2000 PLP 1212 (MLD)

‑‑‑‑Ss. 156, 157, 158, 168, 170, 172 & 174‑‑‑Criminal Procedure Code (V of 1989), Ss.51, 54 & 550‑‑‑Search, seizure and confiscation proceedings ‑‑ Jurisdiction‑‑‑Assistant Sub‑Inspector of Police took steps for making search and arrest of accused during patrol duty by virtue of provisions of Ss.51, 54 & 550, Cr.P.C. and reported matter to Inspector/Incharge of Police Station who concluded formal proceedings of seizure of the goods as required by provisions of Ss.. 158, 161(1), 168(1)(3) & 170 of Customs Act, 1969‑‑ Validity‑‑‑Any officer of police of rank of Sub‑Inspector being empowered under provisions of Ss. 158, 160, 161(1)(2), 164, 165, 168(1)(3), 172 &'174 of Customs Act: 1969, no exception could be taken to the validity of seizure and subsequent proceedings of confiscation of goods by Collector of Customs. Abdur Rauf Khan v. Collector, Central Excise and Land Customs, Peshawar and 3 others 1980 SCMR 114 and State through Deputy Attorney- General, Peshawar v. Banda Gul and 2 others 1993 SCMR 311 ref. A. Karim Malik for Petitioner. Muhammad Hussain Ch. for Respondents Date of hearing: 7th June, 1999 FAQIR MUHAMMAD KHOKHAR, J.‑‑The officials of Police Station, Nawankot, Lahore, intercepted a Suzuki Van No.87‑Karachi‑86 on 2‑1‑1988. The respondents Nos.l to 5 were found to be its occupants. On search, 200 rennies of gold each weighing 10 tolas were found with inscription/embosing of the foreign origin. An A.S.‑I. Lal Din reported the matter to the S.H.O. concerned. A case F.I.R. No.7 of 1988, dated 2‑1‑1988 under section 156(1)(89)/157(2) of the Customs Act, 1969, was registered at the said Police Station. The gold rennis were formally seized by the Inspector/S.H.O. A show‑cause notice, dated 21‑2‑1988 was also issued to the respondents Nos. l to 5 for confiscation.

2. The Collector of Customs by order, dated 3‑5‑1988 confiscated the said gold by imposing a penalty of Rs.2,00,000 each on all the five respondents. The appeal of the respondents was disposed of by order, dated 27‑2‑1990 by the Member (Judicial), Central Board of Revenue, Karachi. The case was remanded to the Collector for a fresh decision after affording the respondents due opportunity to examine the members of the seizing agency and the witnesses of the case. Simultaneously, the respondents were tried and acquitted by judgment, dated 10‑10‑1991 passed by the learned Special Judge (Customs), Lahore, by accepting their application under section 265‑K, Cr.P.C. The case was re‑decided by the Collector of Customs, Lahore, who by order, dated 9‑12‑1995 confiscated the gold in question under section 156(1)(89) of the Customs Act, 1969. The Suzuki Car used for the purpose of carriage of the gold was also confiscated under section 157(2) (ibid) with an option to its lawful owner to pay a fine of Rs.10,000 in lieu of confiscation of the vehicle. The respondents filed an appeal from order, dated 9‑12‑1995 of the Collector of Customs, Lahore which was accepted by the impugned judgment, dated 20‑5‑1998 passed by the learned Customs, Central Excise and Sales Tax Appellate Tribunal Islamabad.

3. The learned counsel for the appellant‑Department argued that A.S.‑I. Lal Din was the complainant who reported the matter to the S.H.O. being Incharge of the Police Station. 'The gold rennines of foreign origin were actually seized by the appropriate officer of the police to which no exception could be taken. It was further submitted that the S.H.O. being an officer not below the rank of Sub‑Inspector was authorised in this behalf by virtue of Notification No. SR0.913(1) of 1986, dated 5‑10‑1986 issued by the Central Board of Revenue under section 6 of the Customs Act, 1969. The learned counsel relied on the case of Raza A. Khan Deputy Attorney -General, Peshawar v. Reghzi Gul (1987 PCr.LJ 1789) (Peshawar) in support of his contentions.

4. On the other hand, the learned counsel for the respondent argued that it was Lal Din, A.S.‑I. of Police who had seized the gold of the respondents and that under the SRO, dated 5‑10‑1986, only an officer of the rank of Sub‑Inspector and above could exercise the powers under sections 158, 160, 161(1) and (2), 164, 165, 168(1) and (3), 172 and 174 of the Customs Act, 1969. It was further submitted that the mere fact that the gold rennies bore the foreign marking was not conclusive evidence of smuggled goods liable to confiscation. It was contended that the learned Special Judge (Customs), had already acquitted the respondents by accepting their application under section 265‑K, Cr.P.C. Reliance was placed on cases of Federal Government of Pakistan and others v. Muhammad Sarwar (PLD 1989 SC 377) and Government of Pakistan through Secretary Finance, Islamabad and 3 others v. Abdul Majeed (1997 SCMR 348).

5. We have heard the learned counsel for the parties at length. The learned Appellate Tribunal below seems to have been swayed primarily by judgment, dated 10‑10‑1991 of the acquittal of the respondents by the learned Special Judge (Customs) under section 265‑K, Cr.P.C. The learned Tribunal drew conclusion as if the gold rennies were not of foreign origin. No effort was made nor any challenge was thrown by the respondents to show that the gold rennies were of municipal and not of foreign origin.

6. It is now well‑settled that the criminal proceedings before the Court and the confiscation proceedings before the Customs authorities are concurrent, independent and mutually exclusive. The other question as to whether any seized goods are to be returned to the persons from whose possession they were seized is to be decided by the Customs authorities are not by the. Customs Judge under sections 156(1)(89), 168, 171, 179 and 180 of the Customs Act, 1969. Reference may be made to the cases of Central Board of Revenue and another v. Khan Muhammad (PLD 1986 SC 192), Adam v. Collector of Customs, Karachi and another (PLD 1969 SC 446), Mosam Khan and others v. The State 1969 SCMR 208 and the State v. Ghulam Jaffar, etc. (PLD 1970 Peshawar 66 (F.B.)

7. The gold rennies admittedly bore the inscription/embossing showing them to be of foreign origin. The assay report of the Pakistan Mint had confirmed the purities of the gold as 999.00 per thousand parts. The respondents failed to show by producing any documentary and/or other evidence to discharge initial onus of proof that the gold in question had beet achieved by process or other means having been employed in Pakistan. This was necessary in view of the provisions of section 2(s), subsection (1), clause(89) and subsection (2) of section 156 of the Customs Act, 1969. In the absence of any evidence to the contrary, the learned Collector of Customs was justified to draw an inference that the gold renneis were of foreign origin and were smuggled goods. In the facts and circumstances of the case, the question of the discharge of burden of conclusive proof by the Customs Department as to the foreign origin of the goods did not arise.

8. We find that A.S.I on patrol duty, was justified, in the situation, to take steps in making search and arrest of the respondents being, a police officer by virtue of the provisions of sections 51, 54 and 550, Cr.P.C. He reported the matter to the Inspector/Incharge of the Police Station who concluded the formal proceedings of seizure of the goods as required by the provisions of sections 158, 161(1), 168(1) and (3) and 170 of the Custom Act, 1969. Reference may be made to the cases of Abdur Rauf Khan v. Collector, Central Excise and Land Customs, Peshawar and 3 others (1980 SCMR 114) and State through Deputy Attorney‑General; Peshawar v. Banda Gul and 2 others 1993 SCMR 311 wherein it was held that the non‑service of notice under section 171 of the Customs Act was not fatal to the prosecution and seizure of contraband goods, if recovery memo, mentioning grounds of seizure was furnished to the accused. Needless to add that any officer of police of the rank of Sub‑Inspector is empowered by notifications dated 5‑10 1986 by the Central Board of Revenue to discharge the functions of officers of Customs under the provisions of sections 158, 160, 161(1) and (2), 164, 165, 168(1) and (3), 172 and 174 of the Customs Act. No exception could, therefore, be taken to the validity of seizure and subsequent proceedings/order, dated 9‑12‑1995 of confiscation of goods by the Collector of Customs.

9. For the foregoing reasons, we accept the appeal and set aside the impugned judgment, dated 20‑5‑1999 passed by the learned Customs, Central Excise and Sales Tax Appellate Tribunal. Resultantly, the order, dated 9‑12‑1995 passed by the Collector of Customs shall hold the field. There shall be no order as to costs. H.B.T./C‑8/L Appeal allowed