' This revision application filed under section 185-F of the Customs Act, 1969, raises an interesting question with regard to order for custody of a car which appears to have been used for commission of an offence under the Customs Act, 1969, passed by learned Special Judge (Customs and Taxation) Karachi, on 30-1-1989.
2. On 5-11-1988, a Datsun car bearing registration No,251-175 was seized by customs officials at N.M.B., Wharf Gate, Karachi. On search powder of heroin weighing one Kg. Was recovered from its luggage compartment. The powder of heroin was secured in presence of Mashirs Abdul Rasheed and Dost Muhammad. Muhammad Younus alias Tarzan, respondent No,2, and Muhammad Akbar, respondent No,3 who were sitting in the said car were taken into custody and the required notice under section 171 of the Customs Act, 1969, was served upon them. A case under clause (8) of section 156(1) of the Customs Act, 1969, was accordingly registered against these respondents.
After seizure of the powder of heroin and the said car the proceedings under section 179 of the Customs Act, 1969, were initiated against the above respondents. During the pendency of these proceedings an application for release of car was made before Special Judge (Customs and Taxation) Karachi, by Muhammad Anwar, respondent No,4, which was allowed after the State counsel raised no objection. A review petition was A filed by the applicant, but the same was dismissed by learned Special Judge on 14-2-1989. Both these orders are the subject-matter of this revision application.
3. I have heard Mr. Abul Khair, learned counsel for applicant and Mr. LA. Hashmi, learned counsel for respondents Nos. 2 and 3. Mr. Hashmi has stated that the custody of the said car has been given to Muhammad Anwar, respondent No,4, by Deputy Collector of Customs, Karachi, on furnishing a bank guarantee during the pendency of this revision application and consequently the application has become infructuous. Mr. Abul Khair, learned counsel for applicant has, however, insisted for a decision on merits on the ground that orders passed by learned Special Judge (Customs and Taxation) Karachi, are void ab initio, and are liable to be set aside.
4. The Customs Act, 1969, is a complete Code in itself. Successive remedies are provided to an aggrieved person from whom the goods have been seized and confiscated. Section 179 of the Customs Act, 1969, empowers certain officers of Customs to adjudicate in respect of cases involving confiscation of goods or imposition of penalty, with right of appeal under section 193 and revision under section 196. Subsection (2) of section 157 of the Customs Act, 1969, again lays down that every conveyance of whatever kind used in the removal of any goods liable to confiscation under this Act shall also be liable to confiscation. The outline of the above provisions shows that it is the exclusive jurisdiction of the Customs Authorities to adjudicate about the seized goods. The case of Adam v. Collector of Customs, Karachi, reported in PLD 1969 SC 446, is a direct authority on this point. I cannot do better than quote their Lordships observations in extenso:-- "It is quite plain that the penalty clause of this section is in two parts. The first part refers to the liability of the offending goods for confiscation and the second to the liability to imprisonment and fine of the person concerned in the commission of the offence under the Act in respect of those goods. The Act contains special provisions whereby the Customs Authorities are invested with powers to search and seize goods which are liable to confiscation under the Act. Under section 179, all things which are seized under the Act, have to be delivered to the care of the Customs Officer authorized to receive them and if no such officer is at hand, they have to be deposited at the nearest Customs House. In the case of goods which are perishable, the Chief Customs Officer or any other Customs Officer Authorized by him can cause them to be sold by public auction and the proceeds to be kept in deposit pending adjudication of the case. Under section 180, where such things are seized by any Police Officer, he may, carry them to any police station or port at which a complaint connected with the stealing or receiving of such things has been made or an inquiry connected therewith is in progress. But the Police Officer seizing the things has to send a written notice of their seizure, and detention to the nearest Custom House and after the conclusion of the inquiry or trial he has to cause such things to be conveyed and deposited at the nearest custom house for disposition according to law. Section 182, which provides for adjudication of confiscation and penalties in all cases covered by section 167 of the Act, except Nos. 26, 72, 74, 75 and 76, prescribes the limits of the confiscation and the penalties that can be adjudged by different officers in the hierarchy of the Customs Department. All these provisions are contained in a special law and would take precedence over the general law, contained in the Criminal Procedure Code pertaining to the forfeiture or confiscation of goods which are the subject-matter of offences triable by Magistrates under that Code. Sections 1(2) and 5(2) of the Criminal Procedure Code, in fact, save the operation of the provisions of the special law. The intention of the Legislature is thus clear that the disposal of the goods seized under the Act is left entirely in the jurisdiction of the Customs Authorities."
5. Again a party in litigation cannot be permitted to assume inconsistent position in Court.
Muhammad Anwar, respondent No,4, who is supporting the impugned orders has himself invoked the jurisdiction of Deputy Collector Customs and quite admittedly he got the custody of car on furnishing the bank guarantee. He cannot be allowed to blow hot and cold at the same time. This is what Scrutton Li., said in Dexters Limited v. Hill Crest Oil Company Breadford Ltd. (1926) 1 K.B. 348:- "So in my opinion, you cannot take the benefit of a judgment as being good and then appeal against it as being had." It was further observed:-- "It startles me to hear it argued that a person can say the judgment is wrong and at the same time accept payment under the judgment as being right."
6. Mr. I.A. Hashmi, learned counsel for respondents Nos. 2 and 3 has placed a copy of order, dated 17-11-1987 (Special Criminal Miscellaneous No,5 of 1987), passed by a learned Single Judge of this Court, which proceeds on a different premises. Even otherwise the weighty observations of the Supreme Court were not brought to the notice of learned Single Judge.
7. In the result the revision application succeeds. The orders, dated 30-1-1989 and 14-2-1989, passed by learned Special Judge (Customs and Taxation) Karachi, being without jurisdiction are set aside.
Revision accepted.