1969 P (PLP)

"No Court shall take cognizance of any offence punishable under section 5 except upon complaint in writing made,‑ (a) in the case of an offence which is punishable both under this Act or the rules made thereunder and also, whether by .confiscation or otherwise, under the Sea Customs Act, 1878, by a Customs Collector or by an officer of Customs authorised in writing in this behalf by a Customs Collector." The above contention was accepted by Justice A. Subhan Choudhuri of this Court in the case of Tamjid Ali and others v. State (20 D L R 546). The question has now been settled by their Lordships of the Supreme Court in the decision in Criminal Appeal No. 4‑D of 1967 decided on 9th of June 1967. The observations of their Lordships are as follows :‑ "The short answer to this contention is that the prosecution Chas not chosen to make a charge against the appellant under section 5 of the Imports and Exports (Control) Act at all. They have confined themselves to a prosecution for an offence falling within section 167(81) of the Sea Customs Act which is a cognizable offence, and for whose prosecution no complaint by a Customs officer is at all necessary under the law." It would appear that the suo motu Rule was also issued because of the existence of the decision in the case of Tamjid Ali mentioned above. The next point that was urged by Mr. T. Ali for the petitioner Anwar Hossain is that the prosecution not having proved that the petitioner Anwar had in his possession goods charge able with duty which had not been paid or that their importation was restricted or prohibited, the conviction was bad in law. Now, apart from the goods carried by the other two accused petitioner Anwar himself brought with him Indian coin of the value of Re. 1 and 80 paisas. Now, section 8, subsection (1) of the Foreign Exchange Regulation Act provides as follows :‑ "8(1) The Central Government may, by notification in the official Gazette, order that, subject to such exemptions, if any, as may be contained in the notification, no person shall, except with the general or special permission of the State Bank and .on payment of the fee, if any, prescribed bring or send into the provinces and the Capital of the Federation any gold or silver or any currency notes or bank notes or coin whether Pakistan: or foreign." There was also a notification issued on the 5th of November 1949 under subsection (1) of section 8 of the Foreign Exchange Regulation Act providing that, "no person shall bring or send: into the Provinces of Pakistan from any place outside the Pakistan: (a) . . . . . . . . . (b) . . . . . . . . . (c) any coin which is legal tender in India." In view of the above provision of section 8(1) of the Foreign Exchange Regulation Act and the notification thereunder, the above contention of the learned Advocate for the petitioner must fail. It has been next contended by Mr. T. Ali that the conviction and sentence of the petitioner Anwar by application of' section 212 of the Sea Customs Act are not sustainable in law in the absence of a charge under the said section. Section 212 of the Sea Customs Act is as follows :‑ "Punishment of persons accompanying a person possessing goods liable to confiscation. If any two or more persons in company are found together and they or any of them, have goods liable to confiscation under this Act, every such person having knowledge of this fact is guilty of an offence and punishable in accordance with the provisions of this Act as if the goods were found on such person." The above provision makes a person constructively liable for an offence under the Sea Customs Act if he is found in the: company of a person who has goods in his possession that are liable to confiscation under the Sea Customs Act even though he himself does not have any such goods in his possession, provided that he has knowledge of the possession of such goods by his companion. Now, the joint charge as framed against the accused persons was that on 5‑4‑65 the three accused persons is that they had in their : "possession Indian Bidi leaves, Jira and Indian Currency, without licence or authority, the importation of which, is restricted from India into Pakistan and thereby committed an offence punishable under section 167(81) of the Sea Customs Act." In the charge section 212 of the Sea Customs Act has not been mentioned, and all the three accused are jointly charged' with the possession of Indian coins and the goods. In the absence of mention of section 212 it cannot be held that the petitioner Anwar had notice that he was being made constructively liable in respect of the goods in the possession of the other two accused persons. The charge as framed may well have led the petitioner to believe that he has been charged simply for the importation of the Indian coins and the two other accuse for the goods carried by each. No decision on the point involved has been placed before me nor could I find any such decision. I am inclined to hold that the failure to mention section 212 of the Sea Customs Act did cause serious prejudice to the petitioner who himself was simply carrying a coin of one rupee one which is legal tender in India. In the circumstances he cannot be punished for the constructive possession of Jira and Bidi leaves. I am of the view that in a case in which aid of section 212 of the Sea Customs Act is sought to be invoked against an accused that section should be specifically mentioned in the charge. In the present case the petitioner, however, was himself carrying an Indian rupee‑coin which is legal tender in India the importation of which is prohibited and therefore no exception can be taken to his conviction under section 167(81) of the Sea Customs Act on the charge as framed. But the extent of his sentence is liable to be substantially reduced. It also appears to have been the first offence of the petitioner Anwar Hossain. In view of all this, I find that it will serve the ends of justice if the petitioner Anwar Hossain is sentenced to rigorous imprisonment for three months only, and I order accordingly. The sentence of two years' rigorous imprisonment and five stripes of whipping as passed against the petitioner Anwar Hossain is accordingly reduced to three months' rigorous imprisonment only. The petitioner Anwar Hossain who is on bail will now surrender to his bail and serve out the remaining period of the sentence of rigorous imprisonment of three months now imposed upon him. With this modification of the sentence, the Rule is discharged. As already stated, it appears that a suo motu Rule was also issued in view of the decision of a Single Judge of this Court as to the jurisdiction of the learned Magistrate to try the offence without a complaint from the customs authority. Now that the law on the point has been settled by the Supreme Court, the suo motu Rule issued by this Court on the District Magistrate, Comilla to show cause as to why the conviction of accused Nasu Mia and Abdul Kuddus and the sentences imposed upon them should not be set aside, is liable to be discharged. The suo molu Rule is accordingly discharged. Rule discharged.