M. A. RASHID, J.-This Constitutional Petition arises out of the following facts:
1. The ship m. v. Vanti stood seized by order of this Court in Admiralty Suit No. 1 of 1978. During the pendency of that suit Director --General, Coast Guards moved an application praying that he be allowed to seize the ship and to adjudicate upon it. Such application was disposed of by an order of the Acting Chief Justice on 9th March, 1978, after notice to the other parties. It was held therein that no permission was necessary from this Court. However it was placed on record that the Pakistan Coast Guards was free to commence -adjudication pro--ceedings in regard to the import of the ship in question. As far as the request of seizure of the ship was concerned it was observed that it already stood in custody of this Court and would continue to remain so till the adjudication proceedings are finalized. By another application dated 28th March, 1978 it was prayed that seizure, though notional, was to proceed the adjudication proceedings, and therefore such permission was again sought. By an order dated 29th March, 1978 and in view of the provisions of sections 168 and 171 of the Customs Act, it was held that the submission that seizure of goods has to precede adjudication proceedings, was correct. Consequently the Director-General was permitted to seize the ship notionally while physical custody of the ship was to remain with the Court.
2. By an affidavit of one Haji Muhammad Yousuf, a Director of the petitioner-Company before us, and defendant No. 2 in the Admiralty Suit, it was asserted that the application for permission to seize the ship, as moved by the Director-General, Coast Guards, was liable to be dismissed.
However, it was further contended, that the said defendant did not wish to join issue on this point at that stage. But if in case the permission asked for was granted said defendant reserved his right to challenge the same in separate appropriate proceedings. On 17th June, 1978 Deputy Collector of Customs, Headquarter of Pakistan Coast Guards, issued a notice in the name of petitioner Messrs Salooka Steels Ltd, Mr. Suleman Ghanchi, the Managing Director of the firm and Mr. Muhammad A.I its Manager. In such notice it was alleged that the ship m. v. Vanti had been illegally brought in to Pakistan for the purposes of scrapping ; that the ship had been brought under Import licence No. 612713 dated 12th May, 1977 long after its expiry date i.e. On or about 8th May, 1977 ; that the ship stood seized under section 168 of the Customs Act, 1969 ; that it had been imported in violation of restrictions contained in Notification S. R. O. 920(1)/73 dated 25th June, 1973 issued under section 3(1) of the Imports and Exports (Control) Act, 1950. It was alleged that such contravention is to be deemed to be an offence under sections 2(s), 16 and 32 of the Customs Act, 1969 punishable under section 156(9) (14) (72) and (90) of that Act. The petitioners and its Managing Director and Manager were therefore called upon to show cause, within 20 days, why action should not be taken against them for violation of the said provisions of Law.
3. Feeling aggrieved by such notice the petitioner have brought this petition. Action of the respondents is challenged on the following grounds :-
(t) That the notional seizure of the Coast Guard is not in accordance with law inasmuch as the requirements of section 168 of the Customs Act, 1969 have not been fulfilled.
(ii) That the Coast Guards have no jurisdiction to proceed with the matter because according to the Pakistan Coast Guards Act, 1973 their jurisdiction extends only-to smuggled goods.; and (W)That the territorial jurisdiction of the Coast Guards does not extend to goods brought into Pakistan within the limits of various ports.
3. Seizure of goods without warrants can take place either under section 163 of the Customs Act, 1969 or under section 168. But in order to proceed under section 163 of the Customs Act the officer proceeding has to record the reasons for his belief that if he does not proceed under this Provision the goods required to be seized would be removed before search can be effected under section
162. Section 162 deals with seizure through warrants issued by a Magistrate. The Director General Coast Guards had evidently not proceeded under section 163 of the Customs Act. He has, as is evident from the show-cause notice referred to above, seized the ship under section 168 of the Customs Act. Subsection (1) of this section reads as follows :- "168. 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 charge an order that he shall not remove, part with, or otherwise deal with the goods except with the previous permission of such officer."
This Provision is in pari materia with section 178 of the Sea Customs Act--- 1878, since repealed. In the case of Collector of Customs and others v S. M. Yousuf (1973 SCMR 411their Lordships of the Supreme Court had the occasion to examine the provisions of section 172-A (which is equivalent to section 163 of the Customs Act) and section 178 of the Sea Customs Act, 1978. In that case the High Court had come to the conclusion that the Customs Officer had failed to record the grounds for believing that any goods liable for confiscation were either concealed or kept at any place that there is a danger of their removal before search. For this reason the seizure was held to be illegal and direction for the return -of- the goods was _ made. But. In appeal Before the Supreme Court the Advocate for the Collector Customs took the plea that after returning the goods to the respondents and before -the truck would move, the Customs authorities had seized the goods under section 178 of the Sea Customs Act, 1878. Their Lordships, while dealing with this aspect of the matter, came to the conclusion that the authority of seizing the goods could not be exercised unless the goods "are liable to confiscation under the Act which means that liability for confiscation has already been determined in appropriate proceedings or is not in dispute".
4. On the same analogy it can be held that in the absence of determination, that goods being seized are liable to confiscation, through proper proceedings, the seizure -of ship. Under section 168 of the Customs[ Act is without lawful authority. In the present case the allegation is that the import of the ship is illegal. The fact of such illegal import has to established through proper proceedings before such seizure can take place The seizure, though notional in nature, is therefore, without lawful authority.
5. Attack on the jurisdiction of the Coast Guards to deal with the question of Import of ship m. v.
Vanti is two-fold. It is contended that the respondents have no jurisdiction to deal with the subject- matter and secondly that the area, where the-Coast Guards have acted against the ship, is beyond their territorial jurisdiction, Pakistan- Coast Guards were established through Pakistan Coast Guards Act, 1973 (hereinafter called the Act). Section 14 of this Act specifies powers of Customs Officers exercisable by officers of the Coast Guards. Subsection (1) of this section reads as follows :- "14. Powers of the officers of the force.-(l) The officers and members of the force shall perform such functions of officers of customs as may be entrusted to them and exercise such powers under the Customs Act, 1969 (IV of 1969), as may be delegated to them under section 6 of that Act for the purposes of prevention of smuggling along the coastal areas of the Provinces of Sited and Baluchistan, Excepting the limits of the various ports in those areas."
Mr. A. K. Brohi, the learned counsel for the petitioners, has also referred to the preamble of this Act in order to show that the Coast Guards are required to check only smuggling and that their jurisdiction does not extend to prevent other illicit import of goods into Pakistan. Section 3 of the Act lists the function of the Coast Guards, which are :--
(a) prevention of smuggling ;
(b) prevention of illegal immigration to and migration from the country ;
(c) stopping enemy agents or saboteurs from inflitrating into the country along the coastal areas ; and
(d) supplementing defence in war.
So the jurisdiction of the Coast Guards evidently extends only to they prevention of smuggling and not to other illicit import.
6. The powers and functions of Customs Officers, as can be delegated to officers of the Coast Guards under section 14 of the Act. Can only be the powers required for the purposes of prevention of smuggling. Such delegation cannot overreach the provisions of this section. This is also evident from-- the language used in section 14 of the Act. Therefore it is evident that the delegation of powers of Customs officers upon officers of .The Coast Guards cannot be for purposes other than those envisaged by section 148 i.e. prevention of smuggling along the coastal areas.
7. Smuggling is not defined in the Act. The definition of this term is provided in section 2(s) of the Customs Act, 1969, which reads as follows :-- "2(s) "smuggle" means to being 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-
(a) gold bullion, silver bullion, precious' stones, currency, manufactures of gold or silver or precious stones or any other goods notified by the Federal Government in the official Gazette, in each case exceeding one thousand rupees in value ; or
(b) any goods by any route other than a route declared under section 8 or 10 or from any place other than customs-station ; and includes an attempt; abetment or connivance of so bringing in or taking out of such goods, and all cognate words and expressions shall be construed accordingly."
The contention of the petitioners is that according to this definition all illicit imports do not necessarily fall within the term `smuggling'. In order that a goods be smuggled it should not only be brought into Pakistan in violation of any prohibition or restriction or for the purposes of evading payment of duties or taxes, but should also either be, in the case of goods listed in sub-clause (a) :-
(i) enumerated goods ; or
(ii) notified goods.
It may be mentioned here that sub-clause (b) of clause (s) of section 2 is not attracted to the facts of the case. This is because the ship was admitted brought into the Port of Karachi which is a port declared to be a Customs Port in terms of section 9 of the Customs Act.
8. On the other hand the learned Advocate-General and the Deputy Attorney-General take a stand that the definition of the term "smuggle", as given in section 2(s) of the Customs Act, envisages three categories. Firstly those that are brought into Pakistan or are taken out of it, in breach of any prohibition or restriction. Second category is of those goods which are enumerated in sub-clause
(a) of section 2(s), i.e. gold bullion, silver bullion, precious stones, currency, manufactures of gold, silver or precious stones. Third category is of the goods which are notified by the Federal Government under the same sub-clause (a).
9. It may be mentioned here that import of ships is duly prohibited through Notification No. SRO- 920(1)/73 dated 25th June, 1973, issued under section 3(1) of the Imports and Exports (Control) Act, 1950. So, for the E purposes of the first part of section 2(s) of the Customs Act prohibition against import of ships exists. But the question is if by virtue of such prohibition alone an import of a ship amounts to smuggling. This. Question can be answered by examining the true meaning and import of section 2(s) of the Customs Act.
10. This provision has been judicially interpreted in the past. The first case in this behalf is that of Zarina 1jaz (PLD 1975 Kar. 482wherein it was held that cars, not being a notified item in terms of sub-clause (a) of section 2(s) of the Customs Act, their import does not amounts to smuggling. In Niaz Ahmad v. The State (PLD 1978 Kar. 774the provision was examined in a little greater detail. The stand by the State in that case was similar to one taken on behalf of the respondents before us, that section 2(s) (a) of the Customs Act contemplates three categories of goods which fall within the term of smuggled goods. Para. 6 of the judgment contains detailed examination of this submission and the reasons for repalling it. I may quote :-- "The Additional Advocate-General on behalf of the State argued that clause (s) of section 2 contemplates not two but three kinds of goods, namely
(i) the goods exported or imported o r restriction for the time being in force ;
(ii) gold bullion, silver bullion, precious stones, currency, manufactures of gold or silver or precious stones ; and lastly
(iii) goods notified by the Federal Government in the official Gazette under sub-claue (a) of clause(s) of section 2.
To my mind clause(s) refers only to goods specified therein and other goods notified by the Federal Government. It does not refer to goods the importation or exportation of which is prohibited elsewhere, which situation is governed by clause (9) of section 156. If the goods are one not specified in this clause or notified by the Federal Government _ under this clause, notwithstanding that its export or import may be prohibited or restricted by any law, there cannot be any offence of smuggling in respect thereof. This is clear from clause (9) of section 156 which makes an offence to import or export goods in violation of any prohibition or restriction on the importation or exportation of such goods imposed by or under this Act or any other law. Clause (9) makes it clear that it will not include goods which come within clause (8) of section 156 and, therefore, merely because importation or exporta--petition of goods is prohibited by any law, it will not follow that its importation or exportation will amount to smuggling in the absence of its inclusion under a notification by the Federal Government under sub-clause (a) of clause(s) of section 2 of the Act. Clauses (8) and (9) of section 156 must run parallel for the goods covered by the former are excluded from the latter. If these clauses are not so read they will be destructive of each other. To give an example, if an import policy prohibits import of furniture, such import will be in contravention of law and if it is, as was argued by the learned Additional Advocate-General, punishable under clause (8) of sec--petition 156 it will make its clause (9) redundant. The law clearly con--templates two separate categories of goods, one clause (s) of section 2 and the other goods the import or export of which is prohibited under any other law or for that matter under any other section of the Customs Act, and the offence of smuggling is limited to the former category. I am further fortified in this view by the fact that the Federal Government, at a later date deemed it necessary to notify charas an additional item under said clause (s) of section
2. Therefore, the fact that importation and exportation of charas is prohibited under the Dangerous Drugs Act, 1930 which will be deemed to be prohibition or restriction notified under section 16 of Act, in the absence of inclusion of charas as one of the items notified under clause (s) of section 2 there cannot be any smuggling of charas though of course it is an offence under clause (9) of section 156."
This view was reiterated in Shabbir Ahmed Shah v. Pakistan (PLD 1979 Kar. 68and in un--reported judgment in the case of Mahmood Alam v. Director-General Pakistan Coast Guards and others C. .P. No. 745/79. I am in respectful agreement with the views expressed by their Lordships of the Sind High Court in alt these cases. I may however add that the first part of clause(s) of sections 2 of the Customs Act, which henceforth I will call the controlling part, qualifies and control the categories of goods listed in sub-clauses (a) and (b). That means that every goods which are brought into Pakistan, or are taken out of it, must either prohibited/restricted goods or should be so brought in or taken out for the purposes of evading customs duties or taxes. Either of these two con--ditions must be fulfilled by the categories of goods listed is sub-clause (a and (b). Sub-clause (b) is not relevant to the facts of this case. But in order to illustrate the point I may say that prohibited/restricted goods, if brought through unspecified routes, became smuggled goods in terms of this sub clauses ; and so also if they are brought such routes to evade custom duty or taxes.
11. An example to the contrary would be goods, whose import or export is not prohibited or restricted, say for instance ZAM ZAM water, nor is any customs duty, or tax, leviable on its import. If such water is brought into Pakistan, through a route not specified under section 9 or 10 of the Customs Act, then, though such import may be illegal, no smuggling would take place. Thus, it would be seen that if the conditions laid down in the con--trolling part are not fulfilled, the act of smuggling is, not committed. Vice versa is a also true. In order to be smuggled goods, the goods, qualifying either of the two conditions laid down in the controlling part, have also to fall in one of the categories listed in sub-clauses (a) and (b) of section 2(s).
12. The admitted position is that though the import of ships is restrictedi under the Import and Export (Control) Act, 1950 by virtue of S. R O. 920(1)/73 of 25th June, 1973, but they are not notified in terms of sub-clause (a) of section 2(s) of the Customs Act. Bringing in of ships, therefore, does not amount to smuggling, though, if imported in violation of the provisions of Imports and Exports (Control) Act, 1950, it may be illegal. The jurisdiction of the Coast Guards being limited to goods which are smuggle, does not extend to goods which are illegally imported.
13. The second leg of objection is to the territorial jurisdiction of the' Coast Guards. The area of operation of the Coast Guards is along the coastal .Area of the Provinces of Sind and Baluchistan Excluding the limits of various ports. This is clear from section 14 of the Act. The coastal areas are specified in the first schedule to the Act, which reads as fol--lows "First Schedule, Southern strip of the Province of Baluchistan along and astride the existing road emanating from the Pak/Iran Border connecting the towns of Man-Turbat-Hoshab-Bazdar-Bela- Uthal, to Hub River (Bundmurad) and also the southern area of the Province of Sind along and astride the line and road from Hub River-(Bund--murad)-Gadap-Sari Sing-Thano Bulakhan-Bano- Mirpur Bataro-Jatti to the Arabian Sea but excluding the limits of any port in those areas."
The limits of ports has been specifically excluded from the Coastal Areas. As such the Coast Guards clearly do not have any jurisdiction in the port areas and therefore they cannot operate there. This is obviously for the reasons that there are other agencies like Customs, who are required to pre--vent smuggling in such areas.
14. The ship was evidently brought into Karachi where it was berthed at berth No. 9. Rummaging of the ship was done at the same berth by an official of the Customs Department. After having completed other formalities the ship was allowed to proceed to Gadani under escort of the Customs Depart--ment. Preventive Officer Akhtar Ullah and Sepoy S. Afzal Hassan accompa-- panied the Ship from Karachi Harbour to Gadani beach in persuance of the orders of Superintendent of Customs (Anti-Smuggling) dated 7th September, 1977 (Page 357 of the file). So evidently the ship was duly imported into Karachi Port and from there it was taken to Gadani.
However it is contended that because the ship was arrested by the Coast Guards from Gadani, therefore, no objection to their territorial jurisdiction could be taken. But according to Central Board of Revenue Notification No. 2 (Cus) of 15th April 1953, Gadani is one of the five ports of the then Baluchistan State Union, declared to be a port for the shipment and landing of goods in terms of section 11 of the Sea Customs Act, 1878. This notification was placed on record by the learned Advocate-General. In view of this notification the argument of respondent is left without any basis,
15. -It is additionally contended by Mr. A. K. Brohi that the allegation of illegal import of the ship is also not correct. It is not necessary, for the' purposes of deciding this petition, to answer this question.
16. One of the objections taken, though not argued is that the petition is not maintainable because of the alternate remedy available to the petitioners. In cases where the very . Jurisdiction of a tribunal is challenged the aggrieved par--ties can always directly approach this Court, in its constitutional jurisdiction. In this behalf I may refer to the authorities of the Supreme Court reported as Murree Brewery v. Pakistan (1) and Sind Employees' Social Security institu--petition v. Dr. Mumtaz A.I Taj and others (2) wherein their Lordships have held that one of the well-recognized exception, to the general rule of availing the alternate remedy, is where an order is attacked on the grounds that it was wholly without authority, or the statutory functionary acted msla fide or in a partial, unjust and- oppressive manner.
17. In view of the above duscussion I have-come to the conclusion that the action of Coast Guards in arresting the ship and in trying to proceed against the petitioner, vide the show-cause notice dated 17-6-1978 is without lawful authority and is of no -legal effect. .
Petition allowed.
(1) PLD 1962 9-C 279 (2) PLD 1975 SC 450