2001 P Cr (PLP)

Muhammad Nawaz v. The State PLD 1999 Lah. 18 and The State v. Muhammad Yousuf PLD 1965 Lah. 324 ref. Mian Abdul Ghaffar for Petitioner. Ch. Sagheer Ahmed, Standing Counsel. The main contention in the present petition urged by the learned counsel representing the petitioner, is that the document purporting to be an F. I. R., under section 161 of the Customs Act bearing F.I.R. No. 14 of 1998, dated 27-3-1998 has no legal sanctity. He has firstly contended that there is no concept of an F.I.R., under the Central Excises Act, 1944. Secondly, he has argued that even the purported F.I.R. has been made under section 161 of the Customs Act, 1969 by an Intelligence Officer Customs Intelligence. On this basis he has argued that said document has no efficacy in offences under the Central. Excises Act because officer of the Customs can only proceed under the Customs Act and not under the Excise. Finally learned counsel for the petitioner has much stress on the fact that the office respondent No. 4, with whom the above case has been lodged has not been declared a police station by the Provincial Government under section 4(i)(s), Cr.P.C. In support of this contention, learned counsel has referred to, the case titled Muhammad Nawaz v. The State PLD 1999 Lah. 18.

2. Learned counsel for the petitioner was firstly asked to show the statutory basis for the contention that the office of respondent No. 4 had to be notified as a police station under section 4(i)(s), Cr.P.C. in order for the said respondent to register the F.I.R. Learned counsel was not in a position to cite any statutory provision but made reference to section 13 of the Central Excises Act in this regard. I have gone through section 13 with the assistance of both learned counsel. There is no requirement in the said section that an office of an excise functionary acting under the Central Excises Act, should be notified as a police station. Learned counsel for the petitioner as noted, made reference to the case of Muhammad Nawaz (supra). The said judgment does not refer to any statutory basis for the conclusion that the concerned office of the Excise Department should be notified as a police station under section 4(i)(s), Cr.P.C. I have also been informed by the learned Standing Counsel that the said judgment has been appealed and the matter is pending adjudication before a Division Bench of this Court in I.C.A. No. 440 of 1998. He further points out that by means of interim order, dated 20-5-1998 in the said I.C.A. the operation of the judgment in Muhammad Nawaz case has been suspended.

3. In the above circumstances, I hold that it is not necessary for the office of respondent No. 4 or any other office of the Excise Department to be notified as a police station under section 4(i)(s), Cr.P.C.

4. The learned counsel for the petitioner also contended that without the notification of an office of the Excise Departmental as police station, it would not be possible for the Excise Department to detain a person after obtaining remand from the Special Judge/Magistrate referred to in section 13 of the Central Act. In support of this contention, learned counsel referred to the case titled The State v. Muhammad Yousuf PLD 1965 Lah.

324. I have gone through the cited precedent. This only relates to cases where remand is to be made to the police and not to cases where a person can be remanded to an authority other than the police. In any event, this argument is also at present premature because no arrest has been effected as yet and no order of remand has been obtained so far by the Central Excise Authorities.

5. Learned counsel for the petitioner then referred to the first two contentions referred to para. 1 above. The provisions of section 13 of the Central Excises Act provide a procedure for investigation of offences under the said Act which parallels closely the procedure prescribed in Chapter 14 of the Cr.P.C., relating to the investigation of criminal cases. Learned counsel for the petitioner argued that only a duly empowered functionary of the Excise Department could have conducted the investigation of the case against the petitioner. The purported F.I.R., referred to above is strictly speaking not requirement of section 13 of the Central Excises Act and appears to be a hang-over from earlier practice and procedure adhered to by the Excise Department prior to 1994.

6. In respect of the other contention that only a functionary of the Excise Department could have proceeded against the petitioner and person named as accused in the purported F.I.R., learned Standing Counsel representing the respondents pointed out that under the provisions of section 13(13) of the Central Excises Act, the Federal Government was empowered by notification in the official Gazette, to authorize any officer working under the C.B.R. to exercise the power and perform the function of a Central Excise Officer under section 13 of the Central Excises Act. He also referred to a notification of the Federal Government authorizing the officers of the Directorate of Customs Intelligence and Investigation to act as Central Excise Officers. If the petitioner has any grievance in relation to the competence of the relevant functionaries of the Excise Department and/or the C.B.R., in respect of the case against the petitioner, the petitioner may raise such grievance, in the first instance, before the concerned functionaries of the Excise Department and/or the C. B. R.

7. It does appear, however, from the above discussion, that the Central Excise Department may have proceeded in the matter without adhering strictly to the requirements of section 13 of the Central Excises Act. In the circumstances, the respondents are directed to proceed in the matter strictly in accordance with the provisions elaborately set out in section 13 of the Central Excises Act. Needless to say if the petitioner has any grievance C against the procedure adopted by the Central Excise Department on the score that such procedure is not compliant with the provisions of section 13 of the Central Excises Act, the petitioner would be entitled to invoke any available remedy under law. With the above observations, this writ petition is dismissed. Q.M.H./M.A.K./A-127/L Petition dismissed.