COLLECTOR OF CUSTOMS vs FAZAL DIN, Etc.

JUDGMENT FAQIR MUHAMMAD KHOKHAR, J.- The officials of Police Station, Nawankot, Lahore, intercepted a Suzuki Van No. 87-Karachi-86 on 2.1.1988. The respondents No. 1 to 5 were found to be its occupants. On search, 200 rennies of gold each weighting 10 tolas were found with inscription/embossing of the foreign origin. An AS1 Lai Din reported the matter to the SHO concerned. A case FIR No. 7/1988 dated 2.1.1989 under Sections 156(1 )(89)/157(2) of he Customs Act, 1969, was registered at the said Police Station. The gold rennies were formally seized by the Inspector/S.H.O. A show-cause notice dated 21.2.1988 was also issued to the respondents No. 1 to 5 for confiscation.

2. The Collector of Customs by order dated 3.5.1988 confiscated the said gold by imposing a penalty of Rs. 200,000/- each on all the five respondents. The appeal of the respondents was disposed of by order dated 27.2.1990 the matter to the SHO being Incharge of the Police Station. The gold rennies of foreign origin were actually seized by the appropriate officer of the police to which no exception could be taken, itwas further submitted that the SHO being an officer not below the rank of Sub-Inspector was authorised in this behalf by virtue of Notification No. SRO 913(1)/86 dated 5.10.1986, issued by the Central Board of Revenue under Section 6 of the Customs Act, 1969. The learned counsel relied on the case of Raza A. Khan, Deputy Attorney General, Peshawar v. Reghzi Gul (1987 P.Cr.L.J. 1789) (Peshawar) in support of his contentions.

4. On the other hand, the learned counsel for the respondents argued that it was Lai Din, AS1 of Police who had seized the gold of the respondents and that under the SRO dated 5.10.1986, only an officer of the rank of Sub- Inspector and above could exercise the powers under Sections 158,.160, 161(1) and (2), 164, 165, 168(1) and

(3) , 172 and 174 of the Customs Act, 1969. It was further submitted that the mere fact that the gold rennies bore the foreign marking was not conclusive evidence of smuggled goods liable to confiscation, itwas contended that the learned Special Judge (Customs, had already acquitted the respondents by accepting their application under Section 265-K Cr.P.C. Reliance was placed on cases of Federal Government of Pakistan and others v. Muhammad Sarwar (PLD 1989 SC 377) and Government of Pakistan through Secretary Finance, Islamabad and 3 others v. Abdu! Majeed (1997 SC MR 348).

5. We have heard the learned counsel for the parties at length. The learned Appellate Tribunal below seems to have been swa yed primarily by judgment dated 10.10.1991 of the acquittal of the respondents by the learned Special Judge (Customs) under Section 265-K Cr.P.C. The learned Tribunal drew conclusion as if the gold rennies were not of foreign origin. No effort was made nor any challenge was thrown by the respondents to show that the gold rennies were of municipal and not of foreign origin.

6. It is now well-settled that the criminal proceedings before the Court and the confiscation proceedings before the Customs authorities are concurrent, independent and mutually exclusive.

The other question as to whether any seized goods are to be returned to the persons from whose possession they were seized is to be decided by the Customs authorities and not by the Customs Judge under sections 156( 1)(89, 168, 171, 179 and 180 of the Customs Act, 1969, 1969. Reference may be made to the cases of- Central Board of Revenue and another v. Khan Muhammad (PLD 1986 SC 192). Adam v. Collector of Customs, Karachi and another (PLD 1969 SC 446), Mosan Khan and others v. The State (1969 SCMR 208) and The State v. Ghulam Jaffar etc, (PLD 1970 Pesh. 66) (F.B.).

7. The gold rennies admittedly bore the inscription/embossing showing them to be of foreign origin.

The assay report of the Pakistan Mint had confirmed the purities of the gold as 999.00 per thousand parts. The respondents failed to show by producing any documentary and/or other evidence to discharge initial onus of proof that the good in question had been achieved by process or other means having been employed in Pakistan. This was necessary in view of the provisions of section 2(s), subsection (1) clause (89) and sub-section (2) of section 156 of the Customs Act, 1969. In the absence of any evidence to the contrary, the learned Collector of Customs was justified to draw an inference that the gold rennies were of foreign origin and were smuggled goods, In the facts and circumstances of the case. The question of the discharge of burden of conclusive proof by the Customs Department as to the foreign origin of the goods did not arise.

8. We find that A.S.I, on patrol duty, was justified, in the situation, to take steps in making search and arrest of the respondents being a police officer by virtue of the provisions of sections 51, 54 and 550 Cr.P.C. He reported the matter to the Inspector/Incharge of the Police Station who conducted the formal proceedings of seizure of the goods as required by the provisions of sections 158, 161(1), 168(1) and (3) , and 170 of the Customs Act, 1969. Reference may be made to the cases of Abdur Rauf Khan v. Collector, Central Excise & Land Customs, Peshawar and 3 others (1980 SCMR 114) and State through Deputy Attorney General, Peshawar v. Banda Gul and 2 others (PTCL 1994 CLC 322)

(S.C.) wherein it was held that the non-service of notice under Section 171 of the Customs Act was not fatal to the prosecution and seizure of contraband goods, if recovery memo, mentioning grounds of seizure was furnished to the accused. Needless to add that any officer of police the rank of Sub-Inspector is empowered by notification dated 5.10.1986 by the Central Board of Revenue to discharge the functions of officers of Customs under the provisions of sections 158, 160, 161(1) and (2), 164, 165, 168(1) and (3), 172 and 174 of the Customs Act. No exception could, therefore, be taken to the validity of seizure aid subsequent proceedings/order dated 9.12.1995 of confiscation of goods by the Collector of Customs.

9. For the foregoing reasons, we accept the appeal and set aside the impugned judgment dated 20.5.1999 passed by the learned Customs, Central Excise and Sales Tax Appellate Tribunal.

Resultantly, the order dated 9.12.1995 passed by the Collector of Customs shall held the field. There shall be no order as to costs.