1984 P Cr (PLP)

SAEEDUZZAMAN SIDDIQUI, J. The petitioner has challenged the order of confiscation of fishing launch `ALBAWA' registered under No. 4320-B in his name. The launch in question was seized by a Patrol party of Pakistan Coast Guard on 2nd March, 1975 and was found laden with 60 bales of cloth and 130 dozens of universal playing card all of foreign origin import whereof in Pakistan was restricted by the Federal Government under Notification No. SRO-920(x)/75, dated 25th June, 1973 issued under section 3 (i) of Import and Export Control Act, 1950. The goods and the launch were accordingly ordered to be confiscated in accordance with the provision of Customs Act. The order of Deputy Collector of Customs dated 13th May, 1975 who passed the order for confiscation of the goods as well as the launch shows that before passing the order for confiscation of goods and the launch under the Customs Act a show-cause notice was issued to the petitioner for 26th April. 1975 which was returned undelivered and thereafter it was placed on the notice board of the Office of Collector of Customs as required under law but no one came forward either to claim the goods or to show cause against the seizure of goods and the launch, Against the order of confiscation of launch the petitioner filed an appeal before the Collector of Customs contending that the Tendal Hussain who was the captain of launch was not authorised by the petitioner to use the launch for the purposes of alleged smuggling, and that it was the individual act of the said Hussain for which the petitioner could not be penalized. The Collector of Customs, however after hearing the petitioner rejected the appeal on 30th December, 1976 and maintained the order of confiscation of launch passed by the Deputy Collector holding teat the petitioner was liable for the acts of his employee Hussain. A revision application filed by the petitioner against the order of Collector of Customs also failed with the result the order of confiscation of launch was maintained. The copy of the order, dated 4th September, 1979 passed in revision by the Board of Revenue was not filed with the petition but the same was produced during the course of arguments to Court and is kept on record. Mr. Muhammad Ali Shaikh, the learned counsel for the petitioner raised two-fold contentions before us. It is firstly contended that the order of Deputy Collector of Customs dated 13th May, 1975 confiscating the launch was an order without jurisdiction as it was passed without hearing the petitioner. It is next contended that the proceeding against the petitioner started before the Special Judge (Customs and Taxation) having been quashed by this Court on 4th February, 1982 the petitioner was entitled to the release of the launch in accordance with the provisions of section 179-A of the Customs Act. Additionally it is contended by the learned counsel that the mere fact that petitioner was the owner of launch `ALBAWA' was not sufficient to warrant an order of confiscation under section 157 of the Customs act unless it was proved that it was involved in the act of smuggling with the connivance and consent of the petitioner. None of the contentions raised by the learned counsel for the petitioner has impressed us. The order of the Deputy Collector of Customs, dated 13th May, 1975 shows that before passing the order of confiscation of the goods and the launch a notice was sent to the petitioner at his address but the same was returned unserved. Thereafter the notice was affixed on the notice board of the Customs House as required under section 215 of the Customs Act. The learned counsel for "the petitioner has not disputed the correcteness of the statement made in the order of the Deputy Collector of Customs to that effect and in these circumstances it cannot be said that the order for confiscation of the launch was passed without notice to the petitioner. Apart from it, it is an admitted position that the petitioner was given full hearing both in the appeal as well as it revision filed by him against the order of confiscation of the launch before the Collector of Customs and the Board of Revenue, respectively and; therefore, in these circumstances we are of the view that the proceedings were not taken against the petitioner in violation of the principles of natural justice. The next contention of the learned counsel for they petitioner is that in view of the fact that the proceedings against him pending in the Court of Special Judge (Customs and Taxation), Karachi have been quashed by this Court by order, dated 4th February, 1982, therefore he was entitled to get back the launch and the order of confisca tion of launch should be annulled. The learned counsel in this connection placed reliance on section 179-A of-the Customs Act. In our view the provisions of section 179-A relied by the learned counsel for the petitioner have no application in the present case. A plain reading of section 179-A. will show that where the owner or person incharge of goods or things seized under the Act are prosecuted before a Special Judge an order of adjudication made under section 179 or Chapter XIX of the Act shall be subject to the decision of the Special Judge and the Special Appellate Court in appeal or revision, if any. 1n the present case the order of confiscation of the launch was passed under section 157 of the Customs Act and, therefore, it was not subject to the provisions of section 179-A of the Customs Act. Apart from it the order of confiscation of vessel was passed in the present case on 13th May, 1975 whereas section 179-A of the Customs Act was inserted by the Prevention of Smuggling Act of 197'1 which came into effect on 15th January, 1977. It will thus be seen that at the time the order of confiscation was passed by the Deputy Collector of Customs section 179-A was not in the statute book. In addition to it section 179-A has since been omitted by the Finance Ordinance of 1979 and is no more available on the statute book and, therefore; for these reasons also the contention of Mr. Muhammad Ali Shaikh has no force. The last contention of the learned counsel for the petitioner is that since the act of smuggling was admittedly committed by his Tendal Hussain who was the incharge of the launch at the relevant: time the petitioner was not liable for the act of 'said Tendal Hussain. The contention of the learned counsel has no force. The liability of principal and agent is defined under section 209 of the Customs Act which is as follows :- "

209. Libility of principal and agent.- (1) Subject to the provisions of sections 207 and 208, anything which the owner of any goods is required or empowered to do under this Act may be done by any person expressly or impliedly authoriser, by the owner for the purpose. (2) Where this Act required anything to be done by the owner, importer or exporter of any goods, any such thing done by an agent, clerk or servant of the owner, importer or exporter of any goods shall, unless the contrary is proved, be deemed to have beet done with the knowledge and consent of such owner, importer of exporter so that in any proceedings under this Act the owner importer or exporter of the goods shall also be liable as if the thing had been done by himself. (3) When any person is expressly or impliedly authorised by the owner, importer or exporter of any goods to be his agent in respect of such goods for all or any of the purposes of this Act, such person shall, without prejudice to the liability of the owner, importer or exporter, be deemed to be the owner, importer or exporter of such goods for such purposes Provided that where any duty is not levied or is short-levied or erroneously refunded on account of any reason other than wilful act, negligence or default of the agent; such duty shall not be recovered from the agent." The expression `goods' used in section 209 of the Customs Act is defined in section 2 (L) of the said Act as follows: - "(1) "goods" means all movable goods and includes :- (i) conveyances, (ii) stores and materials, (iii) baggage, and (iv) currency and negotiable instruments." After considering the provisions of section 209 we are of the view that the act done by the Tendal Hussain who was admittedly the employee of the petitioner equally bound the petitioner in view of the provisions of subsection (2) of section 209 of the Customs Act unless the contrary was proved. Therefore the burden of proving to the contrary was entirely on the petitioner. The Deputy Collector of Customs, Collector of Customs and Board of Revenue after considering the circumstances of the case reached the conclusion that the petitioner was liable for the act of the Tendal Hussain who was his employee and was incharge of the launch at the relevant time. The fact that the launch was found involved in the act of smuggling is not disputed by the petitioner. There is nothing on record before us to show that Tendal Hussain acted against any express instructions of the petitioner. In these circumstances the order passed by the authorities for confiscation of the launch was in accordance with the pro visions of the law and no exception could be taken to it. Mr. Muhammad Ali Shaikh the learned counsel for the petitioner referred us to the decision in the case of Abdul Razzak v. Government of Pakistan (P L D 1974 S C 5) to contend that the owner of a conveyance is not liable for unauthorised act of the incharge of the conveyance. However, the case cited by the learned counsel is quite distinguishable on facts. In that case the owner of the conveyance had alleged that the pick-up which was used for the purposes of carrying contraband goods was stolen from his possession and it was in these circumstances the Court held that the owner could not be liable for the act of smuggling done in connection with the vehicle. In the case before us it is not disputed that the launch was under the control and management of Tendal Hussain who was the employee of the petitioner and, therefore, unless the petitioner was able to establish that the launch was used by the said Tendal Hussain contrary to the instructions of the petitioner he continued to be liable for the acts of said Tendal Hussain who was the incharge of the launch at the relevant time. We, therefore, find no merits in this petition, which is accordingly dismissed but in view of the fact that we did not call upon the respondents to argue the case we make no order as to costs. M. Y. H. Petition dismissed.