1968 P Cr (PLP)

KHAMISANI J. This appeal has been filed by the State against the judgment of the Sessions Judge, 1harparkar at Mirpurkhas, dated 17th September 1966, under which the conviction and sentence passed on respondent Hamtho vas set aside and a direction was given that his case should be dealt with under the provisions of section 7 of the Land Customs Act. It arises out of the following facts. 2. ‑On 11th May 1965, at about 11‑55 p.m., S. M. Masih, Station House Officer, Mithi along with his police party, while pat rolling near Posarko village in the desert, saw respondent Hamtho running away with a bundle on his head. He was followed and the bundle on his head was secured. It was found to contain eight small packets of Bidi leaves. They were, therefore, secured by the S. H. O., S. M. Masih. He registered his first information report on behalf of the State on 12th. May 1965. After completing the usual investigation, he challaned him before the Mukhutiarkar and F. C. M., Mithi, under section 167 (81) of the. Sea Customs Act, from where the cast was transferred to Sub‑divisional Magistrate, Desert. The S. D. M. Desert convicted the respon dent under section 167 (8 l) of the Sea Customs Act and sentenced him to suffer rigorous imprisonment for six months and pay fine of Rs. 500'00 or in default to suffer rigorous imprisonment for three months more. He filed an appeal before the Sessions Judge, Tharparkar at Mirpurkhas, which was allowed by judgment dated 17tb September 1966, It is against this judgment that the present appeal has been filed against the acquittal of respondent Hamtho.

3. It is as admitted position that the judgment given by the Sessions Judge was based purely on question of law, i.e. whether the S. H. O., Mithi, who had arrested the respondent and sent him up for trial under section 167 (81) of the Sea Customs Act had the jurisdiction to investigate an offence under section 167 (81) of the Sea Customs Act and sent him for trial. The learned Assistant Advocate‑General has contended that the view of the learned Sessions Judge is incorrect because the S. H. O., Mithi, who had investigated the case, was empowered under section 9 of the land Customs Act by a notification dated 24th December1954, to exercise powers vesting in a Custom Officer under sections 169, 170, 171, 173, 178 and 181 of the Sea Customs Act. We have considered the arguments advanced by the Assistant Advocate‑General and we are of the view that there is. No substance in them. It is obvious that the police officers of only those districts which are on the border of India have under the notification mentioned above, been given powers under section 9 of the Land Customs Act to exercise powers under section 169, etc. of the Sea Customs Act. The powers contained in section 169, etc. relate only to the powers regarding search, seizure of goods and arrest of an accused person. All these powers relate to the power of investigation and are purely concerned with procedural matters. They have nothing to do with the Sea Customs Act as substantive law. These procedural powers of investigation have also been conferred on the police officers under the Land Customs Act for the purpose of dealing with the cases falling under the Land Customs Act. The offence, which the respondent can be said to have committed under the Land Customs Act would fall under its section 7 (2). A police officer, therefore, regardless of the fact whether he exercised powers of investigation, which fell under the Code of Criminal Procedure or under the Land Customs Act or under the Sea Customs Act had no power whatever to send up the respondent fort an offence under section 167 (81) of the Sea Customs Act. He could send him only under section 7 (2) of the Land Customs Act. The learned Sessions Judge was, therefore, quite correct in coming to the conclusion that the trial of Hamtho for an offence under section 167 (81) of the Sea Customs Act was without jurisdiction. His direction that he should be dealt with under section 7 (2) of the Land Customs Act was valid and proper under the law. "

4. The learned Assistant Advocate‑General has also argued that the Land Customs Act (XIX of 1924) was amended by Customs Acts (Amendment) Ordinance, 1962. (Ordinance LVIII of 1962). Under section 14 of this Ordinance, Schedule appended to the Land Customs Act (XIX of 1924) was substituted by Schedule given in this Ordinance. Customs Acts (Amendment) Ordinance, 1962 (Ordinance LVIII of 1962) was further amended by Customs Acts (Amendment) Ordinance, 1963 (Ordinance VIII of 1963) under section .3 of which the words "and the trial of offences" were added to section 9 of the Land Customs Act. Repealing and Amending Ordinance, 1965 (Ordinance 3C of 1965) was then promulgated under which Customs Acts (Amendment) Ordinance, 1962 (Ordinance LVIII of 1962) was repealed. The argument of the learned counsel for the State is that the words "and the trial of offences" introduced in section 9 of the Land Customs Act under which powers of Customs officers were given to the police officers meant that they had the power to send up per. sons either under the Land Customs Act or under the Sea Customs Act. We have considered the arguments of the learned Assistant Advocate‑General and we are of the view that there is no force in them. The words "and the trial of offences" even if it be held that they existed at the present moment in section 9, do confer procedural powers on the police officers and have nothing to do with the punitive sections of the Land Customs Act or the Sea Customs Act. The police officers by virtue of these words in section 9 of the Land Customs Act would still have the powers to investigate the offences and send up the persons apprehended for trial. They could by no means be deemed to have been vested with the discretion to send up persons arrested by them under the Sea Customs Act or under the Land Customs Act, they having received those powers under section 9 of the Land Customs Act only. The police officers therefore, would have powers to send up persons arrested by them only under the Land Customs Act regardless of the procedure they may follow in the investigation of the cases or regardless of the procedure that may be followed for the trial of those cases. On this view of the matter, we see no substance in this appeal and hence dismiss it. Appeal dismissed.