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(On appeal from the order of the High Court of West Pakistan, Lahore, dated the 6th April 1964, in Criminal Revision No. 306 of 1964).

-Relates to rates of duties and dutiable goods "imported into or exported from Pakistan"-Act does not contemplate notifying of any territory as foreign" territory.

Art. 58 (3)-Leave to appeal to Supreme Court-Granted to consider whether complaint [relating to a charge under S. 167, Sea Customs Act (VIII of 1878)] was competent and whether a Magistrate (of the First Class) had jurisdiction to try an offence punishable with a maximum sentence of 10 years' rigorous imprisonment.

Leave to appeal was granted by the Supreme Court under Art. 58 (3), Constitution of Pakistan (1962) to consider: -

(1) Whether the complaint was itself competent by reason of the fact that it had not been made by a Customs Collector or an officer of the Customs Department duly authorised in that behalf, and

(2) whether the Magistrate, who tried the case, had jurisdic tion to try the offence which at the relevant time was punishable with a maximum sentence of ten years' rigorous imprisonment and, as such, triable only by a Sessions Court or by a Magistrate, exercising powers under section 30 of the Code of Criminal Procedure.

S. 3(3) read with Sea Customs Act (VIII of 1878), S. 19-Notifica tion under 6. 3; Imports and Exports (Control) Act, 1950 is deemed to be a notification under S. 19, Sea Customs Act, 1878.

,Ss. 32, 190 & Third Schedule-Limit on power of awarding punishment does not affect competence of Court to try a case-[Sea Customs Act (VIII of 1878), Ss. 167 & 187]-Offence punishable with maximum sentence of 10 years may be tried by a Magistrate of the First Class].

Art. 1"Islamic Republic of Pakistan"-Any territory not constituting part of the Republic of Pakistan is a "foreign" territory"-(Part of State of Jammu and Kashmir occupied by India).

Amjad Khan Advocate Supreme Court instructed by Muhammad Aslam Chattha Attorney for Appellant.

Aslam Riaz Hussain Assistant Advocate-General West Pakistan (Muhammad Nadir Advocate Supreme Court with him) instructed by Ijaz Ali Attorney for the State.

Date of hearing: 10th November 1965.

.-The appellant was arrested by a raiding party on the night between the 30th and 31st October 1963, at about 2 a.m. on the northern side of village Dhamala, which is 60/70 karams from the Jammu and Kashmir State border. The appellant was seen crossing this border along with another person by a pathway leading into-the Pakistan territory. He was carrying a gunny bag on his head. His companion succeeded in running away but the raiding party arrested the appellant and on searching him found 6 small bags containing about 30 seers of cardamom inside the gunny bag carried by him.

After his arrest a first information report was lodged by Head Constable Muhammad Zafar (P.W,4)of the raiding party at the Zafarwal Police Station at 3 a.m. In this report the appellant was charged as a smuggler under "section 167 of the Customs Act". A report under section 173 of the Criminal Procedure Code was then filed in the Court of a Magistrate of the First Class at Zafarwal, by the Station House Officer, Narowal. In this report the offence alleged was said to be one under "section 167-81-c of the Land Customs Act". The Magistrate took cognizance of the said offence and after examining three witnesses on behalf of the prosecution framed a charge under "section 167 (8) of the Sea Customs Act".

The appellant- entered upon his defence and cross-examined the prosecution witnesses but did not produce any evidence in his own defence. He denied all the allegations made against him as also the ownership of the cardamom alleged to have been seized. He asserted that this cardamom had been planted upon him. It was, according to him, actually recovered from one Allah Rakha and one Siraj Din, residents of Jammu and Kashmir State, who had falsely implicated him.

The prosecution proved the entry of the appellant into Pakistan territory and the seizure of the cardamom as also a notification No.335/260/24, dated the 12th June 1951, which restricted the import of all kinds of spices into Pakistan from any foreign territory. The Magistrate accepted the prosecution evidence that the raid had taken place and the accused was appre hended by the raiding party within the limits of Dhamala village, which is in Pakistan, whilst coming from the State of Jammu and Kashmir with the cardamom.

It was contended before the Magistrate that Jammu and Kashmir State was not a foreign territory notified under the Tariff Act, 1934, hence no offence had been committed. The Magistrate held that it was not necessary for a place to be defined as a foreign territory in the Tariff Act and that since the Pakistan administra tive machinery does not function in the occupied State of Jammu and Kashmir, it is a foreign country where the citizens of Pakistan are not allowed to transact business.

The Tariff Act 'of 1934 is a law relating to customs duties on goods imported into or exported from Pakistan. It does not con template the notification of any territory as foreign territory nor A is it necessary thereunder to do so. Under this Act only the rates of duty and the dutiable commodities are notified.

The appellant was, accordingly, convicted and sentenced to serve a term of rigorous imprisonment for two years. The cardamom was also confiscated to the State. On appeal the Sessions Judge of Sialkot upheld the conviction of the appellant and repelled the contention that the State of Jammu and Kashmir was not a foreign territory. According to the learned Sessions Judge the territories of Pakistan having been defined by Article 1 of the Constitution of 1962 all territories, which are not comprised therein, were foreign territories. He also rejected the contention that there was no notification prohibiting the import of cardamom from the State of Jammu and Kashmir to Pakistan. He held that cardamom was a spice and since the import of all spices had been prohibited by the notification of the 12th of June 1951, except upon a licence, the importation of cardamom was also prohibited.

This notification, it appears, was issued under section 3(1) of the Imports and Exports (Control) Act, 1950, and by subsection (3) thereof all goods to which an order under subsection (1) applied were to be deemed to be goods of which the export or import had been prohibited or restricted under section 19 of the Sea Customs Act and all toe provisions of the Sea Customs Act applied in the case of the export or import of such goods. The conviction under section 167 (8) of the Sea Customs Act was, therefore, held to be proper.

A revision to the High Court of West Pakistan from the judg ment and order of the Sessions Judge was dismissed in limine. But leave was granted to the appellant to consider.

(1) Whether the complaint was itself competent by reason of the fact that it had not been made by a Customs Collector or an officer of the Customs Department duly authorised in that behalf , and

(2) whether the Magistrate, who tried the case, had jurisdiction to try the offence which at the relevant time was punishable with a maximum sentence of 10 years' rigorous imprisonment .and, as such, triable only by a Sessions Court or by a Magistrate exercising powers under section 30 of the Code of Criminal Procedure

Learned counsel appearing in support of this appeal has sought to contend that the Sea Customs Act was not applicable to the present case and the appellant was wrongly convicted under section 167 (8) thereof. According to him, the offence, if any, was under the Imports and Exports (Control) Act No. XXXIX of 1950 or the Land Customs Act of 1924. Under section 5 of the Land Customs Act no goods, whether dutiable or not, can be passed by land out of or into any foreign territory save upon a permit issued for such passage by the Land Customs Officer in charge of a Land Customs Station established in a Land Customs area adjoining the foreign frontier across, which the goods are to pass. In the case of dutiable goods the Land Customs Officer granting the permit has to certify that the duty has been paid and if the goods are free from duty he has also to issue a certificate to that effect. Any Land Customs Officer duly empowered in that behalf by the Chief Customs Authority has a right to require any person in charge of any such goods to produce the permit, and if such a person fails to produce such a permit or attempts to pass the goods, he is under section 7 of the said Act liable to a penalty not exceeding Rs. 50 in the case of non-dutiable goods and Rs. 1,000 in the case of dutiable goods.

Again, under subsection (2) of section 7 "where any dutiable goods or any goods in respect of which a notification under section 19 of the Sea Customs Act, 1878 (VIII of 1878), prohibit ing the bringing or taking by land of such goods into the Provinces and the Capital of the Federation or any specified part thereof, has been issued, or passed by land out of any foreign territory and the Land Customs Officer is of opinion that an offence under sub section (1) has been committed in respect of such goods and that the penalty provided in that subsection is inadequate, he may make a complaint to a 'Magistrate having jurisdiction."

Under this subsection it will be seen that goods, in respect of which a notification under section 19 of the Sea Customs Act has been issued, cannot be imported without a permit and that such importation is also an offence under the Land Customs Act.

Section 19 of the Sea Customs Act provides as follows:-

"(19) Power to prohibit or restrict importation or exportation of goods.-The Central Government may, from time to time, by notification in the official Gazette, prohibit or restrict the bringing or taking by sea or by land goods- of any specified des cription into or out of Pakistan across any customs frontier as defined by the Central Government."

Then subsection (3) of section 3 of the Imports and Exports (Control) Act, 1950, prescribes as follows:-

"(3) All goods to which any order under subsection (1) applies shall be deemed to be goods of which the import or export has been prohibited or restricted under section 19 of the Sea Customs Act, 1878, and all the provisions of that Act shall have effect accordingly except that section 183 thereof shall have effect as if for the word 'shall' therein the word may' were substituted."

Subsection (1) of section 3 of this Act gives power to the Central Government to prohibit, restrict or, otherwise control the import or export of goods of any specified description by an order published in the official Gazette subject to such conditions and exceptions as may be prescribed. The Central Government has also power to lay down the procedure of such import or export and to provide for applications for licences under the said Act. By section 5 of the latter Act it has been provided that if any person contravenes any order made or deemed to have been made under the said Act or the rules thereunder, then he shall without prejudice to "any confiscation or penalty to which he may be liable under the provisions of the Sea Customs Act, 1878, as applied by subsection (3) of section 3" of the Imports and Exports (Control) Act, be punished with imprisonment for a term which may extend to one year or with fine or both.

It is admitted in the present case that there was a notification under subsection (1) of section 3 of the Imports and Exports (Control) Act prohibiting the import and export of spices save upon a licence issued in that behalf. In terms of subsection (3) of section 3 of the Imports and Exports (Control) Act this notifi cation was to be deemed to be also a notification under section 19 of the Sea Customs Act, 1878; and all the provisions of that Act applied except for those of section 183 thereof. The contention, therefore, that the offence committed by the appellant could not come within the mischief of the Sea Customs Act is without any substance, for, the notification under the Imports and Exports (Control) Act made the provisions of the Sea Customs Act appli cable, as it was also to be deemed to be a notification under section 19 of the Sea Customs Act.

s

The next contention advanced on behalf of the appellant is that on the date on which the Magistrate took cognizance of the case, namely, the 11th of November 1963, he could not have done so, as the offence under section 167 (8) of the Sea Customs Act was then punishable with a maximum sentence of imprisonment not exceeding ten years. Such a punishment could only have been imposed by a Court of Session or a Magistrate empowered under section 30 of the Code of Criminal Procedure. A Magistrate of the First Class not empowered under section 30 had, therefore, no power to impose this punishment or to try a case so punishable.

Section 187 of the Sea Customs Act provides that all offences under the Sea Customs Act, except those cognizable under section 182, may be tried summarily by a Magistrate, provides that are in the case of offences under section 167, clauses (8) and (81) of the Schedule thereto, so far as they concern special goods, they shall be tried by a Court having powers not inferior to those of a Magistrate of the First Class. It will be observed from this that the quantum of the punishment does not by itself take away the power of taking cognizance of or trying a case, which could have been done under section 187 of the Sea Customs Act itself. D The limit on the powers of awarding punishment does not affect the competence of a Court to try the case. The Magistrate is duly competent to try the7case but all that he cannot do is to impose a sentence which is in excess of his powers. In the present case the sentence imposed, as already stated, was of the duration of two years which was well within the powers of a Magistrate of the First Class in accordance with the Third Schedule to the Criminal Procedure Code.

The Customs Act (Amendment) Ordinance VIII of 1963, which was promulgated on the 16th of November 1963, introduced section 193-B into the Sea Customs Act, whereby a Magistrate of the First Class specially empowered by the Provincial Govern ment in that behalf could impose a sentence of imprisonment exceeding two years or fine exceeding Rs. 1,000 on any person convicted of an offence under sections 167 (8) and (81) of the Sea Customs Act. In the present case, it is unnecessary to refer to this amendment, as the sentence imposed was within the ordinary powers of a Magistrate of the First Class. No illegality was, therefore, committed in this case. The offence was competently taken cognizance of and tried.

The argument that an offence under the Land Customs Act could only be taken cognizance of on the complaint of a Land Customs Officer and not a Police Officer is wholly irrelevant, for, the prosecution in the present case was under the Sea Customs Act and not under the Land Customs Act.

Learned counsel has not pressed the contention that the State of Jammu and Kashmir is not a foreign territory. This was a wholly misconceived argument. As was pointed out by the learned Sessions Judge, any territory which does not constitute part of the Republic of Pakistan, and as defined in the Constitution of 1962, is a foreign territory. In any event, the Sea Customs Act, under which the appellant was prosecuted, prohibited and restricted the bringing or taking by sea or by land goods of any specified description either into or out of Pakistan. In the present case, the goods were clearly brought into Pakistan in contravention of the notification issued under section 19 of the Sea Customs Act and the appellant was, accordingly, rightly convicted.

This appeal is thus without any substance and is dismissed. The appellant will now surrender to his bail bond and serve out the remainder of his sentence.

A.H. Appeal dismissed.

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