P L D 1980 Karachi 44 (PLP)

FAKHRUDDIN G. EBRAHIM, J.-These petitions call into question the seizure and detention of allegedly smuggled motor cars by Pakistan Coast Guards.

2. On merits the petitioners contended that the cars in question were initially imported under carnet, subsequently an import permit was obtained and full duty and sales tax was paid thereon with the result that the cars could not be said to be smuggled or that the petitioners' possession otherwise than in due course of law. More fundamentally, the petitioners challenged the jurisdiction of the Coast Guards to seize and detain the aforesaid cars under the Pakistan Coast Guard's Act 1973 (hereinafter called the said Act). Since this latter ground is sufficient for the disposal of these petitions we deem it unnecessary to a examine the petitioners case on merits.

2. The admitted position is that under section 3 of the said Act the function of the Pakistan Cast Guards is limited, in so far as the present petitions are concerned to prevention of smuggling and under its section 14 the Coast Guards are empowered to perform such functions of Officers of Customs as may be entrusted to them and exercise such powers under the Customs Act, 1969 as may be delegated to them under section 6 of that Act for the purpose of prevention of smuggling alongwith the coastal area of Sind and Baluchistan excepting the limits of the various coasts in those areas. Amongst the powers delegated to the Coast Guards are the powers to seize and detain goods allegedly smuggled .under section 15 of the said Act the goods seized by a member of the Coast Guards Force are to be dealt with in accordance with the provisions of section 169 of 'the Customs Act, 1969 and an officer nominated by the Director-General of the Force is to be associated at the time of its final disposal by an appropriate Customs authority under that Act.

3. In this context the learned counsel for the petitioners contended, and it is conceded to by the learned Deputy Attorney-General that the jurisdiction of the Coast Guards is limited to prevention of smuggling and only those articles are deemed to be smuggled which come within the definition of smuggling in clause (s) of section 2 of the Customs Act, 1969 which reads as follows : "(s) `smuggle' means to bring into or take out of Pakistan in breach of any prohibition or restriction for the time being in force, or evading payment of Customs duties or taxes leviable thereon :-. (a) Gold bullion, silver bullion, precious stones, currency manufactures of gold or silver or precious stones or any other goods notified by the Federal Government in the official Gazette in each case exceeding one thousand rupees in value, or (b) any other goods by any- route than a route declared under section 9 or 10 or from any place other than a customs station and includes an attempt, abatement or connivance of so bringing in or taking out of such goods ; and all cognate words and expressions shall be construed accordingly." To my mind clause (s) refers only to goods specified therein and other goods notified by the Federal Government. It does not refer to good the importation or exportation of which is prohibited elsewhere, which situation is governed by clause (9) of section

156. If the goods are one not specified in this clause or notified by the Federal Government under this clause, notwithstanding that its export or import may b~ prohibited or restricted by any law, there cannot be-any offence o: smuggling in respect thereof. This is clear from clause (9) o; section 156 which makes an offence to import or export goods in violation of any prohibition or restriction on the importation and exportation of such goods imposed by or under this Act or any other law Clause (9) makes it clear that it will not include goods which come within clause (8) of section 156 and, therefore, merely because importation or exportation of goods is prohibited by any law, it will not follow that its importation or exportation will amount to smuggling in the absence of its inclusion under a notification by the Federal Government under sub-clause (a) of clause (s) of section 2 of the Act. Clauses (8) and (9) of section 156 must run parallel for the goods covered by the former are excluded from the latter. If these clauses are not so ready they will be destructive of each other. To give an example, if an import policy prohibits import of furniture, such import will be in contravention of law and if it is as was argued by the learned Additional Advocate-General, punishable under clause (8) of section 156, it will make its clause (9) redundant. The law clearly contemplates two separate categories of goods; one under clause (s) of section 2 and the other goods the impart or export of which is prohibited under any other law or for that matter under any other section of the Customs Act, and the offence of smuggling is limited to the former category. 1 am further fortified in this view by the fact that the Federal Government at a later stage date deemed it necessary to notify chat-as as an additional item under said clause (s) of section

2. Therefore, the fact that importation and exportation of charas is prohibited under the Dangerous Drugs Act, 1930 which will be deemed to be prohibition or restriction notified under section 16 of the Act, in the absence of inclusion of charas as one of .the items notified under clause (s) of section 2, there cannot be any smuggling of charas though of course it is an offence under clause (9) of section 156." The learned Deputy Attorney General tried to persuade us that the view taken in the aforesaid case is untenable in law for it ignores the broad definition of `smuggling' given in the Customs Act which according to him would include any item import or export of which is prohibited by any law for the time being in face and not limited to articles specified in this clause or notified under this clause. This argument has been considered in the aforesaid case and we see no reason to depart from the view taken, for according to us sub-clause (s) has to b:. :cad with clause; (s) of section 2 for otherwise the former in isolation will be meaningless and further more the vital distinction between clauses (8) and (y) of section 156 of the Act will be totally lost. We, therefore, re-affirm the view taken in the aforesaid decision to which one of us is a party.

5. The result, therefore, is that these petitions are allowed with costs. However, at the request of the learned Deputy Attorney-General operation of this Judgment is stayed for a period of six weeks from the date hereof to enable him to file a Leave Petition before the Supreme Court of Pakistan. s. G. D. Petition allowed.