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Customs Practitioner.--The Customs Act is a special statute. It provides for registering and regulation the conduct of the Customs Practitioners, appearing before any officer of customs, the Central Board of Revenue or the Federal overnment in connection !ith any proceedings under the Customs Act or the Rules made thereunder. The provisions of the Customs Act !ill override the provisions of the eneral "a! namely the provisions of the "egal Practitioners and Bar Councils Act, #$%& so far as right of practice of the Customs "a! other than by an advocate is concerned. 'Based on #$%# (C)R *+*,. CLAUSE (98) General.--This clause is ne!. The offence under this clause is bailable. Procedure.--The offence is triable by the (pecial -udge of Customs appointed under (ection #+. of the Act. Explanation This e/planation is the reproduction of the e/planation as appended to (ection #*% of the (ea Customs Act !ith slight change due to change of terms under the present Act. SUB-SEC !"# ($) General.--This sub0section corresponds to (ection #%%0A of the (ea Customs Act, #+%+. In this sub0section number of goods itself have been mentioned and the remaining goods are to be selected by the subordinate "egislature for !hich the Federal overnment has been empo!ered to notify them in the official a1ette. 2nder the old la! all the goods !ere to be notified in the official a1ette and every such notification !as to be laid before the 3ational Assembly as soon as possible after it !as issued. Burden o% proo%.--If item +# '3o! Clause '+$, is read !ithout reference to (ection #%%0A of the Customs Act, #$*$ of the (ea Customs Act, '3o! (ections #.*'4, and #+%, the result !ould be that the possession of the goods the importation of !hich is restricted !ould be an offence even if the goods had been imported under a valid licence. To ma5e the goods liable to confiscation or the possessor thereof liable to penalty or imprisonment, the prosecution !ill first have to sho! that the goods are chargeable !ith a duty !hich has not been paid or that their importation is for the time being restricted or prohibited. 6n the other hand the person in !hose possession the goods !ere found to sho! that they had been imported under a valid licence or before the imposition of the

restriction. If that burden be not discharged, the liability !ould be enforceable against the person found in possession even though item +# does not e/pressly say so. But !here goods have been sei1ed !hich can only be imported on payment of duty under a licence, the prosecution shall have to sho! the goods are of a foreign origin and the fact that they !ere found in possession of a person in Pa5istan. 7here goods have been sei1ed !hich can only be imported on payment of duty under a licence, the prosecution shall have to sho! that the goods are of a foreign origin and the fact that they !ere found in the possession of a person in Pa5istan !ould mean that they had at one time or another been imported. The importation being thus proved, it !ould be for possessor to sho! that they !ere imported either before any restrictions !ere imposed or in accordance !ith such restrictions. 8'#$.$, ## 9"R '(C, 4:: ; #$.$ '#, P ( C R #&& ; P"9 #$.$ (C #%%,.< Presumption as to pa&ment o% customs dut&--'(en %orei)n )oods are sold in open mar*et.-The ordinary method of import of goods from outside into Pa5istan is that they come through the customs barrier and the duty payable is in fact paid. The presumption, therefore, !ith respect to any goods !hich may be sold in the open mar5et, in the absence of an indication to the contrary !ould be that the duty has been paid on them. Presumption raised under (ection #%%0A is only !ith respect to the goods and no presumption as to the person !ho committed the act. 8'#$*4, #= 9"R '(C, *: ; P"9 #$*4 (.C. '==:,<. Presumption as to la'%ul import and pa&ment o% dut&.--In a case the Customs Authorities from Inspector upto Board of Revenue gave finding of fact that the petitioner !as found in possession of unusual number of !rist !atches !as unable to produce the receipts at the time he !as detected, !as 5eeping the >uantity of !atches in an unusually concealed manner, and failed to produce any document of import connecting the !atches !ith any la!ful import. 9espite all these findings learned counsel relying on 'Pa5istan vs. ?a1i @ia0ud09in P " 9 #$*4 (C ==:, has contended that no presumption could be raised against the petitioner. 6n the other hand, it is urged the presumption, as e/plained by their "ordships, !as that duty !ould be deemed to have been paid and goods la!fully imported in these circumstances !hich !ere similar to the present case. Firstly, the ruling is distinguishable in respect of interpretation of la! as their "ordships dealt !ith the presumption under (ection #%%0A '3o! (ections #.*'4, and #+%, of the (ea Customs Act !hile the presumption in this case initially !as raised against the petitioner !as under (ection #*% '+#, !hich !as amended after the ruling of the (upreme Court in the case of ?a1i @ia0ud09in and before the impugned action !as initially ta5en against the petitioner in this case. The language of item #%%0A '3o! (ections #.*'4, and #+%, and #*%'+#, '3o! (ection #.*'#,'+$, is different. (econdly, their "ordships did not hold that after the initial presumption the >uestions of evidence in an attempt to prove la!ful import on the part of the person concerned, is irrelevant. In this case, in reality the matter !ent beyond the stage of presumption. The petitioner did avail of opportunity of producing evidence in support of his contention that the !atches !ere la!fully imported but according to the findings of the authorities concerned he failed in this attempt. Therefore, in fact, it is not a >uestion that action have been ta5en on the basis of any presumption but on the basis of evidence considered in !hich the petitioner failed to prove his plea. Thirdly, even according to their "ordships in the cited ruling, the presumption !ould not be raised if there are no suspicious circumstances or other facts leading to the presumptive inference. In this case all the circumstances noted above particularly the surreptitious manner in !hich the petitioner '!ho himself belongs to Pesha!ar area, !as found in possession of the !atches !hich he had concealed in unusual manner and failed to produce the receipts in the very first instance are more than mere suspicious circumstances. There are in fact strong indications that the import !as unla!ful even to his 5no!ledge. Considering all these circumstances there is no merit in this petition and the same is dismissed. There shall be no order as to costs. '"ahore Aigh Court 7.P. 3o. #:44 of #$*= decided by )r. -ustice )ohammad Af1al @ullah 'unreported, also see Customs eneral 6rder 3o. =% of #$%&,. Burden o% proo%.--2nder (ection #%%0A '3o! (ections #.*'4, and #+%, if any >uestion arises in respect of goods covered by clauses '+$, and '$:, as to !hether duty has been paid or secured in respect of them or !hether they had been la!fully imported the burden of proof !ould be upon the person in !hose possession the goods !ere found or from !hose premises they !ere recovered. 'P " 9 #$.$ (C #%% ; '#$.$, ## 9 " R '(C, 4::,.

In vie! of the admission about the o!nership of gold rannies the burden shifts on the accused that the gold rannies are not smuggled. 'PTC" #$$: C". &%:,. Section is not ultra +ires.--(ection #%+0A, 'Pa5istan,B '(ection #%%0A, of the Indian (ea Customs Act 'corresponding to (ections #.*'4, and #+% of the present Customs Act, does not offend Article #= of the Indian Constitution. This section discloses the !ell0defined classification of goods based on an intelligible differentia. It applies only to certain goods described in sub0section '4, !hich are and can be easily smuggled. It is only those goods !hich ans!er the three fold description that come under the operation of the section. The obCect of the Act is to prevent smuggling. The differentia on the basis of !hich the goods have been classified and the presumption raised by the section obviously have a rational relation to the obCect sought to be achieved by the Act. The impugned section is clearly not hit by Article #= and cannot be struc5 do!n on the infirmity either of discrimination or illegal classification 8'#$.+, '( CA #& ; #$.%( C R ###: ; #$.% ) " - Cr. %*. ; #$.% ( C - +4+ ; AIR #$.% (C +%%,<. (ection 4&0A of the Foreign D/change Regulation Act sho!s that the restrictions imposed regarding gold under (ection +'#, of that Act are deemed to have been imposed under (ection #$ '3o! (ection #*, of the (ea Customs Act and the customs officers are competent to e/ercise all the po!ers !hich have been conferred upon them under (ections #*$, #%&, #%+, #+ l0A, '3o! (ections #.+, #*#, #*+ and #%4 of the present Customs Act,, etc. (o a customs officer can, on reasonable suspicion, for the purpose of prevention of smuggling, search a person at an airport and he can also sei1e any goods !hich he believes to be smuggled. If the goods are sei1ed on the ground that they are smuggled goods, such sei1ure !ill not legally be deemed to infringe the fundamental rights under Article &# of the Constitution of India as this sei1ure !ill be deemed to be during the course of e/ercise of the police po!er and not of the po!er of Dminent 9omain or of Ta/ation. 'AIR #$.. Tripura &. E .* Cri. ". -our #*&*,. Burden o% proo% s(i%ts to t(e accused person onl& a%ter t(e prosecution (as ,een a,le to esta,lis( t(at t(ere are )rounds %or reasona,le ,elie% or suspicion t(at t(e )oods are smu))led.--6rdinarily in a criminal case the burden of proving each and every ingredient of the offence !ith !hich an accused person is charged lies entirely on the shoulders of the prosecution. Therefore, in accordance !ith this !ell settled rule before a person can be convicted of being found in possession of smuggled goods the onus of establishing that the goods in >uestion !ere smuggled should fall on the prosecution. Ao!ever, the provisions of (ection #.*'#, '+$, and (ection #.*'4, ma5e a departure from of the said rule in as much as they lessen the burden of the prosecution in this regard, for no! the prosecution has only to sho! that there are reasonable grounds to believe or suspect that the goods found in the possession of the accused person are smuggled. 6nce this has been done, the burden shifts to the accused person to sho! that the goods found !ith him !ere not smuggled. But it is important to note that the burden shifts to the accused person only after the prosecution has been able to establish that there are grounds for reasonable belief or suspicion that the goods are smuggled. 'PTC" #$+& C" %.,. Sei-ed.--The e/pression Fsei1edF in the conte/t in !hich it is used in (ection #%+0A '(ections #.*'4, and #+% of Pa5istan Customs Act, of the (ea Customs Act, means ta5en possession of contrary to the !ishes of the o!ner of the property. 3o doubt, in cases !here a delivery is affected by an o!ner of the goods in pursuance of a demand under a legal right, !hether oral or bac5ed by a !arrant, it !ill be a case of sei1ure but the idea that it is the unilateral act of the person sei1ing is the very essence of the concept. 8'#$*4, # Cr. ".-. =+. E AIR #$*4 (C =$*,<. (ections #%+, #%+0A and #+: of the (ea Customs Act 'Indian, !hich have to be read together dra! distinction bet!een sei1ure under the Act and a sei1ure under provisions of other la!s. A sei1ure under the Act is one for !hich the authority to sei1e it conferred by the Act and in the conte/t it !ould be referred to as a sei1ure under (ection #%+. The sei1ure from the o!ner of the property under (ection #+: is not a sei1ure under the Act but by a public officer affecting the sei1ure under other provisions of the la!, for instance, the Criminal Procedure Code. The last part of sub0section '#, of (ection #%+0A '(ections #.*'4, and #+% of the Pa5istanGs Customs Act, lays the burden of proving that the goods are not smuggled on the person from !hose possession the goods are ta5en. Possession ta5en by the customs department of goods being conveyed to and deposited in the nearest Custom Aouse !ithin the last !ords of the second paragraph of (ection #+: are not goods !hich have been sei1ed under the Act !ithin the opening !ords of (ection #%+0A. And in such a

circumstance the terms of (ection #%+0A !hich re>uire a sei1ure under the Act are not satisfied and conse>uently that provision cannot be availed of to thro! the burden of proving that the goods !ere not smuggled on the accused. 8AIR #$*4 (C =$* ; '#$*4, I Cr. ".-. =+.<. .easona,le ,elie%.--There is one and only one construction possible of (ection #%+0,= '#%%0A of 'Pa5., (ea Customs Act. 3o! (ections #.*'4, and #+%, so far as the point of time at !hich the reasonable belief should e/ist in regard to the sei1ure of any smuggled goods is concerned and that construction is that !herever the goods are sei1ed, the officer sei1ing the goods must at the time of sei1ure have a reasonable belief in his mind that the goods !hich he !as sei1ing !ere smuggled goods. Any subse>uent ac>uisition of such belief !ould be of no avail. 'AIR #$*# Bom. 44% ; *4 B"R #:=&,. The e/istence of a reasonable belief on the pan of the sei1ing officer that the goods sei1ed are smuggled goods is a condition precedent for the presumption under (ection #%+0A to operate. Belief is a matter for the subCective satisfaction of the officer, though perhaps the court may consider !hether the belief entertained !as reasonable or not. Reasonable belief is a belief begotten by attendant circumstances fairly creating it and honestly entertained. '#$*# Her. ".-. $#$ ; #$*# Her. ".T. +$+ ; '#$*4, 4 Cr. ".-. **4,. The court can only infer on the basis of the evidence and circumstances proved in the case !hether there !ere reasonable grounds e/isting on the basis of !hich the officers could have entertained a reasonable belief. But the court cannot say !hether or not they did entertain such a belief or merely a suspicion. Belief is a subCective matter. For a belief to e/ist there must be believer and it is that believer !ho must believe that the gold is smuggled gold at the time he sei1es it. Then alone the provisions of (ection #%+0A are attracted. 7here the evidence and circumstances !ere such that it !as possible for the officers of customs to have entertained a reasonable belief that the gold recovered !as smuggled, but there !as no direct evidence by these officers that they did entertain such a belief, it !as held that (ection #%+0A of the (ea Customs Act !as not attracted. 'I"R '#$*:, #: RaC. #4%= ; '#$*#, 4 Cr. ".-. =:*,. Before any person could be called upon to prove that the goods sei1ed from him !ere not smuggled goods, the customs officer ma5ing the sei1ure must proceed upon the foundation of a reasonable belief inspired in him by some definite materials by !ay of some definite information or other!iseI so that he could be said to have sei1ed the goods in the reasonable belief that they !ere smuggled goods. It !ill be then for the in>uiry officer to in>uire and be satisfied !hether the customs officer !ho had sei1ed the goods !as !rong in his belief that the goods that he had sei1ed !ere smuggled goods. In case the in>uiry officer is satisfied that the goods !ere sei1ed in such a reasonable belief, he !ould specify the same in the sho! cause notice !hich he !ould thereafter issue to the person from !hom the goods !ere sei1ed and call upon him to prove that the goods !ere not smuggled goods. '*4 B"R #:=& ; AIR #$*# Bom. 44%,. The !ord FsmuggledF in (ection #%+0A of the (ea Customs Act 'Indian, '(ection #%%0A of the (ea Customs Act 'Pa5., in relation to goods !as descriptive to mar5 off smuggled goods from other 5inds of goods !hich could also be sei1ed under the Act. The sei1ure must be la!ful and in good faith, but the !ords Freasonable beliefF are not merely descriptive of the smuggled goods sei1ed and the e/istence of a reasonable belief is a condition precedent to be satisfied before the burden of proof could be imposed on the person from !hom the goods 'gold, !ere sei1ed. The reasonable belief that the goods !ere smuggled, though it could only be subCective, is a pre0re>uisite for the application of (ection #%+0A. 2nless it is established that the gold !as sei1ed in the reasonable belief that it !as smuggled gold, (ection #%+0A cannot apply. The reasonable belief must be that of the officer !ho effected the sei1ure. It is belief and reasonable belief that the section re>uires and not, for instance, mere suspicion. The reasonable belief must precede or at least coincide !ith the sei1ure. Formation of the belief subse>uent to sei1ure, ho!ever !ell founded that belief is, !ill not satisfy the re>uirements of (ection #%+0A8%4 )"7 #:= ; I"R #$.$ )ad. 444 ; AIR #$.$ )ad. #=4 ; .'#$.$, 4 )"- &.<. Presumption under t(e section.--Presumption under this section arises only !hen the goods are sei1ed under the Customs Act. 7hen the goods alleged to be smuggled goods !ere ta5en charge of by a sergeant and then handed over to the officer incharge of the police station neither of !hom !as an officer of customs nor a person duly employed for the prevention of smuggling the goods !ere

sei1ed not under the Customs Act but under the general po!ers of the police. Therefore the presumption under this section that the goods !ere smuggled goods cannot be dra!n in such a case. 'AIR #$*4 Cal. &%:,. The RaCasthan Aigh Court has, ho!ever, held that presumption raised under this section is not confined to customs offences cogni1able by the Customs officers but is also available in criminal offences. 8I"R '#$*:, #: RaC. #4%= ; '#$*#, 4 Cr. ".-. =:*<. It is respectfully submitted that the soundness of this vie! is open to doubt. "nus o% proo%.--6!ing to the peculiar nature of the offence dealt !ith under the Customs Act, the "egislature thought it !ise to put the onus of proving his innocence upon the accused person !here there !as a possession of smuggled goods and such goods !ere actually sei1ed from his possession. '*# P"R $&% ; #$*: Cr. ".-. #*.$ ; AIR #$*: PunC. **=,. Plea o% ,ona %ide purc(aser.--Plea of bona fide purchaser appears to have had no place in the hierarchy of the Customs "a!s 'PTC" #$$+ C". 4%.,. Section /08-A 'Indian, applies under t!o conditions. The first condition is that the goods must be sei1ed under the Act in the reasonable belief that they !ere smuggled goods. The second condition is that the burden of proving that the goods are not smuggled goods shall be on the person from !hose possession the goods are sei1ed. '#$.$ Cr. ".-. %:: ; AIR #$.$ Cal. &.*,. radin) in )old.--The restriction imposed under (ection #%+0A of the (ea Customs Act on the right to ac>uire, hold and dispose of gold and to carry on trading in gold is by la! and is undoubtedly in public interest. It is also not unreasonable in the circumstances of the case. The burden cast is not 2nreasonable ta5ing into consideration the evil !hich the provisions such to remedy and the safeguard provided in the Act for see5ing remedies against illegal and unCustified order of the customs officers. It must accordingly be held that the provisions of the section are not hit by Article #$'#, 'i, of the Constitution. 8I"R '#$*:, #: RaC. #4%= ; '#$*#,4 Cr. ".-. =:*<. Dven assuming that in suitable cases !here a )agistrate has authority to investigate into the >uestion !hether gold ornaments are included in the definition of GgoldG in (ection 4'I, of the Foreign D/change Regulation Act, #$=%, yet in normal circumstances !hen a !arrant is valid the >uestion as to !hether the articles sei1ed are or are not prohibited or dutiable articles should be left to be decided by the authorities constituted under the (ea Customs Act. 'I"R #$.% Bom. %%= ; *: B"R #$= ; #$.+ Cr. ".-. ##.% ; AIR #$.+ Bom. &*%,. #oti%ied )oods under Section /12($).--The list of goods for the purpose of sub0section '4, of (ection #.* is the same as of the list of smuggled goods as reproduced under 3otes of (ection 4's, of the Customs Act, #$*$. 'For see 3otification 3o. (.R.6. =$#'I,J+., dated 4&rd )ay #$+. ; PTC" #$+. (t. %+&'iii, or page &+% of the Customs Rules and 3otifications, #$$+0$$ Ddition 0 An allied publication,. /10. Extent o% con%iscation.--'#, Confiscation of any goods under this Act includes any pac5age in !hich they are found, and all other contents thereof. '4, Dvery conveyance of !hatever 5ind used in the removal of any goods liable to confiscation under this Act shall also be liable to confiscationB Provided that, !here conveyance liable to confiscation has been sei1ed by an officer of customs, the appropriate officer may, in such circumstances as may be prescribed by rules, order its release, pending the adCudication of the case involving its confiscation if the o!ner of the conveyance furnishes him !ith a sufficient guarantee from a scheduled ban5 for the due production of the conveyance at any time and place it is re>uired by the appropriate officer to be produced. '&, Confiscation of any vessel under this Act includes her tac5le, apparel and furniture. #" ES

General.--(ection #.% of the Customs Act, #$*$ corresponds to (ection #*+ of the (ea Customs Act. The proviso to sub0section '#, did not e/ist in the original Bill. It !as inserted on the recommendation of the (elect Committee. The obvious reason for adding the proviso is that the Aigh Court, Harachi in a 7rit Petition 3o. .+: of #$*= 'unreported, !hile deciding a >uestion !hether a )agistrate !hile ta5ing cogni1ance of an offence under (ea Customs Act is empo!ered to ma5e any order in regard to release of a truc5 on bail, also observed that the (ea Customs Act does not provide for the release of vehicle on interim bail and even the Collector of Customs has no po!er to do so. 6n this observation by their "ordships, the Central Board of Revenue directed all the Customs Collectors to discontinue the practice of releasing the vehicles on any sapurdari till the final decision of the case. It is that reason for !hich the (elect Committee recommended the provisions for releasing a conveyance pending the adCudication of the case involving the confiscation of the goods, if the o!ner of the conveyance furnishes the Collector of Customs !ith a sufficient guarantee from a scheduled ban5 for the due production of the conveyance on demand. Appropriate "%%icer.--The 6fficers of Customs competent to adCudicate the cases under (ection #%$ of the Customs Act, #$*$ have been assigned the functions of the appropriate officer for the purpose of the provisions of (ection #.% of the Customs Act, #$*$. '(ee 3otification 3o. (.R.6. .*'I,J$&, dated #$th -anuary, #$$&, reported as PTC" #$$& (t. =*# or see page .+* of the Customs Rules and 3otifications, #$$+0$$ Ddition 0 An allied publication,. S(all also ,e lia,le to con%iscation.--The term Fshall also be liable to confiscationF does not mean liable to confiscation automatically. The discretion given to authority to confiscate the goods or vehicle must be e/ercised on sound Cudicial principles. If the !ords Fliable to confiscationF in (ection #*+ of the (ea Customs Act, #+%+, '3o! (ection #.%, give a discretion to the confiscating authority to deprive a person of his property, then it follo!s that this discretion must be e/ercised upon the principles of natural CusticeI that is to say, the persons sought to be deprived of the property must be given notice to sho!0cause, they must be furnished !ith ade>uate opportunity of putting for!ard their point of vie! and the same must receive due consideration. Furthermore, according to one of principles no! !ell0accepted, no person should be deprived of his property by !ay of penalty unless it is clear that he is in some measure responsible for assisting or furthering the commission of the offence committed. 3o innocent person should be unCustly punished or deprived of his property. Indeed, there !as no indication even that the o!ner of the vehicle !as also involved. If that be so, then it is difficult to appreciate on !hat basis even a reasonable suspicion could arise as to the complicity of the appellant. The mere fact that the F.I.R. about the theft of the vehicle !as lodged after the vehicle had been sei1ed at another place by the Customs Authorities does not mean that the appellants must have had earlier 5no!ledge of the illegal or improper use of the vehicle. The authorities should have made some attempt to sho! at least that the 5no!ledge of the sei1ure had been conveyed to the appellant before he lodged the report at the police station. In these circumstances, the order of the Customs Authorities !as set aside and directions !ere issued that the vehicle confiscated be released forth!ith. 'P"9 #$%= (C .,. The !ords Fshall li5e!ise be liable to confiscationF in (ection ## of the 6pium Act do not mean the same thing as the !ords Fshall be confiscated.F The learned -udge very aptly remar5ed in this case as follo!sB00 F(upposing a person is going in his car and he is stopped at the roadside by a !aiting passenger !ho re>uests for a lift to the ne/t city and the o!ner of the Car agrees to give him a lift gratuitously. Passenger may be carrying illicit opium on his person and if it is detected, according to the interpretation given by the learned -udge, it !ould be imperative for the court to order the confiscation of the car. This could never have been the intention of the "egislature. I am afraid the learned -udge has given !rong meanings to the !ords Fshall be liable to confiscation.F 'P"9 #$*4 "ah. ##,. 3e(icles need not ,e actuall& in use at t(e time o% detention.-- 7here the petitioner !as travelling By ship from one foreign country to another but on the !ay the ship touched a Pa5istan port and it !as found that there !as concealed contraband currency in a car !hich the petitioner had on board. Although on board, the vessel !as more a receptacle for the concealment of goods liable to confiscation than a conveyance for their removal, it !ould not be !rong to describe it as a means of conveyance used in the removal of the goods. It !as not necessary that at the time of detention of the vehicle it must be actually in use as conveyance. Confiscation of the car under (ection #.% !as held

legal. 'AIR #$*: Her. #%: ; I"R #$*: Her 4$. ; #$*: Cri. ".-. *::,. 4eanin)s o% remo+al and means o% remo+al.--The !ord GremovalG in the second part of the section included the carriage of goods by sea and hence the boat in !hich confiscatable goods carried is also liable to confiscation. 2nder the provisions of the Customs Act, removal of goods liable to confiscation must include, not only the boat used for carrying the goods but also any cart or other conveyance used for the transport of the goods liable to be confiscated. The section cannot be construed in a restricted manner as referring only to the vessel or cart or other conveyance used for the removal of the goods from the place !here it !as landed or to the place !here it !as sent for e/port in contravention of the provisions of the Act. 'AIR #$4$ Bom. =*4'9B,,. This section applies to a )ach!a used in the removal of goods loaded under a false manifest and carried from one port to mother. 'AIR #$4$ Bom. =*4 '9B,,. 5no'led)e o% o'ner o% t(e +e(icle.--The 5no!ledge is an essential ingredient. In a case in !hich the appellant concerned !as found guilty and convicted under (ection #*%, item '+,'a, of the (ea Customs Act for having being found in possession of %.4: tolas of gold0thread being carried in the boat of a car 3o. "DB04#4# !hich !as o!ned by Ch. Did )uhammad. The findings of fact on !hich the conviction of the appellant !as based !ere that he !as concerned in the offence of unauthorised importation of prohibited articles. The Court also found, after considering the facts, that these did give rise to a reasonable inference that the appellant !as in league !ith the driver of vehicle employed and 5ne! that the contraband goods !ere being carried in the boat or the car !ithout any licence or permit. 'P"9 #$%: (C 4+4,. 7here goods are found in a pac5age in a vehicle in the immediate possession of the o!ner, it may !ell be presumed that he had 5no!ledge that the goods !ere concealed in it. 'AIR #$*: Her. #%:,. 7here the Customs Authorities pass order of confiscation !ithout considering or applying their mind to matters !hich may go to mitigate the offence, such as those bearing upon the 5no!ledge or intention of the o!ner in contravening the provisions of the Act. The learned -udge held that such a defect in the order !as an error apparent on the face of the record and the Aigh Court had Curisdiction to >uash such order on this ground. 'AIR #$*4 )ad. &** E AIR #$.$ Cal. 4&%,. Contraband charas can not be loaded on the bus !ithout the active 5no!ledge and connivance of the driverJconductor especially for on!ard transportation to a place !hich is !ell 5no!n for the smuggling of narcotics, the vehicle o!ner is vicariously responsible and his plea for release of vehicle cannot be entertained 'PTC" #$$+ C". 4 %4,. axi dri+er6s in+ol+ement.--It is an essential ingredient of every criminal act that there must be a mens rea at least a guilty 5no!ledge and unless this ingredient is established no conviction can ta5e place. This is not a case of absolute liability nor can !e accept the proposition propounded by the Aigh Court that a ta/i driver must necessarily be fi/ed !ith the 5no!ledge of the contents of pac5ages carried by his passengers merely because the passengers had been pic5ed up at an odd hour of the night and !ere being transported by car along a little fre>uented road. There is no duty cast on any ta/i0driver to search his passengers if they happen to engage his ta/i at a late hour of the night, nor is a ta/i0driver bound to en>uire from passengers engaging his ta/i at such late hours as to the nature of the baggage being carried by them. It is preposterous to suggest that merely because a ta/i driver has pic5ed up a late fare and is carrying him along a road !hich is not much fre>uented he must have some guilty 5no!ledge. It !as the duty of the prosecution, if they !anted to rope in the ta/i0driver, to prove by some cogent evidence that the ta/i0driver !as an associate of the smugglers or that he !as a!are that his passengers !ere smugglers carrying charas or some other contraband item. In the absence of such evidence it is not possible to agree !ith the courts belo! that any case had been made out against the appellant. The mere finding of the charas in the bac5 seat of his ta/i !as, by no means, sufficient to ma5e out such a case. '#$%# (C)R =:=,. Lia,ilit& o% a)ent appointed ,& t(e person-in-c(ar)e o% a con+e&ance.-- (ee (ection 4#: of the Act. Pac*a)e.--The !ord Fpac5ageF has not been defined in the (ea Customs Act, and therefore it cannot be said that the !ord Fpac5ageF has any peculiar or unusual meaning attached by the "egislature. 7e

must therefore, treat the !ord Fpac5ageF in its literal and ordinary meaning. )urayGs 9ictionary, Kol. KII, page &*4 defines a Fpac5ageF as a bundle of things pac5ed up and contained in a receptacle. This definition !ould seem to ma5e each of the cloth bags contained in the safe or the bo/ as a separate and distinct pac5age. 7e do not find any force in the contention that merely because the various articles as also the currency notes of Rs. %4,$::J0 !ere 5ept in the safe or bo/, all those goods could be said to be in a single pac5age as mentioned in (ection #*+ of the (ea Customs Act. 'AIR #$*# Bom. =+,. Loc*er in a ,an* is not a pac*a)e.--The loc5er in the safety vault of a ban5 is not a pac5age !ithin the meaning of (ection #*+ of the (ea Customs Act and the money found in such loc5er is not liable to confiscation under the (ea Customs Act merely because other prohibited or dutiable goods liable to confiscation !ere found in that loc5er. 'AIR #$*= Cal. =$:,. Con+e&ance are lia,le to con%iscation irrespecti+e o% its o'ners(ip or t(e participation o% t(e o'ner in t(e actual transport o% t(e )oods (!ndian +ie').-- 2nder (ection #*+ 'no! (ection #.%, any means of conveyance used in the removal of any goods liable to confiscation under the Act, is liable to confiscation. The idea is to confiscate the vehicle, irrespective of its o!nership or the participation of the o!ner in the actual transport of the contraband goods. It is !hat is called a provision of la! Fto condemn the vehicleF. In other !ords, because the vehicle carried the contraband goods, it had become tainted, and is, therefore, liable to be impounded. Therefore, there is no >uestion of the o!ner of the vehicle aiding or abetting the smuggling or of having any mens rea. 'AIR #$.* Cal. ..&,. Con%iscation o% con+e&ance in case contra,and )oods are concealed in t(e )oods ,ein) carried on t(e con+e&ance.--It !as contended that illicit articles !ere placed in a refrigerator carried in caravan 'Trailer0!ithout any engine, and not the "and Rover 'engine portion, and hence the "and Rover cannot be confiscated. It !as held that caravan is not an independent unit nor it could be used for conveyance !ithout "and Rover hence "and Rover along!ith caravan is liable to be confiscated. 2nless any other vehicle !ith an engine, pulls the caravan it cannot be, separately by itself, used for conveyance. It impliedly becomes one unit !ith any other vehicle that moves it. If the illicit goods are not detected and recovered from the same "and Rover !hich pulled the caravan containing illicit goods out of Pa5istan. The "and Rover is the means by !hich the caravan !as pulled and driven for the purpose of smuggling of the illicit goods. 'P"- #$+# Cr. Har $$,. Stolen con+e&ances su,se7uentl& %ound carr&in) smu))led )oods.--A person lodged report that his pic50up !as stolen, but the pic50up !as later found carrying contraband goods. It !as contended that in fact and circumstances of the case (ection #*+ 'no! (ection #.%, !as not at all applicable and as such the Collector acted beyond his po!er in confiscating the vehicle of the petitioner !hen he !as not a party to the smuggling and had also no 5no!ledge that his vehicle !as used for the said purpose. The (upreme Court granted special leave to appeal to consider the aforementioned contention. '#$*+ ( C ) R .4=,. "ater on it !as held that confiscation of the pic50up !ithout the involvement of its o!ner in the offence !as unla!ful. 'P"9 #$%= (.C. .,. !t is not necessar& t(at at t(e time o% detection t(e +e(icle must ,e actuall& in use.-- Petitioner !as carrying car in ship. 6n search contraband currency !as found concealed in the car. Although on board the vessel the car !as more a receptacle for the concealment of goods liable to confiscation that a conveyance for their removal. It !ould not be !rong to describe it as a means of conveyance used in the removal of the goods. It !as not necessary that at the time of the detection of the offence it must be actually in use as a conveyance. The confiscation of the car under (ection #*+ 'no! (ection #.%, 6f the (ea Customs Act !as held in order..'AIR #$*: Her. #%: ; I"R #$*: Her. 4$. ; #$*: Cr. ". -our *::,. 4a)istrate6s po'er to release +e(icle.--The po!er of confiscation of offended goods and vehicles vests e/clusively in the Customs and D/cise Authorities, and the )agistrate ta5ing cogni1ance '3o! (pecial -udge, of offence under (ection #*% '+, and '+#,, of the (ea Customs Act 'no! (ection #.*'+, L '+$, is not empo!ered to release vehicle alleged to be carrying contraband goods. The po!er to release vehicle can be e/ercised by the )agistrate, only !hen sei1ure is made under (ection .4& Cr. P.C. and not under the Customs Act. 'P"9 #$*= Pesh. #%+ E P"9 #$%: Pesh. **,. 8isc(ar)e o% Bond in case o% %ailure to ad9udicate t(e case %or considera,le time.-- Bond for

interim release of truc5 discharged !here the department failed to adCudicate the case as the file !as not available. 'PTC" #$+$ C". &=#,. Entrustment o% t(e %unctions o% Customs "%%icers to o%%icers o% t(e :est Pa*istan .an)ers.-The Central Board of Revenue has entrusted the functions of the officers of Customs under (ection #.% of the Customs Act, #$*$ to all officers of the 7est Pa5istan Rangers not belo! the ran5 of sub Inspector !ithin their respective Curisdiction. '(ee 3otification 3o. (.R.6. 4$'I,J%&, reproduced at page $% of the Customs Rules and 3otifications, #$$+0$$ Ddition 0 An allied publication,. Entrustment o% t(e %unctions o% Customs "%%icers to o%%icers o% t(e Coast Guard.-- The Central Board of Revenue has entrusted the functions of the officers of Customs under (ection #.% of the Customs Act, #$*$ to all officers of the Coast uard not belo! the ran5 of -unior Commissioned 6fficers of the Coast uard !ithin their respective Curisdiction. '(ee 3otification 3o. (.R.6. &:'I,J%&, reproduced at page $% of the Customs Rules and 3otifications, #$$+0$$ Ddition 0 An allied publication,. Entrustment o% po'ers to t(e o%%icers o% t(e ;rontier Consta,ular&.--The Central Board of Revenue has entrusted subCect to such limitation and restrictions as laid do!n in the rules, the functions of the officers of Customs under (ection #.%'4, of the Customs Act, #$*$ to Commandant !ithin his Curisdiction. '(ee 3otification 3o. (.R.6. .4='I,J%=, reproduced at page #&* of the Customs Rules and 3otifications, #$$+0$$ Ddition 0 An allied publication,. Entrustment o% po'ers o% t(e "%%icers o% Customs to t(e "%%icers o% t(e ;rontier Corp.-- The Central Board of Revenue has entrusted the functions of the officers of Customs under (ection #.%'4, to the Commandant !ithin his Curisdiction. '(ee 3otification 3o. (.R.6. #:#%'I,J%=, reproduced at page #&% of the Customs Rules and 3otifications, #$$+0$$ Ddition 0 An allied publication,. Entrustment o% %unction o% t(e Customs "%%icers to t(e "%%icers o% t(e 8irectorate o% 3i)ilance.--The Central Board of Revenue has entrusted the functions of the officers of the Customs under (ection #.%'4, to the officers not belo! ran5 of 9eputy 9irector !ithin his Curisdiction. '(ee 3otification 3o. (.R.6. %&$'I,#%$, reproduced at page #%: of the Customs Rules and 3otifications, #$$+0$$ Ddition 0 An allied publication,. Po'ers o% t(e "%%icers o% t(e 8irectorate o% !ntelli)ence and !n+esti)ation (Customs and Excise).--The 9eputy 9irectors, 9irector and 9irector eneral of the 9irectorate of Intelligence and Investigation 'Customs and D/cise, have been authorised to e/ercise po!ers and discharge duties of the officers of Customs under the provisions of (ection #.%'4, of the Customs Act !ithin their respective Curisdiction. '(ee 3otification 3o. (.R.6. &++'I,J+4, reproduced at page 44: of the Customs Rules and 3otifications, #$$+0$$ Ddition 0 An allied publication,. Entrustment o% po'ers o% t(e "%%icers o% Customs to t(e "%%icers o% ;rontier Corps #:;P %or certain areas.--The Central Board of Revenue has entrusted the functions of the officers of Customs under (ection #.%'4, to the Commandant of the Frontier Corps 37FP operating !ithin t!enty miles along the international borders adCoining the Province of 37FP and !ithin the territorialJadministrative limits ofB00 'a, BaCaur Agency including -andool and Baraul of 9ir, 'b, )ohmand Agency, 'c, Hhyber Agency, 'd, 6ra51ai Agency, 'e, Huram Agency, 'f, 3. 7a1iristan00including Bannu FR, 'g, (. 7a1iristan, and 'h, Hohat FR '9arra Adam Hhel,, !ithin the 37FP. '(ee 3otification 3o. (.R.6. 4+#'#,J$., reproduced at page %&% of the Customs Rules and 3otifications, #$$+0$$ Ddition 0 An allied publication,. ;orei)ner6s +e(icle.--A foreigner !as found carrying li>uor in his car !ithout paying e/cise duty and pleaded lac5 of 5no!ledge. Ais car !as confiscated and in lieu of it a fine !as imposed and on appeal

it !as held that confiscation of the vehicle is not obligatory it is discretionary in technical offence !hen nothing is smac5ed of any nefarious purpose. Confiscation of the car and fine in lieu thereof !as not approved as a foreign visitor could not simply arrange. 'P"9 #$%. Har. .= a case under (ind Ab5ari Act, #+%+. Relied on P"9 #$%= (C. . and P"9 #$*4 "ah. ##,.

/8$. 3estin) o% con%iscated propert& in t(e ;ederal Go+ernment.--7hen any goods are confiscated under this Act they shall forth!ith vest in the #8Federal overnment<, and the officer !ho orders confiscation shall ta5e and hold possession of the confiscated goods.
#" ES

General.--(ection #+4 corresponds to (ection #+= of the (ea Customs Act, #+%+. The phrase Fand every officer of police on the re>uisition of such officer shall assist him in ta5ing and holding such possessionF has been omitted from the present section. 2nder the present Act 0all officers of police are empo!ered and re>uired to assist officers of customs in the discharge of their functions under this Act. '(ee (ection %,. A,solute title to Go+ernment.--An order of confiscation under the Act or rules operates directly upon the status of the property and transfers an absolute title to the overnment 'AIR #$.+ (.C. +=.,. All rights in goods vesting in any person stand e/tinguished 'P"9 #$%% Har. #:::, but after payment of redemption fine and duty, the goods continue to remain that of the o!ner 'AIR #$*= )adras .:= E AIR #$*4 Bom. 4$:,. and the 9epartment had no Curisdiction to sell the goods. In such cases if the department sells the goods, the o!ner can recover the goods or its mar5et price from the 9epartment and there is no bar for filing a suit against the department. 'AIR #$.+ Patna =&$,. 3o! under (ection #*$'=, of the Act the department is competent to sell the goods pending the proceedings in the manner as prescribed under (ection 4:# of the Act. In that case the sale proceeds are payable. "%%icer (oldin) possession and competent to re7uisite o%%icer o% police.-- The officer !ho adCudges the confiscation can ta5e and hold possession of the goods confiscated and it is that officer on !hose re>uisition every officer of police is bound to assist him in ta5ing and holding of such possession. 'AIR #$.+ Bom. &:.,. 8EPA. 4E# AL !#S .UC !"#S /. 8isposal o% con%iscated )oods. (i) #o need to (a+e recourse to Section 88.--Confiscation under (ection #+4 8corresponding to (ection #%$, Customs Act, #$*$,< and sale under (ection ++ are entirely different and are designed by the Act to be 5ept distinct. As goods confiscated under (ection #+4 become (tate property under (ection #+= 8corresponding to (ection #+4, Customs Act, #$*$,< there is no need to have recourse to (ection ++ in selling them. They can be disposed of in any !ay !hich suits overnment. 8 .I.F.9. 'C.R., R. 9is. 3o. .+$0cus. #J4$, dated #&th 3ovember, #$4$ 0 6rder 3o. 4 of #$&*, C.F., (. C.A.< (ii) Procedure '(en an appeal (as ,een pre%erred.-- 'a, 7hen an appeal against the order of confiscation has been preferred, the goods should not be sold until the

10

appeal has been finally decided. If the order of confiscation is upheld in appeal, the goods may be sold after a final notice to the o!ner. 'b, These instructions do not apply to perishable goods. (uch goods should be sold after reasonable notice to the o!ner to enable him to pay the fine and obtain delivery. 'c, In for!arding papers called for by the overnment in connection !ith the disposal of a revision application it should be stated if the confiscated goods, if any, have been disposed of. If they are not disposed of, further action should be suspended pending the disposal of the revision application. 'BoardGs Instruction 3o. . of #$&* 0 6rder 3o. # of #$&%, C.F. (.C.A., (iii) Goods o% (a-ardous nature.--The Board has decided that though it is a proper practice for adCudicating 6fficers to postpone the disposal of confiscated goods until the period of appeal has e/pired, it is a practice prescribed by considerations of e>uity and not by any e/press provision of la!, and it remains true, in strict la!, !hat confiscated goods may be disposed of by overnment, in any !ay at any time after they have become overnment property under (ection #+=, (ea Customs Act 8corresponding to (ection #+4, Customs Act, #$*$.< The >uestion therefore becomes one of practical e/pediency, vi1., !hether the certainty that if confiscated e/plosives are detained, the Customs 9epartment !ill have to pay rent for three months should out!eigh the possibility that, in the event of an appeal being successful after the goods had been destroyed or other!ise disposed of, it !ould be necessary in e>uity to pay compensation, including the actual value of the goods, loss of profit, etc. The ans!er to this practical >uestion must depend upon the circumstances and in particular upon the probable relation bet!een the figures of 'a, three monthsG rent and 'b, value and damages, and upon the degree of remoteness of a successful appeal. 'C.B.R., R. 9is. 3o. #+$0 Cus ##J4$, dated 4$th Aug. #$4$ 0 File R. 9is. #$4#J4$,. $. 8isposal o% con%iscated<sei-ed )oods.--(ee Customs #$$4, reproduced under 3otes of (ection #*$. eneral 6rder 3o. . of

=. C(ar)es incurred in respect o% con%iscated )oods-lia,ilit& %or.-- 'a, Dven !hen in the e/ercise of his discretion the Customs Collector decides to destroy or other!ise dispose of confiscated e/plosives before three months have e/pired, the port authorities may have a legitimate claim for rent in respect of a shorter period. The liability of the Customs department to pay any such rent begins legally from the date of confiscationI but the Customs department should, as a matter of e>uity, bear so much of the rent incurred .bet!een the date of detention and that of confiscation as is attributable to any delay in disposing of the case for !hich Customs 6fficers may have been responsible. (ubCect to this, it must be left to the Port authority to recover from the importer any rent incurred before the date of confiscation. 'C.B.R., 9is. 3o. #+$0cus. ##J4$, dated 4$th August, #$4$ 00 (.6. #%4J4$ 00 File P. 9is. #$4# of #$4$,. 'b, (ection #%+, (ea Customs Act, 8corresponding to (ection #*+, Customs Act, #$*$,, authorises the Customs 6fficer duly empo!ered under (ection #+4, ibid, to sei1e the goods liable to confiscation !herever they are found, and the e/ercise of

11

that right is not subCect to any lien attaching to the goods at the time of sei1ure. In fact, the section as it is !orded renders the goods liable to confiscation irrespective of any proprietary or other rights in them e/isting at the time of sei1ure, and on sei1ure the goods vest absolutely in Aer )aCesty under (ection #+=, ibid. Port Trust charges accrued on the goods are therefore payable. 8 .I., F.9. 'C.R, 9. 9is. 3o. #*&=0Cus. #J&%, dated #$th -anuary, #$&+ 00File C. #%+J&+00(.6. &# of #$&+,. #ote.--The overnment have, ho!ever, decided that until other!ise advised, any surplus remaining !ith the Customs 9epartment after satisfaction0of the overnment dues in full should be applied in payment pro tanto of the Port Trust dues. 8 .I., F.9. 'C.R.,, R. 9is. 3o. &.%0Cus. #J&$, dated #st )ay, #$&$00(.6. %4J&$00File 3o. $+:J&$<. 'c, In respect of an article !hich is confiscated under the (ea Customs Act, the la! does not specify that it is ta5en over !ith all the charges on its head. It is an interception by !ay of legal sei1ure and confiscation is independent of any responsibility for charges that might have been incurred by offending party. In cases of goods confiscated !hile in the custody of the Port Trust, charges !hich might have accrued on the goods prior to the time of confiscation are not paid to the Port Trust by overnment. (imilarly no such charges are payable to the Rail!ay Administrations 'Collector of Customs, )adras, letter 3o. &$&.JB ##J&*, dated #*th (eptember, #$&*, and C.B.R. 9.A. 9is. 3o. %=:0Cus. 4#J&*, dated %th 3ovember, #$&*00File R. 9is. 3o. 4:*&J&*,. =. .eturn o% Literature sei-ed.--All applications for the return of literature sei1ed during Customs e/amination should be referred to the Board. 'C.B.R. C. 3o. 4$0 cusJ&%, dated ##th -anuary, #$&%00File C. %*J&%,. /8=. Le+& o% penalt& %or departure 'it(out aut(orit& or %ailure to ,rin) to.-- '#, If any conveyance actually departs !ithout a port clearance or permission in !riting or, in the case of a vessel, after having failed to bring to !hen re>uired at any station appointed under section #=, the penalty to !hich the person0in0charge of such conveyance is liable may be adCudged by the appropriate officer of any customs0 station, to !hich, such conveyance proceeds, or in !hich it for the time being is. '4, A certificate in respect of such departure or failure to bring to !hen re>uired, purporting to be signed by the appropriate officer of the customs station from !hich the conveyance is stated to have so departed, shall be prima facie proof of the fact so stated.
#" ES

General.--This section corresponds to (ection #+. of the (ea Customs Act, #+%+. It also covers conveyances other than vessels. This section also empo!ers the appropriate officers of any Customs (tation to !hich such conveyance proceeds or in !hich it is for the time being to have Curisdiction to adCudge the cases. Aut(orised "%%icer.--The Central Board of Revenue has assigned the functions of the Fappropriate officerF to the follo!ing officers of customs, namelyB00

12

'i, AdCudication 6fficers006fficer of Customs competent to adCudicate the case under (ection #%% of the Customs Act, #$*$ for the purposes of sub0section '#, of (ection #+&I and 'ii, (uperintendentJPrincipal Appraiser for the purposes of sub0section '4, of (ection #+&. '(ee 3otification 3o. (.R.6. .*'I,J$&, dated #$th -anuary, #$$&, reported as PTC" #$$& (t. =*# or see page .+* of the Customs Rules and 3otifications, #$$+0$$ Ddition 0 An allied publication,. Entrustment o% %unction o% t(e Customs "%%icers to t(e "%%icers o% t(e 8irectorate o% 3i)ilance.--The Central Board of Revenue has entrusted the functions of the officers of the Customs under (ection #+& of the Customs Act, #$*$ to the 6fficers not belo! ran5 of Investigator !ithin their respective Curisdiction. '(ee 3otification 3o. (.R.6. %&$'I,J%$, reproduced at page #%: of the Customs Rules and 3otifications, #$$+0$$ Ddition 0 An allied publication,. /8>. Po'er to tr& summaril&.--3ot!ithstanding anything contained in the Code of Criminal Procedure, #+$+ 'Act K of #+$+,, a (pecial -udge may, if he thin5s fit, try in a summary !ay, any offence under this Act !here the value of the goods involved in such offence does not e/ceed one thousand rupees. '4, In the trial of an offence under sub0section '#,, the provisions of sub0section '#, of section 4*4 and sections 4*&,4*= and 4*. of the said Code shall, so far applicable and !ith the necessary adaptation, applyB '&, 3o proceeding under this section shall be called in >uestion merely on the ground that the value of the goods involved !as more than the limit specified in sub0section '#,. D/planation.00For the purpose of this section, FvalueF00 'i, in the case of goods, !hether imported or indigenous, !hich are la!fully sold in open mar5et in Pa5istan, means the !holesale price of such goods in open mar5etI 'ii, in the case of goods, !hether imported or indigenous, the price of !hich has been fi/ed by the overnment, means the price so fi/edI and 'iii, in the case of goods the import of !hich is absolutely prohibited, means the price of similar or comparable indigenous goods sold in open mar5et in Pa5istan or, !here no such goods are sold in open mar5et in Pa5istan, the price fi/ed by the Federal overnment, by general or special order.
#" ES

General.--This section corresponds to (ections #+% and #$&0A of the (ea Customs Act, #+%+.

13

This section provides for the summary disposal of the cases !here the value of the goods involved is not more than Rs. #,:::J0. The summary trial implies speedy disposal. (ummary trial is not intended for a complicated case !hich insists a lengthy in>uiry. The obCect of summary trial is to have a record sufficient for the purpose of Custice but not so long to imply speedy disposal of cases. !% (e t(in*s %it.--It is in the discretion of a (pecial -udge to try any of M the offences !here the value of the goods does not e/ceed Rs. #,:::J0 in a summary !ay. 7hether a case is triable or not must be determined by the offence !ith reference to the value of the goods. The term FvalueF for the purpose of this section has been defined in D/planation given in this section. The present e/planation of the value is ne! !hich did not e/ist in the old la!. r& in a summar& 'a&.--In a summary trial the procedure laid do!n in (ections 4*4, 4*&, 4*= and 4*. of the Criminal Procedure Code, should be strictly observed. A summary trial is summary only in respect of the record of its proceedings and not in respect of the proceedings themselves !hich should be complete and carefully conducted. The provisions of (ections 4*4, 4*&, 4*= and 4*. of the Criminal Procedure Code have been reproduced in the paras hereinafter appearing. Section $2$(/) o% t(e Cr. P.C.--?Procedure prescri,ed in C(apter @@ applica,le.-Limit o% imprisonment.--'#, In trials under this Chapter, the procedure prescribed in chapter NN shall be follo!ed e/cept as hereinafter mentioned.F Section $2= o% t(e Cr. P.C.--?.ecord in cases '(ere t(ere is no appeal.-- In cases !here no appeal lies, the )agistrate or Bench of )agistrates need not record the evidence of the !itnesses or frame a formal chargeI but he or they shall enter in such form as the Provincial overnment may direct the follo!ing particulars00 'a, The serial numberI 'b, the date of the commission of the offenceI 'c, the date of the report or complaintI 'd, the name of complainant 'if any,I 'e, the name, parentage and residence of the accusedI 'f, the offence complained of and the offence 'if any, proved, and in cases coming under clause 'd,, clause 'e,, clause 'f,, or clause 'g, of sub0section '#, of (ection 4*: the value of the property in respect of !hich the offence has been committedI 'g, the plea of the accused and his e/amination 'if any,I 'h, the finding, and, in the case of a conviction, a brief statement of the reasons thereforI 'i, the sentence or other final orderI and 'C, the date on !hich the proceedings terminated.F Section $2> o% t(e Cr. P.C.--?.ecord in appeala,le cases.-- In every case tried summarily by a )agistrate or Bench in !hich an appeal lies, such )agistrate or Bench shall record the substance of the evidence and also the particulars mentioned in (ection 4*& and shall before passing any sentence, record a Cudgment in the case.F

14

Section $21 o% t(e Cr. P.C.--?Lan)ua)e o% record and 9ud)ment.-- '#, Records made under (ection 4*& and Cudgments recorded under (ection 4*= shall be !ritten by the presiding officer, either in Dnglish or in language of the Court, or, if the Court to !hich such presiding officer is immediately subordinate so directs, in such officerGs mother0tongue. ($) Benc( ma& ,e aut(orised to emplo& cler*.-- The Provincial overnment may authorise any Bench of )agistrates empo!ered to try offences summarily to prepare the aforesaid record of Cudgment by means of an officer appointed in this behalf by the Court to !hich such Bench is immediately subordinate, and the record or Cudgment so prepared shall be signed by each member of such Bench present ta5ing part in the proceedings. '&, If no such authori1ation be given, the record prepared by a member of the Bench and signed as aforesaid shall be the proper record. '=, If the Bench differ in opinion, any dissentient member may !rite a separate Cudgment.F /81 Special Aud)es.--'#, The Federal overnment may, by 3otification in the official a1ette, appoint as many (pecial -udges as it considers necessary and, !here it appoints more than one (pecial -udge, shall specify in the 3otification the head>uarters of each (pecial -udge and the territorial limits !ithin !hich he shall e/ercise Curisdiction under this Act. '4, 3o person shall be appointed as a (pecial -udge unless he is or has been a (essions -udge. '&, 3ot!ithstanding the provisions of sub0sections '#, and '4,, the Federal overnment may, for the areas comprising the districts of "asbela , Turbat, PanCgoor and !adur, appoint any other officer as (pecial -udge and specify in the 3otification his head>uarters and the limits of his territorial Curisdiction under this Act. '=, If a (pecial -udge is, for any reason, temporarily unable to perform his duties under this Act, he may generally or (pecially authorise the (essions -udge 8OOO< of the district to perform such duties of an urgent nature as he may deem proper and such (essions -udge 8OOO< shall perform such duties.
#" ES

General.--The original (ection #+. of the Customs Act corresponds to (ection #$&0 B of the (ea Customs Act, #+%+. The present section replaces the original (ections #+. and #+.0A so far as appointment of (pecial -udge is concerned. 2nder the present provisions )agistrate has no special po!ers for passing special sentences. The Curisdiction of all courts other than the (pecial -udge for trying the offences under the Customs Act has been barred under (ection #+.0B. The (pecial -udge has e/clusive Curisdiction to try offences under the Customs Act. Ae is the only authority to entertain, hear or decide any application regarding bail and miscellaneous matters allied to the offences relating to Customs Act.

15

Buali%ication %or appointment as Special Aud)e.--.6nly a person !ho is or has been a (essions -udge can be appointed a (pecial -udge, but for areas comprised in the 9istricts of "asbela, Turbat, PunCgoor and !adur this condition does not apply and the Federal overnment may appoint any officer to be a (pecial -udge. Arran)ements '(ere Special Aud)e temporaril& una,le to per%orm (is duties.-The (pecial -udge is empo!ered, if he is temporarily unable to perform the functions of his office, to authorise the (essions -udge of the 9istrict to perform such urgent duties of the (pecial -udge as he may specify. #ature o% po'ers o% t(e Special Aud)e and o%%icers o% Customs.-- The proceedings before the (pecial -udge are Cudicial proceedings for the determination of the guilt of the person concerned for committing the act of smuggling and entailing a punishment of imprisonment for the same !hereas the proceedings before the Customs 6fficers for the confiscation of the goods are departmental proceedings !hich are not Cudicial but >uasi0Cudicial. Both are independent of each other. Principles of natural Custice !ould apply. 'PTC" #$++ C". #%4,. Case la' under t(e old section.--6ffences punishable !ith ma/imum sentence of #: years may be tried by a )agistrate of First Class. 'P"9 #$** (.C. ++,. 7hen the Provincial overnment has specially empo!ered a )agistrate under (ection &: read !ith (ection &=, Cr. P.C. to pass a sentence of imprisonment for a term e/ceeding t!o years and a fine e/ceeding one thousand rupees 'these are limits of the po!ers of a )agistrate First Class under (ection &4, Cr. P.C.,, he is the )agistrate meant by (ection #$&0B 7hen it enacts that Fany )agistrate of the First Class specially empo!ered by the Provincial overnment in this behalf may pass a sentenceF e/ceeding those very limits. The learned counsel did, at one stage, also rely on the e/pression Fnot!ithstanding anything contained in the Code of Criminal ProcedureF contained in (ection #$&0B to avoid the reference to (ections 4$, &: and &= of Cr. P.C. This is not !hat is meant by that e/pression. As indicated above, this e/pression !as used in the light of the provisions contained in (ections #'4,, .'4, and &4 of Cr. P.C. read !ith (ection #+% of the (ea Customs Act, and if it may be said so, particularly (ection &4, Cr. P.C. because it limits the po!ers of a )agistrate #st Class !ith regard to the sentence that he can pass. It has been already e/plained the reason for enacting (ection #$&0B in the (ea Customs Act. Heeping that in vie!, the use of the Fnot!ithstandingF clause in (ection #$&0B gets e/plained. In the light of the above discussion, the )agistrate #st Class, !ith enhanced po!ers under (ection &: read !ith (ection &=, Cr. P.C. could validly pass the sentence of five yearsG R.I. under (ection #*% '+, of the (ea Customs Act and could also pass the sentence of one yearGs R.I. under (ection $ of the 6pium Act. '#$%: P. Cr. ".-. I&*,. /81-A Co)ni-ance o% o%%ences ,& Special Aud)es.--'#, 3ot!ithstanding anything contained in this Act or any other la! for the time being in force, a (pecial -udge may, !ithin the limits of his Curisdiction, ta5e cogni1ance of any offence punishable under this Act00 'a, upon a report in !riting made by an officer of customs or by an officer0in0charge of a police0station or by any other officer especially authorised in this behalf by the

16

Federal

overnmentI or

'b, upon receiving a complaint or information of facts constituting such offence made or communicated by any personI or 'c, upon his o!n 5no!ledge ac>uired during any proceeding before him under this Act or under the0Prevetion of (muggling Act, #$%%. '4, 2pon the receipt of report under clause 'a, of sub0section '#, the (pecial -udge shall proceed !ith the trial of the accused. '&, 2pon the receipt of a complaint or information under clause 'b,, or ac>uired in the manner referred to in clause 'c, of sub0section '#,, the (pecial -udge may, before issuing a summon or !arrant for appearance of the person complained against, hold a preliminary in>uiry for the purpose of ascertaining the truth or falsehood of the complaint, or direct any )agistrate or any officer of customs or any police officer to hold such in>uiry and submit a report, and such )agistrate or officer, shall conduct such in>uiry and ma5e report accordingly. '=, If, after conducting such en>uiry or after considering the report of such )agistrate or officer, the (pecial -udge is of the opinion that00 'a, there is no sufficient ground for proceeding, he may dismiss the complaint, or 'b, there is sufficient ground for proceeding, he may proceed against the person complained against in accordance !ith la!. '., A (pecial -udge or a )agistrate or an officer holding in>uiry under sub0section '&, may hold such in>uiry, as nearly as possible, in accordance !ith the provisions of section 4:4 of the Code of Criminal Procedure, #+$+ 'Act K of #+$+,.
#" ES

General.--This section corresponds to (ection #$&0C of the (ea Customs Act. The present (ection #+.0A !as inserted in the Customs Act, #$*$ by Finance Act, #$%&. (ub0sections '%, to '#:, !ere added therein by the Finance Act, #$%=. The present section replaces sub0section '*, of the previous (ection #+.0A. 2nder the old provisions a (pecial -udge !as competent to ta5e cogni1ance of, and have Curisdiction to, try an offence only upon a complaint in !riting made by officers of customs or other persons invested 7ith the po!ers of officers of customs as may be authorised by the Central Board of Revenue in that behalf by general or special order in !riting. The Central Board of Revenue in e/ercise of the po!ers conferred upon it by sub0 section '*, issued eneral 6rder 3o. 4* of #$%. authorising follo!ing officers to ma5e complaints in the court of (pecial -udge00 #. The Assistant Collector of Customs, Custom Aouse 'Appraising,, Harachi. 4. The Assistant Collector of Customs, Custom Aouse 'Preventive,, Harachi. &. The Assistant Collectors of the Collectorates of Central D/cise and "and Customs, Ayderabad, "ahore, Pesha!ar.

17

=. The Assistant 9irectors of the 9irectorate of Customs Investigation and Intelligence, Harachi. .. The Assistant 9irectors of the 9irectorate of Complaints 'Investigation,, Islamabad. *. The Commandants of Pa5istan Coast uards, Harachi. %. The 7ing Commanders of 7est Pa5istan Rangers, Harachi. +. The 9istrict 6fficers of Frontier Constabulary, Pesha!ar. $. 6fficers of the Ran5 of )aCor of Frontier Corps Baluchistan, ?uetta. #:. The (uperintendents of Police of the Provinces of PunCab, (ind, 3.7.F.P. and Baluchistan. ##. The (uperintendents of Police of (pecial Dstablishment, Ra!alpindi. Police report sent ,& Superintendent o% Police.--The Police report sent by the (uperintendent of Police !ho has been authorised by the Central Board of Revenue through eneral 6rder 3o. 4* of #$%. has been held to be a complaint !ithin the meaning of old (ection #+.0A of the Act. 'P"- #$+# Cr. C'5ar., *,. The present section has been substituted by the Prevention of (muggling 6rdinance, #$%%. (pecial -udge can no! ta5e cogni1ance of any offence punishable under the Customs Act upon reports, complaints or information or upon his o!n 5no!ledge as mentioned in clauses 'a,, 'b, and 'c, of sub0section '#, of the section. Case la' under old Section /81-A.--According to the first order of authori1ation under sub0section '*, i.e. Customs eneral 6rder 3o. #$ of #$%=, dated 4.th 6ctober, #$%=, only the I. . of Police of the Province, in the Police 6rgani1ation, !as authorised to file complaint. This order !as in operation at the time the challan !as received in the Court. This Customs eneral 6rder 3o. #$ as amended subse>uently by Customs eneral 6rder 3o. #. of #$%., dated 4&rd February, #$%. had been superseded by Customs eneral 6rder 3o. 4* of #$%., dated 4*th -uly, #$%.. But by this order, too the officer in the Police 6rgani1ation authorised in this regard, is the (uperintendent of Police. 6bviously there is no proper complaint in the case. Cogni1ance could be ta5en by the (pecial -udge only upon a complaint filed by a person authorised under the la!. The cogni1ance ta5en by the (pecial -udge is, therefore, not !arranted by la! and the proceeding against the petitioners has no validity, hence the present proceeding !ere >uashed. '#$%% P. Cr. ".-. $&,. The sei1ure of smuggled goods !as affected in (eptember, #$%& and after the investigation of the case by the Customs Inspector, the challan !as filed before the learned Assistant Commissioner Campbellpur because till that time no appointment of a (pecial -udge !as notified. According to the provisions contained in (ection #+.0A '&, of the Customs Act !hich (ection !as added by the Finance Act, #$%&, on the appointment of a (pecial -udge, Customs and Ta/ation all cases pending in any other court immediately before such appointment stood transferred to the (pecial -udge. The provisions contained in sub0section '*, of that section that a (pecial -udge can ta5e cogni1ance and have Curisdiction to try the offences triable under sub0section '&, only upon a complaint in !riting made by such officer of customs or such other person invested !ith the po!ers of an officer of customs as may be authori1ed by the Central Board of Revenue in this behalf by a general or special order in !riting !as applicable to the challans !hich !ere submitted after the appointment of a (pecial -udge. According to the la! prevailing at the time challan in

18

this case !as submitted by the Customs Inspector, in (eptember, #$%&, in the court of the Assistant Commissioner, Campbellpur there !as no such bar as provided in sub0section '*, of (ection #+.0A of the Customs Act. 'P"9 #$%% "ahore 4:.,. Case ta5en cogni1ance of and pending in the court of a )agistrate #st Class transferred to the Court of (pecial -udge under sub0section '&, of the old section. (pecial -udge in respect of the transferred case not bound to recall and re0hear any !itness. 3o fresh complaint is necessary in respect of such transferred case. 'P"9 #$%% "ahore &=$,. It !as contended that by virtue of (ection #+.0A courts of (pecial -udge having been set up, all cases pending in the courts of )agistrate stood M transferred to the courts of (pecial -udge and the Courts of (pecial -udge had no Curisdiction to proceed !ith case unless fresh complaint in terms of sub0section '*, of (ection #+.0 A !as made in !riting by an authorised officer. It !as held that the contention is misconceived, because the >uestion of ta5ing cogni1ance arises only in fresh cases and not in pending cases in !hich cogni1ance had already been ta5en. Cogni1ance once ta5en of a case remains unaffected by subse>uent transfer of the case to another court by an order or by operation of la!. The necessary legal implication in every transfer of a case is that the case moves from one court !ith Curisdiction to another court !ith Curisdiction and the cogni1ance already ta5en by the earlier court passes on !ith the case to the latter court upon the transfer. In fact, a pending case remains pending until it has been finally disposed of. To hold that a pending case !ill stand transferred to the court of (pecial -udge by operation of la!, and also that the court cannot ta5e cogni1ance of such case unless a complaint has been filed, is contradictory in terms. 7hat !ill happen if the person authorised to file complaint chooses not to do so. 7ill he thereby frustrate the directive of the la! relating to the transfer. Can a court to !hich a case stands transferred still ta5e cogni1ance of itP The ans!er is plainly in the negative. '#$%+ P.Cr. ".-. *.&,. Co)ni-ance ,& Special Aud)e o% t(e o%%ence committed 'it(in (is territor&.-- A (pecial -udge can ta5e cogni1ance of the offence committed !ithin the territorial limits of his Curisdiction. 'PTC" #$+% C". &:,. Proceedin)s 7uas(ed ,ecause o% %ailure o% person si)nin) t(e complaint to appl& (is mind to %act o% case.--In )usharaf Hhan v. (tate P"9 #$%+ Pesh. ##&, a learned -udge of the Pesha!ar Aigh Court >uashed the proceedings before the (pecial -udge on the ground that though the proceedings !ere initiated upon the complaint of the (uperintendent of Police, !ho !as duly authorised to file a complaint before the (pecial -udge in respect of an offence under the Customs Act, the facts disclosed that the complaint !as prepared by the (.A.6. and the (uperintendent of Police merely for!arded the same to the (pecial -udge !ithout applying his mind to the facts of the case. It !as observed that Fthe nominated person authorised to file a complaint is e/pected to apply his mind to the facts of the case and then reach a finding !hether it is to be filed or not.............................F Special 9ud)e competent to ta*e co)ni-ance e+en on ne)ati+e report o% !n+esti)atin) "%%icer.--The (upreme Court in Abdul Rauf v. (tate #$+: (C)R .+ has held that the (pecial -udge is competent to initiate proceedings against a person under the Customs Act if in his opinion there is sufficient ground for doing so even

19

upon a negative report of the investigating officer and in this behalf has observed as follo!sB FAs the >uestion raised in connection !ith nature of the police report and conse>uences thereof, by the learned counsel, found complete ans!er in the ruling of this Court, he tried to contend that the same should not be considered as having, in any !ay, settled the controversy, because, as he put it, the ruling is against the language of the statute, namely, (ection #$:, Cr. P.C. Ae re>uested for re0opening and re0e/amination of the same >uestion by this Court, may be in a larger Bench. This has already been done in the case of )uhammad A5bar v. The (tate and another #$%4 (C)R &&.. It !as re0affirmed that a )agistrate could, irrespective of the opinion of the investigating police0officer, ta5e cogni1ance, if upon the material before him he finds prima facie case made but against the accused. The decision in the case of Fala5 (her and another v. The (tate P"9 #$*% (C. =4. !as noted, as supporting this vie!. After hearing the learned counsel on this point !e see no compelling reason for re0opening and revie! of the above decision. In the present case the relevant provision contained in sub0clause 'a, of (ection #+.0 A of the Customs Act !ould be read and interpreted on the same lines as clause 'b, of (ection #$:'#,, Cr. P.C., has been interpreted in the above0noted rulings of this Court. It does not re>uire that the report of the investigator should necessarily contain facts and or opinion against the accused, so as to enable the Court to ta5e cogni1ance of the offence against him. Further support for this vie! can also be found from the language used in sub0sections '#:, and '##, of (ection #*# of the Customs Act. It has been provided that a (pecial -udge, to !hom a report under sub0section '#, has been submitted by the investigating officer 'e/pressing the opinion that Gthere is no sufficient evidence or reasonable ground for suspicionG against the accused and for that reason see5s his discharge, may, not!ithstanding the said report and opinion Gafter the perusal of the record of the in>uiry and hearing the prosecution, agree !ith such report and discharge the accused or, if he is of the opinion that there is sufficient ground for proceeding against such a person, proceed !ith his trial.GF :(et(er police (a+e po'er to in+esti)ate and o%%ence under t(e Customs Act and su,mit c(allan to t(e Special Aud)e.--In A Cab Hhan v. (tate #$+# (C)R $%*, the t!in >uestions !hich !ere raised before the (upreme Court !ere '#, !hether the police are competent to investigate an offence under the Customs Act, and '4, !hether the police can challan a case before the (pecial -udgeP Ans!ering both >uestions in the affirmative, the (upreme Court held00 'i, on the basis of the provisions of (ection #*#, that the police had the authority to investigateI and 'ii, that under the amended (ection #+.0A, the (pecial -udge is competent to ta5e cogni1ance of an offence under the Customs Act upon the report of an officer0in0 charge of a police station and even under the old la! the (uperintendent of police !as empo!ered to ma5e a complaint to the (pecial -udge in respect of an offence under the Customs Act. Su,-section (=).--7hereas upon receiving a report under clause 'a, of sub0section

20

'#, the (pecial -udge is re>uired to proceed !ith the trial of the accused, in cases !here he receives a complaint or information of an offence under clause 'b, or proposes to act upon his o!n 5no!ledge under clause 'c, of the said sub0section, the (pecial -udge may, before issuing process for the appearance of the accused,00 'i, hold preliminary in>uiry for the purpose of ascertaining the truth or falsehood of the complaintI or 'ii, direct a )agistrate or an officer of Customs or a police officer to hold such in>uiry and submit a report to him. Section $C$ o% t(e Criminal Procedure Code--F Postponement for issue of process.00'#, Any court, on receipt of a complaint of an offence of !hich it is authorised to ta5e cogni1ance, or !hich has been sent to it under (ection #$:, sub0 section '&,, or transferred it under (ection #$# or (ection #$4, may, if it thin5s fit, for reason to be recorded, postpone the issue of process for compelling the attendance of the person complained against, and either in>uire into the case itself or direct an in>uiry or investigation to be made by a Police 6fficer, or by such other person as it thin5s fit, for the purpose of ascertaining the truth or falsehood of the complaintB Provided that, save !here the complaint has been made by a court, no such direction shall be made unless the complainant has been e/amined on oath under the provisions of (ection 4::. '4, A Court of (ession may instead of directing an investigation under the provisions of sub0section '#,, direct the investigation to be made by any )agistrate subordinate to it for the purpose of ascertaining the truth or falsehood of the complaint. '&, If any in>uiry or investigation under this section is made by a person not being a )agistrate, or a Police 6fficer, such person shall e/ercise all the po!ers conferred by this Code on an officer0in0charge of a police station, e/cept that he shall not have po!er to arrest !ithout !arrant. '=, Any court in>uiring into a case under this section may, if it thin5s fit, ta5e evidence of !itnesses on oath. /81-B Special Aud)eD etc. to (a+e exclusi+e 9urisdiction.--3ot!ithstanding anything contained in this Act or in any other la! for the time being in force.00 'a, no court, other than the (pecial -udge having Curisdiction, shall try an offence punishable under this ActI 'b, no other court or officer e/cept in the manner and to the e/tent specifically provided for in this Act, shall e/ercise any po!er, or perform any function under this ActI 'c, no court, other than the (pecial Appellate Court, shall entertain, hear or decide any application, petition or appeal under Chapters NNNI and NNNII of the Code of Criminal Procedure, #+$+ 'Act K of #+$+,, against or in respect of any order or direction made under this ActI and

21

'd, no court, other than the (pecial -udge or the (pecial Appellate Court, shall entertain any application or petition or pass any order or give any direction under Chapters NNNKII, NNNIN, N"IK or N"K of the said Code.
#" ES

General.--(ections #+.0B and #+.0C to certain e/tent correspond to (ection #$&09 of the (ea Customs Act, #+%+. They provide for the e/clusive Curisdiction of (pecial -udge and the (pecial Appellate Court to try cases, hear applications, appeals and revisions. 3o court other than (pecial -udge is competent to try any offence punishable under the Customs Act, to entertain any application or petition or pass any order or give any direction under follo!ing Chapters of the Code of Criminal Procedure, #+$+B00 'i, Chapter NNNKII0relating to directions of the nature of a habeas corpusI 'ii, Chapter NNNIN0relating to bailsI 'iii, Chapter N"IK0relating to transfer of criminal casesI and 'iv, Chapter N"K0relating to irregular proceedings. (imilarly no court other than (pecial Appellate Court shall entertain, hear or decide any application, petition or appeal under the follo!ing Chapters of the Code of Criminal Procedure, against or in respect of any order or direction made under the Customs Act00 'i, Chapter NNNI0relating to appealsB 'ii, Chapter NNNII0relating to references and revisions. The Curisdiction of any court other than the (pecial Appellate Court is also barred to entertain any application or petition or pass any order or give any direction under the follo!ing Chapters of the Code of Criminal Procedure0 'i, Chapter NNNKII0relating to directions of the nature of a habeas corpusI 'ii, Chapter NNNIN0relating to bailsI 'iii, Chapter N"IK0relating to transfer of casesI and 'iv, Chapter N"K0relating to irregular proceedings. :(en )oods are not smu))led.--(pecial -udge has no Curisdiction to try the case for the offences under (ection #.*'#,'+, and '+$, of the Act !hen the offending goods are not smuggled. 'PTC" #$++ C" =4$,. :(et(er 9urisdiction o% Ei)( Court under Section 12/-AD Cr. P.C. ,arred in Customs cases.--In Butani Papu 2dharam v. (tate 'P"9 #$+: Har. =$, at p. .&. see also 'a, Cr. )iscI Application 3o. &+*J#$%=, dated 4=th (eptember, #$%+ of Harachi Aigh CourtI and 'b, )uhammad Aaroon v. (tateB #$+: P. Cr. ".-. %.$,, a learned single -udge of the Harachi Aigh Court held that the FCurisdiction of the Aigh Court under (ection .*#0A, Cr. P.C., is available and is not e/pressly barred by the Customs Act, #$*$, and is co0e/tensive !ith the po!ers of the trial Court under (ection 4*.0H, Cr. P.C., but first resort may be made to the remedy available in the Court of (pecial -udge and only in e/ceptional and special circumstances Aigh

22

Court !ould e/ercise Curisdiction in the matter.F The (pecial Appellate Court Harachi, in 3asir Ahmed v. (tate #$+# P. Cr. ".-. .$=, has held that as Chapter N"KI, Cr. P.C., in !hich (ection .*#0A 'saving of inherent po!er of Aigh Court, occurs, is not made applicable to the (pecial Appellate Court under (ection #+.0B, Customs Act, the po!ers e/ercisable by the Aigh Court by virtue of the said section are not available to the (pecial Appellate Tribunal. /81-C Pro+isions o% Code o% Criminal ProcedureD /898D to appl&.--'#, The provisions of the Code of Criminal Procedure, #+$+ 'Act K of #+$+,, so far as they are not inconsistent !ith the provisions of this Act, shall apply to the proceedings of the court of a (pecial -udge and such court shall be deemed to be a Court of (ession for the purposes of the said Code and the provisions of Chapter NNII0A of the Code, so far as applicable and !ith the necessary modifications, shall apply to the trial of cases by the (pecial -udge under this Act. '4, For the purposes of sub0section '#,, the Code of Criminal Procedure, #+$+ 'Act K of #+$+,, shall have effect as if an offence punishable under this act !ere one of the offences referred to in sub0section '#, of section &&% of the Code.
#" ES

General.--This section provides that the proceedings of the court of the (pecial -udge are to be conducted in accordance !ith the provisions of Chapter NNII0A of the Criminal Procedure Code, #+$+ !ith the necessary modifications. (ection &&% of the Criminal Procedure Code relates to tender of pardon to accomplice. The offences under the Customs Act have also been included in the list of offences in !hich pardon to accomplice can be tendered. Chapter NNII0A of the Criminal Procedure Code is reproduced as under for ease of referenceB00 ?CEAP E. @@!!-A .!ALS BE;".E E!GE C"U. S A#8 C"U. S "; SESS!"# $21-A. rial ,e%ore Court o% Session to ,e conducted ,& Pu,lic Prosecutors.-In every trial before a Court of (ession, initiated upon a police report, the prosecution shall be conducted by the Public Prosecutor. '3ot applicable in vie! of (ection #+.0 of the Customs Act,. $21-B. Procedure in cases tria,le ,& Ei)( Courts and Courts o% Session.-- The follo!ing procedure shall be observed by the Aigh Courts and the Courts of (ession in the trial of cases triable by the said Courts. $21-C. Suppl& o% statements and documents to t(e accused.-- '#, In all cases instituted upon police report, copies of the follo!ing documents shall be supplied free of cost to the accused not later than seven days before the commencement of the trial, namelyB00

23

'a, the first information reportI 'b, the police reportI 'c, the statement of all !itnesses recorded under (ections #*# and #*=I and 'd, the inspection note recorded by an investigation officer on his first visit to the place of occurrence and the note recorded by him on recoveries made, if anyB Provided that, if any part of a statement recorded under (ection #*# or section #*= is such that its disclosure to the accused !ould be ine/pedient in the public interest, such part of the statement shall be e/cluded from the copy of the statement furnished to the accused. '4, In all cases instituted upon a complaint in !riting,00 'a, the complainant shall00 'i,F state in the petition of complaint the substance of the accusation, the names of his !itnesses and the gist of the evidence !hich he is li5ely to adduce at the trialI and 'ii, !ithin three days of the order of the Court under (ection 4:= for issue of process to the accused, file in the Court for supply to the accused as many copies of the complaint and any other document !hich he has filed !ith his complaint as the number of the accusedI 'b, copies of the complaint and any other documents !hich the complainant has filed there!ith and the statements under (ection 4:: or (ection 4:4 shall be supplied free of cost to the accused not later than seven days before the commencement of the trial.F $21-8. :(en c(ar)e is to ,e %ramed.--If, after perusing the police report or, as the case may be, the complaint, and all other documents and statements filed by the prosecution, the Court is of opinion that there is ground for proceeding !ith the trial of the accused it shall frame in !riting a charge against the accused. $21-E. Plea.--'#, The charge shall be read and e/plained to the accused, and he shall be as5ed !hether he is guilty or has any defence to ma5e. '4, If the accused pleads guilty, the Court shall record the plea, and may in its discretion convict him thereon. $21-;. E+idence %or prosecution.--'#, If the accused does not plead guilty or the Court in its discretion does not convict him on his plea, the Court shall proceed to hear the complainant 'if any, and ta5e all such evidence as may be produced in support of the prosecutionB Provided that the Court shall not be bound to hear any person as complainant in any case in !hich the complaint has been made by a Court. '4, The Court shall ascertain from the Public Prosecutor or, as the case may be, from the complainant, the names of any persons li5ely to be ac>uainted !ith the

24

facts of the case and to be able to give evidence for the prosecution, and shall summon such persons to give evidence before it. '&, The Court may refuse to summon any such !itness, if it is of opinion that such !itness is being called for the purpose of ve/ation or delay or defeating the ends of Custice. (uch ground shall be recorded by the Court in !riting. '=, 7hen the e/amination of the !itnesses for the prosecution and the e/amination 'if any, of the accused are concluded, the accused shall be as5ed !hether he means to adduce evidence. '., If the accused puts in any !ritten statement, the Court shall file it !ith the record. '*, If the accused, or any one of several accused, says that he means to adduce evidence, the Court shall call on the accused to enter on his defence and produce his evidence. '%, If the accused, or any one of several accused, after entering on his defence, applies to the Court to issue any process for compelling the attendance of any !itness for e/amination or the production of any document or other thing, the Court shall issue such process unless it considers that the application is made for the purpose of ve/ation or delay or defeating the ends of Custice. (uch ground shall be recorded by the Court in !riting. $21-G. Summonin) up ,& prosecutor and de%ence.--'#, In cases !here the accused, or any one of several accused, does not adduce evidence in his defence, the Court shall, on the close of the prosecution case and e/amination 'if any, of the accused, call upon the prosecutor to sum up his case !hereafter the accused shall ma5e a reply. '4, In case !here the accused, or any of the several accused, e/amines evidence in his defence, the Court shall, on the close of the defence case, call upon the accused to sum up the case !hereafter the prosecutor shall ma5e a reply. $21-E. Ac7uittal or con+iction.--'#, If in any case under this Chapter in !hich a charge has been framed the Court finds the accused not guilty, it shall record an order of ac>uittal. '4, If in any case under this Chapter the court finds the accused guilty the Court shall, subCect to the provisions of (ection 4*.0I, pass a sentence upon him according to la!. $21-!. Procedure in case o% pre+ious con+iction.-- '#, In a case !here, by reason of a previous conviction, the accused has been charged under (ection 44#, sub0 section '%,, the Court, after finding the accused guilty of the offence charged and recording a conviction, shall record the plea of the accused in relation to such part of the charge. '4, If the accused admits that he has been previously convicted as alleged in the charge, the Court may pass a sentence upon him according to la!, and if the

25

accused does not admit that he has been previously convicted as alleged in the charge, the Court may ta5e evidence in respect of the alleged previous conviction, and shall record a finding thereon, and then pass sentence upon him according to la!. $21-A. Statement under Section /2> admissi,le.-- The statement of a !itness duly recorded under (ection #*=, if it !as made in the presence of the accused and if he had notice of it and !as given an opportunity of cross0e/amining the !itness, may, in the discretion of the Court, if such !itness is produced and e/amined, be treated as evidence in the case for all purposes subCect to the provisions of the Dvidence Act, #+%4 'II of #+%4,. $21-5. Po'er o% Court to ac7uit accused at an& sta)e.-- 3othing in this Chapter shall be deemed to prevent a Court from ac>uitting an accused at any stage of the case, if, after hearing the prosecutor and the accused and for reasons to be recorded, it considers that there is no probability of the accused being convicted of any offence. $21-L. Po'er o% Ad+ocate-General to sta& prosecution.-- At any stage of any trial before a Aigh Court under this Code, before the sentence is passed, the Advocate0 eneral may, if he thin5s fit, inform the Court on behalf of overnment that he !ill not prosecute the accused upon the chargeI and thereupon all proceedings against the accused shall be stayed, and he shall be discharged of and from the same. But such discharge shall not amount to an ac>uittal unless the presiding -udge other!ise directs. '3ot applicable in vie! of (ection #+.0 of the Customs Act,. $21-4. ime o% (oldin) sittin)s.--For the e/ercise of its original criminal Curisdiction, every Aigh Court shall hold sittings on such days and at such convenient intervals as the Chief -ustice of such Court from time to time appoints. $21-#. Place o% (oldin) sittin)s.--'#, The Aigh Court shall hold its sitting at the place at !hich it held them immediately before the commencement of the "a! Reforms 6rdinance, #$%4, or at such other place 'if any, as the Provincial overnment may direct. '4, But the Aigh Court may, from time to time !ith the consent of the Provincial overnment, hold sittings at such other places !ithin the local limits of its appellate Curisdiction as the Aigh Court appoints. '&, (uch officer as the Chief -ustice directs shall give prior notice in the official a1ette of all sittings intended to be held for the e/ercise of the original criminal Curisdiction of the Aigh CourtF. Section ==0 o% t(e Cr. P.C.--? ender o% pardon to accomplice.-- '#, In the case of any offence triable e/clusively by the Aigh Court or Court of (ession, or any offence punishable !ith imprisonment !hich may e/tend to ten years, or any offence punishable under (ection 4## of the Pa5istan Penal Code !ith imprisonment !hich may e/tend to seven years, or any offence under any of the follo!ing sections of the Pa5istan Penal Code, namely, (ections 4#*0A, &*$,=:#,=&. and =%%0A, the 9istrict )agistrate, a (ub09ivisional )agistrate or any )agistrate of the first class may, at

26

any stage of the investigation or in>uiry into, or the trial of the offence, !ith a vie! to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to the offence, tender a pardon to such person on condition of his ma5ing a full and true disclosure of the !hole of the circumstances !ithin his 5no!ledge relative to the offence and to every other person concerned, !hether as principal or abettor, in the commission thereofB Provided that, !here the offence is under in>uiry or trial, no )agistrate of the first class other than the 9istrict )agistrate shall e/ercise the po!er hereby conferred unless he is the )agistrate ma5ing the in>uiry or holding the trial, and, !here the offence is under investigation, no such )agistrate shall e/ercise the said po!er unless he is a )agistrate having Curisdiction in a place !here the offence might be in>uired into or tried and the sanction of the 9istrict )agistrate has been obtained to the e/ercise thereof. 'l0A, Dvery )agistrate !ho tenders a pardon under sub0section '#, shall record his reasons for so doing, and shall, on application made by the accused, furnish him !ith a copy of such recordB Provided that the accused shall pay for the same unless the )agistrate for some special reason thin5s fit to furnish it free of cost. '4, Dvery person accepting a tender of pardon under this section shall be e/amined as a !itness in the Court of the )agistrate ta5ing cogni1ance of the offence and in the subse>uent trial, if any. '40A, In every case !here a person has accepted a tender of pardon and has been e/amined under sub0section '4,, the )agistrate before !hom the proceedings are pending shall, if he is satisfied that there are reasonable grounds for believing that the accused is guilty of an offence, commit him for trial to the Court of (ession or Aigh Court, as the case may be. '&, (uch person, unless he is already on bail, shall be detained in custody until the termination of the trial.F Aurisdiction o% t(e Ei)( Court in matters o% 7uas(ment o% proceedin)s.-- It has been held that the Aigh Court has the po!er under (ection, .*#0A of the Criminal Procedure Code, #+$+ to entertain the application and to >uash the proceedings pending before the (pecial -udge of Customs, appointed under (ection #+. of the Customs Act, #$*$. '#$+: P. Cr. ". -. %.$,. The po!ers of the Aigh Court under (ection .*#0A, Cr. P.C. are co0e/tentive !ith po!ers of the (pecial -udge under (ection 4*.0H of the said Code, and first resort may be made to the remedy available in the court of (pecial -udge and only in e/ceptional and special circumstances, the Aigh Court !ould e/ercise Curisdiction under (ection .*#0A Cr. P.C. 'P"9 #$+: Har. =$ E P"- #$%$ Cr. 'Har., =.4 Relied on #$%$ P. Cr. ".-. .$ E #$%$ (C)R $= E P"9 #$*% (.C. &.= L #$%$ P. Cr. ".-. 4.+,. Special Aud)e cannot exercise po'ers under Section 12/-AD Cr. P.C.--

27

Provisions of Criminal Procedure Code have been e/pressly made applicable to the proceedings before Court of (pecial -udge but provision of Criminal Procedure Code inconsistent !ith Customs Act shall not apply so far as they are inconsistent !ith the Customs Act, !hich obviously means that in case of repugnancy bet!een any provisions of the Customs Act and that of the Criminal Procedure Code, the provisions of the (pecial la! i.e. Customs "a! !ill prevail. The effect of (ection #+.0B clearly is that it provides for e/clusive Curisdiction of (pecial -udge and (pecial Appellate Court to try cases, hear applications, appeals and revisions and no other court is competent to try any offence punishable under the Customs Act or to entertain proceedings mentioned therein. Thus even the Curisdiction of the Aigh Court under Chapter NNNII, Cr. P.C. to entertain revision applications in 'respect of orders passed or proceedings ta5en by the (pecial -udge, has been e/cluded. But the >uestion raised is that the po!er under (ection .*#0A, Cr. P.C. is not available to the Aigh Court. This section is included in Chapter N"KI of the Cr. P.C. !hich has not been made applicable to this Court under (ection #+.0B and (ection #+.0C only refers to application of the provisions of the Cr. P.C. to proceedings before the Court. of (pecial -udge. Therefore, (ection .*#0A is not attracted to this Court even by incorporation of the provisions in the Customs Act. Ao!ever, as already discussed, (ection .*#0A, Cr. P.C. does not confer any ne! po!er, but merely states that the e/isting po!ers of the Aigh Court are not in any !ay circumscribed by anything in the Code of Criminal Procedure e/cept in so far as the sections e/pressly dealing !ith them do so. '(ee Kishnu hanishyam vs. Dmperor AIR #$=# 3agpur $%,. The >uestion of creating inherent po!er in the Aigh Court by incorporating (ection .*#0A in the Customs Act does not, therefore, arise. The conclusion, therefore, is that the po!ers e/ercisable by the high Court by virtue of (ection .*#0A are not available to the Aigh Court. 'P"- #$+# Cr. C. 'Har., 4&$,. Suppl& o% copies o% certain documents ,e%ore trial is not onl& mandator& ,ut its non-compliance cause pre9udice to accused.--The provision of (ection 4*.0C !hich re>uires that copies of the documents specified therein Fshall be suppliedF is therefore, an essential stage preparatory to the trial. The insertion of this provision in the !a5e of the abolition of the commitment proceedings is obviously meant to enable against him so that if the charge be framed against him he can ta5e a plea upon full 5no!ledge and understanding of the prosecution case. The interval of seven days is also significant because it is meant to give the accused sufficient time to study the allegations against him and to prepare his plea in defence. The provision is not only mandatory but, as is obvious, its non0compliance must tend to cause preCudice to the accused. Dven other!ise, preCudice to the accused is to be inferred from every breach of a provisions of the la! meant for the protection or benefit of the accused. The position !ould not change even if the accused had himself consented to such breach. 'PTC" #$+& C". 4::,. Breac( o% pro+ision o% Section $21-C is not cura,le.-- The code of Criminal Procedure li5e other Procedural "a!s is meant to further the ends of Custice and for that purpose contains provisions essential for securing Custice. (ome of the provisions are of vital nature and cannot be disregarded e/cept at the ris5 of the validating the trial !hile the others are not so vital and their breach may amount to

28

an irregularity !hich can be ta5en as cured. The nature of. the provision of (ection 4*.0C ma5es it vital and in the absence of its compliance the trial itself cannot be commenced. The breach of this provision cannot therefore be ta5en as cured in spite of consent of the accused. The omission to comply !ith the provisions of (ection 4*.0C must be treated to have vitiated the conviction. 'PTC" #$+& C". 4::,. #on-production o% t(e crime propert& e%%ect.--7here the prosecution failed to produce sei1ed goods at the trial to ascertain as to !hether they are in fact foreign origin, the conviction cannot be made. 'PTC" #$+% C". &+&,. rial commences a%ter 0 da&s %rom t(e suppl& o% t(e copies o% t(e documents.--The !ords Fnot later than % days before the commencing of the trialF occurring in (ection 4*.0C of the Criminal Procedure Code, #+$+ sho! that the trial in la! does not commence until after the e/piry of % days from the supply of the copies mentioned therein. 'PTC" #$+& C". 4::,. C(ar)e can ,e %ramed onl& a%ter trial is commenced.-- The trial is commenced after the e/piry of % days from the supply of the copies of documents under (ection 4*.0C of the Criminal Procedure Code. The charge can only be framed after the court is of the opinion after perusing the police report, and other materials that there is ground to proceed !ith the trial !ill frame charge against the accused under (ection 4*.09. If no copy of the documents as re>uired under (ection 4*.0C is supplied the trial is not commenced and the charge cannot be framed. The accused cannot be convicted on his plea of guilt !hich he put voluntarily. 'PTC" #$+& C". 4::,. (ere is no compliance o% t(e pro+ision o% Section $21-E '(ere copies o% t(e documents under Section $21-C are not supplied.--The omission to comply !ith the provisions of (ection 4*.0C must be treated to have vitiated the conviction. The contention that !ithout complying !ith the provisions of (ection 4*.0C, the charge itself could not have been framed and the trial commenced, is not !ithout force. As no copies had been supplied under (ection 4*.0C, the trial could not be said to have commenced. That being so, the stage had not reached for the framing of the charge. The provisions of (ection 4*.0D had not been complied !ith in spirit. The section re>uired that the charge shall be read and e/plained to the accused. 'PTC" #$+& C". 4::,. .i)(t o% t(e accused to )et copies o% t(e statements o% all 'itnesses.-- The accused person is entitled to get copies of statements of not only prosecution !itnesses but of all !itnesses. 'P"9 #$** B.-. &:,. /81.8 rans%er o% cases.--'#, 7here more than one (pecial -udges are appointed !ithin the territorial Curisdiction of a (pecial Appellate Court, the (pecial Appellate Court, and !here not more than one (pecial -udge is so appointed, the Federal overnment may, by order in !riting, direct the transfer, at any stage of the trial, of any case from the Court of one (pecial -udge to the Court of another (pecial -udge for disposal, !henever it appears to the (pecial Appellate Court or, as the case may be, the Federal overnment, that such transfer !ill promote the ends of Custice or tend to general convenience of the parties or !itnesses.

29

'4, In respect of a case transferred to a (pecial -udge under sub0section '#,, such (pecial -udge shall not, by reason of the said transfer, be bound to recall and rehear any !itness !hose evidence has been recorded in the case before the transfer and may act upon the evidence already recorded or produced before the Court !hich tried the case before the transfer.
#" ES

General.--This section provides for the transfer of cases by the (pecial Appellate Court from one court to another court !ithin the territorial Curisdiction of such (pecial Appellate Court. 7here not more than one (pecial -udge is appointed then the transfer is to be ordered by the Federal overnment. E+idence alread& recorded ,& t(e Aud)e.--The (pecial -udge is not bound to recall and rehear any !itness !hose evidence has been recorded in the case by the Cudge from !hose court the case is transferred. /81?E Place o% sittin)s.--A (pecial -udge shall ordinarily hold sittings at his head>uarters but, 5eeping in vie! the general convenience of the parties or the !itnesses, he may hold sittings at any other place.
#" ES

General.--This section provides for the place of sittings of the (pecial -udge. At ot(er place.--FAt other placeF means the place situated in his territorial Curisdiction. "%%ences committed outside territorial limits o% t(e 9urisdiction.-- A (pecial -udge has no po!er to try an offence committed !holly outside the limits of his Curisdiction. /81-; Appeal to Special Appellate Court.--'#, Any person, including the Federal overnment, aggrieved by any order passed or decision made by a (pecial -udge under this Act or under the Code of Criminal Procedure, #+$+ 'Act K of #+$+,, may subCect to the provisions of Chapters NNNI and NNNII of the Code, !ithin si/ty days from the date of the order or decision, prefer an appeal or revision to the (pecial Appellate Court, and in hearing and disposing of such Appeal or revision, such Court shall e/ercise all the po!ers of a Aigh Court under the said Code. '4, D/cept as other!ise provided in sub0section '#,, the provisions of the "imitation Act, #$:+ 'IN of #$:+,, shall apply to an appeal or a revision preferred under sub0 section '#,.
#" ES

General.--This section corresponds to (ection #$&0D of the (ea Customs Act, #+%+. It provides for filing of appeal or revision against the Cudgment or order passed by the (pecial -udge. Any such appeal or revision lies to the (pecial Appellate Court constituted under (ection =* of the Prevention of (muggling Act, #$%%.

30

!n case o% no e+idence except o% t(e co-accused.-- The evidence of disclosure made by co0accused apprehended at the spot !as not admissible against the co0 accused !hose name !as disclosed and !as also not by itself sufficient to provide basis for the conviction. 7here the only evidence consisted of such statements of the co0accused and there !as no other evidence available against the accused, the proceedings are liable to be >uashed '#$%% (C)R 4$4,. Besides statement of co0 accused no other evidence connecting accused !ith crime and recovery of contraband goods from his house subse>uent to detection of main offence a separate transaction and having nothing to do !ith the main offence. It !as held that the accused is entitled to ac>uittal under (ection 4*.0H in the circumstances of the case. '#$+: P. Cr. ".-. %.=,. Appeal a)ainst t(e 9ud)ment o% t(e Special Aud)e on prosecution side.-- Appeal against order of ac>uittal passed by the (pecial -udge can only be filed in the Court of (pecial Appellate Court !ithin &: days '3o! si/ty days, through the "a! 6fficer appointed under the Central "a! 6fficers 6rdinance, #$%:. 'P"- #$+: Cr. C. &=%,. Appeal %rom con+iction upon t(e plea o% )uilt.--3ormally, in an appeal under (ection =#4 Cr. P.C. from conviction upon the plea of guilt, only the e/tent or legality of the sentence can be assailed and not the conviction itself. 3evertheless, the convict is not debarred from >uestioning the prosecution itself if the facts alleged against him do not ma5e out a criminal case or the trial Court had no Curisdiction or his prosecution !as other!ise un!arranted. Thus, a convict under (ection #++, P.P.C, is not debarred from challenging his conviction on the ground that the complaint had been initiated by a police officer for violation of an order under (ection #=#, Cr. P.C. passed by a 9istrict )agistrate. (imilarly, he can challenge the trial on the ground .that the )agistrate !ho had tried him had no Curisdiction. )oreover, the plea of guilty of an accused !ill not !arrant. Dven if the accused has confessed to the offence described in the charge, the Court has yet to e/amine and hold !hether upon the facts admitted an offence is made out in la! not!ithstanding the plea of guilt. The plea of guilt !ill not !arrant that the court applies the la! incorrectly. 'PTC" #$+& C". 4::,. If no case is made out then appeal can be entertained and accepted. 'PTC" #$++ C" =$4,. 3ot!ithstanding the plea of guilt, the convict is not debarred to file an appeal if there is no foundation for the offence 'PTC" #$$: C" 4*+ and 4%*,. 8ut& o% t(e Court.--Dven if the accused has confessed to the offence described in the charge, the Court has yet to e/amine and hold upon the facts admitted an offence is made out in la! not!ithstanding the plea of guilt. The Trial Court has also to satisfy itself that the ingredients of the offence had been established on the basis of the allegation particularly !hen the allegations !ere only to recovery from the possession of the appellant. 'PTC" #$+& C". 4:: E PTC" #$$: C" 4*+ E PTC" #$$: C" 4%*,. 8e%inition o% Special Appellate Court.--(ee (ection 4 'sss, of the Customs Act. #o appeal on t(e 7uestion o% sentence.--An appeal cannot be admitted on the >uestion of sentence only. (ection =#4 of the Criminal Procedure Code, ho!ever, creates an e/ception to the rule in cases !here the conviction has ta5en place on an

31

admission of guilty by an accused person. In such a case the accused is authorised by e/press statutory provision to >uestion in appeal the sentence of the lo!er court as regards its e/tent by !hich it is meant that the sentence is beyond !hat the circumstances of the case re>uired or the illegality of the sentence as not authorised by the la!. 'P"9 #$%% Harachi #:=$ ; P"- #$%% Harachi .%+,. .eduction o% sentence.--The appellant !as convicted for an offence of possessing of smuggled !atches. The appellant !as a student at the time of incident and remained in Cail for about one month and on bail for more than seven and half years. The !atches recovered, !ere not costly. Heeping into consideration these factors the sentence reduced to the period already undergone and the fine !as also from Rs. .:::J0 to Rs. 4.::J0. 'PTC" #$+& C". #4%,. .emed& a)ainst t(e 9ud)ment o% t(e Special Appellate Court.-- The author is of the opinion that remedy against the Cudgment of the (pecial Appellate Court 'A persona designata Court, lies under Article #$$ of the Constitution of the Islamic Republic of Pa5istan, #$%&. There is neither any provision under the Customs Act, #$*$ for appeal to the (upreme Court nor the Article #+. of the Constitution provides any appeal against the Cudgment of the (pecial Appellate Court. As such the aggrieved party before going to (upreme Court has to invo5e !rit Curisdiction of the Aigh Court and then an appeal lies to (upreme Court against the Cudgment passed under !rit Curisdiction. /81-G Persons '(o ma& conduct prosecution. etc.--'#, 3ot!ithstanding anything contained in the Code of Criminal Procedure, #+$+ 'Act K of #+$+,, a (pecial Prosecutor appointed under section =% of the Prevention of (muggling Act, #$%%, shall be competent to conduct prosecution before a (pecial -udge for and on behalf of the Federal overnment and to !ithdra! prosecution !hen so re>uired by the Federal overnment. '4, A la! officer appointed under the Central "a! 6fficers 6rdinance, #$%: 'KII of #$%:,, shall be competent to conduct proceedings before a (pecial Appellate Court on behalf of the Federal overnment and to !ithdra! such proceedings !hen so re>uired by the Federal overnment.
#" ES

General.--The cases before the (pecial -udge are to be conducted by the (pecial Prosecutors duly appointed under (ection =% of the Prevention of (muggling Act, #$%%, !hereas proceedings before the (pecial Appellate Court are to be conducted by a "a! 6fficer appointed under the Central "a! 6fficers 6rdinance, #$%:. Section >0 o% t(e Pre+ention o% Smu))lin) ActD /900.--Special Prosecutors etc.--F'#, For the purposes of conducting proceedings before the (pecial -udge, the Federal overnment may appoint persons !ho have been advocates of a Aigh Court for a period of not less than five years to be (pecial Prosecutors on such terms and conditions as may be prescribed and any person so appointed shall be competent to conduct proceedings under this Act before the (pecial -udge for and on behalf of the Federal overnment and, if so directed by the Federal overnment, to !ithdra! such proceedings.

32

'4, A la! officer appointed under the Central "a! 6fficers 6rdinance, #$%: 'KII of #$%:,, shall be competent to conduct proceedings before the (pecial Appellate Court for and on behalf of the Federal overnment, and, if so re>uired by the Federal overnment, to !ithdra! such proceedings. '&, 7hen a special Prosecutor appointed under sub0section '#,, or a la! officer referred to in sub0section '4, is, for any reason, temporarily unable to conduct proceedings before the (pecial -udge or, as the case may be, the (pecial Appellate Court, the proceedings shall be conducted by such person as may be appointed in this behalf by the (pecial -udge or, as the case may be, (pecial Appellate Court.F Appointment o% Special Pu,lic Prosecutors.--For rules for appointment of (pecial Public Prosecutors see 3otification 3o. (.R.6. &.='I,J$:, dated 4nd April, #$$:, reported as PTC" #$$: (t. *.='ii,. /82. 8etention o% )oods pendin) pa&ment o% %ine or penalt&.-- '#, 7hen any fine or penalty has been imposed, or !hile imposition of any fine or penalty is under consideration, in respect of any goods, such goods shall not be removed by the o!ner until such fine or penalty has been paid. '4, 7hen any fine or penalty has been imposed in respect of any goods, the appropriate officer may detain any other goods belonging to the same o!ner pending payment of such fine or penalty.
#" ES

General.--This is ne! provision !hich is aimed at realisation of the penalties and fines imposed or to be imposed. Appropriate "%%icer.--The InspectorJPreventive 6fficerJD/aminer has been assigned the functions of the appropriate officer for the purpose of the provisions of (ection #+* of the Customs Act, #$*$. '(ee 3otification 3o. (.R.6. .*'I,J$&, dated #$th -anuary, #$$&, reported as PTC" #$$& (t. =*# or see page .+* of the Customs Rules and 3otifications, #$$+0$$ Ddition 0GAn allied publication,. 8eposit pendin) appeal.--(ee (ection #$= of the Act. .eco+er& o% Go+ernment dues.--(ee (ection 4:4 of the Act. Sale o% )oods ot(er t(an con%iscated )oods and application o% t(e sale proceeds.--(ee (ection 4:# of the Act. /80. Burden o% proo% as to la'%ul aut(orit&D etc.-- 7hen any person is alleged to have committed an offence under this Act and any >uestion arises !hether he did any act or !as in possession of anything !ith la!ful authority or under a permit, licence or other document prescribed by or under any la! for the time being in force, the burden of proving that he had such authority, permit, licence or other document shall lie on him.

33

#" ES

General.--This section corresponds to (ection #$&0

of the (ea Customs Act, #+%+.

Scope o% Section /80.--(ection #+% covers t!o situations !hich !e state as follo!sB00 'a, !hen a person is charged !ith an offence under the Customs Act, the burden of proof is cast upon him to sho! that he had the la!ful authority to commit that act., 'b, !hen a person is found in possession of any goods the burden of proof is cast upon him to sho! that he !as holding such goods under some la!ful authority, permission or licence, etc. In situation 'a, the >uestion !hether the burden off proof solely lies upon the petitioner to disprove allegations of misdeclaration and misdescription levelled by the Customs authorities and !hether the Customs authorities are under no obligation to lead evidence and discharge any onus of proof. This part of (ection #+% of the Customs Act perhaps appears to be contrary to the general principle of the la! of evidence contained in Article ##% of the ?anun0e0(hahadat that !ho so ever alleges e/istence of a particular fact must prove the same. 6n a closer scrutiny of the provisions of (ection #+% and the case la! settled by our courts on the subCect it appears that in such a situation it is only the evidential and tactical burden of proof !hich is cast upon the accused !hile the legal burden to bring home the allegations remains !ith the prosecution. (ituation 'b, provides that !here a person is found to be in possession of certain goods !hich fall under a prohibited category or !hich in an unla!ful manner find place in the possession or custody of the accused. In such cases the burden is upon the accused to sho! that he falls under some e/emption or e/ception to hold such goods. This type of eventuality as envisaged and stated in situation 'b, above is essentially a statement of the general principle of the la! of evidence contained in Article #4# of the ?anun0e0(hahadat that !ho so ever claims to fall under a preferential or e/empt or e/cepted category must sho! that he fulfills that condition to fall !ithin that category. This obviously should not be confused !ith the factum of possession for !hich no presumption or burden of proof has been spelt out, in vie! !hereof the possession itself has to be proved independently by the prosecution beyond all reasonable doubt. 'PTC" #$$* C". #,. Applica,ilit& o% Section /80.--(ection #+% does not put entire burden to disprove the entire case upon the accused alone. If it is so, the e/ecutive authorities !ould be let loose and given a !ide, na5ed and arbitrary discretion to operate !ithout any guidelines !hich !ould then leave (ection #+% susceptible to a constitutional challenge upon its vires on this score alone. 'PTC" #$$* C". #,. :(ic( part& ,ears t(e le)al or e+idential ,urden.-- In order to determine as to !hich party bears the legal or evidential burden !ould depend on the terms of the statute, the case la! on the subCect and also common sense and e>uity. 'PTC" #$$* C". #,.

34

7here the petitioner has already discharged its evidential burden the legal burden shifts upon the Customs authorities to discharge. 'PTC" #$$* C". #,. The admission of !rit petition to regular hearing confirms that the case by the respondent raises a doubt in the minds of court and is arguable. 'PTC" #$$* C". #,. Person in possession.--The content and import of (ection #+% are very !ide. It applies not only to the actual smugglers from !hose possession the goods are sei1ed but also to those !ho came into possession of the goods after having purchased the same after the same had passed through many hands or agencies. 'AIR #$.% (.C. +%% ; #$.% (CR ###:,. 7here a person !as found in possession of large >uantity of gold it !as held that !hile (ection #+% has the result of placing the burden of proof that the gold !as not smuggled !as on the accused, it is of no assistance to the prosecution to prove that the accused !as carrying the gold 5no!ingly to evade the prohibition !hich !as for the time being in force !ith respect to the import of gold into the country. 6nce, ho!ever, it is found, in conse>uence of the provisions of (ection #+% 'the accused not having discharged the burden that lay on him that the gold !as not smuggled, that he !as carrying smuggled gold, the circumstances under !hich the gold !as discovered, the manner in !hich he !as carrying the gold, the considerable >uantity of the gold that !as being carried and the form in !hich gold !as being carried, namely, bloc5s and bars in !hich the maCor portion of the gold !as found and the fact that the accused !as not the person !ho !as e/pected to carry so much gold '4+* tolas,, all these circumstances establish beyond a shado! of doubt that the accused !as carrying the gold 5no!ingly and !ith the intention of evading the prohibition that !as in force !ith respect to the import of the gold into the country. 7hen all these circumstances are ta5en together, it is not possible to say that he might be carrying the gold innocently having purchased it from somebody. 'AIR #$*. (.C. =%*,. Possession must ,e pro+ed.--The presumption is against the person from !hose possession the goods !ere sei1ed. There is no presumption ho!ever as to possession itself. That is a fact !hich the prosecution must itself prove. 7here there has been not even a faint attempt to prove anything of the 5indI there is not even so much as oral evidence of neighbours to say that the appellant used to live in the premises in >uestionI therefore no presumption arises against the accused. '#$%. P. Cr. ".-. %$%,. Burden o% proo%--Copy of sho! cause notice served on petitioner '.purchaser of contraband car,, sent to vendor of the car but such communication !as returned bac5 !ith the report that the address of the vendor as given in Registration Boo5 of the car !as bogus. Car in >uestion !as sho!n registered in Pa5istan t!ice at t!o different places and registration 3umbers at both places !ere found to be bogus. In these circumstances and >uite apart from the fact that according to Clause '$:, of (ection #.* '#, of the Customs Act, #$*$, it !as the burden of petitioner to prove that duty had been paid on the car sei1ed from him, (ection #+% of the Customs Act !ould be attracted to such cases. In such cases the petitioner is re>uired to prove his possession of the car being !ith la!ful authority under valid licence or permit as re>uired under (ection #+% of the Act. '#$+: (C)R ##=,.

35

?Alle)ed to (a+e committed.?--The scope of this section is very !ide because mere allegation of the commission of an offence under the Act brings the case !ithin its scopeI but as it is a penal provision and by placing burden of proof on the accused the (tate is infringing the rights of the citi1en. It appears that allegation must at least be reasonable to the mind of the officer ma5ing it and the Aigh Court may, it is submitted, go into the reasonableness of the allegation in !rit Curisdiction to save the citi1en from undue harassment. The presumption against the accused under (ection #+% is not to be dra!n until the e/planation of the accused is ta5en into consideration. The normal principle !ill apply, namely, that the accused is entitled to benefit of doubt and !here a reasonable e/planation is offered !hich is acceptable and raises a doubt that the prosecution has not discharged the burden though the accused may not have proved the e/planation. It !as enough for this purpose if he0 succeeded in raising a doubt as to !hether or not the prosecution !as true. Therefore despite (ection #+%, if upon the conclusion of the evidence the court is of the opinion that there is a doubt as to the guilt of the accused the benefit of doubt must be given to him and he must be ac>uitted 'P"9 #$%& Har. *.$;P"- #$%& Har. #=,. 7here, ho!ever the sei1ed goods !ere of foreign origin and their import into the country !as prohibited, according to (ection #+% of the Customs Act, the burden !as on the petitioner to prove that the goods in >uestion had not been imported into the country unla!fully and further that no act !as committed in relation to those goods so as to defraud the overnment of any duty payable on them. 'P"9 #$%: Har. $%;44 9"R '7P, #4#,. 7here there !as no evidence to attribute 5no!ledge of smuggling of the goods to the t!o co0accused !hile the driver of the truc5 slipped a!ay, the burden of proof lay on the t!o accused to prove that, they !ere una!are of the smuggled goods 'PTC" #$$= C". &44,. Criminal o%%ences.--The presumption raised under the Act is not confined to customs offences cogni1able by customs officers. It is available in criminal offences triable by court also. 'I"R '#$*:, #: RaC. #4%= ; #$*#'4, Cri. ". -our. =:*,. Burden o% proo%.--Also see (ection #.*'4, of the Act. /88. Presumption as to documents in certain cases.-- 7here any document is produced by any person under this Act or has been sei1ed under this Act from the custody or control of any person, and such document is tendered by the prosecution in evidence against him, the (pecial -udge shall,00 'a, unless tile contrary is proved by any such person, presume00 'i, the truth of the contents of such documentI 'ii, that the signature and every other part of such document !hich purports to be in the hand!riting of any particular person or !hich the (pecial -udge may reasonably assume to have been signed by, or to be in the hand!riting of, any particular person, is in that personGs hand!riting, and in the case of a document e/ecuted or attested that it !as e/ecuted or attested by the person by !hom it purports to have been so e/ecuted or attestedI 'b, admit the document in evidence, not!ithstanding that it is not duly stamped, if such document is other!ise admissible in evidence.

36

#" ES

General.--The provisions of this section are ne!. This section departs from the general provisions as contained in the Dvidence Act, #+%4 ?anun0e0(hahadat #$+= and the (tamp Act, #+$$ so far as presumption regarding truth of contents of certain documents and admissibility of the documents in evidence in spite of the fact that the documents are not duly stamped, is concerned. /89. #otice o% con+iction to ,e displa&ed.--'#, 2pon the conviction of any person for the offence of smuggling, the Federal overnment may re>uire him to e/hibit in or outside, or both in and outside, his place of business, if any, notices of such number, si1e and lettering, and placed in such positions and containing such particulars relating to the conviction as it may determine, and to 5eep them so e/hibited continuously for a period not less than three months from the date of convictionI and, if he fails to comply fully !ith the re>uirement, he shall be deemed to have committed a further offence under this Act of the nature of the original offence for !hich he !as convicted. '4, If any person so convicted refuses or fails to comply fully !ith any such re>uirement, any officer authorised in that behalf by an order of the Federal overnment in !riting may, !ithout preCudice to any proceedings !hich may be brought in respect of any such refusal or failure, affi/ the notices in or outside, or both in and outside the place of business of such person in accordance !ith the re>uirement of the Federal overnment in pursuance of sub0section '#,. '&, If, in any case, the Federal overnment is satisfied that the e/hibition of notices in accordance !ith the re>uirements of the provisions of sub0section '#, or sub0 section '4, !ill not effectively bring the conviction to the notice of persons dealing !ith the convicted person, the Federal overnment may, in lieu of, or in addition to, any such re>uirement, re>uire the convicted person to e/hibit for such period, not being a period less than three months on such stationery used in his business as may be specified in the re>uirement, a notice placed in such position and primed in type of such si1e and form and containing such particulars relating to the conviction as may be specified in the re>uirementI and, if he fails to comply fully !ith the re>uirement, he shall be deemed to have committed a further offence under this Act of the nature of the original offence for 7hich he !as convicted.
#" ES

General.--This section corresponds to (ection #$&0# of the (ea Customs Act, #+%+. "%%ences and penalties.--(ee clause '$+, of (ection #.*'#, of the Customs Act. /9C. Po'er to pu,lis( con+iction.--If the Federal overnment is satisfied that it is necessary so to do, the conviction and the particulars relating to the conviction of any person for the offence of smuggling may be published in the official a1ette.
#" ES

General.-- (is section corresponds to Section /9=-/ o% t(e Sea Customs ActD /808.

37

/9/. !mprisonment ma& ,e o% eit(er description.--Imprisonment for any offence under this Act may, in the discretion of the (pecial -udge be either simple or rigorous.
#" ES

General.--This section corresponds to (ection #$&0" of the (ea Customs Act. In the original Bill the provision !as the same as given in the said Act. 6n the recommendation of the (elect Committee the provision has been amended in the present shape. 2nder the old la! the imprisonment !as rigorous e/cept as other!ise provided in the Act. !mprisonment.--Imprisonment is of t!o 5indsI rigorous and simple. In the case of rigorous imprisonment, the offender is put to hard labour, such as grinding corn, digging earth, dra!ing !ater, cutting fire0!ood, bo!ing !ool, etc. In the case of simple imprisonment the offender is confined to Cail and is not put to any 5ind of !or5. !mprisonment to run %rom t(e date o% con+iction.--A sentence of imprisonment must be made to operate from the date of conviction and not from a date prior to the date on !hich the sentence is passed. 7here, therefore, the Cudge ordered that the period already undergoing in custody during the trial be counted to!ards sentence, it !as held that the order !as illegal and must be >uashed. 8'#$.=, = RaC. =&+<. In Pa5istan under (ection &+40B of Criminal Procedure Code the period already undergone in custody during the trial is countable to!ards sentence. Sentence ma& ,e '(oll& or partl& ri)orous or simple.--In every case in !hich an offender is punishable !ith imprisonment !hich may be of either description, it shall be competent to the court !hich sentences such offender to direct in the sentence that such imprisonment shall be !holly rigorous, or that such imprisonment shall be !holly simple, or that any part of such imprisonment shall be rigorous and the rest simple. 'see (ection *: of P.P.C,. /9$. 8ut& o% certain person to )i+e in%ormation.--'#, Any person !ho comes to 5no! of the commission of any offence under this Act, or an attempt or li5ely attempt to commit any such offence, shall, as soon as may be, give information thereof in !riting to the officer0in0charge of the nearest custom house or customs0station, or if there is no such custom0house or customs0station, to the officer0in0charge of the nearest police0station. '4, The officer0in0charge of a police0station !ho receives any information mentioned in sub0section '#, shall as soon as possible communicate it to the officer0in0charge of the nearest custom0house or customs0station.
#" ES

General.--(ub0section '#, of the section is verbatim reproduction of (ection #$&0) of the (ea Customs Act. (ub0section '4, is a ne! provisionI it provides that the officer0 in0charge of a police station !ho receives any information regarding the commission

38

of any offence under the Customs Act or any attempt or li5ely attempt to commit any such offence from any person, shall as soon as possible communicate it to the officer0in0charge of the nearest custom0house or customs0station. The provisions of this section to some e/tent are identical to the provisions as contained in (ection == of Cr. P.C. The provisions of (ection #$4 have been designedly so made that crimes under the Customs Act are brought to boo5 and not suppressed by persons 5no!ing about them. The authorities should ma5e use of these provisions so that the obCect of the "egislature in enacting the provisions, is not lost completely. ",9ect.--The obCect of this section is only to ensure that offenders are dealt !ith under the la!, so that !here adCudication proceedingsG have to be ta5en up for the confiscation of the goods or the imposition of penalties etc. that the same can be carried out by the customs Authorities. 'PTC" #$++ C". %=,. Police o%%icers to arrest persons and in+esti)ate o%%ences.-- The authorised police officer before communication of the information of the commission of offence can act under the Customs Act and is competent to arrest any person committing offence under the Customs Act and to investigate them independently 'PTC" #$++ C". %=,. "nl& one person to )i+e in%ormation.--7hen once information of the fact of an offence has reached the customs officer or police officer the obCect of the section gets fulfilled and it is not reasonable that every other person !ho may possibly be bound to give information should be prosecuted for not having done so. '= Cal. *4& '9B, E AIR #$4* 3ag. 4#%,. !n%ormationF 4eanin) o%.--Information means something !hich the person bound to report 5no!s or has reason to believe to be true and not any hearsay or vague surmises !hich the people around him might have put into his head 8#$ (uth 7.R. 'Cr., .% '9B,<. 7here a person !ho could spea5 of an offence only from hearsay, gave a report based on such hearsay, it !as held that the report could not be used as evidence to corroborate his evidence. 'AIR #$4. "ah. =#+,. It is not necessary that the information should be signed by the informant. 8## Cri. ". -our & ; & (ind ".R. #&4'9B,< 'Case under (ection #+4 P.P.C.,. E%%ect o% not )i+in) in%ormation.--An omission to give information under this section is an offence under item '+*, of (ection #.*'#, of the Customs Act. The giving of false information of the commission of an offence is punishable under (ection #+4 of the P.P.C. "%%ences and penalties.--(ee clause '+*, of (ection #.*'#, of the Customs Act

39