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Writ Petition No. 534 of 1956, decided on 20th Decem ber 1957.

, S. 189‑Not applicable to person disclaiming ownership of goods in respect of which duty or penalty levied.

Section 189 of the Sea Customs Act, 1878 applies only to the owner of the goods in respect of which any duty or penalty has been levied. Where, a person does not claim to be the owner of the goods in respect of which penalty is imposed, he is not liable under section 189 of the Sea Customs Act, 1878, to deposit the penalty imposed upon him and his appeal could not be dismissed for non‑deposit of penalty.

K. B. Akhtar Adil for Petitioner.

Faiyaz Ali, Attorney‑General of Pakistan.

Muzaffar Hassan for Respondent No. 2.

--‑ This Writ Petition arises shortly put under the following circumstances. The petitioner who is an Assistant Economic Adviser, Ministry of Economic Affairs, Government of Pakistan and who had gone on delegation to Baghdad arrived by B. O. A. C. aircraft at 10 a.m., on 15th January 1956. He declared on Pakistan Exchange Control Money Form Rs. 20 (Pakistani Currency) and 3. On Exami nation of his baggage and person 60 American dollars and 21 pound sterling and Rs. 500 in Pakistani currency were recovered in excess of the amount that he had declared. The Customs authorities found that this was in contravention of the notification issued by the Ministry of Finance dated 1st July 1948 under section 8 of the Foreign Exchange Regulations Act VII of 1947. The petitioner Mr. Akbar Adil was con victed under section 167(8) of the Sea Customs Act and the currency in question was confiscated. He was given an option under section 102 of the Sea Customs Act to pay in lieu of the confiscation a fine of Rs. 1,040. The Collector of Customs also imposed a personal penalty of Rs. 3,000 under section 167 (8) of the Sea Customs Act on the petitioner.

The case of the petitioner before the Customs authorities was that he had not contravened any of the provisions of the Foreign Exchange Regulations. He all in all contended before the Customs authorities and also before us that the impugned currency was implanted on him. The petitioner contended that the action of the Customs officer was collusive and mala fide.

The learned advocate for the petitioner Mr. Akhtar Adil reiterated the same points which have been taken by Mr. Shariff Uddin in Writ Petition No. 215 of 1956 S. N. Raza v. Pakistan (P L D 1958 Kar, 137). We have already disposed of these points in the said Writ Petition. So far as this petition is concerned two points require consideration namely (1) that the impugned articles were neither in the baggage nor on the person of the petitioner but that they were implanted on him by the Custom Officer (2). That the dismissal of the appeal by the Central Board of Revenue for non‑deposit of the penalty imposed upon the petitioner was illegal.

So far as the first point is concerned we do not think that we would like to dispose of the same. We are going to 01ow the petition on the ground that the dismissal of the appeal on the ground of non‑deposit of the penalty was not warranted by law. This question will remain open for the Appellate Authority to dispose of.

So far as the other contention of Mr. Akhtar Adil is concerned we think that there is much force in the contention that the appeal could not be dismissed for non‑payment of the penalty. In order to deal with this contention it will be necessary to reproduce section 189 of the Sea Customs Act, 1878.

"Where the decision or order appealed against relates to any duty or penalty leviable in respect of any goods, the owner of such goods, if desirous of appealing against such decision or order, shall, pending the appeal, deposit in the hands of the Customs collector at the port where the dispute arises the amount demanded by the officer passing such decision of order.

When delivery of such goods to the owner thereof is withheld merely by reason of such amount not being paid the Customs‑collector shall, upon such deposit being made, cause such goods to be delivered to such owner.

If upon any such appeal it is decided that the whole or any portion of such amount was not leviable in respect of such goods, the Customs‑collector shall return such amount or portion (as the case may be) to the owner of such goods on demand by such owner."

A perusal of section 189 would show that this section applies only to the owner of the goods in respect of which any duty or penalty has been levied. The object of the Legislature underlying this provision appears to be this that if a person claims to be the owner of the goods in respect of which duty or penalty has been levied he must establish his bona fide by depositing the amount demanded by the officer passing the order imposing the penalty. It is conceivable that persons who are not the owners of the property may be found to have contravened the provisions of the Sea Customs Act and duty or penalty may have been levied in respect of such goods. These persons not being the owners of the goods may not be interested to take delivery of these goods in respect of which duty or penalty may have been imposed. The Legislature has allowed the owners to appeal on condi tion that they were to deposit the duty or penalty levied. In the present case the petitioner does not claim to be the owner of the goods in question. He has from the very begin ning disclaimed the ownership of the goods in question. We therefore think that the order passed by the Secretary Central Board of Revenue on 13th April 1956, dismissing the appeal of the petitioner for non‑deposit of the penalty was not warranted by law. The appellant not being the owner of the goods in respect of which penalty was imposed was not liable to deposit the penalty imposed upon him under section 189 of the Sea Customs Act, 1878. Section 189 applies only to the owners of the goods and not to persons who do not claim the goods to belong to them.

For the reasons given‑above we would quash the order passed by the Secretary Central Board of Revenue dated 13th April 1956, dismissing the appellant's appeal on the ground of failure to deposit the penalty imposed upon the petitioner. The Secretary, Central Board of Revenue to hear the appeal of the petitioner on merit after giving notice to the parties. We make no orders as to costs.

K. B. A. Petition accepted

Order quashed.

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