NAIMUDDIN, J.--1. The facts giving rise to this appeal, by leave, briefly stated are as follows:
2. On 11th February, 1975, Customs Intelligence and Investigation Staff at Bannu intercepted a truck No. PRA-7896 at Musa Khel Octroi Post in Mianwali district, suspected of carrying smuggled goods.
Upon search of the truck cloth of foreign origin, betel nuts, bedi nuts, bedi leaves, batteries and some new tyres with 100 crates of maltas were found loaded on it. The staff believing the goods to be Smuggled seized the truck as well as the goods. F.I.R. No. 37 dated 11th February, 1975 was registered at the Police Station Mianwali Saddar.
3. On 10th April, 1975, the Deputy Collector, Central Excise and Land Customs, Lahore, issued to the appellants and three other persons notices dated 9th April, 1975, to show cause why the seized goods should not be confiscated. The notices were sent by registered post. The appellants No. 1 to 3 were the driver, the cleaner, the then owner of the truck, respectively. The other persons disowned the ownership of the goods. However, appellant No. 4 who joined the proceedings later on claimed the ownership of the goods except tyres the ownership whereof was claimed by appellant No. 3. All the appellants appeared before the Deputy Collector and showed cause against the confiscation of the goods and the truck and were heard.
4. The Deputy Collector, however, by the order dated 28th February, 1976 rejected their explanations and ordered the confiscation of the goods and the truck. The appellants preferred an appeal but it was dismissed by the Collector on 16th July, 1978.
5. The appellants challenged the orders of the Deputy Collector and the Collector in Constitution Petition in the Lahore High Court, Lahore, which was also dismissed by a learned Single Judge by the judgment dated 6th October, 1979.
6. The appellants sought leave to appeal from the judgment of the High Court and it was granted to consider the question whether the words 'give notice' used in section 168(2) of the Customs Act, 1969, mean 'issue notice' to the accused or to 'effect service of the notice' on him.
7. We have heard Mr. Zaheer Ahmed Khan, learned counsel for the appellants and Mr. S. Inayat Hussain, A.O.R, for the respondents. Learned counsel for the appellants raised two-fold contentions.
The first contention was that the notice referred to in subsection (2) of the section 168 of the Customs Act must not only be sent but that it must also be received by the owner of the seized goods within the period of two months from seizure and that unless he gets the notice within the said period he becomes entitled to the return of his goods.
His second contention was that the notice sent to the appellants was invalid as according to him the notice should have been sent by registered post acknowledgement due but it was sent without acknowledgement.
8. In support of his first contention the learned counsel submitted that the words 'is given' used in sub-section (2) of section 168 of the Act envisage not only the issuance of notice but its service on the addressee. His argument was that delivery of notice to the post office is not delivery to the appellants as the post office is not the agent of the addressee but is the agent of sender. In support he relied on (1) Messrs Muhammad Abdullah and Sons v. The Commissioner of Income-Tax, Lahore (PLD 1955 Lah. 417), (2) Income-Tax Officer, Mardan v. Messrs Sanaullah Khan and Co. (PLD 1976 SC 790), (3) Eaglehill Ltd. v. Needham Builders Ltd. (1972 (3) All England Law Reports 895) and (4) K Narasimhiah v. H.C. Singri Gowda and others (AIR 1966 SC 330).
9. Before the High Court as well as before us in support of the first contention reliance was placed on the provisions of section 27 of the General Clauses Act which creates certain rebuttable presumptions with regard to the service of notice sent by post and the time when it should be deemed to have been received by the addressee. Dealing with this provision the learned Judge in the High Court observed "I do not think that this section assists the petitioners in their construction of subsection (2) of section 168, ibid. On the other hand it goes against their submission."
Proceeding further the High Court observed as follows:- "The key-words in the sub-section in question are 'is given'. Now section 27 of the General Clauses Act declares the words 'give' as importing the same sense as the words 'serve' or 'send'. On its plain construction therefor the period of limitation mentioned in the subsection would appear to have reference to the day when the notice is given by the officer competent to confiscate goods rather than to the day when it is received by the owner of the seized goods. To hold it otherwise might make a farce of the power of confiscation for in such an event it would become easier for the owner of the seized goods to take advantage of the plea of limitation by evading receipt of notice in collusion with the local postman."
10. Before examining the contention and the cases cited, we may first reproduce the relevant provisions relied upon, namely, section 168, section 180 and section 215 of the Customs Act, and section 27 of the General Clauses Act, for the convenience of ready reference which read:-- "168. (1) The appropriate officer may seize any goods liable 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.
(2) Where any goods are seized under sub-section (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 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 sub-section (3) shall be entitled to make copies thereof or take extract, therefrom in the presence of an officer of customs."
"180. No order under this Act shall be passed for the confiscation of any goods or for imposition of any penalty on any person, unless the owner of the goods, if any, or such person-
(a) is informed in writing (or if the person concerned consents in writing, orally) of the grounds on which it is proposed to confiscate the goods or to impose the penalty;
(b) is given an opportunity of making a representation in writing (or if the person concerned indicates in writing his preference for it, orally, within such reasonable time as the appropriate officer may specify, against the proposed action; and
(c) is given a reasonable opportunity of being heard personally or through a counsel or duly authorised agent."
"215. Any order or decision passed or any summons or notice issued under this Act shall be served-
(a) by tendering the order, decision, summons or notice or sending it by registered post acknowledgement due to the person for whom it is intended or to his agent; or
(b) if the order, decision, summons or notice cannot be served in any manner provided in clause (a), by affixing it on the notice board of the custom-house."
It may be noted here the words "acknowledgement due" from section 215(a) were omitted by section 6 of Ordinance XII of 1982.
Section 27 of the General Clauses Act reads:- "27. Where any Central Act or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression "serve" or either of the expressions "give" or "send" or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post."
11. A perusal of section 168 of the Customs Act shows that it gives two powers to the Customs Officer, (1) to seize any goods liable to confiscation under the Act or to serve an order on the owner or the person holding them in his possession or charge that he shall not remove, part with or deal with the goods except with the previous permission of the officer; (2) to keep the seized goods and deal with them in accordance with the provisions of the Customs Act. But if he does not give show- cause notice within two months of the seizure of the goods he is under a duty to return the goods to the person from whose possession they are seized. It is therefore, clear that the restriction on his powers to keep the goods beyond two months is removable as soon as the notice within two months is given. The issuance of notice within two months is the inner limit and not the outer limit. It does not depend on the receipt of the notice by the owner or the person concerned as will be discussed hereafter.
12. The object of the two provisions of section 180 read with section 168(2) seems th&t the Customs Officer should commence the proceedings within two months by giving show-cause notice. The manner in which the notice is to be given is 'provided in section 215 of the Customs Act itself.
According to it a notice is given or served when it is tendered or sent by registered post to the person for whom it is intended or his ; agent and if the notice cannot be served on him then by anixing it On the notice board of the custom-house. Therefore, the provisions of section 215 by themselves take care of the manner of the service of notice. The section does not further provide than the service shall be deemed to have been effected at the time when the letter would be delivered in the ordinary course. Section 27 of the General Clauses Act on which Reliance has been placed by the learned counsel for the appellants has no application as contrary intention appears from the provisions of section 215 of the Act. As regards notice the Act has been made self- sufficient otherwise there was no need for incorporating section 215 in the Act. The provisions of section 215 do not envisage delivery of show-cause notice to the addressee within two months in order to exercise the power to retain the seized goods beyond two months for more than one reason; firstly, effectiveness of the notice is not made dependent upon the service or delivery of the notice to the person to whom it is addressed for if it is so interpreted the receipt of notice can be avoided by the addressee till the time of two months expires so as to become entitled to claim the return of goods.
13. Secondly, the provisions of section 215, clause (b) further support this interpretation, which provides that if the notice cannot be served through post, it can be served by affixation on the notice board of the custom-house. Accordingly the notice in this case was served as soon as it was sent by registered post to the appellants.
14. Now, the cases cited by the learned counsel may be dealt with. In the Lahore case of M/s. Muhammad Abdullah & Sons (supra) notice of order under the Income Tax Act was received by the domestic servant and it was held with reference to section 27 of the General Clauses Act that the domestic servant was not the agent of the assessee as the presumption of service being rebuttable was rebutted and accordingly it was held that the notice was not served on the assessee.
In the Supreme Court case reported in PLD 1976 SC 790 (supra) with reference to section 18 of the Post Office Act, 1898, and rule 18 of the Post Office Rules, it was held that the post office was not an agent of addressee of the letter delivered to the post office.
The English case of Eaglehill Ltd. (supra) is with regard to dishonour of a bill of exchange and the question was whether the notice was posted before dishonour and received after dishonour. The word 'notice given' was considered in that context.
None of these cases relate to or discuss or interpret the provisions of Customs Act now under consideration and are distinguishable on facts and therefore they are not relevant.
15. It was next argued that though the notice was sent by registered post but it was not sent with acknowledgement due as required by section 215 before its amendment. Reliance was placed on EA. Evans v. Muhammad Ashraf (PLD 1964 SC 536).
16. The High Court dealing with tins point has observed as follows:-- "However, as it is common ground between the parties that the petitioners in fact received the notices and there is no assertion that they were in any way prejudiced by the failure of the Deputy Collector to send them by acknowledgement due post I am not prepared to exercise my discretion and interfere with the decision of the departmental authorities in exercise of constitutional jurisdiction."
17. In Evans case no notice by registered post was at all sent. The facts in that case were that no notice as required by section 30 of the Displaced Persons Act was served on the tenant but he had started paying the rent without such notice. It was submitted that in the act of payment of rent to the transferee of the property under Displaced Persons (Compensation and Rehabilitation) Act notice was implied. Dealing with the submission this Court at page 548 observed as follows:-- "It is difficult to accept upon the wording of this section that such a notice could even be implied notice or information received aliunde. In the face of the language of the proviso, which requires that the notice should be served "by registered post (acknowledgement due)'1 such an interpretation is not possible. To hold that, notwithstanding such clear and unambiguous words, even implied notice would be sufficient to render the words "by registered post (acknowledgement due)" in the proviso redundant, which cannot be done. Every word in a statute has to be given a meaning and the only meaning that these words are capable of bearing is that express notice in writing must be given in the manner prescribed."
Accordingly it was laid down by the majority of Judges, that express notice in writing must be given in the manner prescribed. Reliance was placed on the maxim: Expressum facit cessare taciturn (it doing of a particular thing is made lawful, doing of something in conflict of that will be unlawful). In that case emphasis was on sending the notice by registered post and the effect of acknowledgement receipt was not separately considered. In the present case, however, notice in fact was sent by registered post though without acknowledgement due and was admittedly received.
Indeed the words 'acknowledgement due' have been omitted from section 215 of the Act by Ordinance XII of 1982. Generally the acknowledgement due receipt is primarily meant for the benefit of the sender so as to know whether the notice has been received by the addressee or by anyone else. In the Act it has been provided to resolve the controversy if raised by the addressee that such notice was not in fact received by him but in the present case the controversy is not raised as the appellants did receive the notice and appear before the Customs authorities and showed cause. These facts, therefore, make cited case distinguishable.
18. In the result we find no merits in this appeal and accordingly dismiss it with no order as to costs.