1977 P Cr (PLP)

Dates of hearing : 19th, 20th, 25th May and 8th June 1976. This is an application under section 561‑A, Cr. P. C. for quashing a case under section 150 (1), items 8 & 9 of the Customs Act (IV of 190), now pending before the Special Judge Customs, Lahore, against the petitioners. The case arises from recovery of 16 seers of opium kept in 8 cloth‑packets weighing 2 seers each, at Narowal Railway Station from the train heading for Chak Amroo, which is the last railway station near the Border. The property was found in the brake‑van of the train and was marked with label "No. 615/1 Lahore to Shakargarh." The police, who had already been tipped off, felt suspicious about the consignment and on opening it found the opium from inside it. Muhammad Ashraf Riaz, the luggage guard of the train, when asked about it failed to produce any way‑bill, nor could he show any entry in respect of the consignment in the 'rough journal register. The other petitioners, i.e., Khurshid Mir, Ahmed Hassan and Abdur Rahim Mokhar, all railway officials were also suspected of complicity. After the investigation, all the petitioners were challaned, though Abdur Rahim Mokhar was placed in column No.

2. The case proceeded before the Assistant Commissioner, Narowal, until the establishment of the Court of the Special Judge Customs. Whereafter the case was transferred to the latter Court, where it is now pending. Although the case was a transferred one, yet the prosecution, as a matter of caution, filed a formal complaint signed by the Superintendent of Police. Sialkot, dated 15‑10‑1975 under section 185‑A (6) of the Customs Act, which was placed before the Special Judge Customs on 21‑10‑1975.

2. The first contention is that the possession of opium is punishable under the Opium Act and in that regard a case is already pending against the petitioners under that Act before the Magistrate Ist Class, Sialkot, and as such the petitioners cannot be prosecuted under the Customs Act for the same transaction. The contention is repelled by a reference to subsection (1) of section 156 of the Customs Act, 1969, which is to the following effect: ‑‑ "Whoever commits any offence described in column 1 of the Table below shall, in addition to and not in derogation of any punishment to which he may be liable, under any other law, be liable to the punish ment mentioned against the offence in column 2 thereof." The principle of double jeopardy, therefore, is not attracted in this case.

3. It was neat contended that the matter had come up before the Assis tant Collector, Customs for adjudication under the Customs Law and he had decided the matter in favour of the petitioners on 7‑8‑1975. The Assistant Collector had come to the finding that "the possession of opium nor its transportation within the country is an offence within the Customs Law" and as such he had dropped the proceedings. It is contended that in view of the finding of the Customs authority, the present prosecution is unwarran ted because no breach of the Customs Law can in the face of this finding be said to have been committed. The point is clinched by a reference to the decisions in Mosam Khan and others v. The State (1969 S C M R 108) and Adam v. Collector of Customs, Karachi and another (P L D 1969 S C 446). In the latter case, in which a reference to the earlier cited case has also been made their Lordships had observed: - "The intention of the Legislature is thus clear that the disposal of the goods seized under the Act is left entirely in the jurisdiction of the custom authorities. The proceedings taken by the custom authorities for the confiscation of the goods arc more in the nature of depart mental proceedings which have been characterised in English and American Jurisprudence as proceedings in condemnation of the goods for purposes of revenue and are regarded as proceedings of a civil nature, despite their penal chracter. The Sea Customs Authorities are not a judicial tribunal in the strict sense of that term nor can their verdict of confiscation of the goods be regarded as a punish ment by the Court after regular trial for the purpose of supporting a plea of double jeopardy." I am, therefore, of the view that the adjudication by the Assistant Collector, Customs has no bearing on the present trial.

4. No other point having been raised. I find no valid reason for quashing the criminal proceeding. The petition is, accordingly, dismissed. Petition dismissed.