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1962 Writ Petition No. 268 of 1960, decided on 23rd August
Vehicles used for carrying contraband goods-Included in "goods" mentioned in S. 183-Option to pay fine in lieu of confiscation --To be given to owner of vehicle as well.
Ibrahim Issa v. Collector of Customs Writ Petition No. 236 of 1959 (unreported) ref.
Everett Orient Line Incorporated v. Jasjit Singh and others A I R 1959 Cal. 237 and Behnke v. Bede Shipping Co. Ltd. (1927) 1 K B 649 ref.
-Provisions of Act apply only to goods imported into or exported out of Pakistan-Cannot be extended to means of transport used for removal of such goods-Grant of option under S. 3 (3) discretionary only in respect of contraband goods and not in respect of vehicles used as means of conveyance for removal of such goods.
Decision of one Bench, whether to be followed by other Bench-Decision on question of fact-Not binding-Per incuriam decisions-Carry no binding effect.
Where the question was "whether the decision given by one Division Bench of the High Court was binding on another Division Bench of the same Court and if so to what extent "
that in order to maintain judicial propriety (i) the decision of a Division Bench on a question of law should be followed by the other Bench. If they differ, the proper course to adopt would be to refer the question for the decision of a Full Bench; (ii) the decision of one Division Bench on a question of fact is not binding on the other Division Bench; (iii) if the decision of one Division Bench has not come to the notice of the other Bench and a different view is taken in the subsequent Division Bench case and when such two conflicting decisions are placed before the Bench, the proper procedure to follow in such a case would be, for the Bench hearing the case, to refer the matter to a Full Bench in view of the conflicting authorities without deciding the question itself. These principles, however, will not be applicable to per incuriam decisions which carry no binding effect.
Bashir Ahmad etc. v. The State P L D 1960 Lah. 687 ; Jamal v. The State P L D 1960 Lah. 1192 ; R. B. Alvi v. Custodian, Evacuee Property P L D 1962 Lah. 84 ; Nathu Ram v. Jagan Nath and others A I R 1960 Ph. 521 ; State v. Shankar A I R 1957 Born. 226 ; Rudder and others v. The State A I R 1957 All. 239 ; Jamuna Rai and others v. Chandradip Rai A I R 1961 Pat. 178 ; Mahadeolal Kanodia v. Administrator-General of West Bengal A I R 1960 S C 936 ; Noor Muhammad v. Collector, Jhelum P L D 1960 Lah. 841 ; Jaisri Sahu v. Rajdewan A I R 1962 S C 83 ; .P. X. D'Souza v. Emperor A I R 1932 Born. 180 ; Kanglu Baula v. Chief Executive Officer A I R 1955 Nag. 49 ; Younghusband v. Luftig (1949) 2 K B 354 ; Young v. Bristol Aeroplane Co., Ltd. 1944 K B 718 ; Gundavarapu Seshamma v. Kornepati Venkata Narasimharao and others A I R 1940 Mad. 356 and Buddah Singh and others v, Laltu Singh and others A I R 1915 P C 70 ref.
Sharaf Faridi for Appellant.
Tufail Ali, Attorney-General for Pakistan for Respondent.
Dates of hearing : 24th and 25th January 1962.
KHAMISANI, J.-The petitioner in this case is said to have purchased a lorry No. 750 from one Haji Noor Ilahi. Although it was not transferred in his name, yet it is said that it belonged to him for all practical purposes. On 5th March 1956, one Muhammad Umer, who was driving it, carried in it four bags of sugar from Turbat to Panjgoor. The ,lorry and its goods were seized at some distance from Turbat. The petitioner was also arrested but was subsequently released on bail. The goods as well as the lorry were confiscated by the Customs Authorities. The grievance of the petitioner is that the order confiscating his lorry was not valid in law as he had not been given an option to pay a fine in lieu of its confiscation as required under section 183 of the,. Sea Customs Act:' It is on this grievance that the petitioner has brought this writ petition with a prayer that a writ of certiorari may be issued quashing the order of the respondent confiscating lorry No. 750. It is also prayed that a writ of mandamus or any other appropriate writ may also be issued directing the respondent to give the petitioner an option to pay . a fine in lieu of the confiscation of lorry No. 750.
2. This writ petition was vehemently contested and the case of the respondent is that section 183 of the Sea Customs Act does not contemplate any option in respect of vehicles etc., in lieu of confiscation to be given. The case of the respondent also is that even ; if it is assumed that such an option is necessary in law to be given then by. Virtue of section 3 (3) of the Imports and Exports (Control) Act, 1950, such an option is discretionary and is within the sole competence of the respondent. The case of the respondent, in a nutshell is that he was not bound in law to give the petitioner an option to pay a fine in lieu of confiscation of the lorry. The case of the respondent has been put very succinctly in paragraph 8 of the counter-affidavit filed on his behalf. Paragraph 8 of the counter-affidavit is reproduced hereunder
"(8) That with reference to para. 14 of the writ petition, respondents are advised that section 183 of the Sea Customs Act has no application to the vessel, carrier or other means of conveyance used in the removal of the goods in question; consequently, the Sea Customs Act neither authorises nor requires the giving of option to the owner of the same to pay fine in lieu of confiscation. The respondents are further advised' that if the expression 'goods' in section 183 includes also the vessel, carrier or other means of conveyance, then by reason of amendment of section 183 of the Sea Customs Act by section 3, subsection (3) of the Imports and Exports (Control) Act, 1950, it is discretionary for the officer adjudging the confiscation to give such an option as aforesaid or not. Respondents are, therefore, advised in view of the matter, the order of confiscation with an option to pay fine, in lieu thereof is not illegal. It is also denied that the said order was mala fide, arbitrary, illegal, improper, void, inoperative or against the principles of natural justice and equity."
3. The learned counsel while arguing his case placed reliance upon a decision of the Division Bench of this Bench in Writ Petition No. 236 of 1959 Ibrahim Issa v. Collector of Customs decided on 10th December 1959. The operative portion of this ruling on which he has placed reliance is as follows
"Mr. Mufti has confined himself before us to one point which was not raised in appeal to the Board of Revenue. This point is that section 168 of the Sea Customs Act states that every vessel, cart or other means of conveyance used in the removal of any goods liable to confiscation under this Act shall in like manner be liable to confiscation, and section 183 of the Sea Customs Act states that whenever confiscation is authorised by this Act, the officer adjudging it shall give the owner of the goods an option to pay in lieu of confiscation such fine as the officer thinks fit. Mr. Mufti argues that since the vessel is liable to confiscation in like manner as goods, therefore section 183 applies not only to goods but to a vessel, and we think that that confiscation is correct. Mr. Muzaffar Hussain argues, however, that even if this is so yet under subsection (3) of section 3 of the Imports and Exports (Control) Act, it is provided that all provisions of the Sea Customs Act shall have effect accordingly except that section 183 thereof shall have effect as if for the word shall' therein the word may' was substituted. But this subsection itself deals only with goods and we think that this substitution of discretionary option for an obligatory option applies only to goods and not to a vessel for the Imports and Exports (Control) Act deals with goods and does not deal with vessels. The result is therefore that the Collector of Customs should be directed to give the owner of the vessel an option to pay in lieu of confiscation such fine as he thinks fit."
4. The learned Attorney-General, who appeared for the respondent, urged before us that the learned Judges, who decided the above writ petition, had not decided the question as to whether section 183 of the Sea Customs Act contemplated an option to pay a fine in lieu of confiscation in respect of cenveyances used for the removal of the goods. He, therefore, urged that the decision given by the Division Bench in Writ Petition No. 236 of 1959 was not a decision given on that point and would, therefore, be no bar on us to express a different view in this petition. In order to appreciate the argument of the learned Attorney-General, it is necessary to reproduce section 183 of the Sea Customs Act. It reads as under
"183. Option to pay fine in lieu of confiscation.-Whenever confiscation is authorised by this Act, the officer adjudging it shall give the owner of the goods an option to pay in lieu of confiscation such fine as the officer thinks fit."
5. It is quite clear from what is contained in section 183 of the Sea Customs Act that the officer adjudging the question of confiscation under this Act is bound only to give an option to pay in lieu of confiscation such fine as he thinks fit to the owner of the goods. This section does not mention that an option shall also be given to the owner of a vehicle, etc., in which the goods are carried. The argument pressed into service by the learned counsel for the petitioner which is embodied in the decision given in Writ Petition No. 236 of 1959 is that for purposes of deter mining as to whether any conveyances; etc., used for the removal of the goods come within the definition of goods it is necessary to refer to section 168 of the Sea Customs Act. Section 168 of the Sea Customs Act reads as under
"168. Packages and contents included in confiscation of goods.-The confiscation of any goods under this Act includes any package in which they are found, and all the other contents thereof.
Also conveyances and animals used in removal.
Every vessel, cart or other means of conveyance, and every horse or other animal, used in the removal of any goods liable to confiscation under this Act shall in like manner be liable to confiscation.
Tackle, etc., included in confiscation of vessels.-The con fiscation of any vessel under this Act includes her tackle, apparel and furniture."
According to him section 168 makes both goods and conveyances, etc., liable for confiscation in the like manner. But this section by no means indicates that conveyances, etc., are included in the goods mentioned in the first part of section 168. What is included in the goods in section 168 are the packages in which they are found, and all the other contents thereof. By no means can conveyances, etc., be said to be included in "goods" as mentioned in section 168. The option to pay a fine in lieu of confiscation, as we have already stated, is to be given under section 183 of the Sea Customs Act to the owner of the goods only and not to the owner of the conveyances. If, as we have already stated, conveyances cannot be included in the goods the question of giving an option to the owner of the conveyances would not arise. The learned Attorney-General for the respon dent, therefore, in our view, is quite justified in submitting that an option to pay a fine in lieu of confiscation of a conveyance is not contemplated in section 1.83 of the Sea Customs Act as, according to him, the owner of the goods and the owner of the conveyances, etc., may be two different persons. The learned Judges, who decided the Writ Petition No. 236 of 1959, have also in their judgment, while dealing with subsection (3) of section 3 of the imports and Exports (Control) Act, stated as under
"But this subsection itself deals only with goods and we think that this substitution of discretionary option for an obligatory option applies only to goods and not to a vessel : for the Imports and Exports (Control) Act deals with goods and does not deal with vessels."
6. On the view of the matter, we think that the respondent was not in law bound to give an option to the owner of the lorry to pay a fine in lieu of its confiscation. But as this view of ours will be in total conflict with the view expressed by their Lordships
in the decision given in Writ Petition No. 236 of 1959, we think that this matter may be placed before the Senior Judge for reference to a Full Bench for deciding the points of reference which we shall mention hereunder.
7. It has, however, been brought to our notice by the learned counsel appearing in this matter that law has' been laid down that one Division Bench can disagree with another Division Bench without reference to a larger Bench on any point of difference between the two Division Benches. It has also been argued before us that on that view of the law we have the power to express a view contrary to the view taken by their Lordships in Writ Petition No. 236 of 1959. We, however, do not agree with this view and feel that decorum and dignity would require that this Division Bench should have all respect for the decision given by the other Division Benches and that the respect which is due to a Division Bench demands that a reference be made to a Full Bench. The decisions on which the learned counsel have placed reliance for upholding the proposition that this Division Bench can express a contrary view to the view expressed by the other Division Bench are given as under :
8. The first case on which reliance has been placed is Bashir Ahmad v. State (P L D 1960 Lah. 687). The relevant portion of the judgment given by Mr. Justice Shabir Ahmad, is at page 694 in paragraph 7. It reads as under
"With regard to the extent of the binding nature of decisions of the High Court on itself there is as far as I know, no statutory provision in the laws applicable to Pakistan but judicial decisions have laid down certain principles. These may be summarised as under
(1) The decision of a Full Bench of the Court cannot be dissented from by a Division Bench or a Single Bench,
(2) the decision of a Division Bench of the Court cannot be dissented from by a Single Bench,
(3) the decision of a Division Bench of the Court can be dissented from by another Division Bench or even by the same Bench and may be overruled by a Full Bench but it cannot be dissented from by a Single Bench, and
(4) the decision of a Single Bench can be dissented from by another or the same Single Bench and can be overruled by a Division Bench or a Full Bench."
This is the entire discussion in this case on the point which is before us and what is material for the purposes of this reference is contained in principle No. 3 given above. The judicial decisions, in accordance with which these principles are said to have been laid, are not mentioned in this case.
9. Another case which was quoted for the same purpose is Jamal v. The State (P L D 1960 Lah. 1192). The portion of the judgment, relevant for our purposes, finds place at page 1197 in paragraph 9 of the judgment. It reads as under :-
"Chaudhri Muhammad Anwar, Advocate, the learned counsel for the appellant next urged that as Division Bench had taken a certain view in Criminal Appeal No. 767 of 1959, this Division Bench could not take a contrary view and if the view taken in the 1959 case was considered untenable, it was the duty of this Division Bench to refer the case to a larger Bench so that the law may be authoritatively laid down. I am clearly of the view that this contention is without force. Precisely the same question was considered in Bashir Ahmad etc. v. The State P L D 1960 Lah. 687, in which a judgment of Abdul Aziz Khan and A. R. Khan, JJ., with regard to another aspect of section 342 of the Code of Criminal Procedure was considered and in the leading judgment delivered by me I expressed the view, which was concurred in by Sajjad Ahmad, J. that a decision of a Division Bench was not binding on another Division Bench. It is unnecessary to give here elaborate reasons for that view and all that need be said is that it is not obligatory for a Division Bench if it does not agree with the views of another Division Bench to follow the views it does not agree with, and in case it is not prepared to do this, to refer the case to a Full Bench."
10. The last case on the subject brought to our notice is R. B. Alvi v. Custodian, Evacuee Property (P L D 1962 Lah. 84), Although the full report of this case has not appeared in the 1962 January Part of the P L D, yet from the head-note it is quite apparent that the decision given by the Division Bench at Karachi and reported in P L D 1959 Kar. 131 has been dissented from by the Division Bench formed at Lahore. The head-note of this ruling is reproduced as under:
"Pakistan (Administration of Evacuee Property) Act (XII of 1957), sections 19 & 20-Interpreted-Subject-matter identi cal'- Previous approval' of transfer of evacuee property, under section 19, and confirmation' of such transfer under section 20-Custodian not required by law to bless' a transfer twice over-Transfer approved' under section 19 not required to be confirmed' under section 20-Interpretation of Statutes- Principle of special provision displacing a general one, not applicable where provisions happen to be identical in subject matter-[lbrahim v. Second Sub-Judge, First Class, Karachi and others P L D 1959 Kar. 131 dissented from.]"
It is clear from the cases cited above that the view expressed in the above decisions is that one Division Bench can dissent from the view taken by another Division Bench. The view has also been expressed that in the event of there being a conflict of views on a particular question of law by two Division Benches, it is not necessary that a reference should be made to a larger Bench. It has, however, not been made clear as to what would be the effect or result of such conflicting decisions by the Division Benches. In the case of Bashir Ahmad v. State to which a reference has already been made and in which the principles mentioned above have been laid down in principle No. 2 it is said that the decision of a Division Bench of the Court cannot be dissented from by a Single Bench. If that is the position then in the cases where there are two contrary decisions given by two different Benches the agreement of a Single Bench with the decision of one of the Division Benches would ipso facto result in dissenting from the decision of another Division Bench. Both the decisions as per the principle laid down have a binding effect on a Single Bench. It cannot, therefore, be said as to which decision out of the several decisions will have the binding effect. Apart from how the Single Bench will react to the conflicting decisions, the position of the subordinate judiciary would be very confusing. The subordinate Judges in that event will be within their rights to agree with one decision or the other and in either case their decision would not be questioned. At any rate, the anomaly which it will be creating will be beyond any remedy. A sub ordinate Judge may have to sit in judgment on the decisions given by two Division Benches and to decide for himself as to which decision would be acceptable to him. The view expressed in the three cases quoted above being the view of Judges of very great eminence and for whom we have the highest respect, we hesitate to say that it is not proper. We cannot also say as to whether these decisions are based on any judicial decisions as no such judicial decisions have been mentioned in these cases. In our humble view the position created by these decisions is likely to be conducive to creating confusion and chaos. Apart from that, on the view expressed in those decisions, this very view is not binding on us.
11. As soon, as the above two decisions were given a situation did arise where a third Division Bench constituted by S. A. Mahmood and A. R. Khan, JJ., was confronted with the difficulty on the same point of law which was decided in the first two cases. This Bench could not decide as to which view would prevail and as such the learned Judges made a reference to the learned Chief Justice to constitute a Full Bench to have a final and authoritative verdict on the point. The Full Bench was consequently constituted and a final view was expressed. Numerous situations of this kind, as we have already stated, may arise and it will be difficult for the Judges to know as to which law should be followed. The position, as we have said, for the subordinate Judges will be rendered more arduous.
12. As far as we know there are no statutory provisions for the proposition that the decision of one Division Bench will be binding on another Division Bench. But what we know, however, is that there have been decisions where directly or indirectly it has been laid down that the decision of one Division Bench has binding effect on another Division Bench. Some High Courts, for instance, the High Court. of Calcutta has in its rules provided that the decision of one Division Bench will be binding on another Division Bench.
13. The first case on this point is Nathu Ram v. Jagan Nath and others (A I R 1960 Pb. 521). Paragraph 7 of this judgment at page 523 reads as under
"7. I am afraid it is not possible for us to sit in judgment on the decision in Din Dayal's case 55 Pun. L R 478 because as observed by the Supreme Court in Sidheswar Ganguly v. State of West Bengal A I R 1958 S C 143 one Bench of a High Court has no jurisdiction to sit in judgment on the decision o: another Division Bench. In Din Dayal's case 55 Pun. L R 478 Kapur, J., accorded approval to the decision of a Full Bench of the Lahore High Court in Karam Ali v. Raja A I R 1949 Lah. 108, where the contrary view taken by the Allahabad and Madras High Courts was dissented from."
14. The second case on the point is State v. Shankar (A I R 1957 Bom. 226). The relevant portion of this judgment is in paragraph 16 at page 232. It reads as under
"This is a dicta of the Supreme Court and we are bound by it. It may be that we would seem to be in an embarrassing position. But we believe that if we are to come to a just decision in this case, we would be right in following the principle laid down in this case. This is not to suggest that we do not want to follow the case reported in A I R 1955 S C 331 but we think we should apply the principle laid down in Dalip Singh's case to the facts of this case. It is obvious that we are as much bound by the first case as by the second."
15. The third case on the point is Rudder and others v. The State (A I R 1957 All. 239). Paragraph 4 of this judgment at page 240 reads as under
"In this connection reliance has been placed by the learned Deputy Government Advocate in support of the learned Sessions Judge on this point on the remarks by Desai, J., in the case of Ram Ball v. State A I R 1952 All. 289. The learned Deputy Government Advocate urged that the interpre tation given of section 162, Cr. P. C. in that case was a decision by a Division Bench, and if we differ from that decision, it would be appropriate that the point be referred to a larger Bench in order that the principle of law, which is of great importance, may be properly settled so far as this State is concerned.
Having looked at the judgment delivered by the two learned Judges in that case we are unable to accept the contention of the learned Deputy Government Advocate that the interpre tation placed on section 162 in that case represents the view of the Bench as a whole. The other member of the Bench, Dayal, J., nowhere discussed this question in his judgment. He began his judgment by saying that he agreed with Desai, J., that the appeal of one of the appellants be disallowed and the appeal of two appellants be allowed. He then proceeded to note down briefly his reasons and added that he would not enter into a discussion of the evidence of the witnesses who were cross-examined at a very great inordinate length which led to an undue prolongation of the trial and much unnecessary expenditure of time. Proceeding on this basis, Dayal, J., did not at all discuss the question whether the omissions in the .. statement of certain witnesses did or did not amount to contradictions and whether it was possible to prove those omissions keeping in view the provisions of section 162, Cr. P. C. His silence on the point indicates that in his opinion it was not necessary for the decision of the appeal to enter into this question at all.
He nowhere expressed his concurrence with the view expressed by Desai, J. He, of course, did not express any dissent either. In these circumstances, the, views expressed by Desai, J., should be held to be the views of a Single Judge of this Court and it is, therefore, in our opinion, not necessary to refer this question to a larger Bench, as we can reconsider the views expressed by a Single Judge. Even Desai, J., in that decision conceded that in some cases the omission in the statement under section 162 may amount to contradiction of the deposition in Court."
16. The fourth case is Jamuna Rai and others v. Chandradip Rai (A I R 1961 Pat. 178). The relevant portion appears in paragraph 35 at page 184. It reads as under
"It is well established, that if there are two conflicting decisions of Division Benches of a High Court, the opinion expressed by the first Division Bench must prevail; Sashi Bhusan Rai v. Bhuneshwar Rai A I R 1955 Pat. 124. I would, therefore, in the instant cace follow the earlier Bench decisions of this Court in 6 Pat. L T 451, 14 Pat. L T 702 and 16 Pat. L T 308, in preference to the subsequent Bench decision of this Court in A I R 1956 Pat. 376."
The principle that by implication seems to have been laid down in this case is that the decision of one Division Bench is binding on another Division Bench. In the case of two conflicting decisions by two Division Benches their Lordships of the Patna High Court have resolved the situation by saying that they would follow the decision of the first Division Bench presumably because they were of the view that the decision given by the second Division Bench was not binding in view of a contrary opinion expressed by the first Division Bench.
17. The fifth case on the subject is Mahadeolal Kanodia v. Administrator-General of West Bengal (A I R 1960 S C 936). It is necessary to reproduce what is contained in paragraphs 19 and 20 at page 941. They read as under
"19. Before we part with this appeal, however, it is our duty to refer to one incidental matter. We have noticed with some regret that when the earlier decision of two Judges of the same High Court in Deorajin's case 58 Cal. W N 64, was cited before the learned Judges who heard the present appeal they took on themselves to say that the previous decision was wrong, instead of following the usual procedure in case of difference of opinion with an earlier decision, of referring the question to a larger Bench. Judicial decorum no less than legal propriety forms the basis of judicial procedure. If one thing is more necessary in law than any other thing, it is the quality of certainty. That quality would totally disappear if Judges of co-ordinate jurisdiction in a High Court start over ruling one another's decisions: If one Division Bench of a High Court is unable to distinguish a previous decision of another Division Bench, and holding the view that the earlier decision is wrong, itself gives effect to that view the result would be utter confusion. The position would be equally bad where a Judge sitting singly in the High Court is of opinion that the previous decision of another Single Judge on a question of law is wrong and gives effect to that view instead of referring the matter to a large Bench. In such a case lawyers would not know how to advise - their clients and all Courts subordinate to the High Court would find themselves in an embarrassing. position of having to choose between dissentient judgments of their own High Court.
20. As far as we are aware it is the uniform practice in all the High Courts in India that if one Division Beach differs from an earlier view on a question of law of another Division Bench, a reference is made to a larger Bench. In Calcutta High Court a rule to this effect has been in existence since 1867. It is unfortunate that the attention of the learned Judges was not drawn in the present case to that rule. But quite apart from any rule, considerations of judicial propriety and decorum ought never to be ignored by Courts in such matters."
The principles enunciated in this case do not need any comment. They are self-explanatory. The situations of the kind visualised in this case can always arise in the event of existence of con flicting decisions.
18. The last case on the subject is Noor Muhammad v. Collector, Jhelum (P L D 1960 Lah. 841). The leading judgment in this case was also written by Mr. Justice Shabir Ahmad. The relevant portion for the purposes of this case is at page 842 and it reads as under
"This petition which was presented by Nur Muhammad for issue of an appropriate writ so that Muhammad Sadiq, his rival candidate in an election to the Union Council Ward No. 1. Choah Saidan Shah, District Jhelum, should be declared dis qualified for being a member of a Basic Democracy, came up for hearing before a Division Bench consisting of my learned brothers, Muhammad Yaqub Ali and S. A. Mahmud. One of the questions that arose before that Bench was whether the fact that an order under section 3 of the Punjab Public Safety Act was passed against Muhammad Sadiq debarred him from seeking election to a Basic Democracy. The tentative opinion arrived at by the two learned Judges was that Muhammad Sadiq was debarred from contesting an election, and as another Division Bench consisting of my Lord The Chief Justice and Justice J. H. Rizvi had taken the view that an order under section 3 of the Punjab Public Safety Act did not disentitle a person from seeking election to a Basic Democracy, Muhammad Yaqub Ali and S. A. Mahmud, JJ., requested the learned Chief Justice that the case should be referred to a larger Bench for decision of this question of law that fell for determination and the learned Chief Justice directed that the case be laid before the present Full Bench."
19. There is still another case Jaisri Sahu v. Rajdewan (AIR 1962 S C 83). The head-note of this case reads as under
"When a Bench of the High Court gives a decision on a question of law, it should, in general be followed by other Benches unless they have reasons to differ from it, in which case the proper course to adopt would be to refer the question for the decision of a Full Bench.
Law will be bereft of all its utility if it should be thrown into a state of uncertainty by reason of conflicting decisions and it is, therefore, desirable that in case of difference of opinion, the question should be authoritatively settled. It sometimes happens that an earlier decision given by a Bench is not brought to the notice of a Bench hearing the same question, and a contrary decision is given without reference to the earlier decision. When two such conflicting decisions are placed before a later Bench, the correct procedure to follow in such a case would be for the Bench hearing the case to refer the matter to a Full Bench in view of the conflicting authorities without taking upon itself to decide whether it should follow the one Bench decision or the other."
The Supreme Court of India while deciding this case have dealt with the entire law on the subject.
20. The law, however, in cases of judgments which are per incuriam is different. Only two cases have been cited before us in connection with this matter. The first case is P. X. D' Souza v. Emperor (A I R 1932 Bom. 180). The relevant portion is at page 181 and it reads as under :-
"It is to be observed that in 1907, when the case of Emperor v. Harischandra (1907) 10 Bom. L R 201 was decided, the wording of section 362, Criminal P. C. was in different terms to those in which it is now expressed. But the decision has been acted upon to my knowledge in more recent cases, and I think it desirable to express the view that the decision was not justified by the terms of the Code, either as it existed then or as it now exists. This Court is not justified in following a decision which is opposed to the plain words of a statute."
21. The second case cited on the subject is Kanglu Baula v. Chief Executive Officer (A I R 1955 Nag. 49). The relevant portion is at page 64 in paragraph 47. Paragraph 47 reads as under :-
"It is also pertinent to mention that Miscellaneous Patent No. 382 of 1953 (Nag.), was dismissed summarily. No doubt, the petitioner's counsel did address an argument before the Court, but it must be borne in mind that argument addressed at motion hearing is rarely full, particularly when the question is intricate or is an unusual one. Indeed, as would appear from the order in question, much of what was argued in A I R 1955 N U C 148 (Nag.), and before us in support of the contention that the omission to prepare fresh electoral rolls vitiated the elections, does not seem to have at all been urged in that case. It must, therefore, be said that the decision on the point was given by learned Judges per incuriam'. When a decision is given by a Court per incuriam', it is not binding on a subsequent Court ;- Young v. Bristol Aeroplane Co. Ltd.,' (I 944) 1 K B 7 1 8 and the opinion of Dinning, L. J. in Gower v. Gower', (1950) 1 All E R 804. On this ground also I would hold that this Court was not bound to follow the decision in Miscellaneous Petition No. 382 of 1953 (Nag.) on the particular point while deciding A I R 1955 N U C 148 (Nag.)."
22. The position discussed above, according to us, necessitates a reference to a larger Bench for the decision of the following points :-
(1) Whether section 183 of the Sea Customs Act requires an option to be given to pay a fine in lieu of confiscation of conveyance, etc., referred to in para. 2 of section 168 of the same Act
(2) If so, do the provisions of section 3 (3) of Imports and Exports (Control) Act make the grant of an option discretionary in relation to such conveyance, etc.
(3) Is the decision given by one Division Bench binding on another Division Bench and if so to what extent
23. We therefore send this case to the Senior Judge for forming a larger Bench for the purposes of deciding the points of reference. It 5s for the Senior Judge to decide if it will be necessary in view of the far-reaching consequences of the decision on point No. 3 of the reference to make a reference to his Lordship the Chief Justice to consider the feasibility of forming a larger Bench which would include the learned Judges who have already taken a view that the decision of one Bench is not binding on another Division Bench.
This reference to the Full Bench has arisen from a Writ Petition filed by one Murad Ali against the con fiscation of his lorry No. 750 which he purchased from one Haji Nur Elahi. This lorry on 5th March 1956, was carrying 4 bags of sugar from Turbat to Panjgoor. Both the lorry and the goods were seized at some distance from Turbat. The Customs Authorities confiscated both the lorry and the goods. The petitioner's case is that the order of the confiscation of his lorry is illegal because he was not given an option to pay a fine in lieu of its confiscation under section 183 of the Sea Customs Act. He, therefore, claimed that a writ of certiorari may be granted to him quashing the order of the respondents under which the lorry in question was confiscated.
The writ petition was strongly opposed on behalf of the respondents. Their contention was that section 183 of the Sea Customs Act does not contemplate any option in respect of the confiscation of motor vehicles. In the alternative their case is that even if the Customs ,Authorities are bound to give an option it is not necessary to do so by virtue of section 3 (3) of the Imports and Exports (Control) Act, 1950, under which giving of an option is discretionary and within their sole competency.
This matter came up for final hearing before the Division Bench consisting of Khamisani and Raymond, JJ. At the hearing of the writ petition the petitioner relied upon a decision of the Division Bench of this Court in Writ Petition No. 236 of 1959 Ibrahim Issa v. Collector of Customs and others, decided by Constantine and Faruqui, JJ., on 10th December 1959. In that case the Division Bench accepted the contention raised before them that since the vessel is liable to confiscation in like manner as goods, therefore, section 183 applies not only to goods but also to a vessel. The learned Judges, in that case further observed that the contention of the department that the amendment of subsection (3) of section 3 of the Imports and Exports Control) Act has changed the position was not correct, since it deals only with the goods and this substitution of a discretionary option for an obligatory option applies only to goods and not to vessel, for the above-mentioned Act deals with goods and not with vessels. This view did not find favour with Khamisani and Raymond, JJ. In this connection they observed
"What is included in the goods in section 168 are the packages in which they are found, and all other contents thereof. By no means can conveyances, etc., be said to be included in goods' as mentioned in section 168. The option to pay a fine in lieu of confiscation, as we have already stated, is to be given under section 183 of the Sea Customs Act to the owner of the goods only and not to the owner of the conveyances. If, as we have already stated, conveyances cannot be included in the goods the question of giving an option to the owner of the conveyances would not arise."
On this view of the matter they have doubted the correctness of the decision of the first Division Bench.
But it was urged before them that the second Division Bench could not differ from the decision of an earlier Division Bench of this Court on a question of law, and if they wanted to dissent, the matter should have been referred to a Full Bench for authoritative decision. The Division Bench which heard this writ petition, after review of the case-law on the subject, is of the opinion that the contention that in cases where the Division Bench differs from the decision of another Division Bench of the High Court, the question on which difference arises must be referred to a Full Bench, for resolving the difficulty. It is in these circumstances that the following questions have been referred to the Full Bench for consideration
(1) Whether section 183 of the Sea Customs Act requires an option to be given to pay a fine in lieu of confiscation of conveyance, etc., referred to in para. 2 of section 168 of the same Act
(2) If so, do the provisions of section 3 (3) of the Imports and Exports (Control) Act make the grant of an option discretionary in relation to such conveyance, etc.
(3) Is the decision given by one Division Bench binding on another Division Bench and if so to what extent
We have at length heard the learned counsel for the parties on the questions referred to us. We shall for convenience sake first consider the last question namely whether a decision given by a Division Bench of this Court is binding on another Division Bench, and if so, to what extent. Admittedly there is no statutory provision in the law applicable to Pakistan on this point. The answer to the question, therefore, depends only on the consideration of judicial propriety and decorum which forms the basis of judicial procedure. Both the counsel for the parties urged before us that the uniform practice in all the High Courts in pre-partition and post-partition India is that if one Division Bench differs from the earlier view on a question of law, a reference is to be made to a larger Bench. But there is no authoritative decision so far as Pakistan is concerned in this respect. On the contrary in the case of Bashir Ahmad v. The State (P L D 1960 Lah. 687) and in the case of Jamal v. The State (P L D 1960 Lah. 1192) two Division Benches of this Court have observed that the decision of a Division Bench can be dissented from by another Division Bench of the same High Court. In fact, the present trend of decisions show that it has become a common practice in this Court that a Division Bench, if it does not agree with the view taken on a point of law in the earlier Division Bench, dissents from it and proceeds to decide the matter on the view formed by them. It is therefore quite obvious that there is lot of uncertainty and confusion, both in the minds of the subordinate judiciary and litigant public about the doctrine of judicial certainty, which is not at all conducive and proper in the administration of justice in this province.
This difficulty was also faced in the Indian Dominion. There was lot of controversy on the question under consideration. In some cases the view taken by the Indian High Court is that one Bench of a High Court has no jurisdiction to sit in judgment on the decision of another Division Bench, on the ground that they were as much bound by the first case as by the second, and the difficulty was resolved by referring the matter to the Full Bench. In some cases in other High Courts where there were two conflicting decisions of Division Benches of the same High Court the difficulty was resolved by following the first Division Bench decision. Khamisani, J., in the order of reference has referred to these decisions in detail. The cases in support of the first view are State v. Shankar (A I R 1957 Bom. 226) and Nathu Ram v. Jagan Nath and others (A I R 1960 Punj. 521). And the case in support of the second view is Jamuna Rai and others v. Chandradip Rai (A I R 1961 Pat. 178). The conflict in the Indian Courts in this respect was finally resolved by the Supreme Court of India in the case of Mahadeolal Kanodia v. The Administrator General of West Bengal (A I R 1960 S C 936). In that case their Lordships of the Indian Supreme Court at page 941 observed as under:-
"Before we part with this appeal, however, it is our duty to refer to one incidental matter. We have noticed with some regret that when the earlier decision of two Judges of the same High Court in Deorajin's case 58 Cal. W N 64, was cited before the learned Judges who heard the present appeal they took on themselves to say that the previous decision was wrong, instead of following the usual procedure in case of difference of opinion with an earlier decision, of referring the question to a larger Bench. Judicial decorum no less than legal propriety forms the basis of judicial procedure. If one thing is more necessary in law than any other thing, it is the quality of certainty. That quality would totally disappear if Judges of co-ordinate jurisdiction in a High Court start overruling one another's decisions. If one Division Bench of a High Court is unable to distinguish a previous decision of another Division Bench, and holding the view that the earlier decision is wrong, itself gives effect to that view the result would be utter confusion. The position would be equally bad where a Judge sitting singly in the High Courts is of opinion that the previous decision of another single Judge on a question of law is wrong and gives effect to that view instead of referring the matter to a larger Bench. In such a case lawyers would not know how to advise their clients and all Courts subordinate to the High Court would find themselves in an embarrassing position of having to choose between dissentient judgments of their own High Court.
As far as we are aware it is the uniform practice in all the High Courts in India that if one Division Bench differs from an earlier view on a question of law of another Division Bench, a reference is made to a larger Bench. In Calcutta High Court a rule to this effect has been in existence since i 867. It is unfortunate that the attention of the learned Judges was not drawn in the present case to that rule. But quite apart from any rule, considerations of judicial propriety and decorum ought never to be ignored by Courts in such matters."
This question was again adverted to by the Indian Supreme Court in Jaisri Sahu v. Rajdewan (A I R 1962 SC 83). In that case the Indian Supreme Court reviewed the whole case law on the subject and observed as under for the guidance of the Indian High Courts
"When a Bench of the High Court gives a decision on a question of law, it should, in general be followed by other Benches unless they have reasons to differ from it, in which case the proper course to adopt would be to refer the question for the decision of a Full Bench.
Law will be bereft of all its utility if it should be thrown into a state of uncertainty by reason of conflicting decisions, and it is, therefore, desirable that in case of difference of opinion, the question should be authoritatively settled. It sometimes happens that an earlier decision given by Bench is not brought to the notice of a Bench hearing the same question, and a contrary decision is given without reference to the earlier decision. When two such conflicting decisions are placed before a later Bench, the correct procedure to follow in such a case would be for the Bench hearing the case to refer the matter to a Full Bench in view of the conflicting authorities without taking upon itself to decide whether it should follow the one Bench decision or the other."
The learned counsel for the parties have urged the acceptance of this view for the guidance of this Court in order to create judicial certainty in the mind of the litigant public and subordinate judiciary. At this stage it will therefore be convenient to notice the view of the English Courts on the questions under con sideration. In divisional Court of the Queen's Bench the tendency of recent years has been to stand by its own decision except where it has to choose between two conflicting authorities. In Younghusband v. Luftig ((1949) 11 K B 354), it was observed that a full Divisional Court has got no greater power of overruling itself than a Court of three or even of two Judges. In other superior Courts the rule is that each Court is bound by the decision of the Court above it and the House of Lords and the Court of Appeal are bound by their own decisions though with certain defined exceptions in the Court of Appeal. The leading case on the subject is Young v. Bristol Aeroplane Co., Ltd. (1944 K B 718).
But in this sub-continent this view of the English practice has not been followed. In Gundavarapu Seshamma v. Kornepati Venkata Narasimharo and others (A I R 1940 Mad. 356), a Full Bench of the Madras High Court in this connection observed
"The Division Bench is the final Court of appeal in an Indian High Court, unless the case is referred to a Full Bench, and one Division Bench should regard itself bound by the decision of another Division Bench on a question of law. In England where there is the Court of Appeal, Divisional Courts follow the decisions of other Divisional Courts on the grounds of Judicial comity. See 1884 L R 9 P D 96 (The Vera Cruz) (1925) 113 L T 238 (Harrison v. Ridgway) (1929) 1 K B 24 (Ratkinsky v. Jacobs) and (1935) 1 K B 15 (Phillips v. Copping) If a Division Bench does not accept as correct the decision on a question of law of another Division Bench the only right and proper course to adopt is to refer the matter to a Full Bench, for which the rules of this Court provide. If this course is not adopted the Courts subordinate to the Court are left without guidance. Apart from the impropriety of an Appellate Bench refusing to regard itself bound by a previous decision on a question of law of an Appellate Bench of equal strength and the difficulty placed in the way of Subordinate Courts administering justice, there are the additional factors of the loss of money and the waste of judicial time."
In Buddah Singh and others v. Laltu Singh and others (A I R 1915 P C 70) the Privy Council has indicated the same procedure for resolving conflicts of opinion between two Courts of co-ordinate jurisdiction in the Indian sub-continent. Their Lordships observed as under at page 77 of the report
"Curiously enough there is no reference in either of the Madras judgments referred to above to previous decision Parasara Bhattar v. Rangaraja Bhattar (1878-80) 2 Mad. 202 of the same Court to which Turner, C. J., was also a party. In that case the rule of the Smriti Chandrika was not accepted nor was the literal construction of the Mitakshara followed. It is usual in such cases there a difference of opinion arises in the same Court to refer the point to a Full Bench, and the law provides for such contingencies. Had that course been followed their Lordships would probably have had more detailed reasoning as to the change of opinion on the part at least of one Judge."
It will thus be noticed that the view of the Indian Supreme Court is to accord with the Privy Council decision and can be accepted as sound guiding principle to regulate the practice in this Court.
In the light of the above discussion the following principles emerge, which can safely be adopted by this Court on the question) under consideration
(1) That in order to maintain the judicial decorum and propriety the decision of a Division Bench on a ques tion of law should be followed by other Bench. If they differ from it the proper course to adopt would be to refer the question for the decision of a Full Bench.
(2) The decision of one Division Bench on a question of fact is not binding on the other Division Bench.
(3) If the decision of one Division Bench has not come to the notice of the other Division Bench and a different view is taken in the subsequent Division Bench case, when such two conflicting decisions are placed before the Bench proper procedure to follow in such case would be, for the Bench hearing the case, to refer the matter to a Full Bench in view of the conflicting authorities without deciding the question itself.
In my opinion, if the above principles are not followed, it is bound to create not only uncertainty but confusion in the minds of the litigant public and subordinate Courts about the judicial decision of this Court. It will also not enhance the prestige of this Court. The decisions cited of the Lahore Benches on this question do not contain any elaborate discussion on the point under consideration. With respect I will point out that the principle enunciated by Shabir Ahmed, J., in P L D 1960 Lah. 687 on the point under consideration cannot be supported on the latest view taken on the subject and if accepted will not advance the administration of justice in this part of Pakistan. It will on the contrary create too many difficulties as explained by Khamisani, J., in the referring order. Accordingly I will answer the above-mentioned question as suggested above with this exception that the above-mentioned principles will not be applicable to per incuriam decisions, which carry no binding effect. In order to set at rest this controversy I would further like to invite the attention of my Lord the Chief Justice to consider the desirability of incorporating a rule on the line of the Calcutta High Court.
The next question for consideration is whether section 183 of the Sea Customs Act enjoins on the Department to give an option to pay fine in lieu of the confiscation of vehicles etc., used in the removal of any banned goods and whether the provisions of section 3(3) of the Imports and Exports (Control) Act, as amended make the grant of an option discretionary in such cases, It is not disputed that the lorry in question, when seized, was carrying four bags of contraband sugar from Turbat to Panjgoor. The lorry, therefore, was liable to be confiscated under section 168 of the Sea Customs Act, which is in the following terms
"Packages and contents included in confiscation of goods. The confiscation of any goods under this Act includes any package in which they are found, and all the other contents thereof.
Also conveyances and animals used in removal.-Every vessel, cart or other means of conveyance, and every horse or other animal, used in the removal of any goods liable to confiscation under this Act shall in like manner be liable to confiscation.
Tackle, etc., included in confiscation of vessels.-The con fiscation of any vessel under this Act includes her tackle, apparel and furniture."
It is apparent from the above-mentioned provision of law that every vessel, cart or other means of conveyance used in the removal of any goods liable to confiscation under this Act, is in like manner liable to confiscation. It cannot thus be doubted that the lorry in question having been used for the removal of goods, which were liable to confiscation, was also liable to con fiscation in the same manner as the goods were liable to confis cation.
The petitioner's grievance is that the order of confiscating his lorry was illegal inasmuch as he was not given any option to pay a fine in lieu of its confiscation as enjoined by section 183 of the Sea Customs Act. On the other hand, the learned Attorney-General has urged that section 183 applies only to goods and not to the vehicles or other means of transport. This section is in the following terms :-
"Option to pay fine in lieu of confiscation.-Whenever confis cation is authorised by this Act, the officer adjudging it shall give the owner of the goods an option to pay in lieu of con fiscation such fine as the officer thinks fit."
The learned Attorney-General contended that the word "goods" used here has a limited meaning and sense and cannot include lorry. It will be noticed that this aspect of the case was not brought to the notice of the first Division Bench. But the referring Bench seems to be inclined to this view and has observed that conveyances cannot be included in the goods. The argument of the learned Attorney-General is that the word "goods" in sections 167 and 168 has been used in contradistinction to vessel and other things and, therefore, it has got a narrow meaning and cannot include vessel or other means of transport. This contention has received my anxious consideration. In my opinion, the contention raised on behalf of the Department cannot be supported on the provision of law under consideration. The question in what circumstances the goods are to be con fiscated are to be found in section 168. Under it, besides the goods actually imported or exported, other means of conveyance used in the removal of such goods are also liable to be confiscated in like manner. This has caused confusion because there is no definition of goods in the Act itself. But one cannot ignore the well established principles of interpretation that in matters which effect the rights of a person or citizen the words used in the statute should not be interpreted in a limited sense, but should be interpreted in favour of the citizen unless the context indicates to the contrary. Section 183 follows section 168. Under section 183 there is nothing in the context to suggest that the word "goods" used in section 183 is used in a limited sense. In the case of everett Orient Line Incorporated v. Jasjit Singh and others (A I R 1959 Cal. 237), a similar question arose. It was contended before a Single Judge of the Calcutta High Court that the imposition of fine of four lacs of rupees under section 183 was not in accordance with law. The argument was that under section 183 an option of fine in lieu of confiscation can only be given in the case of confiscation of goods and since a vessel cannot be called goods, section 183 had no application. This argument was repelled by Sinha, J. He observed that this contention was based on too narrow a reading of section 183. He held that the word "goods" in section 183 would include a vessel when it is the question of vessel being confiscated. This view seems to me to be the correct exposition of law. In my opinion the words "vessel or other means of conveyance" used for the removal of contraband goods is not used in contradistinction to the word "foods". Ordinarily these are goods. In Behnke v. Bede Shipping Co., Ltd., ((1927) 1 K B 649), it was held that a ship is a chattel personal and comes within the definition of "goods" in section 62, Sale of Goods Act, 1893. I see no reason why motor vehicles should not be treated as such within the provisions of section 183. I will, therefore, hold that the word "goods" used in section 183 of the Sea c Customs Act is used in the wider sense and includes a motor vehicle when it is the question of the motor vehicle being confiscated under the provisions of the Sea Customs Act.
It was next urged by the learned Attorney-General that in view of the provisions of section 3 (3) of the Imports and Exports (Control) Act, the provisions of section 183, Sea Customs Act, stands amended. According to the learned counsel, under this amendment option to pay fine in lieu of confiscation is discretionary and within the sole competence of the respondents. It was, therefore, urged by him that since the word "may" has been intentionally used instead of the word "shall" the department was fully justified in not giving any option to the petitioner. This contention has not impressed me. The provisions of the Imports and Exports Act apply only to the goods imported into Pakistan or goods exported out of Pakistan. Therefore, this amendment is confined only to the goods which are imported or exported in Pakistan. The means of transport which are used for the removal of such goods are not covered by the provision of this enactment. It is therefore not possible to hold that the L amendment will also cover the cases of goods which do not fall within its ambit. It is perfectly clear that the amendment made in section 183 only applies to those goods which are either imported or exported in Pakistan. It cannot be extended to the means of transport used for the removal of such goods. It is admitted that the lorry in question was neither imported nor exported in Pakistan and, therefore, the above-mentioned amendment cannot be extended for the purposes of deciding the question of its confiscation. Unfortunately none of these aspects of the question was brought to the notice of the first Division Bench. Nonetheless the conclusions reached in that case are absolutely correct. In this view of the matter I hold that the respondents in the present case were bound to give an option to the petitioner to pay a fine in lieu of confiscation. Since this procedure was not follows, the confiscation of the lorry in question was illegal, and the order of its confiscation cannot be upheld. In the result I will answer the questions Nos. 1 to 3 referred to the Full Bench in the following manner
(1). Yes.
(2) The grant of an option under section 3 (3), Imports and Exports Act is discretionary but it does not apply to those goods which are used as means of conveyance for the removal of contraband goods.
(3) In order to maintain judicial propriety the decision of a Division Bench on a question of law should be followed by the other Bench. It is not binding on questions of fact.
ILLAHI BUKHSH KHAMISANI, J.-I agree.
A. S. FARUQUI, J.-I agree.
K. B. A./A. H
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