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Civil Appeal No. K‑12 of 1967, decided on 19th May 1969.

(On appeal from the judgment and order of the High Court of West Pakistan, Karachi Bench, Karachi, dated the 5th January 1966, in Writ Petition No. 5 of 195).

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S. 167 (8a), (81) read with S. 212‑‑Seizure of contraband goods by Custom Authorities and adjudication of confiscation and penalties by them are in nature of departmental Proceedings ‑ Verdict of confiscation of goods by Custom Authorities cannot be regarded as punishment by a Court after regular trial‑Proceedings of criminal prosecu tion for offence under Act in relation to same goods, on the other hand, are judicial proceedings‑Both are concurrent remedies but each independent of the other‑Adjudication of proceedings by Custom Authorities and prosecution of offender in criminal Court 10th based on ,tame transaction‑‑Not hit by doctrine of "double jeopardy"‑Criminal Procedure Code (V of 1898), S. 403.

A search warrant was carried out by the Customs Authorities and contraband gold was recovered from a car in which two persons were travelling. The accused were charge‑sheeted under sections 167(8a) and 167(81) read with section 212 of the Sea Customs Act, 1878 and, they were convicted and sentenced by the Magistrate. Concurrently with the prosecution of the accused in the criminal Court the Customs Authorities served a notice to the two accused to show cause against the confiscation of the goods seized. The accused in appeal before the Supreme Court claimed that their criminal prosecution, after the proceed ings for forfeiture of goods had been instituted against them by the Customs Authorities, was illegal as it amounted to their trial and punishment twice over for the same offence

Held, the intention of the Legislature is clear that the disposal of the goods seized under the Sea Customs Act is left entirely in the jurisdiction of the custom authorities. The proceedings taken by the Customs Autho rities for the confiscation of the goods are more in the nature of departmental proceedings which have been charac terized in English and American jurisprudence as proceedings in condemnation of the goods for purposes of revenue and are regarded as proceedings of a civil nature, despite their penal character. The Sea Custom Authorities are not a judicial tribunal in the strict sense of that term nor can their verdict of confiscation of the goods be regarded as a punishment by the Court after regular trial for the purpose of supporting a plea of double jeopardy. On the other hand, the proceedings for the criminal prosecution of a person who commits an offence under the Act in relation to those goods, fall in a separate category. They are judicial proceedings for the determination of the guilt of the person concerned for commission of the alleged offence and entailing a punishment for the same. Both are concurrent remedies but each is independent of the other. They cannot, therefore, be deemed to be mutually exclusive. Therefore, no question of double jeopardy arises when simultaneously or subsequently a trial is held to determine the guilt of the individual, who has been concerned in the offence in respect of the goods which are the subject‑matter of the adjudi cation proceedings. And since the proceedings for adjudication by the Customs Authorities and the criminal prosecution of the offender in the Court are not inter‑dependent, they can proceed simultaneously and neither can remain under suspension for the sake of the other.

Mosam Khan and others v. The State 1969 S C M R 208 ref.

M. A. Pesh Imam, Advocate Supreme Court instructed by Yousuf Rafi, Attorney for Appellant.

Sharifuddin Pirzada, Attorney‑General for Pakistan (Abel Khan Ansari, Advocate Supreme Court with him) instructed by Shafiq Ahmad, Senior Attorney for Respondent No. 1.

Respondent No. 2 : Ex pane. Date of hearing : 19th May 1969

‑The appellant, who is before us by special leave, was hauled up near Mahr Bridge by a Police party of the Customs Department on the 18th of October 196.), while travelling in a car towards Hyderabad, along with his companion, one Shaukat. T0i search was carried out and contraband gold of foreign origin, weighing 300 tolas, was recovered from the car.

First information report was lodged with the Police on the same date, which was followed up by a charge‑sheet against the appellant and his co‑accused, Shaukat, under section 167(8x), 167(81) read with section (2) of the Sea Customs Act (herein after referred to as the Act). Their prosecution was launched in the Court of the City and Additional District Magistrate, Karachi, which ended in their conviction and each was sentenced to five years' rigorous imprisonment the trial Court also directed that the gold and the car, which were seized from the accused, shall be disposed of by the Custom Authorities under the provi sions of the Sea Customs Act. An appeal preferred by the accused against their convictions and sentences has been dismissed by the High Court and a petition for leave to appeal to this Court was also rejected.

Concurrently with the prosecution of the accused in the criminal Court the Custom Authorities served a notice on them on the 27th of November 1965, to show cause against the confis cation of the aforesaid goods.

The appellant filed a petition in the High Court under Article 98 of the Constitution in challenge of the Collector's action it was claimed that the criminal prosecution of the appellant, after the adjudication proceedings for the forfeiture of the goods under the Sea Customs Act had been initiated against him by the custom Authorities, was illegal and without lawful authority as it amounted to his trial and punishment twice over for the same offence, thus infringing the prohibition against double jeopardy, which is enjoined by law and the principles of natural justice.

It was alternatively claimed that a criminal prosecution, even if it were valid, should have been deferred till the final adjudica tion by the Custom Auth9rities as regards, the confiscation of the foods seized by them.

The High Court has dismissed the petition in limine, leading to a petition for special leave to appeal to this Court, which was allowed to consider the important legal questions raised in the contentions of the appellant.

Section 167(8x) of the Sea Customs Act reads as follows

"167. Punishment for o fences.‑The offences mention ed in the first column of the following Schedule shall be punishable to the extent mentioned in the third column of the same with reference to such offences respectively:-

It is quite plain that the penalty clause of this section is in two parts. The first part refers to the liability of the offending goods for confiscation and the second to the liability to imprisonment and fine of the person concerned in the commission of the offence under the Act in respect of those goods. The Act contains special provisions whereby the Custom Authorities are invested with powers to search and seize goods which are liable to confiscation under the Act. Under section 179, all things which are seized under the Act, have to be delivered to the care of the Customs Officer authorized to receive them and if no such officer is at hand, they have to be deposited at the nearest custom‑house. In the case of goods which are perishable, the Chief Customs Officer or any other Customs Officer authorized by him can cause them to be sold by public auction and the proceeds to be kept in deposit pending adjudication of the case. Under section 180, where such things are seized by any police officer, he may, carry them to any police station or port at which a complaint connected with the stealing or receiving of such things has been made or an inquiry connected therewith is in progress. But the police officer seizing the things has to send a written notice of their seizure and detention to the nearest custom‑house and after the conclusion of the inquiry or trial he has to cause such things to be conveyed and deposited at the nearest custom‑house for disposition accord ing to law. Section 182, which provides for adjudication of confiscation and penalties in all cases covered by section 167 of the Act, except Nos. 26, 72, 74, 75 and 76, prescribes the limits of the confiscation and the penalties that can be adjudged by different officers in the hierarchy of the Customs Department. All these provisions are contained in a special law and would take precedence over the general law, contained in the Criminal Pro cedure Code pertaining to the forfeiture or confiscation of goods which are the subject‑matter of offences triable by Magistrates under that Code. Sections 1(2) and 5(2) of the Criminal Pro cedure Code, in fact, save the operation of the provisions of the special law. The intention of the Legislature is thus clear that the disposal of the goods seized under the Act is left entirely in the jurisdiction of the custom authorities. The proceeding taken by the custom authorities for the confiscation of the goods are more in the nature of departmental proceedings which have been characterized in English and American jurisprudence as proceedings in condemnation of the goods for purposes of revenue and are regarded as proceedings of a civil nature, despite their penal character. The Sea Custom Authorities are not a judicial tribunal in the strict sense of that term nor can their verdict of confiscation of the goods be regarded as a punish ment by the Court after regular trial for the purpose of support ing a plea of double jeopardy. On the other hand, the proceed ings for the criminal prosecution of a person who commits an offence under the Act in relation to those goods, fall in a separate category. They are judicial proceedings for the determination of the guilt of the person concerned for commission of the alleged offence and entailing a punishment for the same. Both are concurrent remedies but each is independent of the other. They cannot, therefore, be deemed to be mutually exclusive. The contention of the learned counsel for the appellant, therefore, that adjudication proceedings by the Custom Authorities and the prosecution of the offender in a criminal Court both of which are based on a common single act amount to "double jeopardy", is wholly misconceived. The doctrine or "double jeopardy" which is a term of American Law corresponding to the principle of autre fois acquit and autre fois convict of the English Law as embodied in section 403 of the Criminal Procedure Code, pro hibits a duplicate trial and a duplicate punishment for the same offence. But it is quite clear that the adjudication proceedings for the confiscation of the goods under the Act neither involve a criminal prosecution nor a punishment for an offence. No trial of the offender takes place for any offence nor is any punish ment awarded to the offender. Therefore, no question of double jeopardy arises when simultaneously or subsequently a trial is held to determine the guilt of the individual who has been concerned in the offence in respect of the goods which are the subject‑matter of the adjudication proceedings. And since the B proceedings for adjudication by the custom authorities and the criminal prosecution of the offender in the Court are not inter dependent, they can proceed simultaneously and neither can remain under suspension for the sake of the other. In a recent case decided by a Bench of this Court reported as Mosam Khan and others v. The State (1969 S C M R 208) it was held that the word "and" after the clause "such goods shall be liable to confiscation" has to be read in disjunctive sense and no conjunctively. The liability to prosecution under item (8‑a) of the Schedule to section 167 of the Sea Customs Act before a Magistrate is not dependent on prior adjudication of liability to confiscation of goods by the officers of the Custom Department.

The result is that this appeal is dismissed. The adjudication proceedings of the goods in question which were stayed by the order of this Court while granting leave to appeal, will now be revived and finalized. There will be no order as to costs.

K. B. A. Appeal dismissed.

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