' YAHYA AFRIDI, J:---Through this single judgment, we propose to decide the three Custom References; S.A.O. No,2 of 1999, S.A.O. No,3 of 1999 and S.A.O. No,19 of 1999, as common questions of law and facts are involved therein.
2. Sherzada, the appellant in S.A.O. No,2 of 1999, arrived at Peshawar Airport from Dubai on Flight No,ML-602 on 24-9-1997. He, according to the respondent-Department, after collecting his baggage tried to leave the arrival hall of Peshawar Airport, without making any declaration of the goods he had brought with him from Dubai. He was stopped and on checking his personal baggage, the Revenue staff found 9174 grams of foreign origin gold ornaments and 1500 wrist watches. Sherzada was unable to provide any lawful receipt or to produce any documentary evidence with regard to the legal import or lawful possession of the said gold ornaments and wrist watches. Revenue staff present at the airport, served upon Sherzada, the requisite notices under sections 158, 159 and 171 of the Customs Act, 1969 ("Act") for search of his person and baggage and seizure of the wrist watches and the gold ornaments. Finally, goods were seized and recovery memo thereof were also prepared and duly signed by Sherzada.
3. Yousaf Khan, the appellant in S.A.O. No,3 of 1999, according to the statement of Sherzada was to be delivered wrist watches and was waiting for delivery thereof outside the arrival hall of Peshawar Airport. He was thus on Shahzada's statement also arrested on the same day from Peshawar Airport.
4. This led to the registration of a criminal case F.I.R. No,62, dated 24-9-1997 under sections 156(1)(8)
(89), 16 and 139 read with section 2(s) of the Act, which was registered in the Investigating and Prosecution Branch, Customs House, Peshawar.
5. The requisite extension was sought for serving the show-cause notice upon Sherzada and Yousaf Khan, under the enabling provision of section 168(2) of the Act. The said request was duly allowed and required extension was granted by the competent authority vide order dated 13-11- 1997 and the formal order thereof was notified vide letter dated 19-11-1997.
6. Finally, the show-cause notice dated 17-12-1997 was served upon Sherzada, Yousaf Khan and four others, which called upon them, to show-cause why the seized goods should not be confiscated for violation of the provisions of the clauses (8)(89) of subsection (1) of section 156 sections 16 and 139, read with subsection (s) of section 2 of the Act.
7. The show-cause notice was rigorously contested by Sherzada and Yousaf and was finally adjudicated vide Order-in-Original No,8 of 1998 dated 4-4-1998, whereby the gold ornaments and wrist watches were confiscation and a personal penalty of Rs,100,000 each, was imposed upon them.
8. Muhammad Mujahid, the appellant in S.A.O. No,19 of 1999, also arrived on 24-9-1997 but on a different Flight No,PK-207 at Peshawar International Airport. On search of the Revenue staff, 9964 grams of gold ornaments and 1000 watches was recovered from his personal baggage. He was also served the requisite notices for search and seizure under the Act.
9. Accordingly, F.I.R. No,63 of 1997 dated 24-9-1997 was registered against him and administratively a Show-Cause Notice was also served upon him, which was finally decided vide Order-in-Original No,14 of 1998 dated 30-4-1998, whereby like in the other two appeals, the adjudicating officer concluded in confiscation of the gold ornaments and watches seized from him and imposed a personal penalty of Rs,100,000 on him.
10. Being aggrieved, Sherzada and Yousaf impugned the Order-in-Original No,8 of 1998 dated 4-4- 1998, while Muhammad Mujahid assailed Order-in-Original No,14 of 1998 dated 30-4-1998, before the Custom Excise and Sales Tax Appellate Tribunal ("Tribunal"), these appeals were decided through a single consolidated judgment dated 17-3-1999, whereby the Orders-in-Original passed by the adjudicating authority were maintained.
11. Being aggrieved of the consolidated judgment of the Tribunal dated 17-3-1999, the present petitioners sought the jurisdiction of this court through three separate Appeals under section 196 of the Act. In view of the amendments introduced in section 196 of the Act, the office of this Court has renumbered the same; accordingly, the said three appeals have been converted into the present References.
12. Mr. Issac Ali Qazi, Advocate the learned counsel representing the petitioners in all three References, addressed us on five questions of law, which were formulated by the learned counsel as follows:--
(I) Whether under the pertinent Import Policy or any other Notification issued under section 16 of the Customs Act, 1969 there is any prohibition or restriction on import of gold jewellery or other items seized.
(II) Whether proceedings for confiscation of goods or imposition of the fine and penalties are proceedings criminal in nature, if so, in corollary whether the respondent has succeeded in discharging the onus of proof to the standard as required in criminal cases to sustain the order of confiscation of goods and imposition of penalty.
(III) Whether the order of the honourable Tribunal is not discriminatory and against the principle of consistency while exonerating the Musharaf Gul, on the same set of evidence, the appellant was not entitled for similar treatment.
(IV) Whether extension of time under section 168 of the Customs Act, 1969 for issuance of show- cause notice by the respondent without notice to the appellant is of any legal effect and corollary show-cause notice is time-barred and its effect.
(V) Whether the search and seizure are ab initio illegal.
' The learned counsel for the petitioners contended that the "gold" is classified under Pakistan Custom Tariff ("PCT") heading 71.08, whereas "Gold Jewellery" is classified under PCT heading 71.13.
He further argued that "gold" classified under PCT heading 71.08 was a restricted importable item under the then Import Policy Order, 1997, which could only be imported by a company registered and authorized by the Federal Government. While for the import of "Gold Jewellery' as classified under PCT heading 71.13, there was no restriction under the Import Policy Order, 1997. Thus the learned counsel argued that the seized gold Jewellery was freely importable and there was no restriction, whatsoever, on the import thereof.
' The learned counsel further contended that in view of there being no notification restricting the import of the said gold Jewellery, the same did not fall within the definition of "smuggled" goods as envisaged under section 2(s) of the Act.
' In regard to Musharaf Gul, the Inspector Intelligence Bureau, who had been exonerated by the Tribunal on the ground that the confessional statement of Sherzada being the only evidence against him and that too a statement of a co-accused could not prove his guilt. The said standard was not applied in the case of the present petitioners. This the learned counsel argued was discriminatory, if not, blatantly illegal and against all norms of justice.
' The learned counsel further relied upon the provisions of Sub-Article 2 of Article 1 of Qanun-e- Shahadat Order, 19.84 ("Order") and contended that the provisions of Order had to be applied in the case of the petitioners. Thus the evidence, which was not put to the test of cross-examination of the petitioners, could not to be relied upon against them. Revenue authorities and Tribunal had relied upon such statements, which was thus illegal.
' He further argued that the goods had been seized on 24-9-1997 and the show-cause notice was served on the petitioners on 17-12-1997, and thus were barred by time prescribed in section 168 of the Act. The learned counsel further emphasized that even the reason which prevailed for allowing the extension in serving the said notices was illegal and arbitrary; hence the entire structure built thereon was illegal and had to fall.
' In support of his submissions, the learned counsel for the petitioners relied upon Abdul Majeed v.
Collector Customs (2009 PTD 119), Collector Customs v. Shah Jehan (F.A.O. No,89 of 1998) decided on 22-4-1991 and the appeal thereof decided by the august Supreme Court in C.P.L.A. No,371-P of 1999 dated 28-3-2000, Ferozur Rehman Butla v. The State (1980 PCr.LJ 663), Messrs Muhammad Attique Paracha v. The State 2005 PTD (Trib.) 135, Mst. Siddiqan Afzal v. Asstt: Collector of Central Excise (PLD 2001 Lahore 78), Azizullah v. The State (PLD 1981 Karachi 250), Abdul Zahid v. Director General (PLD 1990 Karachi 412), Muhammad Javed v. Customs Central Excise and Saks Tax Appellate Tribunal (2001 YLR 635), Collector Customs v. Haji Noorul Haq (PTCL 2003 CL 716) and the review of the said judgment by the august Supreme Court reported in PTCL 2003 CL 723 and Abubakar Siddique v. Collector Customs, Lahore (2006 SCMR 705).
13. Syed Mudassar Ameer, Bar-at-Law, the learned counsel representing the Revenue in all these references vehemently opposed the contention of the learned counsel for the petitioners. He maintained that gold has always remained in the list of notified items under section 2(s)(ii) and section 156 (2) of the Act.
' In this regard he argued that till date three notifications had been issued, S.R.O. 1426(1)/73 dated 5th October, 1973, superseded by S.R.O. 491(0/85 dated 23rd May, 1985 superseded by S.R.O.
566(1)/5 dated 6th June, 2005 (amended vide S.R.O. 174(1)/2007 dated 21-2-2007, S.R.O. 651(1)/2009 dated 8-7-2009 and the most recently on 11-2-2010). Throughout this period, gold and manufactures thereof have remained a notified item under section 2(s)(ii) and section 156(2) of the Act. He further contended that the relevant Notification for the purposes of the instant references case is S.R.O. 491(1)/85 dated 23rd May, 1985, which reads as follows:-- "Notification No,S.R.O. 491(1)185, dated 23rd May, 1985.---In exercise of the powers conferred by subsection (ii) of clause (s) of section 2 and subsection (2) of section 156 of the Customs Act, 1969 (IV of 1969), and in supersession of its Notification No, S.R.O. 1426(1)/73, dated the 5th October, 1973, the Federal Government is pleased to specify the following goods for the purposes of the aforesaid subsection (ii) of clause (s) section 2 and subsection (2) of section 156, namely:-
(1) Gold bullion, silver bullion and manufactures of gold and silver.
(2)
(3) . . . . .
' In addition to the above, the learned counsel added that Import Policy Order, 1997 issued vide Notification No, S.R.O. 553(1)/97 dated 28th July, 1997 also restricted the import of gold items to companies specifically registered and authorized for the purpose by the Ministry of Commerce. He further argued that notifications issued under any other law, including the Imports and Exports (Control), Act, 1950 prohibiting or restricting the import or export of any goods are to be treated as notifications issued under section 16 of the Act. Hence, the restrictions imposed vide Import Policy Order, 1997 issued under section 3(1) of the Imports and Exports (Control) Act, 1950 is a valid notification for all intents and purposes under section 16 of the Act.
' He continued to assert that the import of items by passengers coming from abroad is also regulated by the Passengers (Non-Tourist) Baggage (Import) Rules, 1995 issued vide Notification No, S.R.O. 485(1)/95 dated 14th June, 1995, which restricts the import of gold as Personal jewellery of value exceeding twenty five thousand rupees for lady passengers only.
' In regard to notifications issued under section 181 of the Act the learned counsel informed us that first of such notifications was issued vide S.R.O. No,1374(I)/98 dated 17th December, 1998. Hence, it was admitted that at the relevant time no such notification was issued. However, the learned counsel argued the power of giving an option to pay fine in lieu of confiscation under the said section is a discretion vested specifically in the Adjudiction Officer. The said discretion is to be exercised keeping in view the facts and circumstances of each case and the same cannot be claimed as of right by a person committing an offence under the Act. In this regard he placed reliance on the judgment in the case of Abu Bakar Siddique v. Collector of Customs (2002 CLC 1066).
' The learned counsel further contended that substantial compliance had been rendered by the respondent department in formulating the contents and the issuance of the requisite notices as required under sections 158, 159 and 171 of the Act.
' In regard to the confessional statement of Sherzada, the learned counsel stated that the Tribunal had not placed any reliance upon the same in passing any findings on the case of the present petitioners. Hence, there was no discrimination by the Tribunal.
14. The valuable arguments of the learned counsel for the parties heard and the available record of the case thoroughly considered.
15. Our opinion on questions of law arising out of the impugned judgment of the Tribunal as formulated by the learned counsel for the petitioners, are as under:-- Question of law No, 1.
There are serious contesting assertions made by both parties regarding the seized gold ornaments; whether the same falls within PCT headings No,1308 or No,1312 and thus the implication of the said description on the restriction imposed under the Import Policy Order, 1997 and section 16 of the Act. All these issues are factual. The adjudicating authority and the. Tribunal are the appropriate forums, which are to adjudicate and decide such factual issues.
' We in our present jurisdiction under section 196 of the Act are to adjudicate issues relating to questions of law arising out of the judgment of the Tribunal. We, therefore, would not like to indulge in passing any finding on the disputed factual issue relating to the description of the seized goods and the implication thereof regarding its import in view of the restrictions imposed under the Import Policy Order, 1997 or any notification issued by the Federal. Government under section 16 of the Act.
' Similarly, the notifications restricting the import of gold and gold manufactures, referred to by the learned counsel for the Revenue, were not specifically taken in the show-cause notices served upon the petitioners, hence the same cannot be for the first time taken up at this stage.
' Accordingly, we shall proceed in considering the present references on factual issues, which are either admitted by the parties or apparently very clear from the available record.
' Under section 139 of the Act, all persons on arrival into Pakistan are under obligation to make verbal or written declaration of the contents of the baggage they were carrying. Section 139 of the Act reads as;
139. Declaration by passenger or crew of baggage.---The owner of any baggage whether a passenger or a member of the crew shall, for the purposes of clearing it, make a verbal or written declaration of its contents in such manner as may be prescribed by rules to the appropriate officer and shall answer such questions as the said officer may put to him with respect to his baggage and any article contained therein or carried with him and shall produce such baggage and any such articles for examination "
In the present cases, we note that this obligation of making a declaration was not fulfilled by Sherzada and Muhammad Mujahid on their arrival on 24-9-1997 at Peshawar International Airport.
' This takes us to the most crucial aspect of the present question of law being discussed, the true import of the term "smuggle" as envisaged in section 2(s) of the Act. The said term as defined in the Act, reads as; "2(s) "Smuggle" means to bring into or take out of Pakistan, in breach of any prohibition or restriction for the time being in force, or evading payment of customs-duties or taxes leviable thereon.
(i) gold bullion, silver bullion, platinum, palladium, radium, precious stones, antiques, currency, narcotics and psychotropic substances; or
(ii) manufactures of gold or silver or platinum or palladium or radium or precious stones, and any other goods notified by the Federal Government in the official Gazette, which, in each case, exceed fifty thousand rupees in value; or
(iii) any goods by any route other than a route declared under section 9 or 10 or from any place other than a customs station.
' And includes an attempt, abetment or connivance of so bringing in or taking out of such goods; and all cognate words and expressions shall be construed accordingly; (Emphasis provided)
The aforementioned definition of "smu ggle" clearly encompasses within its purview manufactures of gold, which is brought into Pakistan evading payment of custom duties or taxes leviable thereon.
In the present case, we note that gold ornaments are admittedly manufactures of gold and they have been brought into Pakistan by Sherzada and Muhammad Mujahid, admittedly without making any declaration as envisaged under section 139 of the Act on payment of duties and tax on the goods they were carrying. Furthermore, they were both checked by the revenue staff as they were leaving the custom hall of the Peshawar Airport. The issue of evading the payment of duties and taxes was contested by the learned counsel for the petitioners. However, this contest by the petitioners is negated by clear facts evident from the record and more particularly the recovery memo. Affected and prepared by the Revenue Staff and duly signed by the petitioners, at the time of the seizures were made from them.
' The Revenue had, thus, fulfilled its obligation to prove 'prima facie' the evasion of payment of duties and taxes, while the petitioners produced no rebuttal to the same. Moreover, the onus of poof under section 187 of the Act always rests upon the person, who is accused of having committed an offence to prove otherwise. This the petitioners have failed to fulfil.
' Thus it is abundantly' clear that Sherzada and Muhammad Mujahid, by not making any declaration of the goods imported or brought with them at the time of arrival at Peshawar from Dubai, violated the clear provisions of section 139 of the Act and thereby triggered and finally constituted the offence of smuggling as provided under section 2(s) of the Act.
' It would be important to note that the wrist watches confiscated along with the gold ornaments from the record of the present references, do not appear to fall within the purview of smuggling, as envisaged under section 2(s) of the Act. Firstly, as it is not one of the items expressly specified in the said section; and secondly, the present record is silent about the same being notified by the Federal Government under the said section of the Act.
' However, the action of Sherzada and Muhammad Mujahid of not making any declaration as required under section 139 of the Act, exposed not only the gold ornaments but the wrist watches to confiscation under section 156(1)(70) of the Act. In addition thereto, I section 157(1) of the Act, also provides that the "confiscation of the goods includes any package in which they are found, and all other contents thereof." Hence, the confiscation of the wrist watches cannot be legally questioned at this stage.
Questions of law No,II and III.
' The administrative proceedings, commencing with the show-cause notice provided under section 168 and its conclusion in the order-in-original as envisaged under section 180 of the Act, and the criminal proceedings, initiated with the registration of an F.I.R., leading to the trial under section 184 of the Act, are independent of each other and the evidence produced, the standard required and the consequences which follow thereafter are to remain independent and cannot be used or applied in the other proceedings.
' However, in the present cases, the evidences relating to the confession made by Sherzada has not been applied or relied by the Tribunal. Apart from the same, the evidence against the petitioners is sufficient to constitute the offence of smuggling as envisaged in the Act.
Questions of law No,IV.
' In order to resolve this question of law, raised by the learned counsel for the petitioners, it would be pertinent to refer to the provision of section 168 of the Act. The said section reads as: "Seizure of things liable to confiscation (1) The appropriate officer may seize any goods liable to confiscation under this Act, and where it is not practicable to seize any such goods, he may serve on the owner of the goods or any person holding them in his possession or pass an order that he shall not remove, part with or otherwise deal with the goods except with the previous permission of such officer.
(2) Where any goods are seized under subsection (1) and no show-cause notice is in respect thereof is given under section 180 within two months of the seizure of the goods, the goods shall be returned to the person from whose possession they were seized: ' Provided the aforesaid period of two months may, for reasons to be recorded in writing, be extended by the Collector Oistoms by a period not exceeding two months".
The aforementioned section provides two months period for the revenue authorities to serve a show-cause notice on the person from whom goods liable to confiscation have been seized. This period of two months can be further extended by two months in case the competent authority, for reasons to be recorded in writing, extends the same.
' In the present case, it is an admitted fact that the seizure of the goods were made on 24-9-1997, whereas the show-cause notices were served upon the appellants beyond the sixty days period stipulated in section 168 of the Act. However, sanctions were accorded vide order dated 19-11-1997 for the extension of time for serving the show-cause notice on the petitioners and the reason for the same has been stated as "completion of investigation". The said extension has been provided within the stipulated period of sixty days and the final show-cause notice is also, therefore, within the extended period permissible under section 168 of the Act.
' The learned counsel for the petitioners has rigorously argued that even the "reason" given for the said extension is not legal and in view thereof, the show-cause notices and the entire proceedings, which follow thereafter are illegal and thus must fall. This issue has been L resolved by the august Supreme Court of Pakistan in its judgment in the Collector of Customs v. Haji Noorul Haq (PTCL 2003 CL 723), wherein the august Court did not consider the "completion of inquiry and investigation" as a reason to invalidate the extension of the show-cause notice. Hence, the issue raised would have no consequential effect.
Question of Law No,5.
' The issue relating to search and seizure in the present case are essentially factual in nature.
Passing any findings on the same, at the present stage, would not be appropriate.
The aforementioned discussion, clearly brings forth the fact that the orders of confiscation of the seized goods in the present cases were in accordance with the law.
' Accordingly, there is no question of law as raised by the learned counsel for the petitioners, which may crave for setting aside or modifying the impugned judgment.
However, we note that the adjudicating officer, after passing the confiscating of the seized goods did not give an option to the petitioners, to pay fine in lieu of the confiscated goods as provided under section 181 of the Act. The express provision regarding the same as stated in section 181 of the Act, reads as; ("181. Option to pay fine in lieu of confiscated goods.--- ' Whenever an order for the confiscation of goods is passed under this Act, the officer passing the order may give the owner of the goods an option to pay in lieu of the confiscation of the goods such fine as the officer thinks fit: ' Provided that the Board may, by an order, specify the goods or class of goods where such option shall not be given: ' Provided further that the Board may, by an order, fix the amount of fine which, in lieu of confiscation, shall be imposed on any goods or class of goods imported in violation of the provisions of section 15 or of a notification issued under section 16, or any other law for the time being in force. Explanation.---Any fine in lieu of confiscation of goods imposed under this section shall be in addition to any duty and charges payable in respect of such goods, and of any penalty that might have been imposed in addition to the confiscation of goods."
The aforementioned section vests discretion in the adjudicating officer to provide the owner of the confiscated goods, an option to pay fine in lieu of the said confiscation.
' Apart from the discretion vested in the adjudicating officer, the said provision of law has stipulated certain conditions precedent for providing the said option of payment of fine in lieu of the confiscation. The particulars of the same are as follows:-- F.B.R. May, by order, specify the goods or classes of goods where such option shall not be given by the Adjudicating Officer.
' The seizure took place on 24-9-1997 and the confiscation order was passed by the adjudicating officer on 4-4-1998. On the said dates, there was no restriction 01 prohibition specified by F.B.R., regarding the goods or classes of goods for which the said option could not be given. It would be pertinent to note that the Federal Government, for the first time issued a notification specifying the prohibited goods vide S.R.O. No,1374(I)/98 dated 17-12-1998. Hence, the adjudicating officer was not hindered by any notification by the Federal Government to give an option to the owners of the confiscated goods to pay fine in lieu of the said confiscation.
(ii) C.B.R. May by an order, fix the amount of fine which in lieu of confiscation shall be imposed on any goods or classes of goods imported in violation of provisions contained in sections 15 and 16 of the Act or any other law for the time being enforced.
' There was no such order fixing the amount of fine, whereby the authority of the adjudicating officer was hampered in determining the amount of fine to be paid by the owner of confiscated goods, in lieu of the said confiscation.
' Thus, the Adjudicating Officer at the time of confiscation of the seized goods had a clear discretion vested in him to give an option to the owners of the confiscated goods. The said discretion was not hampered by any order regarding the goods or classes of goods for which there was any bar for providing the said option or the amount of fine to be paid by the said owners. The facts and events leading to the present references clearly suggest that the Adjudicating Officer did not exercise the said discretion vested in him under section 181 of Act.
' When the legislative vests discretion in an authority there is always a corresponding obligation to exercise the same fairly, reasonably and justly. It also mandates the said authority not to remain silent and, in cases, where the authority does not find it appropriates to exercise its discretion, it still has to provide reasons for this inaction on its part.
' In this regard it would be important to note that the august Supreme Court has gone even further and while dilating upon the scope and extent of the discretion provided in section 181 of the Act, held in Abubakar Siddique v. Collector of Customs (2006 SCMR 705), that; ' The word 'may' is not always used in the statute with the intention and purpose to give uncontrolled powers to any authority rather oftenly it is used to maintain the status of the authority on whom the discretionary power is conferred as an obligation and thus the legislative expression in the permissive form, sometimes is construed mandatory. It is, however, only in exceptional circumstances in which a power is conferred on a person by saying that he may do a certain thing in his discretion but from the indication of the relevant provisions and the nature of the duty to be done, it appears that exercise of power is obligatory. This is an accepted principle of law that in a case in which the statute authorizes a person for exercise of discretion to advance the cause of justice, the power is not merely optional but it is the duty of such person to act in the manner it is intended".
"The use of word 'may' in section 181 of Customs Act, 1969 cannot be read for 'shall' but at the same time the concerned officer in absence of any compelling reasons, must not withhold the exercise of the discretion of giving an option to the owner of goods under said section for redemption of goods in lieu of payment of fine, except in the cases in which goods cannot be allowed to be circulated in the market or the goods which were imported in violation of section 15 or of the notification issued under section 2(s) of, the Customs Act, 1969."
"The bringing of gold in personal baggage in violation of the Import Policy was definitely illegal but it being not a banned item was not included in the list of items specified by the Central Board of Revenue, in which the option under section 181 of the Customs Act, 1969 could not be given. The import of gold under the Import Policy 1995/96 not the Legislature by using the word 'may' in this section intended to give unbridled power to the customs authorities to act entirely in their own wisdom. The narrow interpretation of special provision in the statute relating to the discretionary jurisdiction may defeat the very purpose of the provision as it is settled law that discretion must not be exercised to curtail the purpose of law and offend the statute rather the discretion must be exercised to advance the cause of justice in just, fair and reasonable manner. The failure to exercise the discretionary power under the statute without any legal justification would amount to refusal to use such power in an arbitrary and capricious manner "
' In view of the clear annunciation of the august Supreme Court of Pakistan, we are bound by Article 189 of the Constitution to follow the same.
Thus the Adjudicating Officer at the time of passing the confiscation orders had to exercise the discretion vested in it under section 181 of Act, by providing the owners of confiscated goods to pay fine in lieu thereof. This failure on the part of the adjudicating officer is, in view of the clear dicta of the Supreme Court, is clearly a blatant illegality which requires judicial redress by (sic)
10. In view of the above, the decision of this court on the questions of law raised by the learned counsel for the parties and otherwise found to be arising out of the judgment of the Tribunal dated 17-3-1999 are as follows:--
(I) That for the reasons stated hereinabove, this court does not consider it appropriate to modify the consolidated judgment of the Tribunal dated 17-3-1999. Accordingly, the orders of confiscation of the seized goods in all three References are maintained.
(II) That in view of the clear provision of section 181 of the Act, this court considers that the adjudicating officer ought to have provided an option to the owners of the confiscated goods to pay fine in lieu of the confiscation of the said goods.
(III) That the Registrar of this Court is directed to send a copy of the present judgment under the seal of this Court to the Tribunal with direction that the adjudicating officer be directed to provide an option to the owners of the confiscated goods to pay fine in lieu of the confiscation, in accordance with the law.
' Accordingly, the three References, S.A.O. No,2/99, S.A.O. 3 and S.A.O. 19/1999 are disposed of in the above terms.