1. AJMAL MIAN, J.-In this petition the petitioner has challenged the order of the Deputy Collector Customs dated 27-1 1-1974, passed under section 156(8) of the Customs Act, 1969, confiscating the launch named "AL SAYEE" registered at Sharjah (U. A. E.) (hereinafter referred to as the launch) and also the alleged foreign goods. The brief facts leading, to the filing of the above petition as per averments in the petition are that the petitioner is a Pakistani and was employed as "Nakhuda"
2. (Captain) of the launch. It has been averred that in the month of August, 1974, on voyage to Colombo it was found that the body of the launch could not bear the load, as it was worn out and its engine was giving trouble, and because of that after unloading the cargo at Colombo without loading any cargo, the launch was returning to U. A. E., and while it was on its way in Arabian sea, the sea got very rough and the stress of weather was so that the engine of launch failed and body started leaking. It has been further averred in the petition that the petitioner and the other members of the crew in order to save their lives brought the launch to a nearest sea coast and ultimately they touched Pakistani Coast at a place called "Khobar" on Ist September, 1974 at 12-00 noon, and after that they took the launch out of water and grounded it. After that from there the petitioner and the other members of crew started to report the matter to the police and to the customs authorities, and while on their way they came across village "Khobar" and went to the Nekmard of the village, namely, Saleh son of Mured Jat and narrated the above facts and narrated requested to him direct the petitioner and others members of the crew tote police station or to the customs. After that according to the further averments in the petition said Saleh bad taken the petitioner and the other members of the crew to the police station Ketti Bunder, where the petitioner produced the relevant documents of the launch and also narrated the above facts. It has been further averred that the petitioner and the other members of the crew remained in the police custody and that the S. H O. Ketti Bunder Police Station after filing an application on or about 4-9-1974 obtained remand of 14 days for the period from 4-9-1974 to 17-9-1974 from the Court of Civil Judge and F. C. M., Thatta (Annexure B 1). On 25-9-,,974 the petitioner and 9 members of the crew were challaned by the respondent No. 2 i. e. The Pakistan Coast Guards in the Court of Special Judge, Customs and Taxation, Karachi, under section 156(8) (89) of the Customs Act, 1969. It seems that after submission of the above challan, the Deputy Collector Customs passed the impugned ,order. Consequently, the petitioner has filed the above petition challenging the above order of the Deputy Collector Customs and has also filed Cr. Misc. Application No. 95 of 1975 for the quashment of the proceedings pending before the Special Judge, Customs & Taxation.
(2) (a) In support of the above petition, the learned counsel for the petitioner, Mr. A. R. Khan, has made the following submissions :
(i) That the impugned order is illegal inasmuch as the petitioner's, case was. Covered under section 42 of the Customs Act.
(ii) That since the matter was seized of by the Police, the latter had no power to pass on tile case to the Coast Guards for further action, therefore, the impugned order cannot be 'sustained.
(iii) That the seizure of the launch was illegal inasmuch as the compliance of section 171 of the Customs Act was not made.
(6) Reverting to the learned counsel for the petitioner's above first contention that the petitioner's case falls within the ambit of subsection (2) of section 42 of the Customs Act and, therefore, the impugned order is illegal, it may be advantageous to re-produce herein below, above section 42 which reads as under; "Section 42. Arrival of conveyance.-(1) The person incharge of a conveyance entering Pakistan from any place outside Pakistan shall not cause or permit the conveyance to call or to land in the first instance at any place other than a customs station.
(2) The provision of subsection (1) shall not apply in relation to any conveyance which is compelled by accident, stress of weather or other unavoidable cause to call or land at a place other than a customs-station but the person-in-charge of any such conveyance :
(a) shall immediately report its arrival to the nearest office of customs to the officer-in-charge of the police station and shall on demand produce before him either the cargo book or the manifest or the log-book belonging to such conveyance ;
(b) shall not without the consent of any such officer, permit any goods carried in the conveyance to be unloaded from, or any of the crew or passengers to depart from its vicinity ;
(c) shall comply with any direction given by such officer with respect to any such goods ;and no passenger or member of the Crew shall, without the consent of any such officer, leave the vicinity of the conveyance.
3. Provided that nothing in this section shall prohibit the departure of any passenger or member of the crew from the vicinity of, or the removal of goods from, the conveyance where such departure or removal is necessary for reasons health, safety or the preservation of life or property."
4. A perusal of the above-quoted section indicates that the person in. Charge of a conveyance entering into Pakistan cannot call or to land at any other place other than the customs station.
5. However, exception to this is provided for in. Subsection (2), which provides that subsection (1) of section 42 shall not apply in relation to any conveyance, which is compelled by accident, stress of weather or other unavoidable cause to call or land at a place other than a customs station. In the instant case, the case of the petitioner is that because of the bad condition of the launch and bad weather. The launch was drifted and it had to be grounded at a place other than a customs station, where it was found. In our view in order to press into service above subsection (2) of section 42, it is necessary to establish any of the facts specified therein, namely, landing of the conveyance at a place other than a custom station on account of the accident, or stress of whether or other unavoidable cause. It is an admitted position that no evidence was produced before the Deputy Collector, Customs to bring in the petitioner's case within the ambit of subsection (2) of section 42 of the Customs Act by proving any of the above facts. The reason given by the learned counsel for the petitioner is that the impugned order was passed without prop.-r A notice of hearing to the petitioner or to any other person. Be that as it may, the fact remains that the facts mentioned in subsection (2) of section 42, are to be proved on the basis of the evidence and not on the assumption that what has been stated in the petition on the above question is correct.
(c) With reference to the second contention namely, that the police authorities having seized of the matter were not entitled under the law to hand over the case to the Coast Guard for further action, it may be pertinent to observe that Mr. Aziz Munshi, learned Deputy Attorney-General has Invited our attention to para. 4 of the counter-affidavit, wherein the following averments have been made : "That the true and correct facts are that on information being received that a launch. Is operating from Gulf area to. The Sea Coast of Karachi along with smuggled goods, a watch was kept by the Pakistan Coast Guards. On 3rd September, 1974 at about 1800 hours the Coast Guards located the launch in the Ghobar Creek which has bushes. There was no crew on the launch. The Coast Guards searched the launch and found foreign cloth and other foreign goods of which the Mashirnama was prepared. The enquiries were made about the crew from the local men and the Coast Guards were informed that the Police had taken away the crews three of whom were Indian National and 7 Pakistanis. On the next day i. e. 4th September 1974 the F. I. R. Was recorded. On 9-9-1974 the Coast Guards approached the F. C. M. Thatta, for the custody of the accused who had earlier been handed over to the police custody by the F: C. M.; Thatta. The F. C. M. Remanded the accused to the custody of the Coast Guards and ordered the Thatta Police to hand over the accused to the custody of the Coast Guards. The Police handed over the three Indian crews to the Coast Guards and for the rest they stated that' they were interrogating them and making enquiries at Hyderabad.
6. Thatta, for the custody of petitioner alongwith other Pakistani Crew. A true copy of the application is annexed hereto and marked (R-1). The learned F. C. M., Thatta granted the custody of the petitioner and others to the Coast Guards on 13-9-1974. A true copy of the order is annexed herein to and marked (R-2). Since then the custody of the petitioner and other accused was with the Coast Guards. On 25-9-1974 challan was submitted in the Court of the Special Judge Customs 8c Taxation, Karachi and the accused were also produced before the Court from where the accused including the petitioner were remanded to judicial custody. Subsequently, the petitioner got bail from the Court. The Thatta Police had also challaned the accused in the Court of the F. C. M., Thatta."
7. There is no express denial by the petitioner in his rejoinder to the averment that the Coast Guards itself seized of the matter on 3rd September, 197 after noticing launch in question at the aforesaid place. In this view of the matter the above contention is not tenable.
(d) Reverting to the third contention that there was non-compliance of section 171 of the Customs Act, it may be observed that it is true that at the time of seizing of an article, the person is entitled to be informed for the reason. However, we would not like to express any opinion on the above point since we intend to remand the case to the Deputy Collector of Customs for the rehearing of the matter afresh for the reason that the question as to whether the petitioner's case falls within the ambit of subsection (2) of section 42 of the Customs Act is to be determined on the basis of some evidence and as the petitioner could not defend the case-before the Deputy Collector of Customs as some of them were under arrest, and they could not be served with the notice.
4. We, accordingly, declare the impugned order as being without lawful authority. We also remand the case back to the Deputy Collector or Customs with the direction to hear the same on 9th April, 1981 at 9.00 a. m. It may be observed that the above date and time are fixed at the consent of the learned counsel for the parties. Since the launch was released on depositing of certain amount, the said amount shall remain with the Court till the time the matter is decided by the Deputy Collector of Customs and further order is passed by this Court. Since the time and date for hearing is fixed with the consent of the learned counsel for the petitioner, there will be no need for the Deputy Collector of Customs to issue a fresh notice for the above date of hearing.