' WAJIHUDDIN AHMED, J.---The dispute in this petition arises from an F.I.R., dated 4-7-1986, wherein it is narrated that on 3-7-1986 credible information was received that a bus bearing No, KCX-5798 was to be used for carriage of foreign smuggled goods. In pursuance, a Coast Guard party, headed by one Major Sher Ali, was dispatched for the operation. On 4-7-1986, at about 12-00 hours, while patrolling the R.C.D. Highway, Bus No, KCX-5798 was spotted and signalled to stop. However, the bus driver cut across the road and diverted to a kutcha track near Korkhera along Haji Kora Khan Tr. The bus was chased and seeing no chance of escape its driver and other staff members managed to escape into the nearby jungle, leaving behind the bus and smuggled goods inside it.
Search was conducted as a result of which foreign smuggled goods, that is, betelnuts, imitation jewellery, ladies clothes and motor spare parts etc. Were found in the in-built cavities and the false body of the bus. Therefore, mashirnama and inventories were prepared. Since violation of sections 2(s) and 16, punishable under section 156(1)(8)(89) of the Customs Act, 1969, was involved, the recovered goods were seized. The bus was also seized, as the same was liable to confiscation under section 157 of the Customs Act. A show-cause notice, dated 24-9-1986, was issued to the petitioners Abdul Zaheer and Shah Gul who, apparently, on 3-8-1986 had sent an application claiming the seized vehicle. The seized goods were, however, disowned. Reply, dated 29-11-1986, from the petitioners is placed on record.
2. On hearing, the Deputy Collector of Customs H.Q. Pak. Coast Guards, Karachi, passed his order dated 27-2-1987. It was found that the bus in question was originally purchased by one Abdul Sattar, who sold the same to the petitioners on 25-6-1986, as per oral agreement, which was reduced to writing on 7-10-1986. Documents placed on record reveal that the petitioners had purchased the offending bus from the above Abdul Sattar on Hire Purchase basis, temporary registration wherefor was effected with the referred number for 10 days and registration of the bus had to be made at Dera Ismail Khan. According to the petitioners they did not succeed in getting registration at Quetta and, therefore, the bus was sent back, to Karachi for the requisite to be done.
' Reverting to the Order-in-Original of the Deputy Collector of Customs, that officer found that the petitioners' denial of knowledge regarding contraband goods concealed in the bus was untenable.
Besides, a statement made by Abdul Zaheer, petitioner, before his predecessor on 24-9-1986 indicated that, at the time of seizure he was present, detained and later on released. On such basis, the Deputy Collector of Customs came to the conclusion that involvement of Abdul Zaheer could not be ruled out. He, therefore, ordered confiscation of the bus, redeemable on payment of fine of Rs, 40,000 and, also, imposed a personal penalty of Rs, 50,000. In appeal before the Collector (Appeals), petitioner Abdul Zaheer denied the recording of his statement by the Deputy Collector concerned, since he neither understood Urdu nor English. Rejecting this contention the Collector dismissed the Appeal. In Revision before the Central Board of Revenue, the grounds urged also included that no notice under section 171 of the Customs Act was served and, further, that the show-cause notice was issued beyond the statutory date. Such Revision was also, however, dismissed.
3. In this Petition the grounds urged are several and are briefly, summarised below:--
(1) The petitioner Abdul Zaheer never made any statement before the Deputy Collector of Customs.
(2) The petitioners did not know of any smuggled goods being carried in the bus under reference.
(3) No notice under section 168(2) of the Customs Act having been served within two months, as envisaged in that provision, confiscation under section 180 of the Customs Act is bad.
(4) Extension of time under section 168(2) of the Customs Act by the Collector was made after the expiry of two months prescribed and besides, the order of extension is not a speaking order and is, therefore, void.
(5) No notice under section 171 of the Customs Act was served.
' Correspondingly, in reply, it is contended that all legal formalities were complied with; the petitioner must have known of the cavities in and the false body of the bus and the impugned orders, therefore, are lawful and cannot be questioned.
4. We have given serious thought to this case. In so far as the presence of Abdul Zaheer at the time of seizure is concerned it is belied by the F.I.R. Itself, which does not speak of anyone having been found at the time of seizure of the bus and that, obviously, includes Abdul Zaheer petitioner.
Subsequently, a statement, which has been placed on record before us, was allegedly made, not before the Deputy Collector of Customs, who passed the impugned Order-in-Original but before his predecessor. The relevant petitioner has denied having made such statement at the first opportunity namely, at the time of the departmental appeal. In these circumstances, it was unsafe to rely on such statement.
5. As regards the notice under section 168(2) of the Customs Act which provision, by making a cross reference to section 180 of the Act, requires that such notice, for the purposes of continuation of seizure of the goods liable to confiscation, shall be given within two months of the seizure, it is to be observed that such provision is also subject to the proviso appended to it and thereunder extension of time may be sought from the Collector of Customs, which, in turn, can only be for two further months, in the aggregate. Both the request and grant of such extension have to be within the initial prescribed period of two months. Besides, on grant, the Collector is required to record his reasons in writing. The case of the respondents, on this point, is that extension of time was sought and obtained, from the Collector of Customs, within the initial period of two months, prescribed in section 168(2) ibid. And the department has shown some material to support that contention. It cannot, therefore, in this jurisdiction, be disputed with any success that such extension was not made within the prescribed time. Accordingly, the notice issued must be held to have been issued within time. However, Mr. Rashid Munir has urged that in the order of extension, under the referred provision, the Collector has failed to give reasons for the extension and, besides, the extension was not sought by the "appropriate officer." For failure to meet these requirements, according to him, the extension under the proviso to section 168(2) is bad. As far as the contention regarding the proper officer seeking the extension is concerned such contention is based on the provision of the Coast Guards Act, XVIII of 1973 and Mr. Rashid Munir maintains that since officers of the Coast Guards have been invested with all powers of Customs, the "appropriate officer" spoken of in section 168(1) above, must be a Coast Guard's Officer alone and not a Deputy Collector of Customs, who sought the extension in question. This argument cannot be accepted, firstly, because the expression "appropriate officer" has been defined by section 2(b) of the Customs Act, 1969, and in relation to any functions to be performed under that Act, means the officer of Customs to whom such functions have been assigned by or under such Act. The "appropriate officer", therefore, as defined, may not be totally excluded even in such matters as fall within the purview of the Coast Guards Act, XVIII of 1973. Besides, neither section 168(2), which is what is relevant nor, by analogy, section 180 of the Customs Act requires that extension of time under the proviso to section 168(2) should be sought by the "appropriate officer". The objection, therefore, is untenable.
' Controverting the contention of the petitioners that the order of extension, passed by the Collector, does not contain any reasons, Mr. Shaukat Hayat, the learned counsel for the respondents, maintains that such reasons are to be found in the letter for extension addressed to the Collector of Customs and since the extension is in response to such letter, the requisite reasons are verifiable. We do not think that the requirement for recording of reasons for the extension to issue a show-cause notice under the proviso to section 168(2) is merely mechanical or of a procedural character. Where the law requires that reasons shall be recorded for the passing of an order such reasons, if the order be judicial, must of necessity be found in the order itself and the order has to be a speaking order. If not the same would suffer from an error apparent on the face of the record and thus fall short of satisfying the requirment of law. Mere reference in the order to the request for the passage of the order, the request incorporating due justification or reasons, would not make such reasons to be part of the order because the contemplated reasons are to be found within the order itself and not beyond. In cases of quasi-judicial orders, requiring "reasons to be recorded in writing", as here, the only plausible difference can, perhaps, be that while reasons in writing must still be recorded the relevant order may be retained on the file and a formal communication of extension may be addressed separately. Even this is not the case in these proceedings and a purely subjective satisfaction on the part of the Collector clearly falls short of the statutory requirement. On this score, we do not find the Collector's order of extension to be valid or sustainable.
' If that be so, would the necessary incident of such finding be that the confiscattion made under section 180 of the Customs Act, bereft of due notice under section 168(2), shall be rendered invalid?
Answer to this question is to be found in section 168 of the Act itself, which postulates that, for want of notice contemplated in that provision the owner of the goods would become entitled to take possession of the goods. Section 180 of the Customs Act, which deals with confiscation of offending goods, postulates a notice and due hearing of its owner and does not make it incumbent that the goods sought to be confiscated under that section should, as a pre-condition, be seized first under section 168 of the Act. Confiscation, thus, need not be preceded by seizure. This is in contemplation in section 168(1) of the Customs Act, itself in cases where it is not practicable to seize any specific goods. Complications in the way of giving effect to confiscation may, however, be encountered if the contraband goods are not already seized or subjected to restraint under section 168(1) of the Customs Acts, since in such situations the goods may, before being appropriated on confiscation, change hands and bona fide purchasers may come to intervene. Shortly, therefore, even if there is no notice, or adequate notice under section 168 of the Customs Act, still an order of confiscation under section 180 ibid. Would not be bad and can be given effect to, for on default of notice under section 168 of the Act all that happens is that prior to confiscation the owner of the seized goods becomes entitled to take possession thereof. This view is supported on the ratio in Sikandar & Bros. v. Government of Pakistan PLD 1986 Karachi 773. The case of Mansab Ali v. Amir PLD 1971 SC 124, relied upon by the counsel for the petitioners, contending that since a mandatory condition for the exercise of jurisdiction was not satisfied all proceedings which followed became illegal and without jurisdiction, has no application as proceedings under section 180 of the Customs Act are not dependent on a seizure under section 168(1) of that Act.
6. Now, as to notice and hearing under section 180 of the Customs Act, such notice and due hearing have not been disputed or called in question before us and the confiscation per se is not invalid.
7. Pertaining to the question of notice to owner under section 171 of Customs Act the departmental plea is that such notice was affixed by pasting at the place of occurrence on 4-7-1986 and copy of that notice has been produced. In the state of ownership of the bus, in relation to which the best evidence was that the same was purchased by one Abdul Sattar and that the petitioners were only Hire Purchasers, the bus not even having been registered under the Motor Vehicles Ordinance, 1965, it seems to us that the compliance made by the relevant functionaries in pasting the requisite notice under section 171 of the Customs Act was a logical alternative through which requirements of section 171, above, could be satisfied.
8. In so far as the offence is concerned, it was somewhat surprising that the petitioners purchasers, on the basis of a Hire-Purchase agreement from an unregistered owner, should have taken the bus not to Dera Ismail Khan, registration authority of which town was requested to register the bus but, instead, to Quetta. Another aspect of the matter was the alleged return of the bus itself from Quetta to Karachi, just for registration, when that requirement could be fulfilled by merely obtaining proper papers for the registration authority at Quetta. Further, the in-built cavities in the bus and its false body could not, in ordinary circumstances, have remained unknown to the owners. At any event, the value of the smuggled consignment being Rs,12.50 lacs, (which is what is maintained at the bar) could not have belonged to the driver or other staff of the bus, as has been pleaded in the petition. In these circumstances, the exercise of discretion by the Customs in ordering confiscation does not appear to have been exercised otherwise than on sound judicial principles and the rule laid down in Abdul Ra77ak v. Pakistan PLD 1974 SC 5 cannot be held to have been contravened. We do not, therefore, think that the impugned orders of confiscation are bad or without lawful authority. Likewise, personal penalty, also, seems to have been duly imposed.
9. In view of the above, we see no justification to interefere with the orders of the Tribunals below and dismiss this petition but with no order as to costs.