This Criminal Revision is directed against the order of the learned Special Judge Customs, Peshawar, dated 4-2-1987 whereby the file of the case against Raghzi Gul accused-respondent under section 156(1)(89) of the Customs Act, 1969 was returned to A.D.A., (District Police) without taking any further action in the case for the reason that the arrest of the accused-respondent and seizure of the goods from his possession by a police constable were held to be illegal because by virtue of notification bearing No. SR0.1029(1)/74, dated 29-7-1974 issued by the Central Board of Revenue this authority could be exercised only by Police Officers not below the rank of Assistant Sub-Inspector within their respective jurisdiction. The aforesaid order is impugned by the State in this revision.
2. In support of the revision it is contended, firstly, that the arrest of the accused-respondent by police constable was not illegal inasmuch as the accused was found to have committed a congizable offence and, secondly, that even if the arrest was illegal, the cognizance taken by the Court was in accordance with law because of the fact that investigation was conducted by the Sub-Inspector/S.H.O. Who was Incharge of the police station concerned and the challan of the case was also submitted by him in the Court of the learned Special Judge Customs. Thus, the cognizance of the offence having been taken by the Court according to law, the alleged illegal arrest of the accused and seizure of the goods from him were immaterial and would not vitiate the trial. Reli4nce is placed on Piru and another v. The State (1985 P.Cr.L.J. 276 and (Commander) M.S.K.
Ibrat v. The Commander-in-Chief, Royal Pakistan Navy and two others PLD 1956 SC (Pak) 264. On the other hand, it is contended on behalf of the accused-respondent that since the arrest of the accused and seizure of the goods from his possession were done by an incompetent Police Officer, the entire proceedings including the trial of the case stood vitiated.
3. The provision of the Customs Act, 1969 relevant to the question involved are contained in section 161(1)(2), section 168(1) and section 185-A. Section 168(1) of the Act provides that 'appropriate officer' may seize any goods liable to confiscation. The expression 'appropriate officer' has been defined in section 2(b) of the Act which reads as under:-- "The 'appropriate officer' in relation to any function to be performed under this Act, means the Officers of Customs to whom such functions have been assigned by or under this Act."
The Central Board of Revenue under section 6 of the Customs Act can entrust any function of any Officer of Customs under the Act to any Officer of the Federal or Provincial Government. In exercise of this power the aforesaid, notification bearing No. SRO.1029(1)/74, dated 29-7-1974 was issued entrusting the functions of the Officers of the Customs to different ranks of Police Officers. Thus, for exercising the powers or functions under section 161(1)(2) and section 168(1) of the Act, Officers not below the rank of Assistant Sub-Inspector within their respective jurisdiction have been authorised to act as Customs Officers. Therefore, by virtue of this notification a Police Officer not below the rank of Assistant Sub-Inspector was competent to exercise the powers of an Officer of Customs under section 168(1) and seize any goods which were liable to confiscation under the Act. The record shows that on 6-6-1984 at about 9-30 p.m. The accused-respondent was found standing on G.T. Road with some cartons allegedly containing goods of foreign origin. The police constable suspecting the goods to be smuggled ones took the accused-respondent to police station along with the goods and entrusted him to the S.H.O. Incharge of the police station. The record also shows that the aforesaid goods were taken into possession by the S.H.O. On the basis of a recovery memo. Duly signed by him. Thus, in the circumstances, it can be rightly urged that the goods in question were seized not by the police constable but by the S.H.O. Who was competent to do so by virtue of the aforesaid notification. The provisions in regard to arrest of an accused are contained in section 161(1)(2) of the Act which empower an Officer of the Customs authorised in this behalf or a person duly empowered for the Prevention of Smuggling, to arrest any one about whom he has reason to believe that he has committed an offence under the Act. By virtue of the notification referred to above Officers of the police of the rank of Assistant Sub-Inspector or above have been authorised to make arrest under the aforesaid provision of law. However,' it may be noted that the conferment of the powers on certain Officers under the Customs Act does not oust the powers of the other authority duly empowered by law unless expressly said so. The Act does not provide that no Police Officer though otherwise empowered under the Criminal Procedure Code to take cognizance of a cognizable offence can do so unless so authorised by the Customs authorities. In the absence of any specific provision in the Act, the action of the police in regard to a cognizable offence would not be deemed to be irregular. By virtue of Schedule-II to the Criminal Procedure Code a Police Officer is competent to arrest any person committing offences falling under various Clauses, including Clause (89) of section 156(1) of the Customs Act in so far as the punishment provided in these Clauses is either imprisonment of 3 years or upwards. But even if it is held that the arrest of the accused-respondent in this case was illegal, it will have little bearing on the validity of the trial inasmuch as the investigation was conducted by a competent Police Officer and the cognizance was also lawfully taken by the learned Special Judge Customs when the challan was submitted before him by the S.H.O. Concerned. Section 185-A(1)(a) of the Act provides that a Special Judge may, within the limits of his jurisdiction, take cognizance of any offence punishable under the Act upon a report in writing made by an Officer of Customs or by an Officer- incharge of a police station or by any other Officer especially authorised in this behalf by the Federal Government. In view of this provision of law it is rightly urged that the cognizance of the offence was lawfully taken by the learned Special Judge Customs and thus there was no legal impediment preventing. Him from proceeding with the trial of the case. In Saleh Muhammad and another v. The State 1981 P Cr. L J 179 at the relevant time the complaint was filed by the Superintendent of Police, who was an authorised person under the law, hence the Special Appellate Court declined to interfere maintaining that. The complaint is filed by a competent officer as was contemplated under the law at the relevant time and in the result the revision application was dismissed. In Piru and another v. The State 1985 P Cr. L J 276 it was held that according to section 185-A of the Customs Act as amended by Prevention of Smuggling Act (XII of 1977) Station House Officer of a Police Station was a person competent to file report and the amendment was of a prospective nature. In Hisbullah v. The State PLD 1984 Quetta 1 it was held that an illegality committed in the course of investigation with regard to arrest, search and seizure would not vitiate the trial of the accused provided the cognizance was validly taken by the Court. Reference was made in the said case to PLD 1968 Kar. 599 wherein it was observed that there are several cases in which a similar view has been taken, namely, that any illegality in the investigation proceeding a trial does not invalidate the trial itself and that in view of the overwhelming weight of authority the prosecution of an accused in a Court of law could not be held to be vitiated on account of illegal search and seizure of the goods, and, therefore, it had to be held that the Court would have jurisdiction to try the offence and the offenders in respect of the goods seized as a result of the illegal search. Thus it was held that illegal arrest or some defect in the investigation would not vitiate the trial. In PLD 1956 SC (Pak) 264, it was observed that "The mere fact that a person has been arrested in an unauthorised manner does not, generally, affect the jurisdiction of the Tribunal before which he is brought for trial." In regard to the accused it was further observed that "The manner therefore in which he was brought before the Court-Martial was in order, but assuming there was some irregularity in the arrest, it was wholly irrelevant to the legality of the jurisdiction which the Court- Martial assumed over him by reason of his being subject to the Naval Discipline Act." Keeping in view the principle laid down in the cited cases even if it is held that the arrest of the accused- respondent or seizure of the goods from his possession were not in accordance with law, it would not affect the jurisdiction of the learned Special Judge Customs to proceed with the trial as the investigation was conducted by a competent Police Officer and the cognizance of the offence was also lawfully taken by the Court.
4. For the aforesaid reasons, the revision is accepted and by setting aside the impugned order of the learned Special Judge Customs dated 4-2-1986 the case is sent back to him for trial in accordance with law. The accused-respondent who is present in Court, is directed to furnish fresh bail bonds in the sum of Rs.30,000 with two sureties each in the like amount to the satisfaction of the learned Special Judge Customs, Peshawar within a period of 15 days failing which warrant of arrest shall be issued against him by the trial Court.