P L D 1970 Peshawar 66 (PLP)

(a) Criminal Procedure Code (V of 1898), S. 403 read with Sea Customs Act (VIII of 1878), S. 167 (81)‑Maxim: Nemo debet bis vexari pro eadem causa (no person should be twice dis turbed for same cause)‑Principles of autrefois acquit (formerly acquitted), autrefois convict (formerly convicted) and double jeopardy‑Principle of S. 403, Cr. P. C. and maxims applicable and fresh trial barred only when previous conviction or acquittal made by Court of competent jurisdiction‑Confiscation of goods under S. 167 (81) of Sea Customs Act, 1878‑Not an order of conviction by competent Court‑Criminal trial of offender subsequent to confiscation of goods by Customs Authorities of alleged smuggled goods Not barred. (b) Sea Customs Act (VIII of 1878), S. 167 (81) [as amended by Sea Customs (Amendment) Act (XXXIV of 1957), S. 2]‑Item (81) of S. 167 comprises of two portions one relating to confiscation of goods and other to trial of offender in criminal Court‑‑Customs Authorities can confiscate goods allegedly smuggled simultaneously with criminal trial or before or after its initiation or conclusion and even in disregard of fact whether accused was convicted or acquitted. Assistant Director of Customs v. Muhammad Afzal Khan P L D 1964 Pesh. 178; Criminal Revision Application No. 550 of 1954; Writ Petition No. 1535 of 1965; Adam v. Collector of Customs, Karachi P L D 1969 S C 446; Mosam Khan and others v. The State 1969 S C M R 208; Hassan Ali v. Collector of Land Customs, Lahore P L D 1958 Lah. 533; Guy. T. Wavering, Commissioner of Internal Revenue v. Charles E. Mitchell 303 U 5 391‑406 52 law Edn. Oct. Term 1937 U S 302‑304; Thomas Dana v. State of Punjab A I R 1959 S C 375 and Maqbool Hussain v. State of Bombay A I R 1953 S C 325 eel. Syed Sharifuddin Pirzada Attorney‑General for Pakistan and Sardar Fakhri Alam, A. A.‑G. for the State. JUDGMENT SHER BAHADUR KHAN, J.‑The question referred to the Full Bench is as under :‑ "Whether the powers of confiscation under the Sea Customs Act survive to the Customs Authorities even in a case where the Magistrate acquits or discharges the accused holding the property not to be smuggled one or to have contravened any of the restrictions or prohibitions on its import 7"

2. The question arose out of two Criminal References Nos. 100 and 141 of 1967 made by the Additional Sessions Judge Peshawar, by separate orders dated 31‑3‑1967 and 19.4‑1967. Along with the two criminal references mentioned above, their sister Cr. R. No. 270 of 1968 also raises a common question of law, and likewise, has been referred to the Full Bench.

3. The facts of the criminal references as noticed in the referring order dated 27‑2‑1968 of his Lordship the then Senior Judge (Mr. Justice Faizullah Khan) are as follows :‑ In the first noted case, on 2‑8‑1965, the Customs Intelligence Officer arrested Ghulam Jaffar and ‑. Ghulam Muhammad respondents at the G. T. S. City Bus Stand, Peshawar on the allegation that they were carrying two pieces of smuggled gold, each weighing 85 tolas and 6 mashas. Haji Abdul Aziz, respondent No. 3, was also tried for an offence under section 167(81) of the Sea Customs Act. The trial Magistrate, by his order dated 30‑11‑1966, acquitted all the accused, as he thought that the gold recovered from the possession of the two accused, namely, Ghulam Jaffar and Ghulam Muhammad, was not smuggled one. He further directed that the gold pieces (Exhs. P. 1 and P. 2) be returned to the owners from whose possession they were recovered.

4. In the second case, 356 locks, 37 hair‑pin cards, 19 cigarette lighters and 136 handkerchiefs were recovered from the possession of Abdul Qayum, a shopkeeper of Peshawar City. He was prosecuted under section 167(81) of the Sea Customs Act, on the allegation that the accused was found in possession of the articles which were smuggled ones. Mr. Muhammad Zaman Khan, Additional District Magistrate, by his order dated 17‑9‑1966, discharged the accused and directed that the articles be‑returned to the accused.

5. These criminal references were initiated by the Additional Sessions . Judge, Peshawar, by his orders dated 31‑3‑1967 and 19‑4‑1967, recommending that the orders of the Magistrate directing the return of the gold in the first case and of the articles in the second case should be quashed, in view of the, rule .enunciated in Assistant Director of Customs v. Muhammad Afzal Khan (P L D 1964 Pesh. 178).

6. In the third case, the accused was convicted by a Magistrate under section 167(81) Sea Customs Act for having been found in possession of Radio Phonogram on 4‑4‑1968, which he allegedly smuggled without having paid the custom duty and on appeal, the Additional Sessions Judge, Peshawar acquitted the accused of the offence charged with and directed the return of the Radio Phonogram to him on 8‑10‑1968. This order of the learned Additional Sessions Judge has been questioned by the Customs Authorities, on the ground that the criminal Courts can only convict or acquit the accused person, but they have no jurisdiction to pass any order with regard to the seized goods. This case too, as already stated, has been taken up for decision along with the two other cases mentioned above.

7. In order to appreciate the question referred to the Full Bench it will be necessary to reproduce below section 167 of the Sea Customs Act (item 81) which will hereinafter be called the Act, for the sake of brevity and convenience. "S.

167. Punishment for offence.‑The offenses mentioned in the first column of the following Schedule shall be punishable to the extent mentioned in the third column of the same with reference to such offences respectively :‑ 81.‑If any person, without lawful (General) excuse, the proof of which shall be on such person, acquires possession of or is in any way concerned in carrying, removing, depositing, harbouring, keeping or concealing or in any manner dealing with any goods which have been unlawfully removed from a warehouse, or which are chargeable with a duty which has not been paid or with respect to the importation or exportation of which there is a reasonable suspicion that any prohibition or restriction for the time being in force under or by virtue of this Act has been contravened or if any person is in relation to any such goods in any way, without lawful excuse, the, proof of which shall be on such person, concerned in any fraudulent evasion or attempt at evasion of any duty chargeable thereon or of any such prohibition or restriction as aforesaid or of any pro vision of this Act applicable to these goods. The substituted entry ran as follows :‑ Such goods shall be liable to confiscation, and the person concerned in such offence shall on conviction before a Magistrate, be liable to a fine not exceeding five times fine not exceeding five times imprisonment for a term not exceeding ten years and not less than three months, or to both.

8. In Assistant Director of Customs v. Muhammad Afzal Khan the real question raised in the reference before the High Court was "whether on the correct interpretation of the material provision of the Sea Customs Act, 1878, a Magistrate, while taking cognisance of an offence, alleged to have been committed under section 167, item 81, under section 187 is empowered to make any order in regard to release of a truck in which 506 bundles of art silk yarn were allegedly smuggled". His Lordship after consideration of the relevant provisions of the Sea Customs Act observed 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". It was further observed that "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". "It also strikes me that is the case of contraband goods hit by section 19 of Sea Customs Act, the ultimate arbiter is the Customs Collector himself and he alone is competent to adjudicate upon the goods in question. The function of the Magistrate is to deal with the offender only and not with the contraband goods. Sections 179 and 180 of the Sea Customs Act which relate to things seized and prescribed the procedure as to how they are to be dealt with provided that these seized articles should be delivered into the care of any Customs Officer authorized to receive them. Hence, even though the police may first seize articles, the law provides that as they have done in the instant case, they should make them over to the nearest Customs House as soon as possible to be there proceeded against according to law. I am fortified in this view by the judgment of Faizullah Khan, J. the case of Assistant Director Customs v. Muhammad Afzal Khan P L D 1964 Pesh.

178. It was held in that case that a Magistrate taking cognizance of an offence committed under section 167 of the Sea Customs Act is not empowered to release the vehicle alleged to be carrying the contraband goods."

10. A similar matter, once again came up before a Division Bench of this Court comprising of A. R. Sheikh and Ghulam Safdar Shah, JJ. in Writ Petition No. 1833 of 1965, decided on 18‑10‑1967. In that (unreported) case, a truck bearing No. PR‑5811 was to cross Attock Bridge on the morning of 20‑11‑1963 carrying art silk yarn of foreign origin. The Customs Authorities, Peshawar organized a raiding party who at 6‑30 a.m. on 20‑11‑1963 stopped the said truck which was driven by one Mullan Noor. Petitioner No. 1 before the High Court was the cleantr of the truck. On a check carried out by the Customs officials 411 bundles of art silk yarn of foreign origin and 60 bags of Gley (Saresh) were found in the said truck. While the checking of the truck was in progress, one Wahidur Rahman appeared on the scene in a car and started remonstrating with the Customs Officer urging him to release the truck, but the said officer did not agree. Finding an opportunity, however, the truck was driven by driver Mullan Noor from the scene along with the goods. A case was registered and at the pointing of petitioner No. 1 before the High Court the police party recovered 411 bundles of art silk yarn of foreign origin, while at the instance of Mullan Noor, the driver of the truck, 60 bundles of Gley (Saresh) were recovered. This case was referred by the Commissioner, Rawalpindi Division for trial of the accused by a Tribunal under section 3(1) of the West Pakistan Criminal Law (Amendment) Act, 1963, for an offence under section 167(81) of the Sea Customs Act, 1878. The Tribunal found petitioner No. 1 and his co‑accused not guilty of the offence and the finding was confirmed by the District Magis trate, Campbellpur, on 27‑5‑1965. This finding was challenged before the High Court in its writ jurisdiction inter alia on the ground that petitioner No. 1 having been acquitted by the Tribunal could not be made to stand another trial before the Sea Customs Authorities as it would amount to subjecting him to "double jeopardy". Before the Division Bench, the two earlier judgments of this Court one from Karachi Bench and the other from the Peshawar Bench reported in Assistant Director of Customs v. Muhammad Afzal, were cited with approval, and the Division Bench in accord with the previous views of this Court came to the conclusion that "when the Tribunal was seized of the trial of petitioner No. 1 for an offence under section 167(81) of the Sea Customs Act, 1878, its jurisdiction extended only to the person of the accused and not to the case property. The question of the disposal of the propefty was to remain exclusively in the jurisdiction of Custom Authorities."

11. It is manifest that there was no conflict of judicial opinion so far as this Court was concerned on the question referred to the Full Bench, but as the referring order of the learned Judge in Chambers shows, his Lordship wanted an authoritative pronouncement on the question which was rather emphatically put forward, as to whether the power to confiscate goods survives to the Customs Authorities in spite of acquittal or discharge of the accused person by a Magistrate.

12. The learned Attorney‑General has mentioned that the power survives. The learned counsel for the accused bas contended that it does not. The learned Attorney‑General after adverting to the relevant provisions of the Act referred to in the earlier decisions of this Court, contended that the intention of the Legislature was clear that the disposal of the goods seized under the Act is left entirely in the jurisdiction of the Customs Authorities. The proceedings taken by the Customs Authorities for the confiscation of the goods are more in the nature of departmental proceeding which have been characterized in English and American jurisprudence as "proceedings in condemnation of the goods for purposes of revenue and are regarded as proceedings of a civil nature, despite their penal character. The Sea Customs Authorities are net a judicial tribunal in the strict sense of that term nor can their verdict of confiscation of the goods be regarded as a punishment by the Court after regular trial for the purpose of supporting a plea of "double jeopardy". On the other hand, the proceedings for the criminal prosecution of a per on who commits an offence under the Act in relation to those goods, fall in a separate category. They are judicial proceedings for the determination of the guilt of the person concerned for commission of the alleged offence and entailing a punishment for the same. Both are concurrent remedies but each is independent of the other. They cannot, therefore, be deemed to be mutually exclusive. Therefore, no question of double jeopardy arises when simultaneously or subsequently a trial is held to determine the guilt of the individual, who has been concerned in the offence in respect of the goods which are the subject‑matter of the adjudication proceedings. And since the proceedings for adjudication by the Customs Authorities and the criminal prosecution of the offender in the Court are not inter‑dependent, they can proceed simultaneously and neither can remain under suspension for the sake of the other, The learned Attorney- General relied on our Supreme Court judgment reported in Adam v. Collector of Customs Karachi (P L D‑1969 S C 446). Their Lordships followed with approval the decision by a Bench of their own Court in the case reported as Mosam Khan and others v. The State (1969 S C M R 208). In Mosam Khan's case, the Supreme Court pointed out that the word "and" after the clause "such goods shall be liable to confiscation" has to be read in disjunctive sense and not conjunctively, This distinction was pointed out in view of the following language of item 8(a) to section 167, column 3 of the Sea Customs Act :‑ "Such goods shall be liable to confiscation, and any person concerned in the offence shall, on conviction before a Magistrate be liable to imprisonment for a term not exceeding ten years and not less than three months, and shall also be liable to fine ‑not exceeding five times the value of the goods."

13. In order further to impress and elucidate this distinction drawn by the Supreme Court in the Legislature's selection of the word "and" after the clause "such goods shall be liable to confiscation" which words also occur in the same manner in item No. 81 relevant to the present case; it may with respect be added, that if the Legislature were not to intend the above distinction and the panalty in column 3 were to fall within the domain of the Magistrate exclusively, not only that the confisca tion clause were to follow rather than precede the penalty clause, as for instance provided for in sections 126, 127, 169, 263‑A and 302 (Amended section) of the Penal Code, but the word "also" should have found its mention after the word "Magistrate", and the letter "be" and before the words "liable to imprisonment", so as to read as under :‑ "Such goods shall be liable to confiscation, and any person concerned in the offence shall, on conviction before a Magistrate, be also liable to imprisonment for a term

14. Another point which is worthy of note is that the word "penalties" has been used in column 3 of the Schedule to section 167 in contradistinction to the word "fine" which would have been used in case the Court of a Magistrate under the Cr. P. C. were intended to be the sole arbiter, because then the Legislature were to employ the word "fine" and discard the word "penalties" altogether and better substitute the word "punishment". That this was intentional on the part of the Legislature to keep the jurisdiction of the Sea Customs Authorities intact, in matters falling within their own jurisdiction that the word "penalties" was mentioned in the penalty clause in relation to the confiscation of goods, becomes too plain a proposition to be over‑emphasized.

15. It is important to notice at this stage the import of the entry in penalty clause (iii) of item No. 81 as it stood on 18th December 1954, on which date by the operation of Ordinance III of that year, item No. 81 was inserted in section 167, which reads : ; ,; . .1. "Such goods shall be liable to be confiscated and the person concerned in any such offence shall be liable to a penalty not exceeding 5 times the value of the goods, or on conviction before a Court to imprisonment for any term of less than 3 years, or, to fine or to both."

16. The choice himself to deal with the case, or to send the offender to trial by Court, was left with the Customs Authorities by the above provision of law, which, however, came under direct fire in Hassan Ali v. Collector of Land Customs, Lahore (P L D 1958 Lah. 533), before a Division Bench composed of their Lordships S.A. Rahman, C. J. and Waheeduddin Ahmad, J. It was conceded before their Lordships that the Customs Authorities discretion to have recourse to one of the two alternatives mentioned in the penalties column against items 8 and 81 of section 16 7 of the Act was completely untrammeled by any guiding principle and, therefore, it would depend on the sweet will of the officer concerned whether an offender could escape only with deprivation of certain property and a monetary loss in the shape of a pecuniary penalty or be subjected to the hazard of a prosecution in a Court of law, entailing the consequence of incarceration in prison besides suffering the punishment of a fine. The procedures for the two alternatives are different and the discrimination contemplated by them was of a grave character. After hearing the counsel for the parties their Lordships entertained no doubt that the case fell within the principle laid down by the Supreme Court in Waris Meah's case and the provision contained in the last column of items 8 and 81 of section 167 being ex facie discriminatory would be within the mischief of the equality clause embodied in Article 5 of the Constitution and therefore, void, by virtue of Article 6 of the Constitution from the Constitution day. The inference was, therefore, obvious that on the 9th July 1956, the day of the raid the petitioner before their Lordships could not have been proceeded against under these provisions, with the result that the proceedings taken by the Custom Authorities in that case were declared wholly void and were quashed.

17. The above provision of law, i.e. penalty column No. 3 of item 81 was, however, subsequently amended by Ordinance No. VIII of 1957 and later replaced by Amending Act XXXIV of 1957, which upon the amendment now reads as under:‑ "All such goods shall be liable to confiscation and the person concerned in such offence shall, on conviction before a Magistrate, be liable to imprisonment for a term . . . . ."

18. It follows that the Legislature has by amending item No. 81 of section 167 of the Act brought this provision of law into conformity with the equality clause enshrined in Article 5 of the Constitution, by deleting one of the alternatives is the penalty clause as stood before the amendment. The present penalty clause of item 81 after amendment of 1957 has, therefore, become a perfect piece of legislation and admits of no ambiguity or error, and shows in unmistakable terms that it comprises 4 of two portions, one relating to confiscation of the offending goods and their disposal by the Customs Authorities, and the other to the trial of the offender by a Criminal Court under the Criminal Procedure Coda. In the interpretation of Statute, the elementary rule is to give full and accurate effect to every word used in them. The Courts in the exposition of penal statutes are not to narrow its construction. It is not within the province of a Court to scan or widen the policy of the Legislature. It is not the duty of the Court to make law, but to expound it as it stands according to the real sense of the words. The judgment of the Division Bench of the High Court in Hassan Ali v. Collector, Land Customs, indicates that if the amendment of item 81 of the Act of 1957 could be held to have retrospective effect, the writ petition would have been dismissed, and the challenge to the act of the Sea Customs Authorities would have been thrown out.

19. It may also be noticed that against certain items of the Schedule to section 167 the liability of the goods to confiscation alone, is mentioned as penalty, without any mention of trial by a Magistrate, such as items 1, 2, 4, 11, 12, 34, 35, 42, 43, 47 and 68 of the Schedule to section

167. Similarly, there are certain other items, such as, 3, 6, 7, 9, 9‑A, 13, 14, 15, 16, 18, 19, 20 to 23, 25, 30, 33, 45, 53, 55, 56, 58, 60, 62, 64, 66, 67, 69, 71, 79 and 80, which are punishable with penalty of fine only, without any mention of trial by a Magistrate, and there are still other items, such as, 23, 26, 74, 75, 76 and 78 which when make mention of Magistrate or Court, they mention "fine" instead of "penalty of fine" as the only or one of the punishments, prescribed therefore.

20. Section 182 of the Act may now be noticed which reads: --‑ Adjudication of confiscations 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 deems appropriate."

21. The Sea Customs Authorities, therefore, while exercising power under section 182 of the Act do not act as Judicial Tribunal, because neither they are required to record the evidence of witnesses on oath, nor are they bound by the provisions of the Criminal Procedure Code. 22. "Judicial proceeding" is defined in section 4(1)(m) of the Criminal Procedure Code which reads:‑ "Judicial proceeding, include any proceeding in the course of which evidence is or may be legally taken on oath."

23. The following observations as quoted in A I R 1952 Cal. 789 at p. 795, were made by Maugham, J., in the case of Maclean v. Workers Union (1) while dealing with powers of Domestic Tribunal' exercising quasi judicial functions:‑ "Speaking generally it is useful to bear in mind the very wide differences between the principles applicable to Courts of justice and these applicable to domestic tribunals. In the former the accused is entitled to be tried by a Judge according to the evidence legally adduced and has a right to be represented by a skilled legal Advocate. All the procedure of a modern trial, including the examination and cross‑examination of the witnesses and the summing up it may; is based on these two circumstances. A domestic tribunal is in general a tribunal composed of laymen. It has no power to administer an oath and a circumstance which is of greater importance, no party has the power to compel the attendance of witnesses. It is not bound by the rules of evidence. It is indeed probably ignorant of them. It may act and some times must act on mere hearsay and in many cases the members present or some of them are themselves both the witnesses and Judges"

24. Another peculiarity of this Act which distinguishes it from the procedure envisaged in the Cr. P. C., is that even the (1) (1929) 1 Ch. 602 accused person is a competent witness in his own defence vide section 193‑M of the Act.

25. Orders of the Customs Authorities, with confiscation or infliction of penalty, are, however, not without remedy, because under section 185 appeal lies, and section 191 provides for Revision to the Central Government, while section 190 of the Act clothes the Chief Customs Authorities with the following General powers: --‑ "Power to remit penalty or confiscation. If upon consider ation of the circumstances under which any penalty, . . . . . or confiscation has been adjudged under this Act by an officer of Customs, the Chief Customs Authority is of opinion that such penalty, . . . . . or confiscation ought to be remitted in whole or in part, or commuted. such authority may remit the same or any portion thereof, or may, with the consent of the owner of any goods ordered to be confiscated, commute the order of confiscation to a penalty not exceeding the value of such goods."

26. It is, therefore, quite clear that the Act is a complete Code by itself so far as the confiscation of the smuggled goods or the penalty to be inflicted therefore are concerned and that it has been, therefore rightly ruled more than once, that the smuggled goods can only be disposed of by the order of different officers in the hierarchy of the Customs Department.

27. The main contention urged on behalf of the accused respondents was that since the respondents were acquitted of the charge by the criminal Court, they could not be proceeded against for confiscation of the same goods which was the subject- matter of the criminal charge against them. The argument raises the principle laid down in section 403, Cr. P. Code, which embodies the ancient maxim, nemo debet bis vexari pro eadem causa. (No person should be twice disturbed for the same cause) and provides that the person has once been tried and convicted or acquitted of an offence, could not be tried for the same offence or for any other offence which is not distinct from the one B previously tried. It incorporates further the common law principle of the well known pleas of autrefois acquit (formerly, acquitted) and autrefois convict (formerly convicted), but it must be remembered that for the application of the aforesaid principles of the common law and the bar of afresh trial under section 403, Cr. P. Code would apply only where the previous conviction or acquittal has been by the Court of competent jurisdiction. As discussed in detail, the question of confiscation of goods or otherwise was‑ entirely within the statutory jurisdiction of the Sea Customs Authorities under item 81 to section 167, and not only that the same was not referred to the Criminal Courts in the three cases in hand, but they were also outside the jurisdiction of the Criminal Courts.

28. The learned Attorney‑General has relied on an American decision of the Supreme Court reported in Guy T. Wavering, Commissioner of Internal Revenue v. Charles E. Mitchell (303 U S 391‑406‑52 Law Ed. Oct. Tern 1937 U S 302‑304), and the following excerpt may be quoted from that decision with advantage:--‑ "In accord with the settled judicial construction the legis lation of congress from the beginning, not only as to tariff but as to internal revenue, taxation and other subjects, has proceeded on the conception that it was within the competency of Congress, when legislating as to matters exclusively within its control, to impose appropriate obligations and sanction their enforcement by reasonable money penalties, giving to executive officers the power to enforce such penalties without the necessity of invoking the judicial power Congress may impose both a criminal and a civil sanction in respect to the same act or omission; for the double jeopardy clause prohibits merely punishing twice, or attempting a second time to punish criminally, for the same offence. The question for decision is thus whether para. 293(b) imposes a criminal sanction. That question is one of statutory construction. Compare Murphy v. United States 272 U S 630, 632, 71 L Ed. 446, 451, 47 S. Ct.

218. Remedial sanctions may be of varying types. One which is characteristically free of the punitive criminal element is revocation of a privilege voluntarily granted. Forfeiture of goods or their value and the payment of fixed or variable sums of money are other sanctions which have been recognized as enforceable by civil proceedings since the original Revenue Law of 1789, Act of July 31. 1789 Chap. 5 para. 36, 1 Stat. at L 2), 47." It was made further clear in the judgment that "In spite of their comparative severity, such sanctions have been upheld against the contention that they are essentially criminal and subject to the procedural rules governing criminal prosecutions".

29. To the same effect are the judgments reported as Thomas Dass v. State of Punjab (AIR 1955 S C 375) and Maqbool Hussain v. State of Bombay (AIR 1953 S C 325). In the latter case the facts were: "The appellant, a citizen of Bharat, arrived at the Santa Cruz Airport from Jeddah on 6‑11‑1949. On landing he did not declare that he had brought in gold with him but on search it was found that he had brought 107.2 tolas of gold in contravention of the notification of the Government of India dated 25‑8‑1948. The Customs Authorities thereupon took action under section 167, clause (8) Sea Customs Act VII I of 1878 and confiscated the gold by an order dated 19‑12‑1949. The owner of the gold was, however, given the option to pay in lieu of such confiscation a fine of Rs. 12,000 which option was to be exercised within four months of the date of the order. A copy of the order was sent on 30‑1‑1950 to the appellant. Nobody came forward to redeem the gold. On 23‑3‑1950 a complaint was filed in the Court of the Chief Presidency Magistrate, Bombay, against the appellant charging him with having committed an offence under section 8, Foreign Exchange Regulation Act VII of 1947 read with the notification dated 25‑8‑1948. The appellant thereupon on 12‑6‑1950 filed a petition in the High Court of Bombay under Art. 228 of the Constitution contending that his prosecution in the Court of the Chief Presidency Magistrate was in violation of the fundamental right guaranteed to him under Art. 20(2) of the Constitution and praying that as the case involved a substantial question of law as to the interpretation of the Constitution, the deter mination of which was necessary for the disposal of the case, the case may be withdrawn from the file of the Chief Presidency Magistrate to the High Court and the High Court may either dispose of the case themselves or determine the question of law and return it to the Chief Presidency Magis trate's Court for disposal." The question that arose for determination before the Supreme Court was, whether by reason of the proceedings taken by the Sea Customs Authority, the appellant could 'be said to have been prosecuted and punished for the same offence with which he was charged in the Court of the Chief Presidency Magistrate, Bombay. Their Lordships observed that "there is no doubt that the act which constitutes an offence under the Foreign Exchange Regu lation Act was one and the same, vie. importing the gold in contravention of the notification of the Government of India dated 25‑8‑1948. The appellant could be proceeded again under section 167(8) Sea Customs Act and also under section 23, Foreign Exchange Regulation in respect of the said Act. Proceedings were in fact taken under section 167(8), S‑.a Customs Act which resulted in the confiscation of the gold. Further proceedings were taken under section 23, Foreign Exchange Regulation Act by way of filing the complaint aforesaid in the Court of the Chief Presidency Magistrate, Bombay, and the plea which was taken by the accused in bar of the prosecution in the Court of the Chief Presidency. Magistrate, was that he had already been prosecuted and punished, for under Art. 29(2) of the Constitution he could not be prosecuted, and punished again". Their Lordships, after stating the tests of judicial tribunal', came to the conclusion that‑ "The Sea Customs Authorities are not a judicial tribunal and the adjudging confiscation, increased rate of duty or penalty under the provisions of the Sea Customs Act do not constitute a judgment or order of a Court or judicial tribunal necessary for the purpose of supporting a plea of `double jeopardy', and that therefore when the Customs Authorities confiscate the gold brought in India in contravention of a Notification of the Government of India neither the proceedings taken before the Sea Customs Authorities constitute a prosecution of the person from whom it is confiscated, nor does the order of confiscation constitute a punishment inflicted by a Court or judicial tribunal on that person. Such persons cannot be said by reason of these proceedings before the Authorities to have been prosecuted and punished' for the same offence with which he is later charged before the Magistrate, in the complaint which is filed on against him under section 23 of the Foreign Exchange Regulation Act, 1947."

30. In Themas Dass v. State of Punjab, the facts were as follows:‑ "On 11th June 1957, the petitioner arrived at Bombay, later came to Delhi and from there he traveled to Amritsar by car in company with Mr. Lee Roy Prey. On 23rd June 1957, he reached Attari Road Land Customs Station and was arrested under section 173 of the Sea Customs Act, 1878 (Act VIII of 1878) on suspicion of having committed an offence there under. He was served with a notice by the Collector of Central Excise and Land Customs, New Delhi, on July 7, 1957 to show cause why penalty should not be imposed on him under section 167(8) of the Sea Customs Act (hereinafter called the Act) and section 7(2) of the Land Customs Act, 1924, and why the goods should not be confiscated. By order dated July 24, 1957, the petitioner was adjudged guilty under section 167(8) of the Act and currency of the value of over 9 lakhs, car worth Rs. 50,000, and other things were confiscated,‑ and he was punished with personal penalty of Rs. 25,00,

000. The petitioner was again prosecuted on the same facts before the Additional District Magistrate, Amritsar, on charges under section 167(81) of the Act and sections 23 and 23‑B of the Foreign Exchange Regulation Act. It was convicted on charges under section 23 read with section 23‑B of the Foreign Exchange Regulation Act, section 167(81) of the Act and section 120‑B of the Indian Penal Code and sentenced to imprisonments of 2 years 6 months and 6 months respectively by the Additional District Magistrate, Amritsar. The con victions and sentences were confirmed on appeal by the Additional Sessions Judge and the revision filed in the High Court was dismissed."

31. Their Lordships explained the meaning of Prosecution "as a proceeding either by way of indictment or information in the criminal Courts in order to put an offender upon his trial". The Chief Customs Officer or any other officer lower in rank than him in Customs Department is not a Court and that is made clear by the provisions of section 187‑A of the Sea Customs Act. It was ruled that‑ "Simply because the Customs Authorities took a very serious view of the smuggling activities of a person and imposed very heavy penalties under item 8 of the Schedule to section 167 of the Sea Customs Act would not convert these authorities into a Court of Law or the penalty imposed on that person the same taking as a punishment imposed by a criminal offence. That Act when it meant proceeding to be taken by the Customs Authorities themselves, as is the case in most of the items to Schedule to section 167, has empowered these authorities to deal with the offending articles by way of confiscation or with the person infringing these rules by way of imposition of penalties in contradistinction to a sentence of imprisonment or fine or both. When a criminal prosecution and punishment of a criminal, in the sense of the penal law, is intended the section makes a specific reference to a trial by a Magistrate, a conviction by such Magistrate and as such conviction to impri sonment or fine or both. The Legislature was therefore aware of the distinction between a proceeding before the Customs Authorities by way of enforcing the preventive and penal provisions of the Schedule and a criminal prosecution before a Magistrate with a view to punishing offenders under the provision of the same section."

32. K. Subba Rao, J. who struck a discordant note with the majority judgment of the Court in the above case was however of the view that the word "prosecution" is comprehensive enough to take in a prosecution before an authority other than a Magisterial or a criminal Court. But the following observations made in the ex parte judgment written by him after quoting from the observations in Maqbool Hussain v. State of Bombay show that his Lordship did not have much to differ with the Supreme Court's earlier view as far as the adjudication of confiscation by the Customs Authority was concerned, which question alone is of paramount consideration in the present case: "This Court therefore accepted the view that the earlier prosecution should have been before a Court of law or a judicial Tribunal, and that the Sea Customs Authorities when they entertained proceedings for the confiscation of gold did not act as a judicial tribunal. In my view the said decision unduly restricted the scope of the comprehensive terms in which the fundamental right is couched. If res integra, I would be inclined to hold that the prosecution before the Customs Authority for an offence created by the Act is prosecution within the meaning of Article 20, even though the Customs Authority is not a judicial Tribunal. But I am bound by the decision of this Court in so far as it held that the earlier prosecution should have been held before a Court of Law or a Judicial Tribunal, and that the Customs Authority adjudging confiscation was not such a Tribunal. But the said observations must be confined to the adjudication of confiscation by the Customs Authority."

33. In Adam v. Collector of Customs, Karachi, the facts before the Supreme Court were as under:‑ "The appellant, who is before us by special leave, was hauled up near Malir Bridge by a Police party of the Customs Depart ment on the 18th of October 1965, while traveling in a car towards Hyderabad, along with his companion, one Shaukat. A search was carried out and contraband gold of foreign origin, weighing 300 tolas was recovered from the car." First information report was lodged with the police on the same date, which was followed up by a charge‑sheet against the appellant and his co‑accused, Shaukat, under section 167(8‑a), 167(81) read with section 212 of the Sea Customs Act (herein after referred to as the Act). Their prosecution was launched in the Court of the City and Additional District Magistrate Karachi, which ended in their conviction and each was sentenced to five year's rigorous imprisonment. The trial Court also directed that the gold and the car, which were seized from the accused, shall be disposed of by the Customs Authorities under the provisions of the Sea Customs Act. An appeal preferred by the accused against their conviction and sentences has been dismissed by the High Court and a petition for leave to appeal to this Court was also rejected. Concurrently with the prosecution of the accused in the criminal Court the Customs Authorities served a notice on them on the 27th of November 1965, to show cause against the confiscation of the aforesaid goods. The appellant filed a petition in the High Court under Article 98 of the Constitution in challenge of the Collector's action. It was claimed that the criminal prosecution of the appellant, after the adjudication proceedings for the forfeiture of the goods under the Sea Customs Act had been initiated against him by the Custom Authorities was illegal and without lawful authority as it amounted to his trial and punishment twice over for the same offence, thus infringing the prohibition against double jeopardy, which is enjoined by law and the principles of natural justice. It was alternatively claimed that a criminal prosecution, even if it were valid, should have been deferred till the final adjudi cation by the Customs Authorities as regards the confiscation of the goods seized by them. The High Court has dismissed the petition in limine leading to a petition for special leave to appeal to this Court, which was allowed to consider the important, legal question raised in the contentions of the appellant.

34. On the above facts our Supreme Court ruled that "the liability to prosecution under item No. 81 of the Schedule to section 167 of the Act before a Magistrate is not dependent on prior adjudication of the liability to confiscation of goods by the Customs Authorities, and that both can proceed simultaneously or one after the other".

36. In Mosam Khatn and others v. The State, the facts were as under:‑ "On 10‑6‑1966 a police party seized (truck No. PRA 1518) at a distance of 2 miles across the Custom Check Post, Kustun. District Mardan, on way to Swat State, containing large quantity of art silk yarn and cloth of foreign origin of which the import was banned by notification issued by the Government of the Pakistan under section 19 of the Sea Customs Act from time to time. The truck was seized along with the contraband goods and the three appellants who were sitting in the truck at the time of seizure were placed under arrest. Before the liability of the seized goods was adjudicated upon by the Customs Authorities, the police submitted a challan against the appellant under section 167(81) of the said Act in the Court of Magistrate 1st Class, Mardan. The appellants thereupon filed a petition under section 561 of the Code of Criminal Procedure in the High Court for quashing the proceedings pending before the Magistrate and failing to get redress moved this Court for special leave to appeal".

36. On the above facts our Supreme Court after taking due notice of the original entry in column 3 of item No. 81 and its amendment from time to time had also observed that according to the original entry, officers of the Customs alone were to deal with 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 Customs Authorities chose not to confiscate the goods the liability to imprisonment, etc. was done away with. The Supreme Court therefore ruled that the liability to prosecution under item No. 81 of the Schedule to section 167 of the Act before a Magistrate is not dependent on prior adjudi cation of liability to confiscation of goods by officer of the Custom. It follows that if the aforesaid action was deferred by the Customs Authorities in the instant cases, till the original proceedings launched by them (Customs Authorities) against the accused persons in the Criminal Courts, were finally concluded, it does not affect their jurisdiction to initiate that action upon the conclusion of the trial in the Criminal Courts, irrespective of the fact as to whether the trial ended in the acquittal or conviction of the accused person.

37. To sum up, after having carefully analysed the relevant provisions of the Act and having exhaustively compared the relevant entry in column 3 of the Schedule to section 167 of the Act (item 81) with eighty other items of the schedule to the same section, both before and after the amendment by Act VIII of 1957, in the light of the highest pronouncements of our Supreme Court, and the Supreme Court of India, and having further respectfully endeavored to lend additional support to the superior Courts interpretation of the entry in column 3 by pointing out, that the penalty clause inserted therein, is of its own kind, having no paralleled in the vast penal provisions of the Penal Code, and the Code of Criminal Procedure, where phrases such as "sentence of imprisonment" and "sentence of fine" are used, in contradistinction to the phrase "Penalty" as in the Act; and further having shown that the words "forfeiture and confiscation" wherever they occur in sections 126, 127, 169, 263‑A and 302 (amended section) of the Penal Code they come after, and not precede the words "imprisonment or fine or both", as in item No. 81 ante, it becomes sufficiently clear, that the two provisions with regard to confiscation, and trial of the offender by a criminal Court fall within the ambit of the Customs Authorities and the criminal Court respectively quite independent of each other, despite the twin penal actions provided for in the same section. In providing for confiscation under the Act, the Government has purported to exercise, what is known in American Constitution, as the exercise of `Police Power' of the State by which a person may be deprived of his property under provision of any State Law for the Purpose of impeding any tax or penalty or for promotion of public health or for prevention of damage to tile life and property.

38. The question referred to us stands concluded by the two judgments of our Supreme Court in Adam v. Collector of Customs and Mosam Khan v. State, as their Lordships have expressly laid down that since the proceeding for adjudication by the Customs Authorities and the criminal prosecution of the offender in the Court are not inter‑dependent, they can proceed simultaneously, and neither can remain under suspension for the sake of the other.

39. Our answer to the question referred to us as posed in paragraph 1 of the judgment is, therefore, in the affirmative. S. A. H. Reference answered in affirmative.