' It is alleged against the petitioner that on 22nd March, 1979 he arrived from Dubai by Gulf Air Line and was intercepted by the Preventive Officer on duty at the Air Port. On enquiry as to whether the petitioner was carrying any contraband goods he replied in the negative. However, when his baggage was searched 175 wrist watches were. Found concealed in his brief case and 56 wrist watches were found concealed in the bottom cavity of the thermo flask kept in his hand bag. The petitioner was accordingly booked under Item (8) of section 156(1) of the Customs Act (hereinafter referred to as the Act), and has been sent up before the Special Judge (Customs & Taxation), Karachi for trial.
2. Before the trial commenced the petitioner moved the trial Court under section 265, Cr. P. C. For being acquitted on the plea that no criminal offence is made out against him from the prosecution allegations. The learned Special Judge, by his impugned order dated 21-4-1979, dismissed the application. The petitioner has, therefore come up before this Court in revision with the similar prayer for being acquitted.
3. Mr. Muzaffar Hassan, learned counsel for the petitioner contended that the facts alleged against the petitioner by the prosecution at best make out a case under Item (70) of section 156 (1) of the Customs Act, 1969. The submission of the learned counsel is that the non-declaration of prohibited or restricted goods by a passenger arriving in Pakistan is a matter specially dealt with by section 139 in Chapter XV of the Act. Accordingly in consonance with the established rule of interpretation that where in a statute there are both general provisions as well as special provisions for meeting a particular situation, then it is the special provision which must be applied to that particular case or situation instead of the general provisions. (PLD 1973 SC 49). Counsel went to the extent of contending that contraband goods brought into Pakistan in the baggage by a passenger entering through the authorized route like the Air Port without declaring the same to the Customs Authorities cannot constitute the offence of smuggling punishable under section 156(1), Item (8) as such a situation is governed by section 139 and in case of violation of the provisions thereof the offence is punishable with penalty, and confiscation of the goods as provided therein. As hereinafter discussed, the last mentioned proposition of law, to say the least is patently startling.
4. Now as already stated the petitioner stands charged with the offence of smuggling which is defined by section 2(s) as under:- "'Smuggle' means to bring into or take out of Pakistan in breach of any prohibition or restriction for the time being in force, or' evading payment of customs-duties or taxes loveable thereon; gold bullion, silver bullion, precious stones, currency, manufactures of gold or silver or precious stones or any other goods notified by the (Federal Government) in the official Gazette, in each case exceeding one thousand rupees in value; or
(a) any other goods by any route other than a route declared under section 9 or 10 or from any place other than a customs-station, and includes an attempt, abetment or connivance of so bringing in or taking out of such goods; and all cognate words and expressions shall be construed accordingly;".
' The heading of Chapter XV of the Act no doubt is "Special provisions regarding baggage and goods imported or exported by post". Section 139 reads as follows :- "The owner of any baggage whether a passenger or a member of the crew shall, for the purpose of clearing it, make a verbal or written declaration of its contents in such a manner as may be prescribed by rules to the appropriate officer and shall answer such questions as the said Officer may put to him with respect to his baggage and any article contained therein or carried with him and shall produce such baggage and any such article for examination."
' Then follows section 140 which provides that the baggage shall be chargeable with duty at the rate in force at the date on which the declaration under section 139 is made under section 141 the Customs Officer may, subject to limitations, conditions and restrictions specified in the rules, pass free of duty any article in the baggage of a passenger in respect of which the officer is satisfied that it is bona fide meant for the use of such passenger or for making gift.
5. Section 156(1) provides for punishments for various offences under the Act described in the table contained therein. The material part of Item (8) reads as under :-
(8) If any goods be smuggled into or out of Pakistan.-Such goods shall be liable to confiscation and any person concerned in the offence shall be liable to a penalty not exceeding ten times the value of the goods; and upon conviction by the Special Judge he shall further be liable to imprisonment for a term not exceeding ten years and to fine not exceeding ten times the value of such goods."
' Item 70 of the aforesaid Schedule, on which reliance has been placed on behalf of the petitioner reads as under :- "(70) If the owner of any baggage fails to make a correct declaration of its contents or refuses to answer any questions put to him by the appropriate officer with respect to his baggage or any of its contents including articles carried with him or fails to produce the baggage or any such article for examination, such owner shall be liable to a penalty not exceeding three times the value of the goods in respect of which no declaration or incorrect declaration has been made or in respect of which he refuses or fails to answer any question, or which he fails to produce for examination; and such goods shall also be liable to confiscation."
6. The contention that section 139 and item 70 of section 156(1) of the Act are Special provisions as compared to item 8 of section 156(1) seems to me to be misconceived and the rule of interpretation invoked by the learned counsel appears to be irrelevant in the context of the provisions of the Act. In the first place the rule is attracted only in case there are special and general provisions "for meeting a particular situation". It is only then that resorts to the special provisions becomes compulsory in preference to the general provisions the offence of smuggling is designed to meet an entirely different situation than the one contemplated in section 139 and item 70. Section 156(1) when analyzed reveals that it creates penal offences liable to trial and punishment under the criminal jurisprudence as well as offences or wrongs punishable with civil penalties of fine and confiscation of goods. The offences provided for in Items 8 and 70 are an example in point. Whereas item 8 provides for civil penalties, it also makes the offender liable to be tried by the Special Judge and upon conviction to be sentenced to a term of imprisonment and fine. On the other hand item 70 only prescribes civil penalties and the offender is not liable to be subjected to criminal prosecution. In *lam v. The Collector of Customs (1) the Customs Authorities under a search warrant recovered contraband gold from the custody of the accused, as a result of which they were tried and convicted by a Magistrate under sections 167 (8) and 167(81) read with section 212 of the Sea Customs Act, 1878. Concurrently with the prosecution of the accused in the c liminal Court the Customs Authorities proceeded against the accused for confiscation of the goods seized. The accused contended that their criminal prosecution, after the proceedings for forfeiture of goods had been instituted against them by the Customs Authorities, was illegal as it amounted to their trial and punishment twice over for the same offence. Analyzing section 167(8)(a) of the Sea Customs Act (which is in substance equivalent to section 156(1)0) of the Act), their Lordships observed that it is quite plain that the penalty clause of this section is in two parts; the first part refers to the liability of the offending goods for confiscation and the second to the liability of imprisonment and fine to the persons concerned in the commission of the offences under the Act in respect of these goods. Ref; enee was then made to section 182 of the Customs Act which provides for adjudication of confiscation and penalties. In the present Act section 179 provides for adjudication in cases involving confiscation of goods or imposition of penalties under the Act. Their Lordships then observed as follows :- "The intention of the Legislature is thus clear that the disposal of the goods seized under the Act is left entirely to the jurisdiction of the Customs Authorities. The proceedings taken by the Customs Authorities for the confiscation of the goods are more in the nature of departmental proceedings which have been characterized in English and American jurisprudence as proceedings in condemna-. Tion of the goods for purposes of revenue and are regarded as proceedings of civil nature, despite their penal character. The Sea Customs authorities are not a judicial tribunal in the strict sense of that term nor can their verdict of confiscation of the goods be regarded as a punishment by the Court after regular trial for the purposes of supporting a plea of double jeopardy. On the other hand the proceedings for the criminal prosecution of a person who commits an offence under the Act in relation to those goods, fall in a separate category. They are judicial proceedings for the 'determination of the guilt of the person concerned for commission of the
(1) PLD 1960 SC 446 ' alleged offence and entailing a punishment for the same. Both are concurrent remedies but each is independent of the other. ' ' They cannot, therefore, be deemed to be mutually exclusive."
' 'Further it was observed; "But it is quite clear that the adjudication proceedings for the . Confiscation of the goods under the Act neither involve a criminal prosecution nor a punishment for an offence. No trial of the offender takes place for any offence nor is any punishment awarded to the offender."
The aforesaid weighty observations throw great deal of light on the true nature and scope of the provisions regarding penalties prescribed in the Schedule contained in section 156(1) of the Act. It cannot, therefore, be argued that item 70 creates a penal offence or provides for prosecution of the offender in a criminal Court. It, therefore, follows that Items 8 and 70 are not designed to meet the same situation. The contention that the one is a general provision and the other a special provision is who'll misconceived.
6. A plain reading of the language employed in the two items also makes it clear that they were not intended to deal with the same subject-B matter. Section 139 creates an obligation upon every passenger or a member of a crew to make declaration of the contents of his baggage and to answer questions with respect to the baggage as well as its contents including article carried with him. The failure to do the aforesaid things o the failure to produce the baggage or any such article for examination is liable c to penalties and confiscation as provided by item 70. On the other hand if the passenger commits the offence of smuggling as defined in sec ton 2(s) of the Act in relation to his baggage, clearly his act would be punishable under clause (8), irrespective of whether in the commission o the offence he has also contravened the provisions of item 70. The reaso is obvious, for, the adjudication proceedings under item 70 or under first part of item 8 would be departmental proceedings whereas the criminal prosecution for the offence would clearly be judicial proceedings in relation to those goods which the person declines to declare under section 139. In fact, section 139 and item 70 makes no reference at all to smuggled goods falling within the definition of section 2(s) of the Act. I wolud venture to say that my reading of these provisions clearly indicates that item 70 may be attracted even to goods which are neither prohibited nor restricted from being brought into or taken out of. Pakistan. To p hold that refusal to comply with the requirements of item 70 in regard to baggage wouldinvariably attract only the penalties provided therein even though the owner of the baggage attempts to smuggle contraband items, would be wholly contrary to the clearly intendment of the law and would amount to putting premium upon smuggling which the Act was intended to prevent. A reference in this regard to subsection (2) of section 156 of the Act clearly indicates the legislative intendment as regards the offence of smuggling. It provides :- "(2) Where currency, gold,- silver, precious stones, ornaments or other manufactures of gold, silver or precious stones, or any other goods which the (Federal Government) may, by notification in the official Gazette, specify 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, or that there is intent to commit such act, the burden of proving that no such act has been committed or there was no such intent shall be on the person from whose possession the goods were seized."
' It may be appreciated that this subsection has reference to the definition of the word "smuggle".
The effect of this subsection in the context of section 139 would clearly be that if goods specified in section 2(s) are seized for violation of section 139 in the reasonable belief that an act to defraud the Government of the duty payable thereon or to evade any prohibition E or restriction or that there is intent to commit such act, clearly it will be for the offender to show that no such act has been committed or that there was no such intent. The Customs Authorities in the absence of such explanation on the part of the person from whom the goods are seized, would clearly be justified to prosecute the offender for the offence of smuggling.
7. Coming now to the facts of this case there seems to be evidence in the possession of the prosecution that the petitioner declined to declare that he had in his possession any restricted or banned goods but on examination of his baggage he was found to be carrying a large number of watches of foreign origin after they were concealed in the 'baggage. There is, therefore, prima facie evidence to prosecute the petitioner for an offence under section 156(1)(8) of the Act. It will be for the trial Court upon proper assessme nt of the evidence whether the petitioner is guilty of the offence alleged. But for the reasons mentioned above I have found no force in the contention that no offence is made out against the petitioner on the facts alleged.
8. In the result I find no merit in this revision application and accordingly dismiss it in liinine.