1. ' SAEEDUZZAMAN SIDDIQUI, J.-The petitioner has impugned in this petition the notice dated 6-3-1981 served on him by respondent 3 purporting to be an order under section 168 of the Customs Act, 1969 seizing 17 cases of machinery lying in the premises of Messrs Tariq Multi-purpose Industries.
2. The petitioner has also challenged the subsequent order passed by respondent 3 in respect of another six cases which are part of the same machinery and which were cleared from the Customs but were lying in the custody of respondent 4 at the relevant time, restraining respondent 4 not to remove or part with or otherwise deal with the same except with the previous permission of respondent 3. We partly heard this petition on 23-11-1982 and then adjourned it for today to enable respondents 1 to 3 to consider a suggestion given by the petitioner's counsel during the course of hearing that the respondents 1 to 3 may withdraw the orders impugned in this petition and then proceed against the petitioner on the basis of the subsequent notice issued to petitioner if available to them under the law. Today when this petition came up for further hearing the learned counsel for respondents 1 to 3 made a statement before us that in so far the order dated 6-3-1981 is concerned which related to the seizure of 17 cases of machinery lying in the premises of Messrs Tariq Multi-purpose Industries Ltd. The respondents are withdrawing the same but they reserve their rights to proceed against the petitioner in accordance with the subsequent notice issued to him or to take such other proceedings against him as may be availabie to respondents under the law. The petitioner accepts this conditional withdrawal of the order dated 6-3-1981 by respondents 1 to 3 and, therefore, it is not necessary to decide this petition in so far it relates to order dated 6-3- 1981. However, with regard to the subsequent order passed by respondent No, 3 under section 168 of the Customs Act restraining respondent 4 dealing in any manner with the other six cases of machinery lying in their custody belonging to petitioner, the learned counsel stated that he will contest the petition. The copy of the order is not produced by the petitioner but it has been filed before us by the learned counsel for respondents 1 to 3 and is dated 16-6-1981. The order is as follows :- "Whereas it is not practicable to seize the goods imported by Ilam Khan per s. s. Balantang I. G. M.
3. No, 439/81, Index No, 1 Bill of lading No, KA 1, dated 23-3-1981, and s s. Gluden L G. M. No, 320/81 Index No, 103 Bill of lading No, 23, dated 11-2-1981, it is, therefore, ordered that the owner or any person holding them in his possession or charge shall not remove, part with or otherwise deal with them except with the previous permission of the undersigned."
4. ' It is admitted before us by the learned counsel for respondents 1 to 3 that the six cases of machinery in possession of respondent 4, in respect of which the above order under section 168 of the Customs Act has been passed by the respondents are the part and parcel of the same machinery which is lying in 17 cases in the premises of Messrs Tariq Multi-purpose Industries Ltd.
5. And that all the 22 cases were imported by the petitioner under N. R. I. Scheme. The petitioner has challenged the legality of the order passed by the respondent in respect of the 6 cases of machinery lying in possession of respondent No, 4 on the grounds : (i) that the order of seizure of goods under this section can be passed only if it is first determined in some appropriate proceedings that the goods were liable to confiscation under the provisions of Customs Act, (ii) that the failure of respondents to give reasons for seizure of goods as required under section 171 of the Customs Act has rendered the seizure under section 168 of the Act as unlawful and (iii) in any case the respondents having failed to issue any show-cause notice to the petitioner. Under section 180 of the Act within two months of the seizure and there being nothing on record to show that the above period of two months was extended by the Collector, the goods are liable to be returned to petitioner. The learned counsel for respondents 1 to 3 in reply to the above submission of the petitioner's counsel has contended that the order dated 16-6-1981 passed by the respondent is not an order of seizure of goods and, therefore, the limitation of two months' period for issuing a show- cause notice as required in subsection (2) of section 168 of the Customs Act is not attracted and for the same reason the respondents were not required tp serve the petitioner with the grounds of seizure as required under section 171 of the Customs Act. It is urged that section 168 of the Customs Act contemplates passing of two types of orders by the Customs Officer. It can either be an order for seizure of goods where the goods are capable of being seized but where the goods are not capabie of being seized the Customs Officer may pass an order of the nature as has been passed in the present case. In the latter cases it is contended, it will not amount to seizure of goods. We are unabie to accept the contention of learned counsel for respondents 1 to 3. The beading of section 168 of the Customs Act reads as : "Seizure of things liable to confiscation." Although the marginal note and the heading of a section cannot control the language of the section but it is quite per missibie to look at it with the object of finding out the drift and the general trend of the section. It is not disputed that the order dated 16-6-1981 has been passed by the respondents under section 168 of the Customs Act which deals with the seizure of goods liable to confiscation which reads as follows :- "168. Seizure of things liable to confiscation.-(1) The appropriate officer may seize any goods liabie 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.
6. (2). Where any goods are seized under subsection (1) and no show-cause notice 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 that the aforesaid period of two months may, for reasons to be recorded in writing, be extended by the Collector of Customs by a period not exceeding two months.
(3) The appropriate officer may seize any documents or things which in his opinion will be useful as evidence in any proceeding under this Act.
(4) The person from whose custody any documents are seized under subsection (3) shall be entitled to make copies thereof or take extracts therefrom in the presence of an officer of customs."
7. ' A reading of the above provision will show that a custom officer duly authorised in this behalf may seize any goods which is liabie to confiscation under the provisions of the Customs Act. However, seizure of goods under the section may take place either by physical taking over of such goods by the Customs, Officer or where physical taking over of the goods is not possible or practicable it may be effected by serving on the .Owner of the goods or any person holding these goods in 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. The effect in both the cases is same, namely, the owner or the person in possession of goods is deprived of the right to deal with goods in any manner. It is true that in the latter case the owner or the person in possession of such goods is not deprived of its physical possession but in effect as soon as the restraint order is served on him, he is deemed to hold those goods for and on behalf of Customs Authorities and its disposal become subject to the orders of Customs Authorities. We are, therefore, unable to agree with the learned counsel for respondents Nos. 1 to 3 that where an order as contemplated in the later part of subsection (1) of section 168 of the Customs Act is served on a person it d not amount to seizure and, therefore, the provisions of subsection (2) o section 168 and section 171 of the Act are not attracted. If the interpreta tion placed by the learned counsel for respondents 1 to 3 is accepted, startling result will follow and the safeguards provided in subsection (2) o section 168 and section 171 of the Act by the Legislature against an arbitrar action of Customs Authority will be nullified. For instance a customs office may serve a restraint order as provided in the later part of subsection (1) of section 168 of Customs Act on the owner or person in possession of goods and thereafter neglect to issue a show-cause notice under section 180 of the Act for an indefinite period and may also refuse to hand over the goods on the expiry of the period of two months from the date of service of the order on the plea that it was not a "seizure" of goods under section 168 of the Act.
8. Similarly the Customs Officer may also refuse to disclose the grounds of seizure of such goods to the owner or the person in possession of such goods and thus deprive him of the remedy available to him under the Act for an indefinite period. It is an admitted position in the case that the order under section 168 of the Customs Act was served on respondent 4 who were then holding the goods after clearance from Customs, on 16-6-1981 and no notice under section 180 of the Customs Act has been served on the petitioner within two months of the service of that order as required under subsection (2) of section 168 of the Act. The learned counsel for petitioner in spite of opportunity having been given to him was unable to satisfy us fro the record that any extension of time as provided in the proviso to subsection (2) of section 168 was obtained in the case from the Collector of Customs. It is also admitted before us that no grounds of seizure have been served on the petitioner as required under section 171 of the Customs Act so far. These omissions are however, sought to be justified by the learned counsel for respondents 1 to 3 on the plea that the order dated 16-6-1981 served on respondent 4 in the case was not a seizure of goods. We have already held that an order served on the owner or person in possession of goods in accordance with the latter part of subsection (1) of section 168 of the Customs Act takes effect as seizure of goods and, therefore, the order dated 16-6-1981 served on respondent 4 amounted to seizure of those goods.
9. Since respondents 1 to 3 have admittedly not complied with requirement of subsection (2) of section 168 and section 171 of the Customs Act the order dated 16-6.1981 is rendered ineffective and the petitioners are entitled to delivery of goods. We accordingly accept this petition and declare the order dated 16-6-1981 served on respondent 4 by respondents 1 to 3 in respect of 6 cases of machinery imported by the petitioners is without any lawful authority and of no legal effect. We will however make no order as to cost as the Customs Authorities and specially their law officers who appeared in the case personally had taken a very reasonable attitude in the Court. After we dictated the order in Court the learned counsel for the petitioner stated before us that respondents 1 to 3 may be directed to issue a delay detention certificate to the petitioner in the circumstances of the case in respect of the consignment detained in the custody of respondent No,
4. We do not find it necessary to issue any specific direction in this regard as Mr. Muhammad Salim, Chief Law Officer of respondent 3 stated before us that in view of the order passed by us holding the order dated 16-6-1981 as without lawful authority, the Customs law authority will issue such certificate to the petitioner. With these observations the petition is accepted.