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Writ Petition No. 642 of 1959, decided on 28th January 1960.

S. 167 (81) read with S. 177‑A‑Sections not congruous‑Offence complete only when a person acquires possession with particular intention, not merely by acquisition of possession‑Collector holding inquiry in which person proceeded against had not participated‑Case ordered to be disposed of after grant of opportunity to meet case.

When section 167 (81) and section 177‑A of the Sea Customs Act, 1878 are placed side by side, they do not produce a congruous provision.

On an analysis the offence under section 167 (81), Sea Customs Act, is complete only when a person acquires possession with a particular intention, not merely by the acquisi tion of possession.

Though the alleged offenders were given a personal hearing by the Collector, the inquiry ordered by the Collector for the purpose of finding out whether the memos produced in respect of the purchase of goods were genuine, was conducted in their absence and they had no opportunity to criticise or question the evidence or reports made against them.

The High Court, on a writ petition, directed that the case be disposed of after granting the petitioners an opportunity to meet the case against them.

The Federation of Pakistan v. Sardar Ali P L D 1959 S C (Pak.) 25 rel.

Kh. Abdur Rahim for Petitioners.

Kamal Mustafa Bokhary for Respondent.

.‑The petitioners are Khawaja Hafeez‑ur-Rahman of Gujranwala and Sheikh Sardar Muhammad of Lahore, and the respondent is the Collector of Central Excise and Land Customs, Lahore. The case for the petitioners is that on the 16th of September 1958, they, respectively, purchased art silk yarn weighing 550 lbs. and 650 lbs. from Messrs Mushtaq Ahmad, Cloth and Art Silk Yarn Merchants, Chowk Yadgar, Peshawar City, and thereafter went to visit relations in Bannu. From Bannu they were returning by car via. Mianwali when at Isa Khel they were stopped by the police, and their goods were seized. They immediately applied for their goods to be sealed so that they should not be substituted, but as this was not done, one of their grievances is that the goods now produced bear the seal of Afghan Customs while the goods which were seized from them did not bear any such seal. On the 23rd of October 1958, they applied to the Deputy Collector of Land Customs at Lahore for the release of these goods and enclosed with their application cash memo randa from the seller and a movement permit of the Textile Commissioner to show that the goods were of a legitimate origin. On the 25th of November 1958, however, they received a notice from the Collector of Excise and Land Customs calling upon them to show cause why action should not be taken under section 167 (8) or 167 (81), Sea Customs Act, and requiring them to " produce all evidence, documentary or otherwise, in support of their case along with their explanation ", because the burden of proving that the yarn aforesaid was not smuggled rested on them under section 177‑A. In reply, the petitioners said that, although they had shown the relevant papers to the police at the time of seizure, they had been asked to show them to the Customs authorities, and for that reason they had sent the documents to the Deputy Collector. They were bona fide purchasers from Messrs Mushtaq Ahmad, Cloth and Art Silk Yarn. Merchants, Chowk Yadgar, Peshawar City, and, therefore, not liable to any penalty.

2. The Collector, in a detailed order, held on the 31st of August 1959, that an offence had been committed under section 19 read with section 167 (81), Sea Customs Act. The yarn and the car in which the petitioners were travelling and carrying the yarn were both confiscated, and a personal penalty of Rs. 3,000 was imposed on each petitioner.

3. The order of the Collector shows that a personal hearing had been granted to the petitioners who were represented by counsel, and that the argument before him was that the petitioners were genuine purchasers from Messrs Mushtaq Ahmad on the strength of two bills issued by the said firm, and further that the police has not said in the first report that the yarn in question bore the Afghan Customs seal. The Collector thereupon observed that " the case can only be decided after the cash memo. the movement permit, the goods seized and the fact whether the goods bore the Afghan seal are verified."

4. For the purpose of verification he ordered " further' enquiries into the genuineness of the vouchers ", and, apparently after these enquiries had been conducted, observed in his order teat "it has been established, according to the Customs Intelligence report, that the bills in question produced by the accused in their defence are not genuine ", and that " no such firm as Messrs Mushtaq Ahmad, Cloth Merchants, Chowk Yadgar, Peshawar City, exists ." The petitioners complain that the enquiry was conducted in their absence, and that they bad no opportunity to criticise or question the evidence or reports made against them. They rely on The Federation of Pakistan v. Sardar Ali (P L R 1959 S C 728 : P L D 1959 S C (Pak.) 25) which is a case very similar to the present, and it will only be necessary to reproduce from it the following passage:----

" It appears to us that the full import of the amendments made in the law was not realised by the Customs authorities or even by the Central Board of Revenue. In view of the new law placing a definite onus on the possessor of this type of goods, clearly such a person is entitled to an opportunity of not only being heard but of adducing evidence, if necessary, to discharge that onus. This opportunity has in fact been denied to the respondents in the present case. After the receipt of a notice from the Assistant Collector to show cause and the submission by them of a written explanation together with 'certain receipts and vouchers, an Intelligence Officer appears to have been deputed to make an exparte enquiry in order to verify whether the defence raised was true or not. Certain witnesses were apparently examined by the Intelligence Officer behind the back of the respondents who had no chance of cross‑examining them to elicit facts in their own favour. The statements made by those witnesses were not even put to the respondents at any stage and we have it on the authority of the learned counsel for the respondents that for the first time they became aware that any such statements had been recorded by a departmental officer, during the pendency of the writ proceed ings in the High Court. We feel not a little disturbed that prejudicial action could be taken by the Customs Officers in a matter touching valuable rights to property as well as the personal liberty of the subject, on the basis of a private enquiry in which the person concerned was not allowed to participate."

5. Learned counsel for the Collector, however, argued that since the petitioners had been found in possession of goods which were reasonably believed to be smuggled, the burden of proving that they were not smuggled rested on the petitioners under section 177‑A, Sea Customs Act. Apart from the fact that their Lordships of the Supreme Court had this very burden in mind, when they made the aforesaid observations, .we have come to the conclusion that when section 167 (81) and section 177‑A of the Sea Customs Act are A placed side by side, they do not produce a congruous provision We reproduce them below so far as relevant:

6. To avoid tautology and to bring about simplicity, which is seldom the merit of a fiscal statute, we shall render the offence thus:

" If any person knowingly and with intent to evade any prohibition or restriction for the time being in force with respect to the importation or exportation of any goods acquires possession of such goods . . . . . "

Section 177A‑" (1) where any goods to which this section applies are seized under this Act in the reasonable belief that an act to defraud the Government of any duty payable thereon or, to evade any prohibition or restriction for the time being in force by or under this Act has been committed in respect of such goods, . . . the burden of proving that no such act has been committed . . . . . shall be on the person from whose possession the goods were seized."

7. Consequently, when the petitioners were found in possession of these goods, it was presumed that " an act to evade any prohibition or restriction . . . has been committed in respect of such goods", and if they did not discharge the burden, it could be held proved that an act of evasion had been committed. But there was no presumption that the act was committed by the petitioners.

8. Now go back to section 167 (81). The person who commits the offence under that provision acquires possession of such goods " knowingly and with intent to evade any prohibition or restriction." It is that person who should have the criminal intention, and if section 177‑A does not presume any criminal intention against him, how does he commit an offence under section 167 (81)

9. It is true that the penalty clause says that " such goods shall be liable to confiscation ", and it was therefore argued that if the offence was committed in respect of the goods, then at least the goods can be forfeited, irrespective of the possessor's intention. But the penalty clause also says that " the person concerned . . . . . shall be liable to a penalty . . . . . ", so that the penalty is visited not merely on the goods, but on the person also. Then it has to be seen that the offence is described by introducing the offender foremost : " If any person, knowingly. and with intent to defraud, . . . . acquires possession of . .

any goods . . . . . ", not " If any goods are found in possession of any person." The offence is thus complete only when a person acquires possession with a particular intention, not merely by the acquisition of possession.

10. It will also be of interest to point out that when item (81) was first added to section 167 by Ordinance III of 1954, it reads thus : '

" 81.‑If any person is found in possession of . . . . any goods chargeable with a duty which has not been paid or the importation or exportation whereof is for the time being prohibited or restricted . . . . . "

11. In the Act which superseded the Ordinance, however, the words " knowingly, and with intent to defraud the Govern ment of any duty payable thereon, or to evade any prohibition or restriction for the time being in force " have been introduced, and, as we said in another case, they must have been introduced "knowingly " and with some intent.

12. We accept this petition with costs, and direct the Collector of Central Excise and Land Custom, Lahore, to dispose of the case after granting the petitioners, ad opportunity l to meet the case against them.

A. H. Petition accepted.

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