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‑‑ S. 179, proviso read with Ss. 3, 5 & 6‑Contention that proviso to S. 179 did not relate to officers mentioned in section but to officers of Provincial and Federal Governments who might be empowered under S. 6‑Difficult to accept that proviso to a section should not apply to section to which it is attached but to a. totally different section - Proviso to S. 179‑Does not render S. 5 nugatory.‑‑Section 5 deals with upgrading generally of officers while S. 179 deals exclusively with judicial duties of officers‑Functions of Customs Officers include many functions other than powers of adjudication conferred by S. 179‑ Words "any particular officer" and "classes of officers" in proviso to S. 179, held, wide enough to refer to officers specified in various clauses of section.

Azizullah K. Sheikh for Petitioner.

Naimuddin, Standing Counsel for the State.

DORAB PATEL, J.‑On the 22nd of April, 1975 the respondent issued a notice to the petitioner calling upon him to show cause why action should not be taken against him with regard to a charge for the smuggling of watcbe3. The petition has come up for admission before us on several dates, and Mr. Azizullah Sheikh has repeatedly affirmed before us that he only challenged the legality of this notice on the basis of the proviso to section 179 of the Customs Act, 1969, therefore, it is not necessary for us to go into the facts of the case and we will only examine the legal arguments advanced by the learned counsel for the petitioner and by Mr. Naimuddin, Standing Counsel for the State, who appeared on our notice to him to assist us.

2. Section 179 of the Customs Act, 1969 to which we would refer as the said Act, reads as follows :‑

"179. Power of adjudication.‑In cases involving confiscation of goods or imposition of penalty under this Act, the jurisdiction and powers of the officers of customs shall be as follows :‑

(1) a Collector of Customs may deal with cases where the value of the goods exceed ten thousand rupees;

(2) a Deputy Collector of Customs may deal with cases where the value of the goods does not exceed ten thousand rupees;

(3) an Assistant Collector of Customs may deal with cases where the value of the goods does not exceed two thousand five hundred rupees;

(4) any other officer of customs as the Board may authorise by virtue of his office may deal with cases where the value of the goods does not exceed two hundred and fifty rupees;

(5) any officer of customs shall be competent to impose any penalty under section 156 in any case which he is authorised to deal with:

Provided that the Board may, by notification in the official Gazette, reduce or extend the jurisdiction and powers of any particular officer or class of officers."

The section has five clauses which define the powers of officials in the Customs hierarchy. Then comes the proviso. Now, here we may point out that the value of the smuggled goods is either Rs. 7,00,000 or Rs. 30,00,000. Nothing turns on the precise amount because admittedly the respondent was not competent in view of clause (2) to issue a notice in the absence of a notifica tion under the proviso to the section quoted. Mr. Naimuddin has therefore, supplied us a copy of the Gazette under which all Deputy Collectors have been expressly empowered to adjudicate cases, "involving goods without any limit in term of value . . . ." The show‑cause notice has been issued in pursuance of this notification, and although learned counsel's attention was repeatedly drawn to it, the petition does not challenge this notification, but only the order issued in pursuance of this notification namely the show cause notice. Be that as it may, Mr. Azizullah's submission was that the show‑cause notice was ultra vires of the respondent's power under clause 2 of section 179, because the proviso to the section did not relate to the officers mentioned in the section, but to the officers who might be en trusted with functions under the said Act under section 6. We find it difficult to accept the submission that the proviso to a section is intended to apply not to the section to which it is attached, but to a totally,, different section. And despite our repeated requests, learned counsel was not able to refer us to any authority for the somewhat unusual proposition advanced by him.

3. Learned counsel, however, submitted that if the proviso to section 179 bad reference to the powers of the Deputy Collectors and Assistant Collectors of Customs, it would renders section 5 of the said Act redundant. Now section 5 empowers the Board of Revenue by a notification to empower a Deputy or Assistant Collector of Customs to exercise the powers of the Collector and an Assistant Collector to exercise the powers of Deputy Collectors. The section also empowers the Board to confer on any other officer of Customs the powers of an Assistant Collector. Thus, this section deals with the upgrading generally of officers, whilst section 179 deals exclusively with what could be described as the judicial duties of the officers referred to in the section. Therefore, we are not able to accept the submission advanced.

4. The learned counsel then submitted that as the said Act was an amending Act it had to be construed by reference of the differences between it and the old Sea Customs Act of 1878 which had been repealed by it. There are differences between the two Acts. Thus, the nomenclature for the hierarchy of the Customs Officers in the repealed Act is different. Similarly, section 182 of the repealed Act, which corresponds to section 179 of the said Act, conferred unlimited powers on Deputy Commissioners as well as Deputy Collectors Customs and Customs Collectors, and, on the other hand, Vie proviso empowered the Chief Customs Authority to limit the powers of the officials specified in the section. Another difference on which learned counsel relied was that according to the definition in clause (o), section 2 of the said Act, an officer of Customs "means an officer appointed under section 3". Section 3 reads as follows :‑

"3. Appointment of officers of Customs.‑For the purposes of this Act, the Board may, by notification in the official Gazette, appoint, in relation to any area specified in the notification, any person to be‑

(a) a Collector of Customs;

(b) a Deputy Collector of Customs;

(c) an Assistant Collector of Customs; or

(d) an officer of Customs with any other designation."

Section 6 of the said Act, on which the learned counsel relied, reads

"6. Entrustment of functions of the Customs Officers to certain other officers ‑1 he Board may. by notification in the official Gazette, entrust either conditionally or unconditionally, any functions of any officer of Customs under this Act to any officer of the Central or Provincial Government."

5. Because section 6 empowers the Board of Revenue to entrust any of the functions of officers of the Customs "under this Act to any other officer, of the Central or Provincial Government", and, because of the difference in the nomenclature for the Customs Officers in the two Acts, the further submission was that the proviso to section 179 related not to the officers referred to in the clauses of the section, but to the officers of the Provincial and the Central Government who might be empowered under section 6 of the, said Act to exercise the functions of Customs Officers. Mr. Naimuddin rightly D pointed out that the functions of Customs Officers included many functions other than the powers of adjudication conferred by section 179, and the further submission was that the powers specified in section 179 were not powers which could be delegated to any officer of the Central or Provincial Government under section 6. It is not necessary for us to examine the wider proposition advanced by Mr. Naimuddin. But assuming without conceding that the proviso to section 179 is applicable to the officers referred , to in section 6, we do not see how this could lead to the further conclusion that this proviso does not relate to the persons specified in the section about which the period occurs.

6. Mr. Azizullah Sheikh's only reply was to refer us to the words in the proviso : "any particular officer or classes of officers". According to learned counsel, if the proviso had been intended to qualify the section to which it was attached the Legislature would not have referred to "any particular officer" or "class of officers" but would have used the term "Officers of Customs" because that was the expression used in sections 2 and 3 of the said Act.

7. The question is only whether there is any ambiguity about the proviso. We do not think there is any ambiguity, and the words "any particular officer" and "classes of officers" are wide enough and are intended to refer to the officers specified in the various clauses of the section. Therefore, we see no merit in the petition which is dismissed in llmine. We thank Mr. Naimuddin for his assistance.

s. A. H.

Petition dismissed.

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