1. SALAHUDDIN AHMED, J.-This reference has a chequered history. The three revision cases were originally heard by a Division Bench consisting of two Judges, namely, myself and Abdul Hakim, J. I found the petitioners guilty under section 167(8)(b) instead of under section 167(8)(a) of the Sea Customs Act and proposed to pass the following order :- "Accordingly I would alter the conviction of each one of the petitioners from one under section 167(8)(a) to one under section 167(8)(b) of the Sea Customs Act and would reduce the sentence passed upon petitioner Afsaruddin to the payment of a penalty of Rs. 4,000 only and would also reduce the sentences of petitioner Ramjan A.I to the payment of a penalty of Rs. 2,000 only and the sentences of the other four petitioners to the payment of a penalty of Pas. 500 each . . . . . .The three Rules should be disposed of accordingly."
2. N1-o final order, however, could be passed as there was a difference of opinion. Between the two members of the Bench as to the forum of appeal from an order of conviction under section 167(8) of the Sea Customs Act. Abdul Hakim, J. After having expressed his views on the forum of appeal concluded his judgment thus :- "The learned Advocates appearing for the petitioners have placed the relevant evidence before us.
3. Considering the facts and materials on record I am in full agreement with my learned brother that section 167(8)(a) of the Sea Customs Act has no supplication to the facts of the present case. 1, therefore, agree with the order proposed to be passed in the matter by my learned brother."
4. Thereafter I passed an order referring the only point of difference between the two Judges, Forum of Appeal, for a decision under section 36 of the Letters Patent. This question ultimately came up for consideration before a third Bench consisting of M. R. Khan and Maksum-ul-Hakim, JJ. And the third Bench decided the question of forum of the appeal thus :- "If the appeal from a sentence for a term exceeding four years passed by a Magistrate of the first class, specially empowered under section 193-B of the Sea Customs Act, is competent under section 408 of the Code of Criminal Procedure, as has been held by the learned Judges of the Division Bench, then, the appeal will lie to the Court of Session because of non---applicability of proviso (b) to the said section, and we answer the point of reference accordingly."
5. The third Bench while deciding the question, however, raised a query as to whether an offence under item (8(b) of section 167 of the Sea Customs Act, which provides only for confiscation of goods and imposition of certain penalty is triable by a Magistrate, so as to enable him to pass any one of the penalties mentioned against that item.
6. When the revision cases came back before the original Division Bench (consisting of myself and Abdul Hakim, J.) while I thought it desirable that the query raised by the third Bench should be considered and decided by a larger Bench, Abdul Hakim, J. Reiterated his view about the forum of the appeal and observed that not only the said query raised by the third Bench but also the question of forum of appeal should once again be considered by a Full Bench or a larger Bench.
7. The records of the three criminal revision cases were accordingly placed before the learned Chief Justice who by his orders dated 28-5-1969 and 4-6-1969 directed that the matters be heard and finally disposed of by the present Bench.
8. The facts necessary for the disposal of the present reference may briefly be stated thus : In the early morning of 21st Juh1966, the petitioners in the three revision cases were caught red---handed at a place in the District of, Dinajpur only two and half miles away from the Indian Border. While proceeding towards the border in an attempt to cross the border with Indian currency amounting to Rs. 393 and about an equal amount of Pakistani currency along with some gold ornaments, wrist-watches and fountain-pens most of which were recovered from the person of one or the other of the petitioners. The route pursued by the petitioners was an unauthorised one, and they had no papers or permits to show they were entitled to travel to India with the aforesaid currencies and articles. The arrest and seizures were made by a group of officers of the East Pakistan Rifles.
9. The first information report having been lodged by a sopey of the East Pakistan Rifles, a case was started against the petitioners and it ultimately led to their trial and conviction under section 167(8)
(a) of the Sea Customs Act by a First Class Magistrate duly empowered under section 193-B of the Sea Customs Act. The petitioners were sentenced to various terms of imprisonment ranging from five years and six months to six months and to the payment of fines ranging from Rs. 5,000 to Rs.500. In addition the male petitioners were also sentenced to a number of whips. All the seized articles except the jeep in which the petitioners were found travelling were declared smuggled goods and were directed to be disposed of according to rules. The appeals of the petitioners to the Sessions Judge of Dinajpur were dismissed with certain modification of sentences. The petitioners, therefore, approached this Court and obtained the three Rules nisi.
10. At the hearing of the three revision cases before this Bench the learned Advocates appearing on behalf of the respective parties did not address us on the factual aspect of the conviction of the petitioners under the second part of item 8 of section 167 of the Sea Customs Act and the sentences proposed to be passed by me thereunder. The Bench was addressed on the question whether a Court had jurisdiction to try an offence under the second part of item 8 of section 167 of the said Act, and to inflict a penalty mentioned against the said item. Mr. Muhammad Ismail, appearing for the petitioner in Revision Case No. 639, however, also raised a preliminary question about the competence of the reference to the present Bench.
11. So far as the question of forum of appeal is concerned the matter having been settled by the decision of the said third Bench none of the parties reopened the matter. Besides this Bench is not called upon to consider the question. Abdul Hakim, J. Also expressed the view that he was bound by the decision of the third Bench in this matter, although he still adhered to the view that the forum of appeal was the High Court, and not the Sessions Court. I think it is appropriate and profitable to quote here the following observations of Chief Justice Cornelius of the Supreme Court in the case of Province of East Pakistan v. Sirajul Haq Patwari (PLD 1966 SC 854). The following observations occur at pages 920 to 923 of the Report "There remains one further matter, of no little importance for consideration, namely, whether it was in order for the Full Bench in this case to disregard to conclusions reached by the earlier Special Bench, on several of the questions of law on which the Full Bench has made pronounce--ments to the contrary effect. In a recent case decided on appeal from the High Court of East Pakistan (i.e. East Pakistan Province v. Dr. Aziz-ul-Islam PLD 1963 SC 296), this Court indicated that where a Division Bench of the High Court is inclined to take a different view from that declared in an earlier judgment of a similar Division Bench, one course open to the Court was to have expressed their doubts regarding the view taken in the precedent case, in a Court of co-equal jurisdiction while yet following that view, and left the matter to be raised in appeal before this Court'. The alternative course, under the Rules of the Court, was to refer the matter to a larger Bench . . . . . . . ..By clause 36 of the Letters Patent of the High Court of East Pakistan, it is provided that any function to be performed by the High Court in the exercise of its original or appellate jurisdiction may be performed by any Judge or by any Division Court thereof, appointed or constituted for such purpose. The meaning plainly is that a decision given by a Single Judge or a Division Court possesses the full force of a decision of the High Court, and is subject only to modification or correction by proper appeal to the Supreme Court, except in the few cases where provision is made by the Letters Patent for an appeal or other mode of variation within the High Court in which case the later decision would possess the full force of a decision by the High Court and would be amenable to appeal to this Court."
12. Learned Advocate Mr. Muhammad Ismail has contended that inasmuch as there is again a difference of opinion between the Judges of the Division Bench on the question of competence of a Magistrate to try an offence under section 167(8)(b) of the Sea Customs Act, the question should have once again been referred to a third Judge in accordance with the provisions of section 439 read with section 429 of the Code of Criminal Procedure. This is not true and, therefore, there is no substance in this contention. As it was considered desirable that the query raised by the third Bench should be considered by a larger Division Bench ; the present Bench was constituted to consider the said question as well as to finally dispose of the three cases. This is perfectly legal and is allowed by Rule 7, Chapter 11, Part 1 of the High Court Appellate Side Rules.
13. The main question for consideration before the present Bench is whether an offence under section 167(8)(b) of the Sea Customs Act is triable by a Magistrate?
14. This question is of first impression and does not appear to have been raised ever before.
15. Answer to this question involves examination of certain provisions of the Code of Criminal Procedure as well as of the Sea Customs Act.
16. The relevant provisions of the Criminal Procedure Code are as follows :- "5. Trial of offences under Penal Code.-(1) All offences under the Indian Penal Code, shall be investigated, inquired into, tried and otherwise dealt with according to the provisions hereinafter contained.
(2) Trial of offences against other laws.-All offences under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.
29. Offences under any other laws.-(1) Subject to the other provisions of this Code, any offence under any other law shall, when any Court is mentioned in this behalf in such law, be tried by such Court.
(2) When no Court is so mentioned, it may be tried by the High Court or subject as aforesaid by any Court constituted under this Code by which such offence is shown in the eighth column of the Second Schedule to be triable."
17. The relevant provisions of the Sea Customs Act (Act VIII of 1878) areas follows :-- "173. Arrest of suspected persons etc.-(1) Any officer of Customs authorized in this behalf or any other person duly empowered for the prevention of smuggling, who has reason to believe that any person has committed an offence under this Act, may arrest such person.
(2) Every person arrested under this Act shall be taken forthwith before the nearest officer of Customs authorized by the Chief Customs Officer to deal with such cases, or, if there is no such officer of Customs within a reasonable distance, to the officer-in-charge of the nearest police station.
(3) The officer of Customs or the officer-in-charge of a police station before whom any person is taken under this section shall, if the offence be bailable, either admit him to bail to appear before the Magistrate having jurisdiction or have him taken in custody before the Magistrate.
(4) When any person is taken under subsection (3) before an officer of Customs as aforesaid, such officer shall proceed to inquire into the charge against such person.
(5) For the purpose of an inquiry under subsection (4), the officer of Customs may exercise the same powers, and shall be subject to the same provisions, as an officer-in-charge of a police station may exercise and is subject to under the Code of Criminal Procedure, 1898, when investigating a cognizable offence Provided that, if the officer of Customs is of opinion that there is sufficient evidence of reasonable ground of suspicion against the accused person, he shall, if the offence be bailable, either admit him to bail to appear before a Magistrate having jurisdiction, or have him taken in custody before such Magistrate.
(6) If it appears to the officer of Customs that there is no sufficient evidence or reasonable ground of suspicion against the accused person, he shall release the accused person on his executing a bond, with or without sureties as the officer may direct, to appear, if and when so required, before the Magis--trate having jurisdiction and shall make a full report of the case to his immediate superior.
182. Adjudication of confiscations and penalties. -In every case, except the cases mentioned in section 167 Nos. 26, 72, 74, 75 and 76 in which under this Act anything is liable to confiscation or any person is liable to penalty, such confiscation or penalty may be adjudged-
(a) without limit, by a Deputy Commissioner or Deputy Collector of Customs, or a Customs Collector ;
(b) up to confiscation of goods not exceeding two thousand five hundred rupees in value and imposition of penalty not exceeding one thousand rupees, by an Assistant Commissioner or Assistant Collector of Customs ;
(c) up to confiscation of goods not exceeding two hundred and fifty rupees in value and imposition of penalty not exceed--ing fifty rupees, by such other subordinate officers, of Customs as the Chief Customs Authority may from tine to time empower in that behalf in virtue of their office Provided that the Chief Customs Authority may limit the powers of any officer performing the duties of a Customs Collector and may confer on any officer such powers as it deems appropriate.
187. Offences not specially provided for how tried.-All offences against this act, other than those cognizable under section 182 by officers of Customs, may be tried summarily by a Magistrate Provided that in the cases mentioned in numbers 8 and 81 of the Schedules to section 167, so far as concerns special goods the offences shall be tried by a Court having powers not inferior to those of a Magistrate of the first class.
18. 193-A. Power to try summarily.-Any Magistrate for the time being empowered to try summary way the offences specified in subsection (1) of section 260 of the Code of Criminal Procedure, 18093, nay if lie thinks tit, on application in this behair by the prosecution try an offence under this Act, except where the value of goods involved in such offence exceeds five hundred rupees in accordance with the provisions of sub section (1) of section 262 and sections 263, 264 and 265 of that Code."
19. Reading the aforesaid provisions of the two statutes together it appears evident (1) that all offences, under a law other than the Pakistan Penal Code shall also be investigated, enquired into, tried etc. According to the provisions of the Code of Criminal Procedure ; (2) Provided that such offences shall be tried by a Court, if any, mentioned in this behalf in such `other law', but if no Court is mentioned there it may be tried by the High Court or subject to the Code of Criminal Procedure by any Court, constituted under the said Code by which such offence is shown in the eighth column of the Second Schedule to be triable.
20. We are thus led to the provisions of the Sea Customs Act. Section 182 of the Act merely empowers a Deputy Commissioner or Deputy Collector of Customs, or a Customs Collector etc. To `adjudge` (and not adjudicate) confiscation or penalty in all cases of offences mentioned in section 167 of the Act in which under the Act anything is liable to confiscation or any person is liable to penalty except cases mentioned in that section Nos. 26, 72, 74, 75 and 76. It is difficult to understand why it was thought necessary to exclude these items alone when items 77, 78, 82, 83, 84, 86 arid 88 also speak about penalties only on conviction before a Magistrate.
21. It is of interest to note that sections 167 (8) (a), 23-A, 81 and 83 not only prescribe penalties or confiscation of goods but also provide that persons concerned in the offences shall, on conviction before a Magistrate, be liable to imprisonment for a term not exceeding six years. Etc. Section 167 deals with offences and their penalties and appear to have put the offences under the following three categories :-
(1) Items 8 (a), 23-A, 81 and 83 are punishable with confiscation of goods as well as on conviction before a Magistrate t certain other penalties.
(2) Items 26, 72, 74, 75, 76, 77, 78, 82, 83, 84, 86 and 88 are punishable only on conviction before a Magistrate to certain penalties.
(3) The rest of the items are punishable only with confisca--petition-or certain other penalties.
22. If section 182 is read with section 187 without reference to the context the result is that cases under section 167 (8) (a), 23-A, 81 and 83 are cognizable by officers of Customs because these are cases where among other penalties something is liable to confiscation, and these offences are, therefore, not triable by a Magistrate summarily. This is obviously not the intention of the Legislature since indisputably these offences are triable by a Magistrate.
23. The question then is under what provisions of law the Magistrate has jurisdiction to try offences under the Sea Customs Act, particularly; offences under sections 167 (8) (a), 23-A, 81 and 83.
24. Both sections 187 and 193-A of the Act speak about the manner of trial by a Magistrate. They do not provide for D jurisdiction of a Court or its description. We are, therefore, inevitably referred back to the Code of Criminal Procedure for light and guidance in the matter. On a consistent reading of the various provisions of the Sea Customs Act I arrive at the conclu--sion that section 182 is merely an enabling provision empowering n officer of Customs to adjudge confiscation or penalty in certain cases. Section 187 does not oust or bar the jurisdiction of a Court under the Code to try an offence under the Sea Customs Act. Provided that if a competent Customs Authority has taken action against the delinquent under section 182 of the Act first a Magistrate is not competent to take action in the same matter once again. This is so on the analogy of the reason given in the case of Anjab A.I v. Z. Abedin, Magistrate 1st Class (PLD 1964 Dacca 418). In the case under report it has been held that where both the authorities have co-equal concurrent jurisdiction when one has exercised its jurisdiction and awarded a penalty, it is not legal for the other authority to act again in the same case.
25. The view I have taken receives support from the provisions of sections 173 and 193-A of the Act as well as from the omission of section 187-A of the Act by section 2 of the Sea Customs' Amendment Act, 1957 (XXXIV of 1957) which was as follows: "Section 187-A. Cognizance of offence.-No Court shall take cognizance of any offence relating to smuggling of goods punishable under items 8 and 81 of the Schedule to section 167, except ,iron complaint in writing, made by the Chief Customs Officer or any other officer of Customs not lover in rank than an Assistant Collector of Customs authorised in this behalf by the Chief Customs Officer."
26. The removal of this section and enactment in 1962 o section 193-A indicate clearly that a Court constituted under the Code of Criminal Procedure derives jurisdiction to try offences under the Sea Customs Act from the Code of Criminal Procedure subject to certain provisions of the Sea Customs Act in regard to the manner of trial etc. Once this is accepted it must also be accepted as a corollary that a Magistrate has power to inflict the penalties provided for the offences in section 167 of the Act. Item 77 of section 167 shows `fine' and `penalty' are interchangeable.
27. Item 8 has two parts like section 304 of the Pakistan Penal G Code. The first part viz. (a) provides for severer penalties than part (b), and while part (a) speaks about contravention of an order 'by or under' the Act, part (b) speaks about such an order `under' the Act. This division does not affect the jurisdiction of a Court constituted under the Code of Criminal Procedure to try an offence in item 8 of section 167 of the Act. This view finds support from proviso to section 187 enacted in 1958 and section 193-B enacted by Ordinance 58 of 1962. The present item 8 consisting of the two parts was itself enacted by this Ordinance of 1962. Section 173 also supports the view about the jurisdiction of a Magistrate to try an offence under the Sea Customs Act. A person arrested under a reasonable belief that he has committed an offence under the Sea Customs Act has to be reduced before the nearest Customs Officer or the officer-in-charge of the nearest police station. The Customs Officer may then admit the offender to bail, if the offence is bailable, to appear before the Magistrate having jurisdiction or send him in custody to the said Magistrate. The Customs Officer can inquire into the charge against the person and in doing so the Officer has the powers of officer-in-charge of a police station when investigating a cognizable offence under the Criminal Procedure Code.
28. Thereafter if the Customs Officer is of opinion that there is sufficient evidence etc. He shall, in a bailable offence, either admit him to bail to appear before a Magistrate or send him in custody to the Magistrate. All these show that ultimately it is------the Magistrate who can finally dispose of the case.
29. There is another aspect of the present case. When the Magistrate assumed jurisdiction to try the cases upon the accusa--tions made against the petitioners it was perfectly legal for him to do so.
30. If in course of the trial, however, it was found that the petitioners were guilty of a lesser offence they could be legally convicted for the lesser offence under section 238, Criminal Procedure Code. The Legislature very wisely provided for this, otherwise it would not only look incongruous that although the Magistrate could try more serious offences he could not try the lesser ones, but also it would have entailed waste of time and labour by requiring him to send the case to another tribunal for retrial.
31. That the petitioners were guilty of an offence under section 167(8) was not disputed a second time before this Bench and this Bench has accepted this position.
32. I, therefore, hold that the petitioners are guilty under the 2nd part of item 8 of section 167 via. (M and their conviction is accordingly altered to one under section 167(8)(b`,, and their sentences thereunder are reduced in the following manner : The conviction of each one of the petitioners is altered from one under section 167(8)(a) to one under section 167(8)(b) of the Sea Customs Act, and the sentence passed upon petitioner Afsar-- uddin is reduced to the payment of a penalty of Rs. 4,000 only, the sentence of petitioner Ramjan A.I is reduced to payment of a penalty of Rs. 2,000 only, and the sentences of the remaining four petitioners arc reduced to payment of a penalty of Rs. 500 each. I would also confirm the order of confiscation of the seizes: goods except the jeep.
33. The three Rules should be disposed of accordingly.
34. A. M. SAYEM, J.-With great respect I regret my inability to subscribe to the view taken in the judgment just delivered by my learned brother Salahuddin Ahmed, J., which has sufficiently set out the relevant facts leading to this reference.
35. The reference has arisen out of an order of conviction and sentence passed by a Magistrate of the 1st Class at Dinajpur specially empowered under section 193-B of the Sea Customs Act which runs as follows :- "193-B. Special powers for Magistrates.-Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (Act V of 1898), any Magistrate of the first class specially empowered by the Provincial Government in this behalf, may pass a sentence of imprisonment for a term exceeding two years and convicted of an offence mentioned in items 8 and 81 in the Schedule to section 167."
36. Suffice it to say that the learned Magistrate having convicted all the petitioners under item 8(a) of section 167 of the Act and sentenced most of them, inter alia to rigorous imprisonment for more than four years and fines of Rs. 4,000 or more and their appeals having been dismissed by the Sessions Judge of Dinajpur with certain modifications of the sentences imposed on them, they moved this Court in Revision, in three batches, and obtained Rules in Criminal Revisions Nos. 639, 646 and 717, all of 1967.
37. Since these three Rules were directed against a single judg--ment of the learned Sessions Judge which arose out of the same judgment of the learned Magistrate, these Rules came up for analogous hearing before a Division Bench of this Court comprised of Salahuddin Ahmed and Abdul Hakim, JJ, Both Salahuddin Ahmed and Abdul Hakim, JJ., it appears agreed that the goods found with the petitioners attracted item 8(b) of section 167 of the Act, and not item 8(a) thereof under which the petitioners were convicted and sentenced. They also agreed that an appeal lay from the said order of conviction which was passed by the learned Magistrate under item 8(a) of section 167 of the Act.
38. They, however, differed as to the forum of appeal. Salahuddin Ahmed, J., teas of the opinion that the Magistrate concerned being specially empowered under section 193-B of the Act to pass sentences in excess of those provided in subsection (1) of section 32, Cr. P. C., an appeal from a sentence passed by him, even if it be of imprisonment for more than 4 years would lie to the Sessions Judge against whose decision the Rules were issued. Abdul Hakim, J., on the other hand, was of the view that the appeal could lie only to this Court and not to the Court of Session, in view of clause (b) of the proviso to section 408, Cr. P. C. The Rules were accordingly referred to the learned Chief Justice by the Presiding Judge Salahuddin Ahmed, J. Under clause 36 of the Letters Patent, formulating the point of difference as follows:- "What is the forum of appeal under section 408 of the Code of Criminal Procedure from a conviction under section 167(8)(a; of the Sea Customs Act and a sentence of rigorous imprisonment exceeding four years passed thereunder by a First Class Magis--trate in exercise of the powers conferred on him under section 193-B of the Sea Customs Act?"
39. The Rules were thereupon heard by M. R. Khan and Maksum--ul-Hakim, JJ. They pointed out that First Class Magistrate specially empowered under section 193-B of the; Act to pass enhanced sentences were not Magistrates invested with power under section 30 of the Code of Criminal Procedure and therefore, clause (b) of the proviso to section 408 of the said Code was not attracted to sentences passed by such Magistrates. They were accordingly of the view that an appeal from whatever sentence passed by a Magistrate of the 1st Class specially empowered under section 193-B of the Act, be it even of imprisonment for more than 4 years, would lie to the Court of Session. Having so held, they referred back the Rules for considering the question whether an offence under item 8(b) of section 167 of the Act was triable by a Magistrate and accordingly if the petitioner's conviction under item 8(a) could be altered to one under item 8(b), as proposed by the original Bench.
40. As the Rules came back to the original Bench comprised of Salahuddin Ahmed and Abdul Hakim, JJ., it was of the opinion that the question whether an offence under item 8(b) of section 167 of the Act was triable by a Magistrate was not free from difficulty and was one the answer to which would have a far-reaching effect. The Rules were accordingly for a second time referred to the learned Chief Justice, with the result that this Bench of five Judges was constituted. It may, however, be mentioned that the referring order of the original Bench on this occasion contains certain observations of Abdul Hakim, J., reiterating his view as to the forum of appeal on which there was earlier a difference of opinion which was finally settled by M. R. Khan and Maksum-ul---Hakim, JJ., upon reference under clause 36 of the Letters Patent. The question as to forum of appeal from a conviction by a Magistrate specially empowered under section. 193-B of the Act could, therefore, be no longer agitated and, in fact none of the parties before us made any attempt to re-agitate this point. They did not also raise any objection as to the finding of the original Bench that the goods recovered from the petitioners attracted item 8(b) and not item 8(a) of section 167 of the Act.
41. The only question mooted before us was as to whether an offence under item 8(b) is triable by a Magistrate or; in other words, as I look at the matter, whether an offence under item 8(b) is an offence punishable by a Magistrate or, for that matter, by a Court created by the Code of Criminal Procedure.
42. It was contended on behalf of the petitioners that offence under item 8(b) of the Act could only be dealt with by Customs Officials, and not by Magistrates. Reference in this connection was made to Chapter XVII of the Act, which has undergone various amendments. Beginning with section 169 and ending with section 193-M, this chapter contains the heading "PROCEDURE RELALATING TO OFFENCES, APPEALS ETC.'' and can safely be held to be intended by the Legislature to be exhaustive, on the question of procedure.
43. Sections 182 and 187 of the Act may, with advantage be considered at this stage. They are as follows :-- "182. Adjudication of confiscation and penalties. In every case, except the cases mentioned in section 167, Nos. 26, 72, 74, 75 and 76, in which under this Act anything is liable to confis--cation or any person is liable to penalty, such confiscation or penalty may be adjudged-
(a) without limit, by a Deputy Commissioner or Deputy Collector of Customs, or a Customs Collector ;
(b) a to confiscation of goods not exceeding two thousand and fifty hundred rupees in value and imposition of penalty not exceeding one thousand rupees, by an Assistant Commissioner or 'Assistant Collector 'of Customs ;
(c) up to confiscation, of goods not exceeding two hundred and lifts rupees in value and imposition of penalty not exceeding fifty rupees, by such other subordinate officers of Customs as the Chief Customs Authority may from time to time empower in that behalf in virtue of their office : Provided that the Chief Customs Authority may limit the powers of any officer performing the duties of Customs Collector and may confer on any officer such powers as it deems appropriate.
187. Offences not specially provided for, how tried.-All offences against this Act, other than those cognizable under section 182 by officers of Customs, may be tried summarily by a Magistrate Provided that in the cases mentioned in numbers 8 and 81 of the Schedule to section 167, so far as concerns special goods, the offences, shall he tried by a Court having powers not inferior to those of a Magistrate of the first class."
44. It should be mentioned, however, that in the original Act, as it was when Pakistan carne into being confiscation or `penalty' was not provided for offences punishable upon conviction by imprisonment or fine. It is also worthy of not, that wherever punishment for offences against the Act was provided in terms of imprisonment or tine upon conviction, jurisdiction was given to Magistrates to inflict sentences of imprisonment for periods not exceeding two years and of fines not exceeding Rs. 1,000 only. It was for the first time in 1949 it appears, by the Sea Customs (Amendment; Act, 1949 (Act X of 1949), that upon conviction for an offence against the Act a sentence of imprisonment not exceeding seven years or fine without limit or both was added in the penal column against item 8 and a sentence of imprisonment not exceeding three years or similar fine or both was substituted for a line not exceeding Rs 1,000 against item 72, with the further substitution of the word `Magistrate' by the word `Court' regarding both the items. By Act XIV of 1958, however, the maximum period of imprisonment in respect of item 8 was reduced to six years, and the penal column retained the word "Court" By Act XXV of 1956 item 81 was added to the Schedule of section 167, and by the said Act, i.e. Act XXV of 1956 the penal column inter alia provided that on conviction before a Court imprisonment for a term not exceeding six years shall follow as also a liability to fine. Here also the word "Court" has been used. It may also be mentioned that the proviso to section 187 quoted above which also speaks of trial on offences undo: items 8 and 81, so far as concerns special goods, mentions a `Court' not inferior to that of a Magistrate of the first Class. It will thus appear that wherever, upon conviction, punishment of imprisonment for more than two years or fine of more than Rs. 1,000 was provided by amendment, the word `Magistrate' was substituted by the word `Court' to include `Courts' above Courts of Magistrates, keeping in view the powers of the different levels of Courts constituted under the Code of Criminal Procedure.
45. Then again, by Ordinance No. LV1.II of 1962 item 8 of section 167 (which section enumerates the offences) was split up into items 8(a) and 8(b) and some other items were adder including items 23-A and 83. By this Ordinance several other amendments were made including substitution of the old sections 173, 174 and 175 by a single section numbered 173 to which 1 shall have occasion to refer hereafter. Again, by section 11 of the Ordinance, namely, Ordinance No. LVIII of 1962 some sections were added to the Act, including sections 193-A to 193-M. Later, by Ordinance No. VIII of 1963, sections 193-C to 193-F were omitted. This Ordinance also omitted section 193-B which related to appointment of Special Judges and substituted it by a new section empowering the Provincial Government to confer special powers on Magistrates of the first class. It is the newly substituted section 193-B which I have set out at the commencement of my judgment.
46. There has been no dispute that the learned Magistrate who convicted and sentenced the petitioners under item 8(a) of section 167 of the Act was one invested with powers under this new section 193-$, so that he could pass sentences of imprison--ment for terms exceeding two years and fine exceeding Rs. 1,000.
47. The question before us is whether the learned Magistrate who was invested with powers under the existing section 193-B of the Act could at all try the petitioners, in view of the finding of the original Bench that the goods recovered from the petitioners attracted item 8(b) of section 167 of the Act.
48. On behalf of the State it was pointed out that section 193-B mentions item 8 and not items 8(a) and 8(b), as the proviso to section 187 also does not refer to item 8 as having been split up into 8(a) and 8(b). It was accordingly contended on behalf of the State that the Legislature intended Magistrates invested with powers under section 193-B of the Act to try offences both under items 8(a) and 8(b) of section 167. No doubt, the contention is attractive, and at one stage I felt tempted to accept the contention.
49. There is, however, difficulty in accepting the above contention raised on behalf of the State. The penal provisions in respect of items 8(a) and 8(b) stand in the way of acceptance of the contention, which has to be examined with reference to the provisions of sections 182 and 187, both of which I have earlier set out fn extenso. The penal provisions against items 8(a) and 8(b) are set down below :-- Against item 8(a).-Such goods shall be liable to confisca--petition ; and any person concerned in the offence shall, on conviction before a Magistrate be liable to imprisonment for a term not exceeding six years and to a fine not exceeding five times the value of the goods, and in addition shall also be liable, if the Magistrate in his discretion so orders, to the punishment of whipping.
50. Against item 8(b).-Such goods shall be liable to confiscation and any person concerned in any such offence shall be liable to a penalty not exceeding five times the value of the goods."
51. Evidently, by reason of section 182 (except in cases mentioned in items 26, 72, 74, 75 and 76 of section 167) in. Every other case where the Act provides liability to "confiscation" or "penalty" cognizance thereof is intended to be taken by the officials mentioned in the three clauses of section 182, and not by a Magistrate or any other Court. This is also borne out by the wordings of section 187 relating to trial of offences "not, specially provided for". This section, i.e. Section 187 provides that Magistrates may try summarily all offences against the Act other than those "cognizable" under section 182 by officers of Customs.
52. Now, as already noticed, under section 182 the officers of Customs are to take cognizance of offences (excepting the mentioned items) in every case where the liability is of confisca--petition or penalty and it is for such officers to adjudge such confiscation or penalty. Orders of such officers adjudging "confiscation" or "penalty" have been made appealable under) section 188 of the Act to designated higher officers of Customs. Under section 190 the Chef Customs Authority has been given powers inter alia to remit such `penalty' or `confiscation', in whole or in part. Appellate orders, under section 188, as also orders of the Chief Customs Authority under section 19(z have again been made amenable to Revision by the Central Government under section 191. It is also significant that for `penalty' adjudged against a person, the latter cannot be put in prison as in the case of a sentence of fine imposed by a Court. The only mode of realising `penalty' has been laid down in section 193 which provides that it may be realised by sale of any goods of the person concerned which may be in charge of the Customs, or by the procedure provided for realisation of arrear of land revenue or a public demand through the Collector by a certificate issued over the signature of the Customs Collector.
53. Obviously, from what I have said in the preceding para--graph, the Legislature has created a hierarchy of officials or levels for correction of and remedy against orders relating to penal provisions by way of `confiscation' and `penalty'. I have also noticed above how the Legislature has provided the procedure for realising penalty for which the person concerned cannot be put in prison, as in the case of fine imposed by Courts created by the Code of Criminal Procedure. It is true that the word `penalty' occurs in the penal column against item 77 of section 167 of the Act, and that is the only item of offence which authorizes a Magistrate on conviction, to award a penalty against a police officer who neglects to discharge the duty cast on him by section 180 of the Act to send a written notice or cause goods to be conveyed to a customs house. In my view, this deviation was made just to indicate that such a negligence on the part of a police officer did not merit imprisonment in default of payment of the penalty.
54. "180. Procedure in respect of things seized on suspicion. --When any things liable to confiscation under this Acc are seized by any Police Officer on suspicion that they have been stolen he may carry them to any police station or Court at which a complaint connected with the stealing or receiving of such things has been made, or an enquiry connected with such stealing or receiving is in progress, and there detain such things until the dismissal of such complaint or the conclusion of such enquiry or of any trial thence resulting.
55. Section 180 of the Act obviously supports the defence contention that even if goods liable to confiscation under the Act be before a Court, persons concerned cannot be tried with a view to punishing them with confiscation. Such goods have to be conveyed to and deposited at the nearest customs house, to be there `proceeded against according to law'. This means that it is for the Customs Officials to pass necessary orders in respect of the goods liable to confiscation.
56. Then again under section 183 of the Act, the owner of confiscated goods has the option to get the confiscated goods released on payment of an amount, which has no doubt been termed `fine' as fixed by the officer adjudging the confiscation. Section 183 is very emphatic on the point, inasmuch as the section begins with the words "Whenever confiscation is authorised by this Act, the officer adjudging it shall give the owner of the goods an option . . . . . . . ." Such an option cannot be given by a Magistrate or, for that matter, any Court which can in certain circumstances confiscate property only by way of disposal thereof under section 517, Cr. P. C., and not by way of punishment.
57. Such a manner of disposal of property namely of equipment or apparatus appears to have been provided for in the penal column against the offence under item 83 of section 167 which is of making any signal or transmitting any message for the information of a person in any ship or air- craft or across the frontier, being a signal or message connected with smuggling or intended smuggling of goods into or out of Pakistan. The whole of the penal provision against this item, i.e. Item 83 is set down below :- "Such person shall, on conviction before a Magistrate be liable to imprisonment for a term not exceeding three years and not less than one month, or to a fine not exceeding five thousand rupees, or to both; and any equipment or apparatus used for sending the signal or message shall be liable to confiscation."
58. Confiscation after conviction, it may be mentioned, has been provided only against the offence under item 83 and against no other item.
59. Apart from mention of Magistrates and Courts in the penal column against various items of offences in the Schedule of section 167 of the Act, it is sections 187, 193-A and 19'-B that make certain offences triable by Courts constituted under the Code of Criminal Procedure. I have already quoted the penal provisions against item 8 i.e. 8(a), 8(b) and 83 and also made a reference to items 23-A, 77 and 81. 1 have also quoted in extenso section 187 of the Act, including its proviso and also section 193-B. Section 193-A of the Act remains to be referred to. It provides that Magistrates empowered to try offences in a summary way under section 260, Cr. P. C. May, on application in this behalf by the prosecution, try an offence under the Act in the same way, i.e. In accordance with the provisions of subsection (1) of section 262 and sections 263, 264 and 265, Cr. P. C., except where the value of goods involved exceeds five hundred rupees.
60. It is true that section 193-A of the Act authorizes certain Magistrates to try in a summary way an offence under the Act, except where the value of goods involved exceeds five hundred 1 rupees. But this has to be read with section 187 which provides that a Magistrate may try summarily all offences against the. Act except those cognizable under section 182 by officers of Customs, with the proviso that offence under items 8 and 81 of the Schedule to section 167, so far as concerns special goods, shall be tried by a Court having powers not inferior to those of a Magistrate of the first class. This naturally leads to a consideration of section 182 which provides that in "every case"
61. (except cases mentioned in items 26, 72, 74, 75 and 76 of section 167) in which anything under the Act is liable to confiscation or any person is liable to penalty, such confiscation or penalty may be adjudged by officers mentioned in the several clauses of this section, i.e. Section 182 up to limits provided therein. I have also referred above to sections 188, 190 and 191 of the Act which provide the forum of appeal and revision against punishments by way of confiscation and penalty.
62. Certain offences against the Act that are thus triable by Magistrates by virtue of section 5(2), Cr. P.
63. C. Are tried summarily by Magistrates of the first class empowered under section 260, Cr. P. C. In respect of cases where the value of goods involved does not exceed Rs. 500 in view of section 193- A of the Act, with this exception that offences under items 8 and 81 of section 167 are triable by First Class Magistrate specially empowered under section 193-B of the Act.
64. Now, punishment imposable by a Magistrate of the first class have been enumerated in clause (a) of subsection (1) of section 32, Cr. P. C. They are in addition to whipping, imprisonment not exceeding a term of two years, including such solitary confinement as is authorised by law, and fine not exceeding Rs. 1,000.
65. What section 193-B of the Act has done is simply to authorise the Provincial Government to empower any Magistrate of the first class to pass sentences of imprisonment and fine in excess of those provided in section 32(1)(a) of the Code of Criminal Procedure on persons convicted of offences under sections 8 and 81 of the Act. The Provincial Government has not been authorised under section 193-B of the Act to empower such Magistrates to impose a punishment by way of confiscation. Nor has the relevant notification, namely, Notification No. GAV-- 146/63-151, dated the 11th February 1964, published in the Dacca Gazette, dated the 27th February 1964, conferred any such power on the Magistrates concerned. There can also, therefore, be no question of a Magistrate empowered under section 193-B of the Act passing a sentence of confiscation by way of punish--ment. This view finds strong support also from the location of the clause relating to liability as to confiscation in the penal column against items of offences punishable also by sentences imposable upon conviction by the Magistrate. The setting is the same as in respect of item 8 (a) quoted above. For instance, the penal columnagainst the offence under item 23-A which is of disobedience of an order to stop a vessel, cart or other means of conveyance is as follows :--- "Such vessel, cart or other means of conveyance shall be liable to confiscation ; and the master of such vessel or the person in charge or such cart or other means of conveyance shall, on conviction before a Magistrate, be liable to imprison--ment for a term not exceeding six months, or to a fine not exceeding one thousand rupees or to both."
66. It will appear that the clause in respect of liability to confiscation proceeds and is kept apart by a semi-colon from, the punishment imposable on conviction before a Magistrate.
67. The question can be probed further from another angle. Is confiscation meant as a punishment as for a crime? Obviously, the answer would be in the negative, since under section 183 of the Act, as already noticed, whenever confiscation is authorised by the Act the officer adjudging it must give the owner of the goods an option to pay in lieu of confiscation such fine as the officer thinks fit. This clearly indicates in my view that an order of confiscation is relatable to collection of Revenue' as "penalty" should also be. I have already noticed how by section 188 of the Act the Legislature has made orders of confisca--petition and penalty amenable to appeal to higher Customs authorities and to revision by section 191 to the Central Government. I have also referred to section 190 of the Act. This section empowers the Chief Customs Authority to remit any penalty or confiscation, in whole or in part, and, with the consent of the owner of any goods ordered to be confiscated, commute the order of confiscation to a penalty not exceeding the value of such goods. All these, considered with other things besides I have noticed above, including location of the clause in respect of liability to confiscation in the penal column before mention of sentences on conviction by Magistrates against items of offences, where both confiscation and punishment by way of sentences imposable by Magistrates have been provided, lead me to the view that Magistrates cannot pass orders of confiscation of goods. Such confiscations, in my opinion, can only be ordered by Customs officials, as otherwise there will be an anomaly involving international implications affecting Pakistan's foreign trade which can better be dealt with by Customs officials and the Central Government than Courts. It is also a settled principle of construction that in case of any doubt, the benefit goes to the accused.
68. Be that as it may, we are concerned in this reference with the specific question whether an offence under item 8(b) of section 167 of the Act, in the penal column relating to which there is no mention of any Court or Magistrate, and so of any conviction or sentence of imprisonment or of fine or of whipping is triable by a Magistrate. In the circumstances, it is impossible to accept the contention on behalf of the prosecution that the offence under this item is also triable by a Magistrate. The penal provision against item 8(b) which I have quoted above provides, only for confiscation and penalty.
69. I find support for this view from decision of the Madras High Court reported in Govindarajulu Nuida v. Secretary of State (I L R 50 Mad. 449). Coutts Trotter, C. J., held at page 455 that an order of confiscation of smuggled goods was "a matter affecting the collection of revenue, though it be in the nature of a penalty". Beasley, J., also agreed at page 460 that penalties even in the shape of double or treble duties imposed on smu ggled goods would be revenue.
70. This decision 50 Mad. 449 was followed in AIR 1940 Bom. 294 where item 17 of section 167 of the Act in the penal column of which there is no mention of a conviction by a Magistrate or a Court came for consideration. It was held that the offence could be tried or adjudged by an officer of the Customs, and that by section 182 of the Act the Legislature had, created a special tribunal to try such an offence. It is now well settled that if a special tribunal is created for trying an offence, it is that tribunal alone which can try the said offence. The Madras and Bombay views noticed in this paragraph appear to have been accepted also by this Court in two Division Bench decisions: See Abdul Mansur Rahman v. Crown and Jamal Ahmed v. Collector of Customs (6 D L R 217).
71. I have no manner of doubt that although the fact that item 8 of section 167 has been split up into 8(a) and 8(b) has not been taken note of in section 193-B, that makes no difference ; and that a Magistrate even if empowered under section ly3-B cannot try an offence under item 8(b). Since the penal provision relating to item 8(b) is confined only to confiscation and penalty not exceeding five times the value of the concerned goods, section 182 of the Act is attracted to this item, i.e. Item 8(b), so that it is only for the Customs officials to pass necessary orders in relation to an offence under this item.
72. Reference was made on behalf of the State to the new section 173 of the Act which inter alia provides that if a person believed to have committed an offence under the Act is produced before a Customs Officer, if the offence be bailable, then the officer shall either admit him to bail to appear before the Magistrate, having jurisdiction or have him taken in custody before such Magistrate ; and also that if after due inquiry the officer of Customs be of the opinion that there is sufficient evidence or reasonable ground of suspicion against the accused person, the officer shall, if the offence be bailable admit him to bail to appear before a Magistrate having jurisdiction, or have him taken in custody before such Magistrate. The last sub-section of this section further provides that if there be no sufficient evidence or reasonable ground of suspicion against the accused person, the officer shall release the accused person on his executing a bond, with or without sureties as the officer may direct to appear, if and when required before the Magistrate having jurisdiction and shall make a full report of the case to; his immediate superior.
73. It was contended on behalf of the State that section 173 of the Act gave a clear indication that each and every offence against the Act is triable by a Magistrate. I am unable to accept the contention.
74. The most significant thing in section 173 is the question whether the offence alleged against the person concerned is a bailable or non-bailable offence. This takes us to the concluding portion of the Second Schedule of the Code of Criminal Procedure which is headed "Offences against other laws," and provides that such offences, i.e. Offences against other laws are bailable if punishable with imprisonment for less than 3 years or with fine only. Item 8 (b), as already noticed, does not at all mention a sentence of imprisonment or of fine. Section 173 of the Act has thus no relevance to the question at issue before us.
75. I would accordingly make the Rules absolute and acquit the petitioners. This does not mean that the proposed order of acquittal can in any manner stand in the way of the Customs Officials taking action in the matter which falls within their jurisdiction.
76. MAKSUM-UL-HAKIM, J.---I regret I could not agree with the judgment of my learned brother Salahuddin Ahmed , J. I agree with the conclusion arrived at by my learned brother Sayem, J. My reasonings however are somewhat different and would like to state them separately.
77. The three revision cases arise out of one judgment. The incident took place on 21-7-66. Same questions of law and fact are involved in these cases. They were heard together and is disposed of under one judgment.
78. The prosecution case briefly, stated is that the petitioners in the early hours of 21-7-66 were proceeding towards the Indian Border in a jeep. P. W. I Abdul Kalam, an E. P. R. Habildar, P. W. 2, Khaliluddin P. W. s, Hossain A.I Kari, P. W. 4 Moklessur Rahman, all sepoys of the E. P. R. Accompanied by another sepoy went out in patrol duty in the previous night and being divided in two groups kept watch on the adjoining Indian Border. One of them seeing the jeep proceeding towards the border at 3'o clock in the morning, fired one round and succeeded in stopping the jeep. They found all the petitioners in the jeep which was being driven by the petitioner Ramjan A.I. The petitioner Afsaruddin, a Naik of the E. P. R. Who was escorting the rest tried to secure their release but failed. At 7:30 a.m. It presence of local persons including P. Ws. 6, 7 and 9 the petitioners were searched and articles worth about Rs. 2,000 were seized from their possession. These included Rs. 110 in Pakistan currency, Rs. 393 in Indian currency, further cash of Rs. 240 four wrist-watches, four fountain-pens, 2 pairs of gold balas, two gold chains, 2 pairs of gold earnings, two gold rings from the persons of two women-petitioner, and two gold balas and a necklace with locket from a Tiffin box.
79. Ultimately the six petitioners including the two women-- petitioners were tried for an offence under section 167 (8)(a) of the Sea Customs Act by Mr. M. A. Hamid, Magistrate, 1st Class, who was specially authorised under section 193-B of the Sea Customs Act. The petitioners pleaded not guilty to the charge and gave various suggestions in cross-examination. The petitioners also examined some defence witnesses. The petitioners Ramjan A.I and Afsaruddin suggested that they were not present in the jeep and did not know about the destination of the party. Ramjan A.I's further case was that the jeep belonged to his relation and the petitioner Afsaruddin induced him to place the jeep at his disposal. Other petitioners' case was that they were going to a house of their relative for a pleasure trip.
80. 'The learned Magistrate convicted all the petitioners under section 167(8)(a) of the Sea Customs Act and sentenced them to various terms of imprisonment ranging from 5-- years to 2-- years and to fines ranging from Rs. 5,000 to Rs. 500. Petitioner Afsaruddin was awarded 15 lashes, and other three male petitioners were awarded 10 lashes. All the seized goods exception the jeep were declared to be seized goods and were directed to be disposed of according to rules.
81. Accused Triguna Charan Bose who was tried on charges tinder section 167(8)(a) read with section 109, P. P. C. And also rule 47(5) of the Defence of 1'akistar: P ides was acquitted by the Magistrate.
82. Against this order of conviction and sentence the petitioners preferred three appeals. The learned Sessions Judge, Dinajpur by his order dated 19-8-67 dismissed the appeals with certain modification of sentence.
83. Thereafter the petitioners obtained the present Rules.
84. The charge that was framed against the petitioners is- as follows :- That you on or about the 21-7-66 at Danihar, P. S. Komali, District Dinajpur attempted to smuggle out from Pakistan to India 16 tolas gold ornaments Exhs. VI to IX, XIV to XVIII, XX and XXI, wrist- watches Exhs. III, V, XIII and XXV worth about Rs. 2,277 in all, without any authority and thereby committed an offence punishable under section 167 (8-a) of the Sea Customs Act, and within my cognizance."
85. From the above it will appear that the petitioners were accused of attempting to smuggle out of Pakistan to India 16 tolas of gold ornaments and wrist-watches worth about Rs. 2,277. The allegation for attempting to smuggle currency, both Pakistani and Indian was not made part of this charge against these petitioners.
86. At the time of hearing of this case before us a preliminary point has been raised challenging the constitution of this Bench.
87. It was contended that as the learned Judges differed in their views as to the forum of trial of an offence under section 167(8-b) as such the case should have been sent to a third Judge for decision as is required under section 429 read with section 439, Cr. P. C. I entirely agree with the view expressed by my learned brother Salahuddin Ahmed, J., on this point. A reading of the judgment of the Division Bench do not show that there was a difference of opinion in the view of the two learned Judges. It is clear that the view expressed by my brother Salahuddin Ahmed, J., did not contain any definite opinion on the point and the only view expressed by him is that the cases needed consideration by a larger Bench and the Bench sent the matter to the learned Chief Justice. The learned Chief Justice thereafter constituted the present Bench to consider the question as well as to finally dispose of the three cases. In my opinion this is clearly permissible under Rule 7, Chapter 11, Part I of the High Court Appellate Side Rules. See the case of Zakir Ahmed v. University of Dacca. Moreover a difference of opinion within the meaning of section 429, Cr. P. C. Cannot be said to occur when one of the two Judges comprising a Division Bench refrains from giving a definite opinion, but only remarks that the matter needs consideration by a larger Bench. This point of the learned Advocate has, therefore, no substance and the same is rejected.
88. On the second point that is to say on the point relating to the forum of appeal also I entirely agree with him and hold that the question of forum of appeal against such judgments by Magis--trates empowered under section 193-B of the Sea Customs Act was finally decided by the third Bench when the same was referred to them and need not be re-opened or re-agitated at this stage. That Division Bench consisting of Mr. Justice M. R. Khan and myself clearly observed on 1-11-68 that a Magistrate empowered under section 193-B of the Sea Customs Act is not a Magistrate empowered under section 30 of the Code of Criminal Procedure and as such appeals against his judgment shall lie to a Sessions Judge and not to the High Court because of non-applicability of proviso (b) of section 408, Cr. P. C. I have no reason to depart from this view, nor this view was challenged at the bar.
89. With regard to the main point involved in these cases however I regret I could not persuade myself to agree with the view expressed by my learned brother Salahuddin Ahmed, J. The question is whether the offence under section 167(8)(6) of the Sea Customs Act is triable by a Magistrate or the same is exclusively triable by some other tribunals namely the Customs Authorities. The Central Ordinance No. LVIII of 1962, split the offence No. 8 under section 167 of the Customs Act into two items namely item 8(a) and item 8(b) and provided entirely different punishments for these two different offences. The punishment for the offence under item 8(a) of section 167 was further amended by the Central Ordinance No. VIII of 1963.
90. As it stands now there is a clear stipulation in respect of item 8 (a) of section 167 in the third column of the Schedule to the effect that on conviction before a Magistrate the offender will be liable to a term of imprisonment, fine and whipping whereas N in respect of item 8 (b) of section 167 in the entry relating to penalty there is no stipulation to the effect as to the awarding of any sentence after conviction by a Magistrate. The punishment mentioned against 8 (b) is only of confiscation and penalty to the extent of five times the value of the goods concerned. It has to be noticed that the penalties which are awardable by a Magistrate under the Code of Criminal Procedure section 32 namely imprisonment, fine and whipping are totally absent in the stipulation against 8 (b). Thirdly, the penalties mentioned against 8 (b) is `penalty' and not fine as is specifically mentioned in the Code of Criminal Procedure and is also inserted against the entry 8 (a). To me it appears that these different expressions were used by the Legislature for different purposes and cannot be lightly dismissed as meaningless distinction. It has to be further noticed that it is only against 20 specified items out of the total of 96 items of offences under section 167 of the Sea Customs Act, that in the column stipulating the penalty it has been stated that the offender will be liable to conviction and sentence for various terms of imprisonments on trial by a Magis-- trate, over and above confiscation of goods and imposition of penalties. In item 8(b) however there is no stipulation in the third column about conviction and sentence on trial by al Magistrate. This omission appears to be very significant. Section 182 of the Sea Customs Act reads as follows :- "Adjudication of confiscations and penalties.-In every case, except the cases mentioned in section 167, Nos. 26, 72, 74, 75 and 76 in which under this Act anything is liable to confiscation or any person is liable to penalty, such confiscation or penalty may be adjudged :--
(a) Without limit. By a Deputy Commissioner or Deputy Collector of Customs or a Customs Collector ; (b)up to confiscation of hoods not exceeding two thousand five hundred rupees in value and imposition of penalty not exceeding one thousand rupees, by an Assistant Commissioner or Assistant Collector of Customs ;
(c) up to confiscation of goods not exceeding two hundred and fifty rupees in value and imposition of penalty not exceeding fifty rupees by such other subordinate officers of Customs as the Chief Customs Authority may from time empower in that behalf in virtue of their office: Provided that the Chief Customs Authority may limit the powers of any officer performing the duties of Customs Collector and may confer on any officer such powers as it deems appropriate."
91. The opening words of this section will make it clear that in case, excepting the cases of 5 items of section 167 if the offence is punishable by confiscation or penalty then such penalty is awardable by tribunals consisting of officers of the Customs Department. Section 188 and section 191 of the Sea Customs Act lay down the provisions of appeal and revision against such orders of adjudication. These provisions make it abundantly clear that a self-contained Code has been laid down relating to the procedure of passing orders of confiscation and penalty and also relating to appeals and revisions therefrom. Civil Court's jurisdiction to challenge these orders also has been sought to be barred relating to these orders. See the case of Secretary of State v. Musk & Co. (AIR 1940 PC 195). From the above discussion it appears to me that the intention of the Legislature is that any offence where the offender comes within the ambit of section 182 of the Sea Customs Act and where they are liable to an order of confiscation and penalty then the forum for adjudication or trial is that of a Customs Officer. Further it appears that against such orders to the detriment of an offender there are provisions of appeal and revision. Let us now examine whether these offences are also liable to be tried by any other agencies. The next section which needs consideration and has been referred to by my learned brother Salahuddin Ahmed, J. Is section 187. The marginal note to this section is: "offences not specially provided for, how tried". It is clearly stipulated in this section that the offences against the Sea Customs Act excepting those which are cognisable under section 182 by Customs Officers may be tried summarily by a lo Magistrate. It is obvious, therefore that the offences which are cognisable under section 182 by Customs Officers cannot be tried summarily by a Magistrate on the authority of this section.
92. A proviso to this section however was added by Central Act No. 14 of 1958. The proviso reads as follows : "Provided that in the cases mentioned in numbers 8 and 81 of the Schedule of section 167, so far as concerns special goods the offences shall be tried by a Court having powers not inferior to those of a Magistrate of the first class". This proviso is not very material for our consideration in the present cases as it is apparent that this is applicable only to offences relating to special goods.
93. More--over, in 1958 when this amendment was brought on the statute book at that time there was no such offences as 8(a) and 8(b) of section 167 and the only offence that was existing in the statute book at that time was item No. 8 of section 167 and the same act which brought in this provision that is to say the Central Act 14 of 1958 also added the words "on conviction before a Court" to the third column of item No. 8. It is obvious, there--fore, that the provision is only applicable to cases concerning special goods and also to offences triable by a Court. The words "on conviction before a Court" in the third column against item No. 8(a) only was however clarified and replaced by the words on conviction before a Magistrate, by the Central Ordinance No. 8 of 1963.
94. Section 193-A has to be read along with section 187. Section 193-A it appears only lays down the procedure of such summary trial, and enjoins that the provisions of the Code of Criminal Procedure, has to be followed in such cases. It is laid down in this section that such summary trial is however not permissible where the value of goods involved is more than Rs. 500. Section 193-B only lays down that Magistrates authorised by the Provincial Government under this section will have authority to award sentences of imprisonment beyond two years and fines exceeding Rs. 1,000. In other words such Magistrates will have larger powers than those which are conferred on them under the Code of Criminal Procedure.
95. Section 173 of the Sea Customs Act in my opinion also does not provide any clue to the answer of the present question, Reading this section it appears to me that this section only deals with the procedure and power of arrest and granting of bail. To me it does not appear that this section authorizes or specifies the forum of trial of any of the offences under this Act.
96. Let us now turn to the provision of sections 5 and 29 of the Code of Criminal Procedure. These sections lay down that the offences under the Penal Code are to be tried in accordance with the procedure and by a Court as mentioned in the Code of Criminal Procedure. With regard to other offences created by other laws the same is to be tried by such Courts and according to such procedure as mentioned in these other laws. If however no Court is mentioned and no procedure is stipulated then the same is to be tried by the Court and in accordance with the procedure as laid down in the Code of Criminal Procedure. In my opinion the provisions of the Code of Criminal Procedure have no application with regard to the forum and procedure of trial of the offence 8(b) of section 167 of the Sea Customs Act, in view of the fact that section 182 clearly lays down that such an offence punishable by confiscation and a penalty up to 5 times of the value of the goods concerned is liable to be imposed by Customs Officer. It is obvious that a forum is mentioned. It has been stated that the words of section 182 is merely enabling. In my opinion, the expression `may' in section 182 of the Sea Customs Act will not alter the position and will not invite the operation of the provision of the Code of Criminal Procedure, in view of the fact that the word used in section 29 of the Code of Criminal Procedure is "if no Court is so mentioned." This will show that as soon as a forum is mentioned for the trial of a special offence under a special act then that will be sufficient to oust the provision of the Code of Criminal Procedure. In view of the above I am clearly of opinion that-with regard to cases covered by section 182 of the Sea Customs Act, the forum of trial is not a Court of a Magistrate but of the Customs Officers. When the Legislature has enacted a special offence and has provided a special forum for awarding the punishment then there is no reason C to say that such punishment can also be awarded by other agencies which are not contemplated by this Act. In view of the above I am clearly of opinion that the offence of 8(b) off section 167 is not triable by a Court of Magistrate. It appears that a point similar to the present one came up for consideration before Ibrahim and Afzal, JJ., in the case of Abul Mansur Rahman v. Crown. Ibrahim, J.
97. With whom Afzal, J. Concurred observed as follows : "The scope of the Magistrate's jurisdiction to try an offence created by a special statute is defined in section 29 of the Code of Criminal Procedure which subject to the other provisions of the Code debars the Magistrate from trying such offence if the special statute set up a tribunal for its trial". His Lordship again observed as follows : "Section 182 of the chapter confers jurisdiction to the Customs Officers to adjudge all offences except certain items of section 167 of the Sea Customs Act. Section 187 gives jurisdiction to the Magistrate to try summarily offences other than those cognisable by Customs Officers under section 182. Section 188 makes provision for appeal against the adjustment by a Customs Officer.
98. An order passed in appeal under this section is final unless it is interfered with by the Central Government in the exercise of the revision power under section 191.
99. It is clear, therefore, that a special tribunal has been set up by the Land Customs Act, for the trial of offences except those items of section 167 of the Sea Customs Act, which are mentioned in section 182 . . . . . . . It is clear that an offence under section 7 (c) of the Land Customs Act, which does not come under subsection (2) of that section is triable by this tribunal and not by any Magistrate."
100. Reading the sections as they stand now it appears to me that two parallel forums have been intended by the Legislature for trying offences mentioned in section 167 of the Sea Customs Act.
101. The 20 items of offences which are clearly mentioned in the third column of the Schedule of this section as punishable on conviction by a Magistrate can be so tried by a Magistrate. Other offences which come within the ambit of section 182 should be dealt with by Customs Officers. As the offence under item 8 (b) falls within the purview of section 182 as such the same is only triable by Customs Officers.
102. This view of mine finds support from a decision reported in B. K. D. Akdeselskab v. Secretary of State.
103. Wadia, J. At page 308 observed as follows : "It is provided by section 182 inter alia that in every case except in the cases particularly mentioned, in which any person is liable to a penalty, such penalty may be adjudged by a Customs Collector, section 187 provides that all offences against the Act, other than those cognisable under section 182 by officers of Customs may be tried summarily by a Magistrate. It follows therefore, that the offence under section 167 (17) is to be tried or adjudged by an officer of the Customs---------..Reading all these sections together it is clear that a special tribunal is competent to try an offence under section 167 (17)." The third column against entry No. 17 of section 167 only provided penalty similar to those Entry No. 8(b) and there was no entry with thewords `on conviction before a Magistrate in the penalty column of this item.
104. We took this view in our judgment in the Division Bench in this case on 1-11-68. This Bench consisted of Mr. Justice M. R. Khan and myself. Thereafter on 6-2-69, it appears my brother Abdul Hakim,J.
105. Also expressed this in the case of Shish Muhammad and others v. The State (21 D L R 346). The same view appears to be also taken by Muhammad Afzal Cheema, J., in the case of Shaukat A.I and others v. The State (PLD 1968 Lah. 1183).
106. It therefore, follows that the facts of these cases attracting the provision of section 167(8)(a) of the Sea Customs Act could only be punishable by Customs Officers and could not be tried by a Magistrate and as such the judgment of the learned Magistrate is liable to be set aside.
107. Accordingly I would direct that the convic--petition and sentence of the petitioners under section 167(8)(a) should be set aside and they should be set at liberty. The Customs Officers as mentioned under section 182 of the Sea Customs Act can however take such action in this case as they deem fit in accordance with law. These rules should accordingly be made absolute.
108. ABDUL HAKIM, J.----With all regards to my learned brother Salahuddin Ahmed, J. I regret, I cannot agree with the views expressed above by him. I wish to add a few words of my own on both the points recommended to the larger Bench for consideration.
109. The points recommended for consideration are as follows :-
(a) Whether an offence falling under item 8 (b) of section 167 of the Sea Customs Act is triable by a Magistrate.
(b) What is the forum of appeal under section 408 of the Code of Criminal Procedure from a conviction under sec--petition 167 (8) (a) of the Sea Customs Act and a sentence of rigorous imprisonment exceeding four years passed thereunder by a Magistrate, 1st Class exercising power under section 193-8 of the Sea Customs Act.
110. Before dealing with the points let me narrate briefly the background of the present reference. The three revision cases were originally heard by a Division Bench comprised of Salahuddin Ahmed and Abdul Hakim, JJ. This Bench consider--ing the cases on merits and noticing the differences between items 8(a) and 8(b) of section 167 held that item 8(a) had no application to the facts of the cases. But since the two Judges differed on the question of forum of appeal against a sentence of imprisonment exceeding four years passed by a Magistrate, 1st Class exercising power under section 193-B of the Sea Customs Act, no final order was passed in these Rules and it was proposed that the cases should be sent to the learned Chief Justice to refer them to a third Judge of this Court. In his judgment, although Saiahuddin Ahmed, J. Individually opined that the conviction of the accused-petitioners should be altered from one under section 167 (8-a) to one under section 167 (8-b) of the Sea Customs Act and actually altered the same to the latter section, the second Judge was not a party to it and he delivered a separate judgment. Salahuddin Ahmed, J. Then alone passed the proposed order sending the records of the cases to the learned Chief Justice for appointing a Judge or Judges of this Court to hear the cases on the point formulated therein, in the following terms :- ---As I have the misfortune to differ with my learned brother on the forum of appeal with the result that no final order can be passed in the rules I send the records of these cases to the learned Chief Justice to appoint a Judge or Judges of this Court under clause 36 of the Letters Patent to hear the cases.--- The matter was thereafter referred to a third Judge as proposed but it was ultimately heard by a Division Bench. The third Judge Mr. Justice M. R. Khan (as he was then) in his order dated 1-11-68 observed that no appeal was competent in the facts of the present case but the Division Bench comprised of Mr. Justice M. R. Khan and Mr. Justice Maksum-ul-Hakim on 11-11-68 held that if any appeal lay, the appeal would lie to the Court of Sessions Judge under the main part of section 408, Cr. P. C., because of non-applicability of the proviso (b) to the said section and thus indirectly concurred with Salahuddin Ahmed, J.
111. The said Bench did not, however, finally dispose of the cases and so these Rules again came to the original Division Bench (Salahuddin Ahmed and Abdul Hakim, JJ.), for disposal on 21-3-69. This time Mr. Khan Bahadur Md. Ismail, learned Advocate appearing for the petitioners strenuously argued that the same Division Bench having already held that item 8(a) of section 167 had no application to the facts of the cases and that item 8(b) would be attracted to these matters, the order of conviction and sentence must be set aside as the offence under item 8(b) is not triable by the Magistrate. In support of the point he relied on a decision of this Court in Criminal Revision Case No. 472 of 1966. Salahuddin Ahmed, J. Declined to accept the contention of the learned Advocate and expressed the same opinion which he has recorded today on the point but the second Judge adhered to his own view that an offence under item 8(b) of section 167 is not triable by a Magistrate and the conviction under item 8(a) cannot be converted to one under section 8(b). Due to this difference, Salahuddin Ahmed, J. Thought it desirable to refer this question to a larger Bench while the other Judge observed as follows :- ---On the question whether the offence under item 8(b) of section 167 is triable by a Magistrate or not, I have already answered it in the negative. In a recent decision in Criminal Revision No. 472 of 1966 I have found that the offence under item 8(b) is not triable by a Magistrate and there is no reason to revise the view I have already taken there. The view expressed by me on the point receives support from the decision of the Division Bench mentioned above (vide 21 D L R 1). My learned brother Salabuddin Ahmed, J. Has, however, differed and accordingly decided to refer the question to a larger Bench. I do not mind to refer the point to a larger Bench or Full Bench but in view of the great public importance of the question of forum of appeal, I think, that question should also go to the Full Bench along with the question relating to 8(b) dissented to by my learned brother.--- Hence the two questions referred to above have come for consideration before this Special Bench on the recommendation of the aforesaid Bench.
112. To start with, Mr. Khan Bahadur Md. Ismail has raised a preliminary objection questioning the constitution of this Special Bench and its authority to hear the cases. He has argued that the two learned Judges of a Division Bench having differed on a particular point, namely, whether an offence under item 8(b) of section 167 of the Sea Customs Act is triable by a Magistrate or not, this question, in view of the provisions of section 429 of the Code of Criminal Procedure, ought to have been referred to a third Judge of the Court and this Bench having not been constituted in accordance with law, has no jurisdiction to hear these cases.
113. I think, I cannot readily accept the grievance of the learned, Advocate. In my opinion, any question of unusual difficulty, any substantial question of law as to the interpretation On the Constitution or Statutes or any point of great public, importance may be referred to and decided by a larger Bench consisting of three or five Judges on the requisition of the Division Bench and the learned Chief Justice of the Court may appoint a Special Bench to decide those questions and dispose of the cases. The question of forum of appeal, as raised in the case, is one of great public importance and it has got a far-reaching effect. Such an important question of public importance having been involved in these Rules, the learned Chief Justice may naturally think to get these cases heard by a larger Bench and this Special Bench has accordingly been constituted to dispose of the case. In this connection Rules 1 and 7 of Chapter II of the Rules of the High Court of Judicature for East Pakistan, Volume I may be referred to. The above argument would have been forceful if the point of forum of appeal would not have been recommended for considera--petition of this Bench.
114. Constitution of the Special Bench is, therefore, lawful and this Bench of five Judges can hear the cases in its entirety and everything including the question of forum of appeal is open before it. Even decision of a Full Bench may be reversed by a larger Bench specially constituted by the Chief Justice in this respect. (Vide Rule 7 of Chapter VII of the said High Court Rules).
115. A similar question was raised in the case of Zakir Ahmed v. The University of Dacca (PLD 1965 Dacca 122) and a Special Bench of this Court considering the constitutional position and other legal respects, rejected the preliminary objection as there was no substance in the contention.
116. Let me now record my views on the points. It is not necessary to repeat the facts of the case here in detail. The three Rules arise out of the same judgment. Seven persons were put on trial before the learned Magistrate. One was acquitted and six were convicted and sentenced under sec--petition 167(8-a) of the Sea Customs Act. Amongst the convicts, two were women and they were sentenced to suffer rigorous imprisonment for 3 years and 6 months each and also to pay a fine of Rs. 503 each in default to rigorous imprisonment for 6 months more, three other accused were sentenced to suffer rigorous imprisonment for 5 years each and also to pay a fine of Rs. 4,000 each in default to rigorous imprisonment for one year more and the last one was sentenced to suffer rigorous imprisonment for 5 years and 6 months and also to pay a fine of Rs. 5,000 in default to rigorous imprisonment for one year more. Their sentences were, however, modified by the learned Sessions Judge to some extent.
117. The charges framed against the accused persons show that they attempted to smuggle out gold ornaments, wrist-watches and fountain-pens. The evidence on record indicates that one pair of gold bala, two gold chains, one pair of gold earring and one gold ring, all weighing 3 tolas were recovered from the person of accused Sumitra Bosu ; one pair of gold bala, two bronge churls, two gold chains, one pair of gold earring and one gold ring, all weighing 6 tolas were recovered from the person of accused Shilpi Rani. Two gold balas and one necklace with locket weighing about 3 tolas 11 annas were also found in her Tiffin box. Accused Alok Mitra, Binendu Kundu, Shilpi Rani had each in their wearing a wrist-watch and fountain-pen and Sumitra had also a wrist-watch in her hand and all those articles were seized from them.
118. Considering the facts of the case and the nature and quantity of articles recovered from the possession of seven accused, I have already agreed with my learned brother Salahuddin Ahmed, J.
119. That item (8-a) of section 167 has no application to the facts of the present case as the goods are such and in such quantity as would normally be imported or exported for bona fide personal use.
120. The Division Bench consisting of M. R. Khan and Maksum-ul-Hakim., JJ. Which was in full seisin of the case has not also taken any contrary view on the point. The learned Advocate for the State has not made any grievance in this respect and as a matter of fact, no argument from the bar has been advanced on the point before the Special Bench. There is, therefore, no reason to change the accepted position that item (8-a) of section 167 has no application to the present case.
121. On the question whether the offence under item 8(b) of section 167 is triable by a Magistrate or not, I have earlier answered it in the negative. In my decision in Criminal Revision Case No. 472 of 1966 (Shish Muhammad and others v. The State) I have found that an offence under item 8(b) is not triable by a Magistrate and there is no reason to revise the view I have already taken there in this respect. The relevant portion of the judgment runs as follows :- "An offence coming under part (a) of clause (8) of sec--petition 167 of the Sea Customs Act is triable before a Magistrate but an offence falling under part (b) of clause (8) of the said section appears to be not so triable. The penalty column of part (a) of clause (8) provides that the contravened goods shall be liable to confiscation and any person concerned in the offence shall, on conviction before Magistrate be liable to imprisonment for a term not exceeding six years and to a fine not exceeding five times the value of the goods, and in addition shall also be liable if the Magistrate in his discretion so order, to the punishment of whipping, whereas the penalty column of part (b) provides that the goods shall be liable to confiscation ; and any person concerned in any such offence shall be liable to a penalty not exceeding five times the value of the goods. It is apparent therefrom that part (b) of clause (8) does not provide for any conviction before a Magistrate. It only speaks of confiscation and penalty and not of imprisonment, fine or whipping.
122. Such confiscation and penalty may be made by the Customs Authority itself. Thus the matters falling under part (b) of clause (8) may be dealt with by the Customs Department and for such offences no trial by a Magistrate is necessary. That is, perhaps --the intention of the Legislature.
123. The offence under part (b? Of clause (8) of the said section not being triable by a. Magistrate the question of deciding any case thereunder by a Magistrate does not arise."
124. The view expressed by me on the point above receives support from the case of Shauket A.I v. The State as well as from the decision of the Division Bench mentioned above.
125. It is true that section 193-B of the. Sea Customs Act mentions item (b) and not specifically the part
(a) of the said item. But from that it cannot be argued that part (b) of item 8 is triable by a Magistrate. A careful perusal of sec--petition 193-B will show that a Magistrate, 1st Class may pass, enhanced sentence of imprisonment and fine under the section when a person is convicted of an offence. The offence under part (b) of item 8 does not provide for any conviction and sentence of imprisonment of fine. It only provides for confis--cation and penalty. The fine and penalty are not the same thing. The power of confiscation and penalty under section 182 is vested exclusively in the Customs Authorities. Reference in this connection may be made to 16 D L R 165. Hence the question of trial of the offence under item 8(b) by a Magistrate does not arise. Item 8 mentioned in section 193-B, in my opinion, actually means and refers to part (a) of item 8 of section 167.
126. It is needless to mention here that in view of the provisions of sections 5(2) and 29(l) of the Code of Criminal Procedure a Magistrate has got jurisdiction to try the offences under items 8(a) and 81 of section 167 of the Sea Customs Act.
127. I am, therefore, of the opinion that an offence under item 8(b) of section 167 is not triable by a Magistrate and the Magistrate has no jurisdiction to deal with it. A conviction under item 8(a) of the said section cannot, therefore, be altered to one under item 8(b). In this view of the matter, the offence in the instant case having fallen under item 8(b), the learned Magistrate has no jurisdiction to try the case and the order of conviction and sentence is liable to be set aside. The offence under item 8(b) is a departmental matter and the Customs Authorities may take whatever action they deem fit in the circumstances of the case. The order of conviction and sentence is accordingly set aside and the accused are acquitted. I may, however, observe here that the conduct of accused Md. Afsaruddin Sarkar is highly reprehensible and the concerned Department may deal with it separately.
128. It requires to be mentioned here that the three revision cases were originally heard with a Criminal Appeal (No. 104 of 1968) and a Writ Petition (No. 613 of 1966). Mr. Md. Ayazuddin, learned Advocate appearing in the writ petition contended that the learned Magistrate who passed the order of conviction and sentence exercising power under section 193-B of the Sea Customs Act was not a Magistrate under the Code of Criminal Procedure and his Court was not a criminal Court as defined in section 6 therein and as such no appeal or revision would lie against his order. Mr. Khan Bahadur Md. Ismail, learned Advocate appearing in the revision cases contended that the Magistrate concerned was a Magistrate, Ist Class, specially empowered under the Sea Customs Act and not a Special Magistrate and as such appeal and revision would lie against his order and the appeal under section 408, Cr. P. C. Would lie to the Court of Sessions. Mr. Mofezzal A.I learned Advocate appearing in the appeal contended that the learned Magistrate was a Magistrate under the Code of Criminal Procedure and not a Special Magistrate and hence appeal and revision would lie in normal course against his order and an appeal against a sentence of imprisonment exceeding four years should be preferred before the High Court. Mr. A.I argued the question of forum of appeal with considerable force. Thus the question of forum of appeal arose in the case but since it was referred to the Third Judge, the other cases were not disposed of.
129. It may be seen that in the original judgment we have already held that the Magistrate concerned is a Magistrate under the Code of Criminal Procedure and not a Special Magistrate appointed under the Special law. We have also held, after consider--ing a number of case-laws on the point that where a Magistrate acts not as Special Magistrate appointed under a special law but as an ordinary Magistrate specially empowered by the Provincial Government in this behalf, an appeal will lie against his decision in the usual course under section 408 of the Code of Criminal Procedure.
130. The Magistrate referred to above being a Magistrate under the Code of Criminal Procedure his order would be appealable or revisable under the said Code. In this connection, the cases reported in PLD 1958 Dacca 552, PLD 1959 Daeca 279, PLD 1959 Dacca 616, 12 D L R 407, PLD 1967 Dacca 166 and 20 D L R 546 may be referred to.
131. The Division Bench mentioned above has not also taken any contrary view on the point. They also have treated the learned Magistrate as a Magistrate, 1st Class under the Code of Criminal Procedure and held that the appeal would lie to the Court of Sessions under the main part of section 408, Cr. P. C. But the learned Third Judge having observed that no appeal was competent in the facts of the case, a question might arise which of the views expressed above should be followed by the original Division Bench in deciding the question of forum of appeal. The above mentioned Division Bench did not finally dispose of the Rules and returned the cases with some observations and opinion contrary to the opinion of the third Judge. In the circumstances which of the above two views shall be deemed as the opinion of the third Judge, in terms of section 429, Cr.
132. P. C. To be followed in the judgment of the original Bench. The section contemplates a Third Judge and not a Third Bench of two Judges, The matter thus remains somewhat cloudy.
133. It has already been indicated earlier that in view of the great public importance of the question of forum of appeal, that question along with the question relating to section 167 (8-b) was recommended for consideration of the larger Bench. A larger Bench constituted specially by the learned Chief Justice i3 competent even to reverse a decision of the Full Bench under Rule 7 of Chapter VII of the High Court Appellate Side Rules. Accordingly during the course of hearing of the case by this Bench of five Judges, I put some questions to the learned Advocate for the State on the forum of appeal which is equally a point for consideration here along with the other points Involved in the matter.
134. Section 408 of the Code of Criminal Procedure confers a right of appeal on a person convicted on a trial by the Assistant Sessions Judge, the Magistrate of the 1st Class or the Magistrate specially empowered under section 30 of the Code. According to the scheme of the section the conviction confers the right of appeal but the quantum of sentence determines the forum thereof. The section runs as follows :- "Any person convicted on a trial held by an Assistant Sessions Judge, a District Magistrate or other Magistrate of the 1st Class, or any person sentenced under section 349 or in respect of whom an order has been made or a sentence has been passed under section 380 by a Magistrate of the 1st Class, may appeal to the Court of Sessions: Provided as follows :-
(b) When in any case an Assistant Sessions Judge or a Magistrate specially empowered under section 30 passes any sentence of imprisonment for a term exceeding four years or any sentence of transportation the appeal of all or any of the accused convicted at such trial shall lie to the High Court.
(c) When any person is convicted by a Magistrate of an offence under section 124-A of the Pakistan Penal Code the appeal shall lie to the High Court."
135. The first paragraph of section 408 speaks of an appeal from sentence of Assistant Sessions Judge or Magistrate of the First Class. A Magistrate, 1st Class can award an imprisonment only for two years under section 32 of the Code and cannot exceed the limit prescribed by that section. An appeal under the main part of section 408 lies before the Sessions Judge only in those cases where a Magistrate, 1st Class passes a sentence of imprisonment within the limit of section 32 and the Assistant Sessions Judge passes a sentence not exceeding four years. This part of the section does not contemplate any appeal against a sentence above two years passed by an ordinary Magistrate, 1st Class or a sentence above four years passed by the Assistant Sessions Judge.' It cannot, therefore be argued that an appeal against a sentence exceeding four years, passed by an ordinary Magistrate, 1st Class, shall lie to the Court of Sessions under the main part of section 408 merely due to non-applicability of the provisos to that section: An ordinary Magistrate, 1st Class can by, no means pass any sentence of imprisonment exceeding two years. A Magistrate, 1st Class authorised to pass sentence for two years under section 32 of the Code of Criminal Procedure and a Magistrate, 1st Class specially empowered to pass enhanced sentence for six years under section 193-B of the Sea Customs Act are not exactly the Magistrates of same kind. The main part of section 408 does not provide for an appeal against a sentence exceeding four years passed by an ordinary Magistrate, 1st Class specially empowered under the Sea Customs Act. The first part of t he section cannot be stretched beyond its scope.
136. Section 408 has at present two provisos. Proviso (b) to the section provides when in any case an Assistant Sessions Judge or a Magistrate specially empowered under section. 30 passes any sentence of imprisonment for a term exceeding four years or any sentence of transportation, the appeal shall lie to the High Court. Conversely it follows that in cases where they pass sentence below four years, the appeal shall be filed before the Sessions Judge. Proviso (c) stipulates that any person convicted by a Magistrate under section 124-A of the Penal Code shall file the appeal before the High Court. .
137. It is apparent from the above that an appeal against a sentence passed by a Magistrate, 1st Class within the limit of section 32 and an Assistant Sessions Judge or a Magistrate specially empowered under section 30, within the limit of four years shall lie to the Court of Sessions, but in a case where an Assistant Sessions Judge or a Magistrate specially empowered under section 30 has passed any sentence of imprisonment exceeding four' years the appeal shall lie to the High Court. Thus there is no provision in section 408 for appeal against the sentence above two years passed by an ordinary Magistrate, 1st Class; created by the Code of Criminal Procedure unless specially empowered by section 30 of the said Code.
138. Section- 408 of the Code must be read with its provisos. Provisos (b) and (c) each has put an embargo on the main part of the section and made a departure from the ordinary provision of filing an appeal to the Court of Sessions. Why the Legislature has introduced these bars? The reasons obviously are the severity of the sentence and the gravity of the offence. The Legislature by introducing these provisos seems to have intended that when a long term of imprisonment has to be undergone the question whether the offence is proved and whether the conviction and sentence are justified should be heard in appeal by a Court of higher grade than it would be heard by if the sentence were less. Thus the underlying principles behind the section are that appeals against long term sentences in grave and complicated nature of offences should be taken to a Court of higher grade. This seems to be the general scheme of section 408, Cr. P. C. According to strict construction of the section even if there be any difficulty to convert the instant case yet judging the same in the above principles and treating the sentence of 5J years passed by the learned Magistrate specially empowered in this behalf, as a long one; I think, the appeal will lie to the High Court and not to the Court of Sessions. Even in the High Court too such long sentence matters are heard by the Division Bench and not by a single Judge.
139. Proviso (b) to section 408 indicates that a Sessions Judge can hear the appeal against an order of conviction and sentence up to four years only. 1n the Criminal Procedure Code there is no other provisions empowering the Sessions Judge to hear an appeal against a decision where the sentence is more than four years. This proviso thus gives a right to the accused who have been sentenced to a period more than four years to have his appeal heard by the High Court. Judging the present case in this principle also the appeal cannot be heard by the Sessions Judge and it should be heard by the High Court.
140. There is another aspect of the matter. In the present case, it appears, the learned Magistrate passed the enhanced sentence of imprisonment for a term exceeding two years and a fine exceeding Rs. 1,000 on the accused persons in exercise of his power under section 193-B of the Sea Customs Act. This section 193-B was added to the Sea Customs Act by the Central Ordinance No. VIII of 1963 which came into force on 16-11-1963.
141. It has been seen from numerous decisions that on 16 11-63 when section 19.3-B was brought on the Statute Book, most .Of the Magistrate, 1st Class in West Pakistan were specially empowered under section 30 of the Code of Criminal Procedure and those learned Magistrate used to try the offence mentioned in items 8(a) and (81) of the Schedule to section 167 of the Sea Customs Act, in terms of section 193-B. An appeal against sentence of imprisonment passed by such Magistrate for offences mentioned in items (8-a) and (81) had always been filed before the High Court or the Sessions Judge, according to the quantum of sentence. In cases where the sentence of imprisonment was above four years the appeal was preferred to the High Court but where the sentence was up to four years the appeal was taken to the Sessions Judge. A glance to the cases reported in Muhammad Akbar v. State (PLD 1964 Lah. 627) and Shaukat A.I v. State will clarify the position.
142. Let us, therefore, see the background and circumstances under which section 193-B was introduced by the amended Ordinance VIII of 1963 so as to gather the intention of the Legislature. It is an admitted position that before this Ordinance VIII of 1963, the special Judges used to try the offences under items (8), (81) and others of section 167 of the Sea Customs Act. At that time there was a specific provision for appeal and revision in the Act (vide section 193-E now repealed by the above Ordinance) and appeal used to lie before the High Court against the decision of the Special Judge. The Legislature omitted the old sections 193-G, 193-D, 193-E and 193-F and in their places, added the new section 193-B by the Ordinance No. VIII of 1963. Consequently there is now no provision for appeal in the Sea Customs Act. In the circumstances can it be held that the Legislature intended by this amended section 193-B to change the forum of appeal exclusively to the Court of Sessions ?
143. The provision of preferring appeal under section 408, Cr. P. C. To different forums from different sentences passed by a Magistrate, Ist Class empowered under section 30 of the Code of Criminal Procedure has been in force in West Pakistan for a long time. It seems that when section 193-B was added by the new Ordinance, the Legislature actually thought of section 30 Magistrates without ascertaining as to whether in East Pakistan there were such Magistrates, 1st Class. So in conformity with the position and practice in West Pakistan, the Legislature, not being presumably conversant with the real state of things in this wing of the country, brought section 193-B in the Statute Book with the intention that an appeal against a sentence would, in normal course, lie under section 408 of the Code to the High Court or the Court of Sessions, according to the quantum of sentence passed by the Magistrate, in exercise of power under section 193-B. The circumstances and background of the new amendment indicate that the Legislature never intended to change its mind from the general scheme of section 408 of the Code and it was never the intention of the Legislature that an appeal against a sentence exceeding four years, passed by a Magistrate, 1st Class exercising power under section 193-B of the Sea Customs Act, would lie to the Court of Sessions. Thus it seems, the present difficulty has arisen due to unawareness of the real state of things and absence of some details in the added section 193-B by the Legislature. Although a Magistrate, Ist Class empowered under section 30 was actually in the mind of the Legislature it was not so mentioned in the said section and hence the trouble.
144. Section 193-B empowers a Magistrate, 1st Class to pass enhanced sentence only in offences mentioned in (8-a) and (81) of section 167 of the Sea Customs Act. It cannot be presumed that for these two limited offences the Legislature will intend a forum of appeal contrary to the scheme of section 408 of the Code of Criminal Procedure.
145. The intention of the Legislature having thus remained unaltered the Court is at liberty to infer that the added sec--petition 193-B by implication empowers that detail to be carried out and also to hold that the original intention of the Legislature as envisaged in section 408, Cr. P. C. Should be given effect to. A bona fide mistake cannot take away the effect of the law which the Legislature actually intended. If the law, be different from what the Legislature supposed it to be, the implication arising from the statute, it has been said, cannot operate as a negation of its existence.
146. In this connection I may quote two passages one from Maxwell on Interpretation of Statutes and another from Craies on Statute law which support the above proposition :-- Maxwell on Interpretation of Statutes (Eleventh Edition) a page 306 observed as follows:- "Provisions sometimes found in statutes, enacting imperfectly or for particular cases only that which was already and more widely the law, have occasionally furnished ground for the contention that an intention to alter the general law was to be inferred from the partial or limited enactment, resting to on the maxim expression unius, exclusio alterius. But the maxim is inapplicable in such cases. The only inference which a Court can draw from such superfluous provisions (which generally find a place in Acts to meet unfounded objections and idle doubts), Is that the Legislature was either ignorant or unmindful of the real state of the law, or that is acted under the influence of excessive caution. If the law be different from what the Legislature supposed it to be, the implication arising from the statute, it has been said, cannot operate as a negation of its existence, and any legislation founded on such a mistake has not the effect of making that law which the Legislature erroneously assumed to be so."
147. Craies on Statute law (Sixth Edition) at page 111 observed as follows :- "If a statute is passed for the purpose of enabling some thing to be done, but omits to mention in terms some detail which is of great importance (if not actually essential to the proper and effectual performance of the work whic the statute has in contemplation the Courts are at liberty to infer that the statute by implication empowers that detail to be carried out."
148. Let us now turn to section 193-B of the Sea Customs Act which runs as follows :- "Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (Act V of 1898), any Magistrate of the first Class specially empowered by the Provincial Government in this behalf, may pass a sentence of imprisonment for a term exceeding two years and of fine exceeding one thousand rupees on any person convicted of any offence mentioned in items 8 and 81 in the Schedule to section 167."
149. A careful perusal of the section will show that the jurisdiction of the Magistrate to pass an enhanced sentence under section 193-B depends upon the investment of special powers by the Provincial Government in this behalf. Now the question is wherefrom the Provincial Government derives its source to empower the Magistrate in this behalf. Section 193-B only delegates power to the Provincial Government to invest its Magistrates with special powers. It is thus an enabling section. In the Sea Custom; Act there is no such provision reserving power for the Provincial Government to invest its Magistrates with additional power. The Magistrates are the officers of the Provincial Government. In the absence of any provisions in that Act where is the source of the Provincial Government to specifically empower the Magistrates to act under sec--petition t93-B ?
150. In my opinion, the source of the Provincial Government is section 30 of the Code of Criminal Procedure. The Provincial Government may invest any of its First Class Magistrates with special power contemplated in section 193-B of the Sea Customs Act under section 30 of the Code of Criminal Procedure. Section 30 of the Code of Criminal Procedure provides that the Provincial Government may not--withstanding anything contained in section 29 invest the District Magistrate or any Magistrate of the 1st Class, with power to try as a Magistrate all offences not punishable with death.
151. The general power given to the Provincial Government under section 30 of the Code is unfettered and the Provincial Govern--ment may use that power in aid of section 193-B of the Sea Customs Act which is supplementary to the said section 30. The words "all offences" mentioned in section 30 may include the offences in items (8-a) and 81 (of section 167, too). In this view of the matter, the Magistrate in the instant case may be deemed as a Magistrate, 1st Class specially empowered by the Provincial Government under section 30 of the Code, in terms of section 193-B of the Sea Customs Act and- as such an appeal against his decision where he has awarded sentence of imprisonment exceeding four years shall lie to the High Court under section 408 (6) of the said Code.
152. It has already been shown earlier that the' Legislature at the time of introduction of section 193-B by Ordinance No. VIII of 1963 actually thought of section 30 Magistrates but that being not detailed in the section, the Provincial Government did not mention section 30 of the Code in the Notification issued in this behalf.
153. The Notification No. O. A. V.-146/63-151. Dated the 11 February 1964, published in the Dacca Gazette, dated February 17, 1964 under which the Magistrate was empowered to pass enhanced sentence ought to have mentioned section 193-B of the Sea Customs Act, read with section 30 of the Code of Criminal Procedure but non-mention of section 30 in the said Notification does not mean that the general power given to the Provincial Government under that section is waived.
154. The question of forum of appeal; as raised in this case, is a new one and does not seem to have been considered in any previous decision of any Court. Since the creation of the Code of Criminal Procedure in 1898 there is no identical case to support the view that an appeal against a sentence exceeding four years, passed by an ordinary Magistrate, 1st Class under the Code of Criminal Procedure would lie to the Court of Sessions. In my opinion in any view of the matter, for the sake of long established practice, decorum and legal norms, an appeal in such matters should not be allowed to be presented before the Court of. Sessions at least on the ground of severity of the sentence and gravity of the offence. Hence for the reasons stated above, I differed with my learned brother on the last occasion, although I am now bound by the majority view on the, point and have all respects for the same.
155. Before parting with the matter, I shall, however, add that this decision of ours may create complication in future because this is probably for the first time since 1898 we are allowing the Sessions Judge to hear appeal against sentences above four years passed by an ordinary Magistrate, 1st Class. Such a bold step may go against the intention of the Legislature embodied in section 408. Cr. P. C...
156. It may be noted here that if for want of forum no appeal lies anywhere, then the only, other alternative is to prefer, a revisional application before the High Court under section 439, Cr. P. C. In such a matter.
157. T. H. KHAN, J.----I had the opportunity of going through the judgment prepared by my learned brother Salahuddin Ahmed, J., and I am in full agreement with him and hold that the Magistrate shall have jurisdiction to try an offence mentioned in item 8(b) of section 167 of the Sea Customs Act.
ORDER OF THE COURT