P L D 1964 Dacca 418 (PLP)

SATTAR, J.‑The petitioner obtained this Rule upon the respondent to show cause as to why a writ of certiorari or order or orders or an appropriate order of like nature should not issue for quashing his conviction and penalty imposed by the said respon dent.

2. The facts giving rise to the present case may be shortly stated as follows :‑The petitioner who is an Engine Driver of Eastern Bengal Railway was found in possession on the 27th December 1957, of some quantity of fish which was kept concealed in the oil tank of a railway engine. Some Custom Officers on some information searched the engine, and found the fish and seized the same. It appears that after this, the matter was dealt with by the Superintendent of Land Customs, who is the Land Customs Officer, Balla, as well as by the present respon dent. The Superintendent of Land Customs, Sylhet, on 24‑2‑58 ordered that the goods in question should be confiscated under section 167 (8) of the Sea Customs Act read with section 9 of the Land Customs Act, 1924. After that on 24‑5‑58 a letter was issued to the present respondent, stating that the case against the petitioner had already been adjudicated by the Superintendent of Land Customs. The respondent, however, 3n spite of the above letter dealt with the case and by his order dated 15‑11‑58 imposed a penalty of Rs. 450 on the petitioner and also directed confis cation of the fish seized. The petitioner thereafter moved this Court and obtained the present Rule.

3. Mr. Abdul Wadud Chowdhury who has appeared for the petitioner has contended that the respondent acted without jurisdiction in imposing the penalty and directing the forfeiture of the seized goods. His contention is that the respondent could only act under subsection (3) of section 7 of the Land Customs Act if there was no (sic) such complaint, to him and subsec tion (2) of section 7 of the Land Customs Act. According to Mr. Chowdhury as there was no such complaint, the Magistrate acted without jurisdiction. This contention of Mr. Chowdhury has no substance. The respondent here has acted not as a Magistrate but as a Land Customs Officer. By Order No. 26 dated 27th May 1953, issued under subsection (1) of section 3 of the Land Customs Act, all Magistrates of the 1st and the 2nd Class within the Districts of Khulna, Jessore, Kushtia, Sylhet, Rajshahi, Dinajpur, Rangpur, Tippera, Noakhali and Mymensingh have been appointed as Land Customs Officer. The respondent in his order has clearly indicated that he has in this case exercised his power not as a Magistrate but as a Land Customs Officer. Mr. Chowdhury has then attacked the order on another ground. He has pointed out that in view of the adjudication of this case by the Superintendent of Land Customs, Sylhet, who is a Land Customs Officer under Notification No. 34 of the Central Board of Revenue (printed in the Pakistan Customs Manual at page 205) the adjudication by the respondent on 15‑11‑58 was without jurisdiction. In answer to this contention Mr. K. M. Subhan, the learned counsel, who appears for the respondent has contended that the question of adjudication of this case was already before the respondent and as the penalty imposed by the Superintendent of Land Customs was not in accordance with item 81 of the Schedule to section 167 of the Sea Customs Act, the order that was passed by the respondent was quite competent. Item 81 was added to the Schedule to the Sea Customs Act, by Act XXV of 1956. It provides that in imposing penalty under the said item, goods should be liable to confis cation and the person concerned in any such offence should be liable to a penalty not exceeding 5 times the value of the goods. It is, therefore, contended that as the Superintendent of Land Customs, Sylhet, only directed the confiscation of the goods, his order was not in accordance with the provisions of item 81 of the Schedule. It is true that the order that was passed by the Superintendent of Land Customs of Sylhet, was not in terms of item 81 of the Schedule to section

167. But this did not entitle the respondent to adjudicate the same matter which had already been adjudicated by a competent authority. It is not contended on behalf of the respondent that the Superintendent of Land Customs, Sylhet, had no authority to deal with this matter. It is clear that both these authorities had power and as the matter had already been adjudicated earlier by a competent authority, we must hold that the adjudicated order that was passed by the respondent was without jurisdiction.

4. In the result, therefore, this Rule is made absolute and the order dated 15‑11‑58 directing the petitioner to pay a penalty of Rs. 450 as well as confiscation of the seized goods are set aside.

5. Let a writ of certiorari issue directing quashing of the order passed by the respondent on 15‑I 1‑58 directing the petitioner to pay a penalty of Rs. 450 and confiscation of the fish seized. Each party will bear its own costs.

6. It is represented to us that the penalty has already been paid. If so, let the same be refunded to the petitioner.

7. Let the records be sent down expeditiously. ISPAHANI, J.‑I agree. S. Q. Rule made absolute.