P L D 1960 (W (PLP)

FAROOQI, J.‑On the 8th of September 1957 the petitioner was intending to travel from Karachi to India by an Indian Airlines plane. He presented himself for Customs examination at the Karachi Airport but did not declare any gold as being a part of the baggage which he was carrying. On examination, however, of his baggage, 91 gold coins weighing 71 tolas were found lying concealed in the sides of his bag. These were seized and the petitioner was proceeded against under section 167 (8) of the Sea Customs Act. On receipt of a show- cause notice the petitioner submitted an explanation whereby he tried to make out a case that he had not intended to take this gold but that he had by mistake kept his articles in a bag which had contained his life savings. His story was that he had reduced all his savings into the shape of gold coins and he had pasted these coins in a bag; that he had been urgently called to India and he therefore did not have the time to see as to which bag really he was carrying, and as he was not aware of the fact that he was carrying the bag in which these gold coins were pasted, he did not make a declaration to that effect at the time when he gave his customs declaration. This explanation was not accepted and if we may say so, it was on the face of it untrue. The petitioner then preferred an appeal against the order of the Collector of Customs confiscating the gold and also against the levy of what is described as a personal penalty. The Central Board of Revenue to which the appeal was addressed declined to hear the appeal unless the amount of penalty had been paid. The petitioner then filed this writ petition. Before us Mr. Mufti Muhammad Alimuddin has set out two contentions. He urged that though he had been served with a show‑cause notice and had sent a reply to it but he was not given an opportunity of a personal hearing. The short answer to that is that having regard to the facts of the case we do not know what more could have been said in the expla nation of the conduct of the petitioner besides what had been stated in the written explanation which he had submitted to the Collector. Besides, we do not find anything on record whereby it could be said that he had claimed a personal hearing in respect of the matter. The second contention of Mr. Mufti is that the Central Board of Revenue were not entitled to insist upon the pre payment of the amount of penalty as a condition of entertainment of the appeal. The contention is based upon the wording of section 189 of the Sea Customs Act, which reads as follows:‑ "Where the decision or order appealed against relates to any duty or penalty leviable in respect of any goods, the owner of such goods, if desirous of appealing against such decision or order, shall, pending the appeal, deposit in the hands of the Customs‑Collector at the port where the dispute arises the amount demanded by the officer passing such decision or order. When delivery of such goods to the owner thereof is withheld merely by reason of such amount not being paid, the Customs‑Collector shall, upon such deposit being made, cause such goods to be delivered to such owner: If upon any such appeal it is decided that the whole or any portion of such amount was not leviable in respect of such goods, the Customs‑Collector shall return such amount or portion (as the case may be) to the owner of such goods on demand by such owner ". The argument is that penalty in this case was not in respect of any goods but it was a personal penalty and therefore sec tion 189 did not apply to it. We do not agree with this contention. The penalty in this case was levied under section 167 (8) of the Sea Customs Act, the penalty clause of which reads as follows:‑ "Such goods shall be liable to confiscation; and any person concerned in any such offence shall be liable to a penalty not exceeding five times the value of the goods ". We do not find in this clause any expression such as "personal penalty ". On the contrary that part of this clause which deals with penalty states that it shall not exceed five times the value of the goods. It follows therefore that the penalty which is levied and which is referred to in section 189 must be taken to cover a penalty which is in addition to the confiscation of the goods. Mr. Mufti drew our attention to a decision of a Bench of this Court reported in Ismail Brothers (Karachi) Ltd. v. S. M. Fazail & Co. (P L D 1958 Kar. 155). In that case the petitioner had disowned the ownership of the goods which had been seized and it was upon that ground that it was held that when a person did not claim to be the owner of the goods in respect of the penalty so imposed, he would not be liable under section 189 of the Sea Customs Act to deposit the penalty imposed upon him as a condition precedent to the entertaining of his appeal. That case, in our opinion, is clearly distinguishable from the present case in which the petitioner does claim the gold to be his property. We do not find any substance in this writ petition and accordingly dismiss it with costs. A. H. Petition dismissed.