NASIM HASSAN SHAH, J.-1. The case of the appellants is that respondent No. 1 was, on 1st March, 1973 found in possession of certain articles which were, in fact, smuggled articles. A show-cause notice was issued to him on 3rd December, 1973 to show-cause why penal action should not be taken against him under Clause (89) of Section 156 of the Customs Act, 1969 and the seized foreign goods also confiscated under the said section. A show-cause notice under Section 168(2) of the Customs Act, which deals with the question of confiscation of seized goods and requires that a notice must be given within two months to the person from whom goods are seized, which period may be extended by the Collector of Customs, for reasons to be recorded in writing, to another two months failing which the goods must be returned to the person from whose possession they were seized. Since the notice in question was issued after the prescribed period of 2/4 months, the customs authorities were constrained to release the said goods to the respondents. Nevertheless a penalty of Rs. 43,000/- equivalent to the value^of the seized goods was imposed on respondent No. 1 for contravention of Section 156(89) of the Customs Act, 1969. This penalty was reduced to Rs.
12,000/- on appeal by the Collector and further reduced to- Rs. 8,000/- on revision, by the Joint Secretary, Central Board of Revenue, Ministry of Finance, Government of Pakistan vide order, dated 22nd September, 1976. However, the respondents still feeling aggrieved filed a writ petition before the High Court and a Division Bench of the said learned Court by its judgment, dated 16th August, 1983 accepted the petition and quashed the order regarding imposition of penalty.
In arriving at the above conclusion it was observed:-- "The learned counsel for the Customs Department argued that Section 156(89) of the Customs Act was providing penalties for the offences in confiscation of goods and imposition of penalties by the Customs Authorities besides punishment of imprisonment, fine and whipping by the Special Judge (Customs) on trial. He contended that Section 180 was by itself prescribing no time limit for a show- cause notice and was contemplating notices both in case of confiscation of goods and imposition of penalty. It is Section 168(2) which prescribes a time limit of two months and in exceptional cases four months to serve a show-cause notice in respect of the goods seized to the person concerned otherwise the goods seized shall be returned to the person from whose possession those were seized. He argued that the offence does not abate if requisite show-cause notice is served after the prescribed period and that the Customs Authorities can validly proceed to impose penalty or fine on the accused and that he shall also be liable to trial by Special Judge (Customs) for the offence under Section 156(89) of the Customs Act. The argument does apparently look substantive but one has also to bear in mind that a portion commits offence under Section 156(89) of the Act in relation to the smuggled goods and if the goods are returned as deemed not smuggled or offence as such not taken cognizance of by the Customs Authorities by waiving to serve statutory notice within the prescribed period, the alleged offender thus absolved cannot be proceeded against by the same Customs Authorities to impose penalty on him for the alleged possession of smuggled goods".
2. Leave was granted by this Court to consider the question whether the penalty to be imposed for keeping in possession of smuggled goods is in addition to the confiscation of goods and not dependent upon the factum of confiscation.
We have heard the learned Deputy Attorney-General. Respondent No. 1 has not chosen to contest this appeal.
Section 156 lays down:-- "Whoever commits any offence described in column 1 of the Table below shall, in addition to and not in derogation of any punishment to which he may be liable under any other law, be liable to the punishment mentioned against the offence in column 2 thereof."
Clause 89 provides:-- Section of this Act to Offences Penalties which offence has reference "89. If any person without lawful excuse, the proof of which shall be on such person, acquires possession of, or is in any way concerned in carrying, removing, depositing, harbouring, keeping or concealing or in any manner dealing with smuggled goods or any goods with respect to which there may be reasonable suspicion that they are smuggled goods: Such goods shall be General liable to confiscation and any person concerned in the offence shall be liable to a penalty not exceeding ten times the value of the goods.... {{TEXT MISARRANGED}} So far as the question of confiscation of goods is concerned, Section 168 lays down to the relevant extent:-- "168. Seizure of things liable to confiscation.--(l) The appropriate officer may seize any goods liable to confiscation under this Act.....
(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 a period not exceeding two months."
Section 180 which has been referred to in the provisions above cited lays down:- "180. Issue of show-cause notice before confiscation of goods or imposition of penalty.-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 tl e 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."
3. A perusal of these provisions shows that a show-cause notice must be issued under Section 180 of the Customs Act before any order of confiscation of goods or an order of imposition of penalty is passed. Section 168(2) of the Customs Act, however, provides that where the goods are liable to confiscation a show-cause notice must be issued within two months of the seizure of the goods which may be extended by another period of two months; otherwise the goods shall be returned to the person from whose possession they were seized. The question of imposition of penalty is not dealt with under Section 168(2) of the said Act. Therefore, it does not appear to be correct to say that the failure to issue a statutory notice within the requisite period which is essential before any order (of) confiscation of goods can be passed also results in absolving the said party from the liability of imposition of penalty, even though a notice was issued why penal action under Section 156(89) should not be taken, though on a date after two months of seizure of goods. Indeed the question whether the provisions of Section 180 are controlled by the provisions of Section 168(2) has been discussed in some detail in M/s. Sikandar and Brothers Vs. Government of Pakistan through Member (Judicial), Central Board of Revenue and another (PTCL 1991 CL. 177) wherein, it was inter alia observed.
"Section 168 of the Customs Act enacts provision relating to the seizure of goods, while section 180 makes provision for issue of show-cause notice for confiscation of goods. Seizure of goods and confiscation of the same are distinct and different matters. Seizure would mean taking possession.
The ordinary rule is that no goods or property of any citizen can be seized and he cannot be deprived of its user. In departure of this rule, section 168 of the Customs Act empowers the appropriate officers that when any goods are liable to confiscation to seize the same. When sub- section (1) of section 168 has empowered the appropriate officer the special right to seize such goods, its sub-section (2) places a corresponding obligation on him that in the event of seizure of goods he is bound to proceed for adjudication of confiscation of the goods at an early date. In order to see that the appropriate officer should not retain such goods after seizure of the same and deprive the owners of their user, sub-section (2) of section 168 requires that a notice, as required under section 180 of the Act, should be given to the person from whom goods had been seized, within a period of two months, and if such notice is not given to him the goods must be returned to him. The word "return" would mean to pass back or to release the same from seizure. But it would not tantamount to cessor (?) of the liability of the goods from confiscation under the provisions of the said Act. Therefore, subsection (2) of section 168, makes provision of curtailment of the period during which seized goods can be retained for issuance of notice under section 180(a). Once the said notice is issued within the period prescribed under section 168(2), the goods seized can be retained till the adjudication of the confiscation proceedings. So, the failure on the part of the Customs Officers to issue notice within the period contemplated by sub-section (2) or proviso thereto, of section 168, would certainly clothe the person, from whom the goods have been seized with the right to claim the return of the same but it does not set at naught the provision of section 180 and will not deprive the Customs Officers to issue notice under section 180, (for) the obvious reason that it (section 180) does not prescribe any time limit for issuance of such notice. All that it provides is that no order under the said 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, is informed in writing under clause (a) and is given an opportunity of making a representation under clause (b) and is given a reasonable opportunity of hearing under clause (c). There is nothing in the said section from which an inference can possibly be drawn that the said notice contemplated by clause (a) of section 180 is subject to the provision contained in section 168 of the Act. As such, it would not be proper to import the limitation of two months prescribed by sub-section (2) of section 168 which can be extended for a further period not exceeding two months, vide proviso to the said sub- section (2) into the provisions of section 180 of the said Act. Clearly, section 180 does not prescribe any time limit for issuing the show-cause notice and it is not permissible to go into the intention of the Legislature for not making provision for such a time limit in it. Therefore, it would not be legitimate to curtail the extent and scope of section 180 of the Act, which, does not contain any time limit for issuance of show-cause notice by saying that in view of the provisions of sub-section
(2) of section 168, the said notice must be issued within sixty days of the seizure of the goods or within the duly extended period of not more than sixty days thereafter. In that view of the matter, it cannot be maintained that a notice, as required under Clause (a) of Section 180 of the said Act is illegal, simply because it had not been issued within sixty days or the extended period contemplated by sub-section (2) of Section 168 of the said Act".
4. I agree with the above reasoning and approach of the learned Judges of the Sindh High Court and would hold that as a show-cause notice was duly issued by the customs authorities requiring him to show-cause why the goods should not be confiscated and a penalty not imposed, the order imposing the penalty could, in these circumstances be passed even though the goods were not confiscated and had to be returned on account of the lapse of the customs authorities in issuing the notice more than 2 months after the seizure of the goods, which lapse rendered the return of the goods necessary as per provisions of Section 168(2) of the Customs Act.
5. Ch. Ijaz Ahmed, learned Deputy Attorney-General, however, very fairly brought to our notice the judgment of a learned single Judge of the Lahore High Court (my learned Brother Rustam S. Sidhwa, J. While sitting in the High Court) in Muhammad Sarwer v. Federal Government of Pakistan and others (PTCL 1988 CL. 172), wherein a somewhat contrary view appears to have been expressed. On perusal of the said judgment I am of the opinion that the view expressed therein is based on its own peculiar facts and circumstances and that the said decision is not here directly in point.
6. I would, therefore, accept this appeal, set aside the judgment of the High Court, dated 16th August, 1983 and restore the order of the Central Board of Revenue, dated 22nd September, 1976 passed in revision imposing the penalty of Rs. 8,000/-. Since the respondent has not contested this appeal, there shall be no order as to costs.