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Special Criminal Revision Application No. 4 of 1986, decided on 20th October, 1986.

‑‑‑S. 517‑‑Customs Act (IV of 1969) Ss. 89, 156, 168 & 185‑C‑‑Disposal of case property‑‑Seized currency‑‑Question whether Special Judge or Customs Authorities were competent to dispose of application of acquitted accused for return of seized currency which had been deposited by Police into State Bank of Pakistan, held, would be dependent upon result of enquiry whether or not adjudication proceedings in respect of seized property were pending before Customs Authorities‑‑‑Where such proceedings were pending or even if a notice had been issued under S.168, Customs Act by Customs Authorities in respect of offending goods, competent authority for passing an order for disposal of properties would be Customs Authorities and not Special Judge‑‑Where no proceedings were pending before Customs Authorities and matter had only gone before Special Judge for trial under S. 156, then Special Judge would be authorised to pass order under S. 517, Criminal Procedure Code read with S. 185‑C of Customs Act, for disposal of property‑‑Order pf Special Judge, dismissing application of acquitted accused for return of seized currency on ground that he had no power under Customs Act with regard thereto, set aside and case remanded to Customs Judge for conducting an enquiry and passing order keeping in view result of enquiry.

State v. Abdul Ghafoor 1971 P Cr. L J 965 and Adam v. Collector of Customs P L D 1969 S C 446 ref.

K.M. Nadeem for Applicant.

A. Rashid Nizamani and A. Sattar Pinger for Deputy A.‑G. for the State.

Dates of hearing: 8th, 15th and 20th of October, 1986.

This criminal revision has been filed under sections 185‑F and 185‑C of the Customs Act, 1969, read with section 435/439 of the Code of Criminal Procedure. Briefly the facts are that the applicant, an Afghan national, was arrested by C.I.A. Police, Jacobabad, on 13‑9‑1982 in connection with a crime registered at Saddar Police Station, Jacobabad, under section 489‑B, P P.C. read with M.L.O. 77 and M.L.O. 103. At the time of his arrest, the Police had seized Iranian Riyals 2,35.00,000 and Pakistani currency amounting to Rs.12,400 from the applicant. According to the applicant, the seizure of Iranian currency from the applicant was effected by the police under section 550, Cr.P.C. on the suspicion that the said currency was forged by some of the currency notes sent to State Bank of Pakistan for verification were found to be genuine and the Jacobabad Police was informed accordingly. A challan had been submitted before a Summary Military Court, but apparently, as the Iranian currency was found to be genuine, the Summary Military Court declined to try the case against the applicant and thereafter the charge was altered from section 489‑B , P . P . C . and the applicant was challaned before the learned Special Judge, Customs under clause 89 of section 156 (1) read with section 178 of the Customs Act, 1969. The applicant was tried by the learned Special Judge, before whom evidence was recorded but by judgment dated 31‑5‑1986 the applicant and other co‑accused were acquitted. 1t appears that the currency, that had been seized by the police, was not forwarded to the Customs House or delivered to any appropriate officer of the Customs as required by section 169 of the Customs Act and instead the police deposited the seized currency with State Bank of Pakistan. After his acquittal, the applicant sent a notice to the police for the return of the seized currency but the Police responded that the seized currency was deposited with the State Bank of Pakistan and the applicant was advised either to approach the Customs Authorities or the learned Special Judge for restoration of the seized currency. An application was thereafter made before the learned Special Judge under section 517, Cr.P.C. read with section 185‑C of the Customs Act, 1969, but the same was dismissed by the following order dated 2‑7‑1986 of the learned Special Judge:

"Heard the Defence Counsel. There is no provision in the Customs Law which may confer any power upon this Court for disposal of the property. It is the domain of the Customs authorities which are to deal with the seized property. The application is thus incompetent and misconceived and accordingly it is dismissed.

The is impugned in the present revision application. I have heard at the arguments of Mr.K.M. Nadeem, learned counsel for the applicant. Mr. A. Rashid Nizamani, learned counsel for the State and Mr. A. Sattar Pinger, Advocate, who appeared on behalf of the Deputy Attorney General for Pakistan pursuant to Court notice.

2. It is submitted by the learned counsel for applicant that the seized currency was not delivered to Customs House or to any appropriate officer of the Customs in compliance with the provision of section 169 of the Customs Act and the Customs Authorities have also at no stage of the investigation or trial assumed or exercised jurisdiction for the purposes of adjudication /confiscation under the provisions of the Customs Act i.e. sections 168, 179 and 180. According to the learned counsel for the applicant, as no proceedings have been taken by the Customs Authorities for the purposes of adjudication in respect of the seized currency, there was no occasion for the applicant to move the Customs Authorities and the only competent authority, in the facts and circumstances of the case, was and is the learned Special Judge. Learned counsel has referred to section 185C of the Customs Act, which is to the effect that the provisions of the Code of Criminal Procedure, so far as they are not inconsistent with the provisions of the Customs Act, 1969, shall apply to the proceedings of the Court of a Special Judge and that the learned Special Judge shall be deemed to be a Court of Sessions for the purposes of Code of Criminal Procedure and that the provisions of Chapter XXII‑A of Criminal Procedure Code so far as applicable and with necessary modifications, shall apply to the trial of cases by the learned Special Judge under the Provisions of the Customs Act. In so far as the powers of a Criminal Court are concerned relating to disposal of property, which is the subject‑matter of the trial before the Court, learned counsel referred to sections 516‑A and 517 of the Code of Criminal Procedure. Section 516‑A refers to the powers of the Criminal Court to pass orders relating to interim custody of any property, regarding which any offence appears to have been committed or which appears to have been used for the commission of an offence and is produced before the Criminal Court during any enquire or trial. Section 517 is relevant in the instant case, which provides that when the enquiry or a trial in any Criminal Court is concluded the Court may make such orders as it thinks fit for the disposal of such property including delivery of such property to any person claiming to be entitled to possession thereof.

The learned Special Judge, by his order dated 2‑7‑1986, appears to be of the view that in no case, the learned Special Judge can pass any property order. According to Mr. K.M. Nadeem, learned counsel for the applicant, this is not the correct position under the law According to the learned counsel, in those cases, in which action has been taken by the Customs Authorities for the purposes of adjudication for example issuance of a notice ‑under section 568, Cr.P.C. or proceedings are pending before the Customs Authorities for the purposes of adjudication in respect of the property in question, only the Customs Authorities are competent to pass orders relating to disposal of such property and in such cases, the learned Special Judge, Customs, will have no jurisdiction. However, according to the learned counsel, in those cases, in which no action has been taken by the Customs Authorities for the purposes of adjudication, the Customs Authorities would not be seized of the properties in question and as such the Customs Authorities will have no jurisdiction to pass orders for disposal of such properties and obviously in such situation the only authority competent to pass orders for disposal of such property would be the learned Special Judge himself and he will derive such powers under the provisions of section 517, Cr P.C. read with section 185‑C of the Customs Act, 1969.

Mr. A. Rashid Nizamani, Advocate, does not oppose the proposition advanced by the learned counsel for applicant. Mr. A. Sattar Pinger, learned counsel, who appears on behalf of the Deputy Attorney‑General to assist this Court on this question, is also of the same view and has referred to a decision of a learned Single Judge of the Lahore High Court in the case of State v. Abdul Ghafoor 1971 P Cr. L J 965. Reference has also been made to a Supreme Court judgment in the case of Adam v. Collector of Customs PLD 1969 SC 446.

The judgments cited before me are to the effect that two independent proceedings are contemplated by the Customs Act in respect of the same action. One is adjudication proceedings by the Customs Authorities, in which Custom duties, which had not been paid, one recovered and/or fine may be imposed and/or goods be confiscated. The other proceedings that can be taken in respect of the same act, are the prosecution of the offender under the provisions of section 156(1) of the Customs Act, 1969, in which the offender is punished by imprisonment and/or fined by the learned Special Judge, Customs, and it is held in the aforesaid authorities that the two proceedings can be taken simultaneously or one after the other. According to the reported authorities, the two proceedings are distinct and separate and one is not dependent on the other.

In case adjudication proceedings are pending or even if a notice had been issued under section 168 of the Customs Act by the Customs Authorities in respect of the offending goods, the competent authority for passing an order for disposal of the property would be the Customs Authorities and not the learned Special Judge. This is so, as in respect of the disposal of properties there should not be two different authorities who should be competent to pass such orders as it may then result in conflicting or contradictory orders. In case, however, no proceedings are pending before the Customs Authorities for adjudication, and the matter has only gone before the learned Special Judge for trial of the offender under the provisions of the section 156 of the Customs Act, in my view, the learned Special Judge, Customs, would be the authority to pass an order under section 517 of Cr.P.C. read with section 185‑C, of the Customs Act for disposal of the property.

Mr. A. Rashid Nizamani, learned counsel for the State, submits that he has no instructions whether any action has been taken by the Customs Authorities for the purposes of adjudication in respect of the seized currency. Learned counsel for the applicant, however, makes a statement, on instructions of the applicant, who is also present in person, that no notice had been received from the Customs Authorities for adjudication in respect of the seized currency. However, this enquiry can be conducted by learned Special Judge, Customs. If the result of the enquiry is that the adjudication proceedings are pending before the Customs Authorities, the learned Special Judge can dismiss the application and in such case, the applicant can approach the Customs Authorities for passing a property order in respect of the seized currency. If on the other hand, the result of the enquiry is that no adjudication proceedings are pending, he is required to pass a property order under section 517, Cr.P.C. read with section 185‑C of the Customs Act. In such case there would be no inconsistency between the provisions of the Code of Criminal Procedure and those of the Customs Act, 1969.

Special Criminal Revision Application No. 4 of 1986 is allowed to the extent that the order dated 2‑7‑1986 of the learned Special Judge is set aside and the matter is remanded to the learned Special Judge for disposal of the application moved by the applicant under section 517, Cr.P.C. read with section 185 C of the Customs Act, 1969, in the light of the observations made in the previous paragraph. The currency had been seized in 1982. The applicant has been acquitted and apparently no acquittal appeal has been filed by the State. In the circumstances, it is directed that the application will be disposed of within one month from today.

M. Y. H. Case remanded.

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