means, that he had made huge sums from business etc., that he had purchased about 8500 tolas of gold ornaments from Khalid Javed Butt DW7 during the period 1970 to 1973, that he had got the said gold refined and converted into gold renies bearing stamps of foreign manufacturers from Muhammad Latif, Jaweller DW8, and that the gold renies with stamps of foreign manufacturer made by the said Muhammad Latif DW8 in a test demonstration in Court, out of some gold bangles supplied to him, were so similar to the gold renies alleged to have been recovered from the petitioner, that they could not even be distinguished by Mr. N.M. Butt, Superintendent, Assay Office, Pakistan Mint, CW2. accordingly the learned Special Judge, Customs, held that the petitioner had proved that gold could be refined upto the level of 999.0, that it could be converted into renies and stamps of foreign manufacturers could be affixed thereon in Pakistan, and that he had, therefore, discharged the onus which lay on him to prove that the gold alleged to have been recovered from him was not of foreign origin but Pakistani and, therefore, the petitioner had committed no offence in possessing that gold. (4) That as the cash recovered from the house of the petitioner was not shown to be the sale proceeds of smuggled goods and the car recovered from his house was not found to have been used for transportation of smuggled goods, the petitioner had committed no offence by being in possession of the said cash or the car.

11. Being aggrieved by the decision of the learned Special Judge, Customs, Lahore, in the three cases, the Federal Government preferred three appeals (Appeals Nos. 290/C-79, 291/C-79 and 292/C-79) before the High Court (as Special Appellate Court, Customs) on 12-3-1979. On 16-1-1982, the said three appeals were withdrawn, on an objections filed by the appellants that they had not been properly filed by a person duly authorised by the Federal Government.

12. Before the challans in the above three criminal cases could be submitted; the Deputy Collector, Customs, after show-cause notices issued to Muhammad Sarwar, petitioner, and others, took up adjudication proceedings under section 179 of the Customs Act for the confiscation of the goods recovered from the petitioner and others on 29-8-1976. In reply to the show-cause notice, Muhammad Sarwar, petitioner, took up the plea that the gold and currency belonged to him, that he had declared the same on 31-8-1976 to the Government, pursuant to the notification issued on 6-7-1976 for declaring hidden wealth, that having paid income tax thereon, he was immune from all legal proceedings in relation thereto. So far as where the watches were concerned, he stated they were given to him by someone on the assurance that he had genuine receipts for their import, but before the receipts could be obtained from that person, his house was raided and the watches were taken into possession by the police. He also stated that he had been working with Seth Abid Hussain till 1965, but that thereafter he had left him and started his own business and owned race horses and had earned a lot of money from the same. He also stated that the vehicles and the mare taken into possession from his house belonged to him and that the currency taken into possession was Pakistani currency. On 13-12-1976, the Deputy Collector of Customs, Lahore, found that Seth Abid Hussain was the real smuggler of the gold, watches etc., and the man behind the show, and that all the other accused were his workers, as all the accused, except Ahmad, in their statements recorded at the time of seizure had deposed that the goods belonged to Seth Abid Hussain and that they were merely his workers, whereas Ahmad had earlier claimed the cash amounting to Rs.95,67,705 as his which claim he had given up before him. He also held that the notification regarding the declaration of undisclosed income had only been issued under the Income Tax Act and did not apply to goods seized under the provisions of the Customs Act, 1969, and had the intention of the Federal Government been to cover seized goods, it would have specifically amended the provisions of the Customs Act, 1969, to specifically exempt seized goods from the operations of section 179, if they had been declared before the Income Tax authorities. He further held that foreign currency, if not legally imported into Pakistan, fell under the definition of "smuggling" given .in section 2 (s) of the Customs Act, 1969, and that since Muhammad Sarwar, petitioner, had pointed out the said currency as "smuggled goods" stored by Seth Abid Hussain in different houses located at different places in Lahore and the seizing agency had prior secret information that gold, watches etc., were being smuggled to India in return for foreign and Pakistani currency, that the currency was, therefore, smuggled goods. He also held that the cars and the mare had been used in the transportation of smuggled goods. He, therefore, ordered confiscation of all the seized goods i.e. gold, watches and currency under section 156 (1) (89) of the Customs Act and vehicles, mare, jackets and waist-coat under section 157 ibid and also imposed personal penalties of Rs.10,50,00,000 on Seth Abid Hussain, Rs.2,00,00,000 on Muhammad Sarwar, petitioner, and lesser amounts on three others.

14. Being aggrieved by the aforesaid order, Muhammad Sarwar, petitioner, preferred an appeal before the Collector (Appeals). On behalf of the petitioner it was contended that gold was not of foreign origin, even though it bore marks and numbers of foreign manufacturers, as had been demonstrated before the learned Special Judge, Customs, in the three criminal cases before him, that the possession of Pakistani currency within the territories of Pakistan was not an offence, that the prosecution had not proved that the watches were smuggled ones, that show-cause notice was not served on the petitioner under section 168 (2) of the Customs Act and that the search and seisure was not carried out, as prescribed under the Act. The learned Collector (Appeals), by his order dated 3-1-1985, held that the currency recovered from Muhammad Sarwar, petitioner, was not acquired directly by the sale of smuggled goods or earned as a consequence of any transaction of smuggled goods. He, therefore, ordered its release to the petitioner. As regards the gold, he held that section 179-A of the Customs Act having been repealed, the decision of the learned Special Judge, Customs, was not binding on him. He further held that notwithstanding the demonstration proceedings carried out before the learned Special Judge, Customs, the same could not help the petitioner, because even if it was technically feasible to refine gold to the leval of international purity and affix counterfeit marks of foreign origin thereto, it was not practically feasible in this country. He remarked that it was not a common practice for gold to be refined and converted into renies bearing counterfeit marks and sold in the local market in that form, for local dealers dealing in such renies would not escape action under the Pakistani law at the hands of one of the Government Agencies. He, therefore, upheld the order of confiscation of gold. As regards the watches, he held that as the same were of foreign origin and no documentary evidence relating to their legal import had been produced, the same were liable to confiscation. As regards the mare and the two cars, he found that there was no incriminating evidence regarding their involvement in any smuggling. He, therefore, ordered their release. He reduced the personal penalty imposed on Muhammad Sarwar, petitioner, from Rs.2,00,00,000 to Rs.50,00,000.

15. Being aggrieved by the aforesaid order, Muhammad Sarwar, petitioner, filed a revision before the Government of Pakistan, which was heard by the Additional Secretary, Ministry of Finance. On behalf of the petitioner it was submitted that the judgments of the learned Special Judge, Customs, in the three cases against the petitioner, in which he had held that the charges of smuggling had not been proved had not been taken into consideration, that the gold and watches were purchased by the petitioner from the local market during the past many years and over 224 purchase receipts issued by various persons in support thereof had not been taken into consideration that it had been proved before the learned Special Judge, Customs, that gold renies with 999.0 purity, bearing marks of foreign manufacturers, could be and were being duplicated in Pakistan market and were sold freely, that the petitioner had thus discharged the onus of proving lawful possession of the said goods in terms of section 156 (1) (89) and section 187 of the Customs Act. That there was no evidence to show that the watches had been imported into Pakistan without payment of custom duty and that while effecting the seizure of the gold and other items, the procedure prescribed by sections 162, 163 and 171 of the Customs Act had not been applied. The learned Additional Secretary, Ministry of Finance, by his order dated 20-4-1986, held that the decision of the learned Special Judge, Customs, was not binding on the Department, that the petitioner had miserably failed to establish the lawful possession acquisition of the gold and watches by any tangible documentary evidence, that the contention of the petitioner that burden of proof of lawful possession of the gold had been discharged by him was also not acceptable, that under section 156 (1) (89) of the Customs Act a person raising the plea that gold was lawfully acquired, had to furnish evidence that the same was obtained by processing or other means employed in Pakistan and not by smuggling and that since no such evidence had been produced, the onus was not discharged and that the purchase receipts produced by the petitioner were also not enough to establish that the seized slabs of gold were acquired and refined in Pakistan. Accordingly, the assertions of the petitioner were repelled. However, considering the mitigating aspect of the case that Pakistani currency amounting to Rs.1,00,00,000 belonging to the petitioner had been detained by the Customs Authorities for a sufficiently, long period of time he reduced the penalty imposed on the petitioner by fifty per cent.

16. Being aggrieved by the three orders of the Customs Authorities in respect of the adjudication proceedings carried out by them, Muhammad Sarwar, petitioner, filed a writ petition (W.P.No. 4237 of 1986) in this Court challenging the same, which is now before me for disposal.

17. On behalf of the petitioner the following submissions have been made. First; that adjudication proceedings under section 179 of the Customs Act are quasi judicial in character and principles of natural justice are applicable in respect of such proceedings. In this respect S.A. Haroon v. Collector of Customs, Karachi (PLD 1959 F.C. 177 at pages 201-202) has been cited. Second, that there was no material before the Customs Authorities to hold that there was any "reasonable suspicion" that the gold, currency or watches recovered from the petitioner were smuggled items. In this connection, it is submitted that no statement of any witness was recorded or any document was exhibited by the Deputy Collector of Customs in the adjudication proceedings, but that some sort of story narrated by Sultan Muhammad Asghar, Deputy Superintendent of Police, New Anarkali, and Major Abdul Jabbar Bhatti, Rangers, before him orally, with other copies of documents on the record, were treated as evidence to arrive at finding against the petitioner. It is contended that whoever acts in a quasi judicial capacity cannot act on the evidence or material which is not formally made available to the party proceeded against. In this connection, page 116 of Review of Administrative Action by Whightmore is cited. Third, that notice under section 180 of the Customs Act was not given to the petitioner within the initial time of two months and the extended period thereafter and that, therefore, the whole proceedings are void. In this connection, the learned counsel for the petitioner has cited Ilam Khan v. Government of Pakistan (1983 CLC 786), Shah Madar v. SHO Police Station, Kamoke (1983 P Cr. L J 2481). Fourth, that the provisions of section 179-A of the Customs Act were applicable to the case when the appeal and revision of the petitioner were being heard by the Collector (Appeals) and Additional Secretary Finance, on behalf of the Federal Government, respectively and the findings of the said two Officers that the said section was not applicable, is illegal and unwarranted. In this connection it is submitted that when section 179-A was added to the Customs Act on 15-1-1977, the appeal of the petitioner was pending before the Collector (Appeals) and the petitioner and his companions were to be prosecuted before the Special Judge, Customs. As such, a vested right accrued to the petitioner to have his appeal decided subject to the decision of the Special Judge, Customs, and by the repeal of section 179-A on 28-6-1979 this vested right was not lost. In this connection section 6 (c) of the General Clauses Act has been cited. Fifth, that even assuming that section 179-A of the Customs Act was not applicable to the appellate and revisional proceedings, the order of the Special Judge, Customs, in relation to the question whether the seized material was smuggled, being superior, was binding on the Collector. (Appeals) and the additional Secretary Finance. In this connection it is submitted that the principles of natural justice disfavour a situation, which permits a special Court and an administrative tribunal, one acting judicially and the other, administratively, to arrive at conflicting findings on the same question of fact. In such a case, the, law would ensure that the view of the administrative tribunal yields to the finding of the special Court. It is submitted that the adjudicating authority not having acted on this principle, its decision stands vitiated by inherent vice and the High Court in its constitutional jurisdiction can set aside the decision of the adjudicating authority. In this connection Sheik Kasim v. Supdt. Post Offices (AIR 1965 Mad. 502) and Jerome D'Silva v. The Regional Transport Authority (AIR 1952 Mad. 853) have been referred. Sixth and last that the officers of police force and Rangers acted outside their jurisdiction by arresting the petitioner near the new Ravi Bridge and making recoveries thereafter from Gulberg, Model Town and Town Ship Scheme. In this connection it is submitted that since the police officers are limited in their scope to act within their own territorial jurisdiction, their actions outside their jurisdiction was illegal and all proceedings, therefore, taken by them stand vitiated.

18. On behalf of the Federal Government the following submissions have been made. First, that the nature, scope and jurisdiction of a case before the Special Judge and one before the adjudicating authority are different and sharply varied and dissimilar. In respect of the former, the proceedings are judicial, whilst in respect of the later, the proceedings are administrative. The evidence produced before the Special Judge cannot be read in adjudication proceedings and vice versa. In the case before the Special Judge, the onus of proving the case is on the prosecution, whilst in the case before the adjudicating authority, the onus is on the accused to show that his possession is not illegal. In the case before the Special Judge, the object is to punish the offender, whilst in the case before the adjudicating authority the object is to confiscate the goods. In the former case it is punitive, whereas in the latter it is preventive and deterrent. Second, that all officers of the police force and the Pakistan Rangers have powers of search, arrest and seizure under the Customs Act. In this connection, Notification Nos.S.R.O.29 (1) 73 dated 3-1-1973 and S.R.O. 1029 (1)/74 dated 29-7-1974 issued by the Central Board of Revenue have been referred. Third, that the benefit of the findings of the learned Special Judge Customs dated 7-2-1979 given in the three cases before him, cannot be taken by the petitioner, as they relate to collateral proceedings of a different nature in a different forum and if such a course is allowed, it will have the affect of circumventing section 179 of the Customs Act, in which the burden is on the accused to show that the goods are not smuggled. In this connection it is further submitted that Mohammad Sarwar, petitioner, filed an appeal against the decision of the adjudicating Officer before the Collector (Appeals) on 13-1-1977, which was dismissed as incompetent on 4-3-1977, as the petitioner had not deposited the penalties. The petitioner then filed a revision petition on 25-3-1977, which was accepted on 29-3-1977 and the appeal was remanded back to the Collector (Appeals) for disposal on merits. Before the appeal could be heard on 3-1-1985, Section 179-A of the Customs Act (which had been introduced on 15-1-1977) was omitted by Finance Ordinance, XXX of 1979, on 28-6-1979. Since on the date the appeal was heard i.e. 3-1-1985, section 179-A of the Customs Act was not on the statute book, the Collector (Appeals) was not bound by the said section. In this connection, it is also submitted that the words "mode" appearing in section 179-A refers to the epoch of time when the order is passed and if on that day the section is no longer in existence, the advantage of this section is not' available. Fourth, that show-cause notice under section 180 of the Customs Act was given to Mohammad Sarwar, petitioner, within the time prescribed by section 168 (2). In this connection it is submitted that the petitioner was arrested and the goods were seized on 29-8-1976, that on 26-10-1976 the Collector extended the date for the issue of the show-cause notice upto 4-11-1976, that on 30-10-1976 the Collector again extended the date for issue of the show cause notice upto 11-11-1976, that on 1-11-1976 a show cause notice was sent to the petitioner through registered A.D. post. Which was received back on 6-11-1976 with the endorsement that the petitioner could not be served, as he was in jail, that on 10-11-1976 the Deputy Collector ordered that the show-cause notice be served on the petitioner by affixing a copy of the same on the notice board of the Customs House; as provided by section 215 (b) of the Customs Act, that on the same date a show-cause notice addressed to the petitioner was affixed on the notice board of the Customs House, that on 30-11-1976 a show-cause notice was also sent to the petitioner through the Superintendent of Jail, Lahore, through Registered A.D. Post, which was received by the petitioner on 30-11-1976, that on 6-12-1976 a show-cause notice was also delivered to the petitioner by the adjudicating Officer, when the petitioner appeared before him, under handcuffs, with his counsel, and that on 9-12-1976 the petitioner himself answered the said show-cause notice. In these circumstances, it is submitted that show-cause notice was served in proper time as required by section 168 (2) of the Customs Act. It is also submitted that the notice under section. 168 (2) has to be "given" and not "served" within the prescribed period and it is sufficient if the same is sent by registered post to the person from whom the goods are seized at his last know address: In this connection the words "served" and "given" appearing in subsections (1) and (2) respectively of section 168 of the Customs Act have been pointed out to show the sharp difference in the intent behind the said two subsections and it is submitted that once the notice was posted on 1-11-1976 by registered post to the petitioner at his last known address given by him, the law stood complied with. the adjudication proceedings could commence. In this respect Manoo Gulls case (1985 SCMR 1829) is referred. Fifth, that since Mohammad Sarwar had himself, in reply to the show-cause notice served on him, admitted that the goods seized by the Customs belonged to him and since the seized goods bore foreign markings and ex facie appeared to be of the type made by foreign manufacturers, reasonable suspicion that they were smuggled goods automatically arose and stood made out. In these circumstances, nothing further was required to-be proved on behalf of the Customs to show that it had discharged its own onus showing that the petitioner was in possession of smuggled goods. In this view of the matter, the onus actually of proving that the goods were not smuggled, was on the petitioner, which actually he had not discharged.

19. I have heard the arguments of the learned counsel for the petitioner and the Federal Government and have perused the various files relating to the adjudication proceedings. The two basic orders under dispute are that of the Collector (Appeals)., Lahore, respondent No.3, dated 3-1-1985 and that of the Government of Pakistan passed by the Additional Secretary, Ministry of Finance, respondent No.1, dated 20-4-1986. In these two orders, that basic stand taken by the Deputy Collector of Customs, Lahore, respondent No.4, that the goods really belonged to Seth Abid Hussain, who was the real smuggler, and that Mohammad Sarwar, petitioner and others, were merely his servants, was abandoned and the findings of the learned Special Judge, Customs, given in the three criminal cases, was discussed and the stand of the petitioner and others that the said decision was binding on him and the plea of the petitioner that the gold renies recovered from him were not smuggled items, but these prepared by him in Lahore, through a gold-smith, were rejected. But before I discuss these two orders, it is necessary to first clear a number of siderial matters that have been raised, which touch this case.

20. In the instant case, the right of the Special Judge, Customs, to punish the petitioner for smuggling and that of the Customs Officers to adjudicate whether the smuggled goods should be confiscated, both arise out of the same provision of law, namely, item 89 of subsection (1) of section 156 of the Customs Act, 1969. As held by the Supreme Court in Adam's case (PLD 1969 SC 446), the proceedings before the Special Judge are judicial proceedings for the determination of the guilt of the person concerned for committing the act of smuggling and entailing a punishment .of imprisonment of the same and the proceedings before the Customs Officers for the confiscation of the goods are departmental proceedings and such Customs Officers are not Judicial tribunals and that though the State has concurrent remedies, but each is independent of the other and they cannot be termed to be mutually exclusive. Earlier, the Supreme Court in Messrs S.A. Haroon and others v. The Collector of Customs, Karachi and the Federation of Pakistan (PLD 1959 S.C. 177 at 201) had held that though the adjudicating officer was not a judicial tribunal, yet principles of natural justice applied before him, as proceedings before him were at least of a quasi judicial character, if not of a judicial character.

21. The next question that arises is whether notice under section 180 of the Customs act was served on the petitioner within the period stated in section 168 (2) thereof and if not, whether the adjudication proceedings stand vitiated and the petitioner is entitled to the return of the smuggled goods. Subsection (2) of section 110 of the Indian Customs Act, 1962, is similar to subsection (2) of section 168 of our Customs Act, 1969, except that the proviso thereunder is slightly different. In both the countries the Courts have interpreted this subsection in different ways. There are two views. One is that the object of the notice is to compel the adjudicating authority to take up adjudication proceedings within the statutory period provided, by giving a notice in writing to the persons concerned informing him of the grounds on which ii is proposed to confiscate the goods or to impose a penalty, that where such notice is not given within the period prescribed, it entitles the person from whose possession the goods have been seized to secure their return, that the omission or any invalidity in the issue of the notice does not deprive the power of the Customs Officers to take up adjudication proceedings and that the prescribed period only affects the seizure of the goods and not the validity of the notice or the adjudication proceedings. In this connection, M/s. Mohanlal Devdanbai v. M.P. Mondkar (AIR 1977 Bombay 320), The Collector of Customs and Central Excise v. Amruthalakahmi (AIR 1975 Madras 43), Muni Lal v. Collector, Central Excise Chandighar (AIR 1975 Punjab and Haryana 130) and Sikandar v. Government of Pakistan (PLD 1986 Karachi 373) ray be referred. However, in the Indian jurisdiction, due to the difference in the language of the proviso under this subsection, the Courts have gone further to state that the said proviso contemplates some sort of an inquiry, that the Collector is not expected to pass extension orders mechanically or as a matter of routine, but only on being satisfied that there exist grounds which indicate that the investigation cannot be completed for bona fide reasons within the time prescribed and that such extension cannot be given without giving an opportunity of hearing to the person from whose custody the goods have been seized. In this connection the Assistant Collector Customs and Superintendent, Preventive Service Customs and others v. Charan Das Malhotra (AIR 1972 S.C. 689) may be referred. The view rests on the basis that since the Collector acts in a quasi judicial manner or atleast performs functions requiring a judical approach, he cannot determine "sufficient cause" without some sort of inquiry, which would entail giving the person to be effected the right of hearing. The other view is that the object of the notice is to compel the adjudicating authority to make up its mind, within the prescribed period whether it wishes to confiscate the goods, having found sufficient evidence to that effect, upon which it may retain the goods, or be prepared to return it and forget about any adjudication proceedings thereafter. In this connection Khanum Jan v. Deputy Collector Central Excise (PTCL 1983 CL 184) may be referred.

22. The proviso to subsection (2) of section 168 of the Customs Act, 1969, does not use the words "sufficient cause being shown". It only calls for reasons to be recorded". In these circumstances, no show-cause notice is required to be given here, when extending the period. What is only required to be recorded are the reason's justifying the extension. In respect of the diverse views obtaining on the question whether the omission or any invalidity in the issue of the notice deprives the adjudicating officer of the right to adjudicate the matter, I would respectfully follow the view of Justice Shafiur Rahman of this High Court in Khanam Jan's case (PTCL 1983 CL 184), as I think this is the correct view. Sections 168 and 180 have to be read together. If they are so read, then it is obvious that the Customs authorities must make necessary inquiries and complete their investigation as early as possible and preferably within two months or the extended period and decide whether it has a case to confiscate the goods or impose any penalty, upon which it should issue the show-cause notice within the prescribed period, or if it has no such case, be prepared to return the goods and forget the adjudication proceedings. The show-cause notice give under section 180 (1) cannot be treated as having two personalites like "Dr. Jekyll' and "Mr. Hyde", one for retaining the goods under section 168 (2) and the other for initiating adjudication proceedings. The notice is only for adjudication proceedings and must be given in time, as a justification for retaining custody of seized goods till final adjudication is over. Laxity would only show it has no case and entitles the owner to the return of the goods seized, free from the liability of any further proceedings. The return of the goods for omission or failure to serve the show-cause notice in time is incompatible with the continuance or initiation of adjudicating proceedings to confiscate the same. Goods are confiscated if they are in effective possession of the Customs authorities, or under their attachment order. If they are not so, how can they be confiscated. In the instant case, the gold was seized from the petitioner on 29-8-1976 and the Collector on 26-10-1976 extended the date for the issue of the show-cause notice upto 4-11-1976. I have seen the said order in the file and find that the same was passed on good grounds, showing the need for extending the time to start adjudication proceedings. Against on 30-10-1976 the Collector extended the date for issue of the show-cause notice upto 11-11-1976. The file also shows that there were good grounds for extending the period. On 1-11-1976 two show-cause notices were sent to the petitioner through registered A.D. Post, one at his address at 55/A-1, Model Town, Lahore, and the other at 5/A-1, Model Town, Lahore, which were both received back on 6-11-1976 with the endorsements that the petitioner was in custody. The first of the two addresses was the one from the petitioner had led of smuggled gold to the recovery and the second address was the one which the petitioner had himself given as his own address, when his statement was recorded after the raid. It can be urged that the Customs authorities knew that the petitioner was in jail and that this service was not bona fide, but the service of notices on the petitioner at his two last known residential addresses, where it was normally expected that some member of the family would receive the same and deliver the notice or communicate its contents to the petitioner, cannot be treated as mala fide. Supposing the notice was sent to the jail, where was the guarantee that the petitioner had not been transferred to some other jail. In acting on the address given by the petitioner, the Customs authorities acted correctly and their action cannot be treated as mala fide. In any case, on 10-i1-1976 the Deputy Collector ordered that a show-cause notice be served on the petitioner by affixing a copy of the same on the notice board in the Customs House, as provided under section 215(b) of the Customs Act. There is an order dated 19-11-1976 showing that the said show-cause notice was affixed, but it does not clearly state the date on which it was so affixed. Since the noting on the file shows that the Customs authorities were aware of the expiry of the notice period on 11-11-1976, the contention of the learned Standing Counsel for the Federal Government that the notice was affixed the same day i.e. on 10-11-1976, on the notice board of the Customs House, immediately after the Deputy Collector passed an order to that effect, appears to be a fair and proper inference that can be drawn from the file of the case, keeping in view the natural course of events and the circumstances of the case. In law proceedings under clause (b) of section 215 can only be taken if notice cannot be served in any manner provided by clause (a) of that section. Here the Customs officers had made a fair effort to serve the petitioner in the manner prescribed by clause (a). Resort to substituted service was, therefore, legal, as they had bona fide exhausted the methods provided in clause (a). I would, therefore, hold that the petitioner was duly served within the prescribed time and that the Customs authorities were not only entitled' to start adjudication proceedings, but to retain the goods till theirs, final conclusion. Apart from this legal position, what is clear is that the petitioner did not apply for the return of the goods at any stage; neither before the Collector (Appeals) nor before the Government of Pakistan. He never took up the issue regarding the return of the goods, on the basis of notice being served outside the prescribed period. In this view of the matter also he cannot be permitted to' raise this question now in this constitutional petition at this very late stage.

23. The next point that arises for determination is whether notice "given" under subsection (2) of section 168 of the Customs Act, 1969, means notice actually served, or sent by registered post at the last known address to the person concerned. The notice "given" in subsection (2), as .opposed to the order "served" in subsection (1) of section 168 of the Customs Act, 1969, clearly shows that it is sufficient to merely send the notice prepaid at the last known address by registered post and take advantage of the rebuttable presumption) arising out of section 27 of the General Clauses Act that it has been'' effected on the addressee at the time at which the notice would have been delivered in the ordinary course of post. The object of giving notice, as opposed to serving it, is to take advantage of the rebuttal presumption stated above, and be rid of the duty of ensuring that the person to be served has actually received the notice. In customs cases, where goods are seized, sometimes the owners do not give their proper addresses. Sometimes the names and addresses scribed or printed on the goods seized are fictitious. Where the owner is bona fide interested in recovering the goods, he is at the Customs office within a few days and prepared to even receive oral notice, under terms of clause (a) of section

180. Where he is not interested, that ends the matter for -the Customs. However, the owner cannot be allowed to avoid receiving the notice for taking advantage of the time factor provided in subsection (2) of section

168. This is why this subsection only makes it obligatory for the Customs authorities to "give" notice instead of "serving" it. Since this notice is basically one for adjudication proceedings, it is also deemed properly "served" for that purpose, if "given" in the manner stated in subsection (2) of section

168. Section 215 of the Customs Act clearly states that any order or notice issued under the Act can be "served" by inter alia sending, it by registered post to the person for whom it is intended or to his agent, or if the same cannot be served in that manner, by affixing it in the notice board of the Customs House. Where a notice is to be served, it is sufficient if it is given by sending it by registered post to the person concerned. Thus, notice of adjudication proceedings given under section 168(2) is notice properly served by virtue of section 215 of the Customs Act. See Ambali Karthikeyan v. Collector of Customs (1971 Tax. L.R. 699) and B. Bhoormal Tirupati v. The Additional Collector Customs A I R 1974 Mad. 224). I am informed that though show-cause notices for adjudication proceedings are given in the manner prescribed by section 168(2), to protect themselves against the limitation period provided therein, yet the Customs authorities serve or deliver such notices again even, to give a proper opportunity to the persons concerned to show cause. This practice is indeed salutary and must be commended, as it avoids a lot of legal wrangling later, when the orders are sought to be challenged in higher forums.

24. I will now take up the objection that the Deputy Collector of Customs acted on oral evidence, documents not exhibited and on secret reports, which vitiated his proceedings and, therefore, the Customs had not discharged its own obligation of showing that the goods were smuggled. The objection has no merit. In adjudication proceedings, which are akin to departmental inquiries, the Customs Officers are not legally bound to formally record evidence or have documents formally proved. In reply to the show-cause notice, the petitioner admitted the gold to be his property. The show-cause notice referred to the particulars of the gold rernies recovered from the petitioner as bearing foreign markings thereon. On the principle of res ipso loqitor, the Customs had discharged its onus to show that they had reasonable belief that the gold was smuggled. This objection, therefore, has no force.

25. Another submission relates to the effect of the declaration made by the petitioner to the Income Tax authorities about the subject gold, pursuant to the Fifth Schedule added to the Income Tax Act, 1922, under section 3-C thereof in July, 1976. According to the concession and immunity granted under para 6 of the Fifth Schedule, exemption from prosecution under the Customs Act was not included. The declaration, therefore, did not exempt the petitioner from prosecution or confiscation of goods under the Customs Act, 1969.

26. I now take up the main question, whether Customs Officers conducting adjudication proceedings under sections 179, 193 and 196 of the Customs Act, are bound by the decisions of judicial Courts on important issues before them, which may have been answered by such Courts. In respect of quasi judicial tribunals, this matter was examined by the Madras High Court in CMP No. 8582 of 1950 (Mad.), where it was held that though the attitude of quasi judicial tribunals in ignoring judgments of criminal Courts was regrettable, it did not affect their jurisdiction, as there was nothing to compel such tribunals to accept judicial judgments, though it was not proper for them to ignore them, without giving adequate reasons. Later, the same matter was reconsidered by the Madras High Court to consider the question whether, if the judicial Courts had acquitted or discharged persons on the ground that they had not committed any offence, whether quasi judicial tribunals could impose liabilities on them on the basis as if they had, it being obvious that if the quasi judicial tribunals, did so, it was on grounds which must be deemed to be non-existent. This matter was discussed in Jerome D'Silva's case A I R 1952 Mad. 853, where it was held that a quasi judicial tribunal like the Regional Transport Authority, could not ignore the finding or order of a competent criminal Court in respect of an offence, when the tribunal proceeded to take any action on the basis of the commission of that offence. In that case, a First Class Magistrate, after a full inquiry, had discharged Jerome D'Silva in respect of offences under section 186, P.P.C. and section 7 of the Essential Supplies (Temporary Powers) Act, holding that the charge of smuggling was groundless. The Regional Transport Authority cancelled Jerome D'Silva's lorry permit, on the ground that it had been engaged in smuggling food-grains. The Court held that if there was a conviction by a competent criminal Court, that would furnish conclusive evidence for any action taken by the Transport Authority. Equally, if a criminal prosecution ended in a discharge or acquittal of the accused and that event happened before the order of Transport Authority, then the said authority would have no power to go behind the final order of a competent Court. If at the time the Transport Authority disposed of an application, or before such Authority passed an order, no prosecution had been launched, then it was not incumbent on the Authority to await a criminal prosecution, but if a prosecution had actually commenced and was in respect of the same offence on the basis of which the Authority proposed to take action, then it was desirable that the Transport Authority should await the decision of the criminal Court. It was held that this procedure would avoid the spectacle of two departments of the Government proceeding on contradictory lines to the annoyance and hardship of its citizens. In respect of departmental proceedings, this matter was examined in Shaikh Qasim's case A I R 1965 Mad. 502, where it was held that an administrative authority, in initiating disciplinary proceedings against a Government Servant, was not bound to wait for the verdict of the criminal Court, but where the criminal Court had tried the concerned person and acquitted him, it was improper for the administrative authority later to initiate disciplinary proceedings on identical facts and charges and record a contrary conclusion. There are many other authorities dealing with this principle.

27. Under the Customs Act, 1969, there is no right or inflexible, rule that the finding of the Special Judge, Customs, or of the Special Appellate Court in appeal or revision, if any, acquitting an accused, is conclusive in all respects upon the adjudicating authority. The Customs Authority may initiate adjudication proceedings simultaneously with criminal proceedings or before or after its initiation or conclusion and even in disregard of the fact that the person has been convicted or acquitted. (See State v. Ghulam Jaffar, P L D 1970 Pesh. 66). However, if the proceedings are initiated or come up after the criminal trial has concluded resulting in the acquittal of the accused, some circumspection and care would have to be observed. If the finding of the Special Judge Customs is based on technical considerations, but not on merits, such as, for lack of sanction, or some technical defect in procedure, the adjudicating authority may conceivably confiscate the goods or impose a penalty. However, where the judgment of acquittal is substantially on the merits in which intricate questions of law and fact have been answered, it would be highly improper for the adjudicating authority on identical facts and charges to record any finding leading to the confiscation of goods or imposition of any penalty, without distinguishing the findings on solid and incontrovertible grounds. Whether it would be able to do so, would depend upon the facts of each case. A trial before the Special Judge, Customs, proceeds upon the most searching scrutiny of facts and a most elaborate discussion of the law. Where the Special Judge, Customs, holds that the goods are not smuggled, not on any technical plea, but on the merits, it is against the principles of natural justice that any Customs Officer, in adjudication proceedings, whether dealing with the matter originally or in appeal, should come to a different conclusion on the same question of fact, on the same evidence. If this principle is not observed, it would lead to the strange situation, where in respect of the same offence, a person would be punished by one tribunal, on the basis that he is guilty, and honourably acquitted by another, on the basis that he is not.

28. In the instant case, the learned Special Judge, Customs, in the three criminal cases before him, distinctly held, on the basis of evidence adduced in that respect, that Muhammad Sarwar, petitioner, was a man of means, that he had made huge sums of money from business etc. that he had purchased about 8500 tolas of gold ornaments from a goldsmith of Lahore during the period 1970 to 1973, that he had got the said gold refined upto international standard and then had the same converted into gold rennies bearing stamps of foreign parties from a goldsmith of Lahore, that the samples of gold rennies with the foreign markings made by the said goldsmith of Lahore in a test experiment carried out in Court out of some gold bangles and a piece of gold supplied to him were so similar to the gold rennies recovered from the petitioner, that they could not even be distinguished by the Superintendent, Assay Office, Pakistan Mint C.W.2, that the petitioner had proved that the gold could be refined upto international standards and converted into gold rennies bearing foreign stamps and that, therefore, the petitioner had discharged the onus, which lay on him, to prove that the gold alleged to have been recovered from him was of Pakistan origin and that, therefore, the petitioner was not guilty of the offence of smuggling. The learned Collector (Appeals) has given the "Nelson's eye" to all these findings by holding that even though it was technically feasible to refine gold to the international purity level and fix counterfeit marks of foreign origin to the same, it was not practically feasible in this country, that it was not a common practice that gold was refined and converted into rennies bearing such counterfeit marks and numbers of foreign parties and sold in the market in that form and that any dealer dealing in such rennies could not escape action under the laws of the countries at the hands of one of the Government Enforcement Agencies. The observations indeed are startling, for more than many reasons. First, they appear to be based on assumptions, but not on any evidence. Assumptions, however logical, cannot take the place of evidence. Second, it was practically demonstrated that gold could be refined to the international standard and converted into gold rennies bearing counterfeit marks of foreign parties. The question whether it was practically feasible for all and sundry to do so, or whether such a practice was common, is not relevant. Before the Special Judge, Customs, the petitioner had proved he could do so and had demonstrated it, which evidence had been accepted. Third, it was not relevant to the case whether there was a common practice in the country or not that gold rennies with foreign markings could be locally produced and sold or that local goldsmiths making such counterfeit rennies could be prosecuted under any law for infringement of business name or trade mark. The question before the Collector (Appeals) was whether the gold rennies recovered from the petitioner were of foreign origin. The petitioner, to the satisfaction of the learned Special Judge, Customs, by elaborate evidence, proved it was not so. The Federal Government did not pursue their case in appeal, against the said judgments. They filed three appeals, but withdrew the same, due to a technical defect, without reserving their right to file fresh appeals in their stead. The Government did not take steps to file any fresh appeals thereafter. They could have done so and attempted, by additional evidence, to prove that the recovered gold rennies were of foreign origin. Evidence from the manufacturers to show specific dimensions of their rennies and the markings thereon and that of local experts to show the difference in such dimensions and markings between the sample gold rennies produced locally and that recovered from the petitioner, could have been tendered. Photographs showing the dimensions and markings, inflated one hundred to one thousand times the original size, could have shown the intrinsic differences. In fact, when I requested the Standing Counsel for the Federal Government to produce for my inspection the samples of gold rennies Exh. D1 to D3 produced by Muhammad Latif D.W. 8 in Court and a few of those recovered from the petitioner, the learned counsel stated that they had all been melted down after the criminal cases and none was available. It appears the Customs Authorities have melted down their own case. They knew the appellate proceedings under section 193 were pending and revision proceedings under section 196 would follow. Why they melted down all the gold rennies which had been exhibited, without retaining a few samples, for the inspection of their own officers, leave much to be desired. The observation of the learned counsel for the petitioner that they melted down the case property so that it should not become apparent that the gold rennies produced locally could not be distinguished from those recovered from the petitioner, is not without substance. What stands out prominently is that the Collector (Appeals) has not been able to distinguish or controvert the findings of the learned Special Judge, Customs, by any solid or incontrovertible evidence. In fact the learned Collector (Appeals) has made a case in his favour on grounds which must be deemed to be non-existent, in the face of the clear and definite findings given by the learned Special Judge, Customs. The order of the Collector (Appeals) dated 3-1-1985 being based on no material evidence and otherwise being against the principles of natural justice, deserves to be quashed., Since the order of the Government of Pakistan passed by its Additional Secretary, Ministry of Finance, dated 20-4-1986, is based on this, illegal order, the same is also illegal and deserves to be quashed.

28. Apart from the principle of pure law which has been discussed above, the next question that arises is whether section 179-A of the Customs Act, which was on the statute book from 15-1-1977 till its repeal on 28-6-1979, was applicable to the case when the appeal of the petitioner was being heard by the Collector (Appeals). Before dealing with this point, it is necessary to record a few facts which are relevant. Muhammad Sarwar, petitioner, was arrested on 29-8-1976, on which date the smuggled gold was recovered. On 13-12-1976 the Deputy Collector of Customs adjudicated the matter under section 179 of the Customs Act and confiscated the goods. On 13-1-1977 the petitioner and others preferred an appeal against the said decision before the Collector (Appeals). On 15-1-1977, section 179-A was inserted in the Customs Act. On 25-1-1977 three challans were submitted against the petitioner and others before the Special Judge, Customs, in respect of offences under section 156(1)89 of the Customs Act. On 7-2-1979 the petitioner and others were acquitted by the learned Special Judge, Customs, in all the three cases. On 28-6-1979 section 179-A was omitted from the Customs Act by the Finance Ordinance, 1979. On 3-1-1985 the Collector (Appeals) decided the appeal of the petitioner and others preferred against the adjudication order dated 13-12-1976.

29. With these facts I will now take up the question in hand. Section 179-A of the Customs Act, which was inserted in 1977, reads as follows:-- "Notwithstanding anything contained in section 179, section 181 or section 182 or in Chapter XIX, in cases where the owners or person-incharge of goods or things seized are to be, or are being prosecuted before a Special Judge, an order of adjudication made under section 179 or under Chapter XIX shall be subject to the decision of the Special Judge and of the Special Appellate Court in appeal or revision, if any." On the date section 179-A came into force, the appeal of the petitioner and others against the adjudication order was pending. At that time, the petitioner and others were to be prosecuted before the Special Judge Customs. The ingredients of this section were, therefore, satisfied and the order of adjudication to be made under section 179 or in appeal or revision under Chapter XIX, was to be subject to the decision of the learned Special Judge, Customs, and of the Special Appellate Court in appeal or revision, if any. It is true that this section was omitted on 28-6-1979, but in view of section 6(c) of the General Clauses Act, the repeal did not affect the right vested in the petitioner as an appellant to have his appeal decided, subject to the decision of the Special Judge, Customs, or of the High Court (as Special Appellate Court) in appeal or revision. Where the provision of any Central Act is repealed then, unless a different intention appears, the repeal, under section 6(c) of the General Clauses Act, 1897, does not affect any right or privilege that may have accrued or may have been acquired under the provision so repealed and any legal proceeding or remedy could be continued or enforced as if the repealing Act had not been passed. In this view of the matter, the right vested in the petitioner by section 179-A of the Customs Act remained intact and the appellate proceedings, which were pending, could be continued, as if the repealing Act had not been passed. It is urged on behalf of the Government that the word "made" in section 179-A qualifies the time of its application and if on the date adjudication proceedings are held this section is not present, the benefit of this section is not available. The word "made" is a past participle. Such words in statutes are sometimes treated as being doubtful in its tense and treated as referring to the past, present and future. As an example, the word "given" which is a part participle, is treated in this manner. The word "in consideration of credit given by A to B" were held to apply to future credit as well. (See Broom v. Bachelor, 25 L T Ex. 299). The expression "in consideration of your giving credit" was held to apply to future as well as to past credit. (See Edwards v. Jenons, 19 L T C P 50). The word "made", which is nothing but another expression for the word "passed", would, therefore, refer to a past, present or future order. Other than this, it does not tie down the meaning, as suggested by the learned Standing Counsel.

30. The upshot of the above discussion is that the three impugned orders ordering confiscation of the gold and imposing penalty on the petitioner are illegal, null and void and of no legal effect, as they appear to be based on no evidence. In any case, they are against the principles of natural justice and jurisprudence, in that they tend to defeat the judgments given by the learned Special Judge, Customs, in favour of the petitioner holding that the gold was not smuggled, without distinguishing the findings of the learned Special Judge, Customs, either on law or on strong and incontrovertible facts. Still further, they are in utter disregard of section 179-A of the Customs Act, which was applicable to the case, at the stage of appeal and revision.

31. For the foregoing reasons, this petition is accepted and it is hereby declared that the three impugned orders ordering confiscation of the petitioner's gold and imposing penalty passed by respondents Nos. 1, 3 and 4 are illegal, null and void and without legal effect. The respondents are hereby directed to return to the petitioner the gold seized from him or to reimburse its market value, according to the Customs rules prevailing in the matter. The petitioner shall be entitled to his costs. M . B . A . / M-468 / L Petition accepted.