P L D 1978 Karachi 800 (PLP)

FAKHRUDDIN G. EBRAHIM, J.‑These two petitions may conveniently be disposed of together.

2. In both these cases the petitioners were called upon to show cause why action should not be taken against them under clause (8) of section 156 of the Customs Act on the ground that the petitioners had conspired to smuggle Charas out of Pakistan. In reply, the petitioners denied the allegation made. The Deputy Collector of Customs after hearing the parties found against the petitioners and proceeded to confiscate the seized Charas, and in Petition No. l 111 of 1974 imposed a personal penalty of Rs. 25,000 on each of the petitioners under clauses (8) and (14) of section 156 of the said Act, and in Petition No. 637 of 1976 a personal penalty of Rs. 6,00,000 on the petitioners under clause (9) of section 156 of the said Act. The scope of subsections (8) and (9) of section 156 have been dealt with by us in detail in Criminal Miscellaneous Applications Nos. 225/1976, 895/1976, 306/ 1976, 260/ 1975, 85/ 1974, 467/ 1974 and 725/ 1974. One of these criminal revision applications was by the petitioner in Petition No. 637 of 1976. The common prayer in these applications was for quashment of proceedings before the Special Judge, Customs under clause (8) of section 156 which applications were allowed on the ground "that the law clearly contemplates two separate categories of goods, one under clause (s) of section 2 and the other goods the import or export of which is prohibited under any other law or for that matter under any other section of the Customs Act, and the offence of smuggling is limited to the former category. I am further fortified in this view by the fact that the Federal Government at a later date deemed it necessary to notify Charas as an additional item under said clause (s) of section

2. Therefore, the fact that importation and exportation of Charas is prohibited under the Dangerous Drugs Act, 1930, which will be deemed to be a prohibition or restriction notified under section 16 of the Act, in the absence of inclusion of Charas as one of the items notified under clause (.s) of section 2, there cannot be any smuggling of Charas though of course it is an offence under clause (9) of section 156."

4. Since the admitted position is that Charas was at the relevant time not an item included or notified under clause (s) of section 2 of the Customs Act, 1969 its exportation did not amount to smuggling so as to attract clause (8) of section 156.

5. The learned Deputy Attorney‑General contended that the impugned [orders notwithstanding that in the show‑cause notice the petitioners were] charged with offence under clause 8) of section 156 could be justified under [clause (9) of section 156 inasmuch as exporting Charas was in violation of law, namely, sections 7 to 38 of Dangerous Drugs Act, 1930. This contention, A namely, that clause (9) would be attracted in relation to the offence of exporting Charas, as is clear from the passage referred to above, found favour with us in the said Criminal Miscellaneous Applications and we affirm the view that it was open to the Customs Authorities to proceed against the petitioners under this clause.

6. On behalf of the petitioners it was however, contended that in the show‑cause notices the allegation against the petitioners was that they had committed the offence of smuggling under clause (8) and it was, therefore, not open to the Deputy Collector of Customs to punish the petitioner in Petition No. 637 of 1976 under clause (9), or for the learned Deputy Attorney‑General to justify the order made expressly under clause (8) in Petition No. 1111 of 1974 as one under clause (9). If the facts alleged and proved constitute violation of a provision of law other than that with which a person may be charged, penalty provided under the former can to our mind be legitimately imposed unless of course it is shown that some substantial prejudice has been caused thereby. The petitioners do not challenge the facts found by the Deputy Collector of Customs in his impugned order and even otherwise they would be no room for its challenge under our Constitutional jurisdiction. The petitioners were in no manner prejudiced by the conclusion that they had committed an offence under clause (9) and not under clause (8) of section

156. In both cases the law provides for confiscation of goods and imposition of penalty, the latter being higher in clause (8) which additionally provided for a jail sentence upon conviction by the Special Judge, Customs. In both cases the common element is import or export m violation of any law, the only difference being that to be smuggling it must be an item covered by clause (s) of section 2 of the Act.

7. The result, therefore, is that there is no merit in these petitions and they are dismissed with costs. S. A. H.?????????????????????????????????????????????????????????????????????????? Petition dismissed,