This is a petition under section 561-A of the Cr.P.C. By Erum Naveed and Shaukat A.I petitioners who seek to have the proceedings of a case under section 9 of the Central Excises and Salt Act, 1944, pending against them in the Court of the learned Special Judge (Customs) Lahore, quashed.
2. The relief sought by the petitioners can as well be granted under section k 439 of the Criminal Procedure Code and I would, therefore, prefer to treat this petition as one under that section.
3. The prosecution case is that on 26-10-1985 1,440 packets of shampoos were recovered from a Suzuki van being driven by Shaukat A.I petitioner. Later a raid was conducted at the factory belonging to Erum Naveed petitioner and a large number of packets containing shampoos etc. Were recovered. All these recoveries were effected by Inspector Mr. Shuja Haider Kazmi, of FIA Lahore.
4. When the case reached the Court of the learned Special Judge, the petitioners applied for their acquittal under section 265-K of the Cr.P.C., inter alia on the ground that under section 9-A of the Central Excises and Salt Act. 1944, the learned Special Judge could not take cognizance of the offence without a complaint in writing made by a Central Excise Officer and that no such complaint had been made.
5. Section 9-A, subsection (3) of the Central Excises and Salt Act, 1944 (hereinafter to be called the Act) empowers the Federal Government, by notification in the official Gazette, to appoint as many Special Judges as it may consider necessary and provides that on the appointment of a -Special Judge for any area, an offence punishable under the Act shall be tried exclusively by the Special Judge. Sub-section (6) of section 9-A of the Act enacts:- "A Special Judge shall take cognizance of, and have jurisdiction to try, an offence triable under subsection (3) only upon a complaint in writing made by such Central Excise Officers as may be authorised by the Central Board of Revenue in this behalf, by a general or special order in writing".
No such complaint as is envisaged by the subsection (6) by a Central Excise Officer is on the record of the learned Special Judge. As observed above, the raid was supervised and the case was investigated by Mr. Shuja Haider Kazmi Inspector, FIA Lahore, and it was on his report that the learned Special Judge took cognizance of the offence.
6. In dealing with the contention, the learned Special Judge referred to section 3 of the Federal Investigation Agency Act 1974 which provides that "notwithstanding any thing contained in any other law for time being in force" the Agency called the Federal Investigation Agency may inquire into and investigate the offences specified in the schedule thereto, observed that "no such authorisation by the CBR conferred upon the officers of FIA" had been shown to him and held that the words "notwithstanding any thing contained in any other law" have overriding effect. He, therefore, concluded that "in the circumstances of the case, Inspector FIA Mr. Shuja Haider Kazmi was ex facie clothed with the authority to enquire into and investigate the offences with which the petitioners are charged".
7. If I may say so with respect, the fact that Mr. Shuja Haider Kazmi was competent to enquire into and investigate the offence had nothing to do with the power of the Court to take cognizance of the offence. Section 3 of the Federal investigation Agency Act, 1974, deals with the enquiry into and investigation of the offences only, and its provisions were, therefore, incapable of whittling down the provisions of subsection (6) of section 9-A of the Act. In fact the two provisions, section 3 of the Federal Investigation Agency Act 1974, and section 9--A, subsection (6) of the Act deal with altogether different subject. There is also no question that section 9-A, subsection (6) of the Act goes to the very jurisdiction of the learned Special Judge to take cognizance of the offence. In other words in the absence of a complaint by such Central Excise Officer as may have been authorised by the Central Board of Revenue in this behalf, the learned Special Judge was not competent to take cognizance of the offence against the petitioners.