P L D 1969 Supreme Court 446 (PLP)

Penalties 8(a) If any goods, the importation or exportation of which is for the time being prohibited or restricted by or under this Act, be imported into or exported from Pakistan contrary to such prohibition or restriction; or if any attempt be made so to import or export any such goods; or if any such goods be found in any package produced to any officer of Customs as containing no such goods; or 18 and 19 Such goods shall be liable to confiscation; and any person concerned in the offence shall, on con viction before a Magis trate, be liable to im prisonment for a term not exceeding six years and to a fine not exceeding five times the value of the goods, and in addition shall also be liable, if the Magistrate in his discretion so orders, to the punish ment of whipping. if any such goods, or any dutiable goods be found either before 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 [The substituted entry ran as follows: Such goods shall be liable to confiscation, and any person con cerned, in the offence shall, on conviction before a Magistrate, be liable to imprisonment for a term not exceed ing ten years and not less than three months, and shall also be liable to fine not exceeding five times the value of the goods' "]. if any goods, the exportation of which is prohibited or restricted as aforesaid, be brought to any wharf in order to be put on board any vessel or any aircraft, railway train or other means of conveyance for exportation contrary to such prohibition or restriction, and if the goods are such and in such quantity as would normally not be imported or exported for bona fide personal use, unless the contravention is due to bona fide doubt or difference of opinion about the classification of the goods under, the Customs Tariff or under any law for the time being in force, the onus of proving the existence of such doubt or difference of opinion being on the person concerned in the offence. It is quite plain that the penalty clause of this section is in two parts. The first part refers to the liability of the offending goods for confiscation and the second to the liability to imprisonment and fine of the person concerned in the commission of the offence under the Act in respect of those goods. The Act contains special provisions whereby the Custom Authorities are invested with powers to search and seize goods which are liable to confiscation under the Act. Under section 179, all things which are seized under the Act, have to be delivered to the care of the Customs Officer authorized to receive them and if no such officer is at hand, they have to be deposited at the nearest custom‑house. In the case of goods which are perishable, the Chief Customs Officer or any other Customs Officer authorized by him can cause them to be sold by public auction and the proceeds to be kept in deposit pending adjudication of the case. Under section 180, where such things are seized by any police officer, he may, carry them to any police station or port at which a complaint connected with the stealing or receiving of such things has been made or an inquiry connected therewith is in progress. But the police officer seizing the things has to send a written notice of their seizure and detention to the nearest custom‑house and after the conclusion of the inquiry or trial he has to cause such things to be conveyed and deposited at the nearest custom‑house for disposition accord ing to law. Section 182, which provides for adjudication of confiscation and penalties in all cases covered by section 167 of the Act, except Nos. 26, 72, 74, 75 and 76, prescribes the limits of the confiscation and the penalties that can be adjudged by different officers in the hierarchy of the Customs Department. All these provisions are contained in a special law and would take precedence over the general law, contained in the Criminal Pro cedure Code pertaining to the forfeiture or confiscation of goods which are the subject‑matter of offences triable by Magistrates under that Code. Sections 1(2) and 5(2) of the Criminal Pro cedure Code, in fact, save the operation of the provisions of the special law. The intention of the Legislature is thus clear that the disposal of the goods seized under the Act is left entirely in the jurisdiction of the custom authorities. The proceeding taken by the custom authorities for the confiscation of the goods are more in the nature of departmental proceedings 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 Custom Authorities are not a judicial tribunal in the strict sense of that term nor can their verdict of confiscation of the goods be regarded as a punish ment by the Court after regular trial for the purpose of support ing a plea of double jeopardy. On the other hand, the proceed ings for the criminal prosecution of a person 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. The contention of the learned counsel for the appellant, therefore, that adjudication proceedings by the Custom Authorities and the prosecution of the offender in a criminal Court both of which are based on a common single act amount to "double jeopardy", is wholly misconceived. The doctrine or "double jeopardy" which is a term of American Law corresponding to the principle of autre fois acquit and autre fois convict of the English Law as embodied in section 403 of the Criminal Procedure Code, pro hibits a duplicate trial and a duplicate punishment for the same offence. But it is quite clear that the adjudication proceedings for the confiscation of the goods under the Act neither involve a criminal prosecution nor a punishment for an offence. No trial of the offender takes place for any offence nor is any punish ment awarded to the offender. 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 B proceedings for adjudication by the custom 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. In a recent case decided by a Bench of this Court reported as Mosam Khan and others v. The State (1969 S C M R 208) it was held that the word "and" after the clause "such goods shall be liable to confiscation" has to be read in disjunctive sense and no conjunctively. The liability to prosecution under item (8‑a) of the Schedule to section 167 of the Sea Customs Act before a Magistrate is not dependent on prior adjudication of liability to confiscation of goods by the officers of the Custom Department. The result is that this appeal is dismissed. The adjudication proceedings of the goods in question which were stayed by the order of this Court while granting leave to appeal, will now be revived and finalized. There will be no order as to costs. K. B. A. Appeal dismissed.