P L D 1959 (W (PLP)

MASUD AHMAD, J.--‑This judgment will dispose of both Writ Petitions Nos. 1122 and 1127 of 1958, which arise out of an order, dated the 29th January 1957, passed by the Collector, Land Customs, Lahore, under section 167 (81) of the Sea Customs Act, read with section 9 of the Land Customs Act, directing the confiscation of some 'cloth, valued at about Rs. 6,729‑6‑

0. Briefly stated, the facts of the cases, which are not now in dispute, are as follows :‑ On the 6th of July 1955, the police seized 39 postal parcels containing cloth addressed to ten different persons (including Muhammad Hussain and Muhammad Amin on whose behalf these two petitions have been filed) and some loose cloth contained in seven bags from a shop in the Azam Market, Lahore. A report was lodged under section 7 of the Essential Supplies Ordinance, 1955, against Muhammad Hussain, Muhammad Amin and some other persons, and they were sent up for trial in five separate cases, but by an order dated the 28th February 1957, all of them were discharged, on the ground that though the Ordinance under which these persons were being prosecuted had been replaced by a similar Ordinance of the year 1956, the order which had been passed under the repealed Ordinance and which was said to have been contravened, had not been revived. Before, however, these persons were discharged, a notice (Annexure ' D ') had been issued to all of them, asking them to show cause as to why penal action should not be taken against them under section 167 (81) of the Sea Customs Act, read with section 9 of the Land Customs Act, These persons were also asked to submit all the proof, documentary or otherwise, which was in their possession, to show that this cloth had not been imported into Pakistan in contravention of the provisions of the Government of Pakistan, Notification No. 335/260/24, dated the 12th June 1951, issued under section 3 (1) of the Imports and Exports (Control) Act, 1950. In reply to this notice, they stated that the cloth had been purchased by them from East Pakistan, and they produced certain receipts and cash memos, but no evidence, documentary or otherwise, was produced by them to show that this cloth had been lawfully imported into Pakistan. The Collector, Land Customs, Lahore, came to the conclusion that the petitioners had failed to discharge the burden of proof which lay on them, and, by his order dated the 29th January 1957, held that this cloth had been imported into Pakistan in contravention of the notification of the year 1951, referred to above. Acting under section 167 (81) of the Sea Customs Act, read with section 9 of the Land Customs Act, he directed that this cloth be confiscated. Against this order, the petitioners filed an appeal under section 188 of the Sea Customs Act, to the Central Board of Revenue, Government of Pakistan, but this was dismissed on the 25th February 1958. They then submitted a revision petition to the Ministry of Finance, under section 191 of the Sea Customs Act, but that was also dismissed on the 10th November 1958.

2. Feeling aggrieved by the order of the Collector, Land Customs, Lahore, two separate petitions have been filed under Article 2(4) of the Laws (Continuance in Force) Order, 1958, read with Article 170 of the late Constitution, one by Muhammad Hussain on behalf of Muhammad Hussain & Co, and the other by Muhammad Amin on behalf of Muhammad Amin & Co. In the first mentioned, it is alleged that (he cloth contained in 26 of the seized parcels and some other cloth was purchased by the petitioners, in the open market, in the year 1955, in East Pakistan and despatched by post parcels to Lahore, and in the second‑mentioned petition it is alleged that the cloth contained in 13 of the seized parcels was similarly purchased in the year 1955, in East Pakistan and despatched to Lahore by means of post‑parcels: The validity of the order dated the 29th January 1957, passed by the Collector, Land Customs, Lahore, was being challenged by the petitioners on number of grounds, but argu ments were addressed to us on the following five points only : -- (1) that this cloth was purchased in the year 1955, and brought to Lahore in the same year, and therefore, for deciding the question of culpability of the petitioners the law in force in the year 1955, had to be applied to their case and not the amended law which was in force in the year 1957 when the Collector, Land Customs, passed the order in question ; (2) that it was the duty of the State to establish that this cloth had been imported into Pakistan in contravention of the provisions of any existing law and that that burden could not have been shifted on to the petitioners by reason of change of law which took place after the cloth had been imported into Pakistan in the year 1955; (3) that the show‑cause notice (Annexure ` D ') was defective inasmuch as it made a reference only to a notification of the year 1951, issued under section 3 (1) of the Imports and Exports (Control) Act, 1950, and not to any notification issued under section 177‑A (2) of the Sea Customs Act ; (4) that the Collector, Land Customs and the Central Board of Revenue did not give an opportunity to the petitioners of being heard, nor was any date fixed for this purpose before either of these two authorities, and (5) that as the petitioners were not in possession of this cloth, in the year 1957, when the Collector, Land Customs, passed the order in question, he could not, under section 167(81) of the Sea Customs Act, direct that this cloth be confiscated.

3. For a proper appreciation of the petitioners' case, it would, in our opinion, be necessary to make a brief reference to the relevant law on the subject. Under subsection (1) of section 3 of the Imports and Exports (Control) Act, 1950, the Central Government is empowered to prohibit, restrict, or other wise control, the import or export of goods of any specified description and to regulate generally the procedure connected with the imports and exports of such goods. Under subsection (2) of the same section, no such goods can be imported or exported, except in accordance with the conditions of a licence to be issued by the Chief Controller, or any other officer authorised in this behalf by the Central Government. All goods, to which any order under subsection (I) applies, are, by virtue of subsection (3) of this section, to be deemed to be goods of which the import or export has been prohibited, or restricted, under section 19 of the Sea Customs Act, 1878.

4. The Central Government issued a notification on the 12th June 1951, under subsection (1) of section 3 of the Imports and Exports (Control) Act, 1950, which has been referred to in the show‑cause notice (Annexure ` D '), by means of which, amongst other things, it prohibited the import by sea, land or air, from any country outside Pakistan, of any of the goods described in the Schedule annexed to that notification. Under Group T‑2 of the Schedule are mentioned 21 items, including fabrics containing more than 90% of cotton.

5. Section 19 of the Sea Customs Act (hereinafter referred to as the Act), which has been mentioned in subsection (3) of section 3 of the Imports and Exports (Control) Act, 1950, and which prohibits and restricts the importation or exportation of goods across any customs frontier is worded as follows: "

19. The Central Government may, from time to time, by notification in the Official Gazette, prohibit, or restrict, the bringing or taking by sea, or by land, goods of any specified description, into or out of, the Provinces and the Capital of the Federation across any Customs frontier as defined by the Central Government". Section 167 of the Act, to which a long Schedule is appended, provides for punishment of certain offences in relation to the imports and exports of goods. Only, two of the items (8 and 81), which are relevant for the present purpose, require mention. Item No. 8, as amended by Act XXXIV of 1957 and Act XIV of 1957 is worded as follows :‑ Offences Section of this Act, to which offence has reference Penalties

8. If any goods, the importation or exportation of which is for the time being prohibited or restricted by or under Chapter IV of this Act, be imported into or exported from Pakistan con trary to such prohibi tion or restriction, or 18 &

19. Such goods shall be liable to confiscation and any person con cerned in any such offence shall be liable to a penalty not ex ceeding five times the value of the goods. if any attempt be made so to import or export any such goods ; or 18 & 19. if any such goods be found in any package produced to any officer of Customs as containing no such goods ; or if any such goods ; or any dutiable goods be found either be fore or after landing or shipment to have been concealed in any manner on board of any vessel within the limits of any port in Pakistan ; or if any goods, the ex portation of which is prohibited or res tricted as aforesaid, be brought to any wharf in order to be put on board of any vessel for exporta tion contrary to such prohibition or restriction. In the last column of this item the following words, wihch occurred at the end, were omitted by Act XXXIV of 1957 :‑‑ "or, on conviction before a Court, to imprisonment for any term not exceeding seven years, or to fine, or to both". Item No. 81, in its present Form, was added by Act XXV of 1956. As amended by Act XXXIV of 1957, this item reads as follows : -- "

81. If any person knowingly, and with intent to defraud the Government of any duty payable thereon, or to evade any prohibition or restrictionfor the time being in force under or by virtue of this Act with respect thereto acquires possession of, or is in any way concerned in carrying, removing, depositing, harbour ing, 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 any prohibition or restriction is fur the time being in force as aforesaid, or General Such goods shall be liable to confisca tion, and the person concerned in any such offence, shall be liable to a penalty not exceed ing five times the value of the goods". if any person is in relation to any goods in any way knowingly 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 provision of this Act applicable to those goods. In the last column of this item the following words, which occurred at the end were omitted by Act XXXIV of 1957 :‑ "or, on conviction before a Court of imprisonment for any term not exceeding two years, or to fine, or to both".

6. Section 177‑A of the Act, before it was amended by Act XI V of 1958, read as follows:‑ "(1) Where any goods to which this section applies are seized under this Act in the reasonable belief that they are smuggled goods, the burden of proving that they are not smuggled goods shall be on the person from whose possession the goods were seized. (2) This section shall apply to such goods as the Central Government may, by notification in the official Gazette, specify in this behalf. (3) Every notification issued under subsection (2) shall be laid before the National Assembly as soon as may be after it is issued". In exercise of the powers conferred by subsection (2) of section 177‑A of the Act, the Central Government issued a notification on the 18th April 1956, to which was appended a long Schedule. In this Schedule certain goods, including textile materials and textile goods, were specified as being the goods to which subsection (1) of the said section was to apply.

7. It is admitted that the goods in question are of foreign manufacture and that they fall in the category of cotton fabrics. They could, therefore, be imported into Pakistan only in accor dance with a licence issued under subsection (2) of section 3 of the Imports and Exports (Control) Act, 1950. By virtue of the provisions of subsection (3) of section 3 of the Imports and Exports (Control) Act, 1950, the provisions of section 19 of the Act would be applicable to the case of such goods and if they were imported into Pakistan in contravention of the provisions of section 3 (2) of the Imports and Exports (Control) Act, 1950, penal action, as provided by items Nos. 8 and 81 of section 167 of the Act could be taken against the persons concerned. The learned Counsel for the petitioners, while conceding this position, contended that for the purpose of deciding the culpability of the petitioners and for exercising the power of confiscation of these goods, the law as it stood in the year 1955, when the goods were purchased in East Pakistan and imported in West Pakistan, should have been applied and not the law as it stood in the year 1957 when the Collector passed the order in question. It must be conceded that if action had been taken under item No. 8 of section 167 of the Act against the petitioners for having imported these goods into Pakistan in contravention of the provisions of the Imports and Exports (Control) Act, 1950, the law in force at the time of import would have applied and not the law in force at the time when the order in question was passed, but action was not taken under item No. 8 of section 167 of the Act, but was taken under item No. 81 of the same section, on the ground that at the relevant time the petitioner had "acquired possession" of these goods in contravention of the prohibition and restriction imposed by Imports and Exports (Control) Act, 1950. As held in Federation of Pakistan and another v. Sardar Ali and others (P L D 1959 S C (Pak.) 25) it is wrong to assume that the date of acquisition of this class of goods is relevant to the question of culpability under the amended section 167 of the Act, and that whoever retains possession of such goods, howsoever and whenever they might have been acquired, can do so only at his peril. When the Collector passed the order directing the confiscation of these goods, item No. 81 had been added to section 167 of the Act and, therefore, having held that these goods had been imported in contravention of Me prohibition and restriction laid down by law, he was empowered to order their confiscation. The question of applying this law retrospectively therefore, did not, in our opinion, arise. The views expressed in Hasan Ali v. Collector of Land Customs, Lahore (P L D 1958Lah. 553) relied upon by the learned counsel for the petitioners, in the circumstances, explained above, have no application to this case and are of no avail to them. This disposes of the first point on which arguments were addressed to us.

8. With regard to the second‑mentioned point, it is, no doubt, true that when the goods were first seized by the police, section 177‑A of the Act was not in force, but when the Collector, Land Customs, passed the order in question, this provision of law was on the Statute book, and being a law of procedure, as held by the Supreme Court in Federation of Pakistan and another v. Sardar Ali and others, this change in procedural law affected pending actions and proceedings and, therefore, it was the duty of the petitioners to show that these goods had not been smuggled. No proof appears to have been tendered by them before the Collector, in support of their assertion that these goods had been lawfully imported into Pakistan and, in the absence of such proof, the Collector was justified in holding that the petitioners had failed to discharge the burden of proof which lay on them. The validity of this order, therefore, cannot be questioned on any such ground.

9. As to the alleged defect in the show‑cause notice (Annexure `D'), we had not been shown any provision of law, or rule, under which it was obligatory for the Collector to have sent a formal show‑cause notice to the petitioners. He could p have simply passed an order asking the petitioners to tender proof in support of their claim, without even mentioning the relevant notification which was said to have been contravened.! The notification of the year 1951, which has been referred to i n that notice, was issued under subsection (1) of section 3 of the Imports and Exports (Control) Act, 1950, and by virtue of the provisions of subsection (3) of section 3 of the said Act the goods, to which this notification related, were to be deemed to have been goods, the import and export of which had been restricted and prohibited under section 19 of the Act. Therefore, on the basis of this notification the Collector could pass an order under item No. 81 of section 167 of the Act. It is, no doubt, true that the notification dated the 18th April, 1956, which was issued under subsection (2) of section 177‑A of the Act, was not referred to in the show‑cause notice, but that notification was relevant only for the purpose of deciding the question of burden of proof and, even without making a reference to that notification, the Collector could take notice of the provisions of subsection (2) of section 177‑A of the Act and call upon the petitioners to tender proof in support of their allegations and to decide the matter against them if they had been unable to discharge that burden. In our opinion, the legality or his order cannot be challenged on the ground that no reference was made in the show‑cause notice to the notification of the year 1956, issued under subsection (2) of section 177‑A of the Act.

10. The petitioners have not urged in either of the two petitions that the Collector, Land Customs, or the Central Board of Revenue did not give them an opportunity of being heard and that no date was fixed for this purpose, before either of these two authorities. Relying on certain observations made by their Lordships of the Supreme Court in the Federation of Pakistan and another v. Sardar Ali and others their counsel contended that as no such opportunity had been given to them for showing cause against the action proposed to be taken, and as no date for the purpose of production of evidence was fixed the order passed by the Collector was bad in law. In this reported case, their Lordships observed as follows :‑ "In view of the new law placing a definite onus on the posses sor of this type of goods, clearly such a person is entitled to an opportunity of not only being heard but of adducing evidence, if necessary, to discharge that onus. This opportunity has, in fact, been denied to the respondents in the present case. We feel not a little disturbed that prejudicial action could be taken by the Customs Officers in a matter touching valuable rights to property as well as the personal liberty 9f the subject, on the basis of a private enquiry in which the person concerned was not allowed to participate. * * * * The Collector's order; on the contrary, appears to have been based on certain departmental reports and a consideration of the initial written statement submitted on behalf of the respondents. * * * * * * The Central Board of Revenue, too, disposed of the appeal, it seems, without fixing a date of hearing or giving an opportunity to the respondents of being heard." It appears to us that in the case before their Lordships there was no dispute about the facts and it was admitted by both parties that no opportunity was given to the petitioners of being heard. This is, however, not the position in the case before us. If the peti tioners had alleged that no such opportunity had been given to them, the respondents, namely, the Government of Pakistan, the Central Board of Revenue and the Collector, Land Customs, would have been called upon to admit, or deny, the allegation. If the allegation had not been denied, the position would have been almost the same as was in the case before their Lordships of the Supreme Court, but if the respondents had denied the allegation, the question would have arisen whether this Court should decide this disputed question of fact, namely, whether such an opportunity was or was not given to the petitioners, because, normally, in exercise of the writ jurisdiction such disputed questions of fact are not decided. As no such allegation was made by the petitioners and as the respondents were not asked to state whether any such opportunity was, or was not, given to the petitioners, in our opinion, the observations made by their Lordships of the Supreme Court, in the case referred to above, can be of no avail to the petitioners. Moreover, the learned counsel for the respondents placed before us two applications dated the 12th October 1956 and 8th January 1957, one of which was addressed by the petitioners to the Assistant Collector, Land Customs, and the other, to the Deputy Collector, Land Customs, in both of which it was stated clearly that the petitioners had received two notices from the customs authorities asking them to produce documentary evidence in support of their claim. The learned counsel also pointed out that the formal show‑cause notice (Annexure D) the petitioners were asked to submit within a period of ten days all proof, documentary or otherwise, which was in their possession. It appears that, except for a few cash memos and receipts, which the petitioners submitted to the customs authorities, they did not have, in their possession, any proof to show that these goods had been lawfully imported into Pakistan and, therefore, they did not produce the required evidence before these authorities. In these circumstances, the question of fixing a date for the purpose of production of evidence did not arise. As to the allegation that the petitioners were not given an opportunity of being heard, again, there is nothing, on the record to show that any such request was made by the petitioners, but was not acceded to by the customs' authorities. The learned counsel for the respondents, on the strength of instructions given to him by a departmental officer who was helping him in the conduct of this case, stated, during arguments, that such an opportunity is always given to those who apply for it and that as no such request was made by the petitioners, the question of fixing a date for this purpose did not arise. If the information supplied to the learned counsel for the respondents is correct, the petitioners themselves are to be blamed for not c being heard in support of their claim. In any case, in the absence of any such clear, allegation by the petitioners that they were denied such an opportunity, we would not be justified in drawing any presumption against the respondents and in holding that no F such opportunity was given to the petitioners. This disposes of the fourth point which was urged by the learned counsel for the petitioners.

11. As to the fifth and last point raised by the learned counsel for the petitioners, we do not find any force in the same, for the simple reason that his contention does not find any support from the language of item 81 of section 167 of the Act, as it stood on the date when Collector passed the order in question. According to this item, if a person knowingly " acquires posses sion " of any such goods in contravention of any prohibition, or restriction, imposed on their importation or exportation such goods can be confiscated and the person concerned becomes liable to pay penalty not exceeding five times the value of such goods. The language of item 81 of section 167 of the Act, as it stood on the date when the Collector passed the order in question, was different from the language of this item as added by Ordinance I1I of 1954. In the amended form, as this item stood on the 29th January 1957, in the first column the words used were " acquires posses sion " while the corresponding words previously were " if any person is found in possession ". This means that by reason of the amendment made by Act XXV of 1956, even if a person was not actually found to be " in possession " of such goods but had G " acquired possession ", an order of confiscation of the goods could be passed. The language of this item, as amended, furnishes a complete answer to the contention of the learned counsel for the petitioners that as they were not found to be " in possession " of these goods on the 29th January 1957, and as those goods were in possession of the police, no order of their confiscation could be passed, because, even if we assume that the goods were in posses sion of the police on their own b; half and not on behalf of the petitioners, the latter having " acquired possession " of these goods which had been imported in contravention of the restrictions and prohibitions imposed by the relevant provisions of Law, the Collector was competent to pass an order of their confiscation, in exercise of powers conferred on him by item 81 of section 167 of the Act, as it stood on the 29th January 1957.

12. For reasons given above we find no force in these petitions and, hereby, dimiss the same with costs. A. H. Petitions dismissed.