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Writ Petition No. 200 of 1955, decided on 29th October 1956.

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(as amended by Ordi nance 111 of 1954), Ss. 167 (81) and 177-A-Burden of proving lawful import of goods, transactions regarding which must have taken place before introduction of S. 177-A-Not on accused-Writ issued against confiscation order-Constitution of Pakistan, Art. 170.

Clause 81 of section 167, and section 177-A, Sea Customs Act (VIII of 1878) were introduced by Ordinance III of 1954, on 18th December 1954. Under section 177-A, the burden of proving lawful import of cloth was placed on the person from whose possession banned foreign cloth was recovered.

On the day, section 177-A was made a part of the Act, i.e., 18th December 1954, at about 8 or 11 a. m, as variously stated by the petitioners and the Customs authorities, banned cloth was seized from the petitioners

Held : that, whether the cloth was seized at 8 or 11 a. m. on 18th December 1954 it represented transactions which must have taken place prior to 18th December 1954 because the cloth could not have been purchased during the interval of few hours between the time the Ordinance was promulgated and the time it was seized. The transaction in respect of it must have taken place prior to the promulgation of the enactment, when there was no duty cast upon the person found in possession of the foreign cloth to prove that it was lawfully imported.

The burden of proof rested not on the petitioners but, in accordance with the previous law, on the Customs authorities. Retrospective effect of a penal enactment was not permissible in the absence of an express provision.

Order of confiscation of cloth under section 167 (81) was, therefore, set aside by a writ of certiorari as the order was held to be against principles of natural justice.

Neither could the order be maintained by the application of section 167 (8) of the Sea Customs Act; as the Court had no jurisdiction to do so.

Retrospective effect-Not to be given unless there is express provision, especially in case of penal enactments.

Presumption is always against retrospectivity of an enactment, and more so when the latter is of a penal nature. In fact enactments are presumed to be prospective in nature unless there is an express provision to the contrary in the enactment itself.

Shah Jamil Alam for Petitioners.

Faiyaz Ali, Attorney General, for Respondents.

-On 18th December 1954, the Governor-Genenal promulgated Ordinance (111 of 1954) by which sections 167 (81) and 177-A were introduced into the Sea Customs Act. Under section 177-A, to some extent the burden of proof, in certain circumstances, has been imposed upon the person from whose possession foreign cloth, import of which is banned under a notification issued by the Govern ment, is found. On the same day, at about 8 a. m. according to the petitioners, and at about 11 a. m. according to the respondents, Mr. Desai one of the Sea Customs Officers seized various pieces of foreign cloth lying in the godown of the petitioners as in his view, its importation was banned under Notification No. 335-260-24, dated 11th June 1951. A show-cause notice was issued, and finally the Collector of Customs, by his order dated 22nd June 1955, held that the cloth in question had been unlawfully imported, and under section 167 (81), he ordered the cloth to be confiscated. Against this order, the petitioners went in appeal, but the same was dismissed. They have now filed this petition for a writ of certiorari and mandamus. Their case is that the cloth in question represents local transactions.

We have heard the learned counsel for the petitioners and the learned A. G. for the respondents and we have reached the conclusion that the petition should be allowed and a writ of certiorari be issued.

It is clear from the above facts that the cloth in question represented transactions which must have taken place prior to 18th December 1954 when the previous law as to the burden of proof was amended, and what was previously to be proved by the Customs authorities is now accord ing to them, to be proved by the persons found in possession of the articles in question. The new enact ment was promulgated on 18th December 1954, and it is admitted that the cloth in question was also seized on that day. While the Customs authorities say that the cloth was seized at 11 a. m., the petitioners say that it was seized at about 8 a. m. At any rate it was seized some hours after the promulgation of the enactment. Surely the cloth could not have been purchased during this interval of few hours between the time the Ordinance was promulgated and the time it was seized. The transaction in respect of them must have taken place prior to the promulgation of the enactment, when there was no duty cast upon the person found in possession of the foreign cloth to prove that it was lawfully imported. We however do not propose to go into the question as to the nature and extent of the burden of proof that has been shifted on to the person found in possession', by the new section 177-A, as this question will now be decided by a third Judge owing to the difference of opinion between us on a similar point arising in petition No. 38 of 1956. But the petitioners deserve to get a judgment in their favour on the ground that the order complained against has been passed in disregard to the principles of natural justice. Prior to 18th December 1954 there was no duty on cloth dealers to prove that the cloth which they were dealing with, had been lawfully imported, or that duty had been paid for it, and that being so, there was no necessity or occasion for maintaining and preserving record upto December 1954 to show that the cloth had been imported before 1951 when the ban was put or that duty had been paid for it. It was not known at the time they came in possession that an Ordinance such as this will be subsequently promulgated. They have now been penalized for their failure to discharge burden, which till a few hours before the seizure, was not to be discharged by them. This is obviously in disregard of the principles of natural justice. Besides, it will amount to giving retrospec tive effect to an enactment which is of a penal nature, for the petitioners have been penalized for their failure to discharge burden in respect of transactions, which had obviously taken place before the enactment.

Presumption is always against retrospectivity of an enact ment, and more so when the latter is of penal nature. In fact enactments are presumed to be prospective in nature unless there is an express provision to the contrary in the enactment itself. The learned Attorney-General argued that even if the new sections are not applied on account of the above reasons, the order can be maintained by the applica tion of section 167 (8) of the Sea Customs Act. We do not think this Court has jurisdiction to do so. But even if, we had one, the case of the respondents would not improve, for, in that case the burden lay entirely on the Customs authorities to prove their case, which obviously they have not discharged. The order is based on the petitioners' failure to discharge their burden.

W e therefore allow the petition and issue a writ of certiorari quashing the order of the Customs Collector and direct the respondents to bear the costs of the petitioners.

A. H. Petition allowed.

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