MUHAMMAD AFZAL LONE, J.--1. In these two Criminal Appeals (Nos. 207 of 1990 and 7-P of 1991) arising out of two different judgments of the Peshawar High Court, Peshawar, involving same point of the law on which there has been difference of opinion between the Karachi High Court and Quetta High Court on interpretation of section 171 of the Customs Act, 1969, leave to appeal was granted to examine as to whether or not non-compliance with the provisions of the said section is fatal, to the prosecution.
2. The facts of the case in Criminal Appeal No. 7-P of 1991 are that on 2nd September, 1982, at 9-00 a.m. In the course of a 'Nakabandi' laid by Bada Ber Police, Truck No. PRA-5871 driven by respondent No. 1 coming from bara, Tribal Area, was stopped. Respondent No. 2 was then sitting by the side of the driver. The police party searched the truck and found 56 bags of betel-nuts of 100 Kgs. Each and 4 small bags of 35 Kgs. Each, in all weighing 5740 Kgs. Which were hidden underneath the bags of peaches. As both the respondents failed to produce any document showing their lawful possession of the betel-nuts, which were of foreign origin, Waris Khan Inspector/S.H.O. Who was head of the police party, prepared recovery memo. Exh. P.W. 1/1 and took the goods alongwith the vehicle in his custody. A criminal case was registered against the respondents for the commission of , offences punishable under section 156(1), clause (89), of the Customs Act. The goods in question were subsequently lodged in the warehouse. The respondents were tried by the Special Judge Customs, Taxation and Anti-Smuggling, N.-W.F.P., Peshawar, before whom respondent No. 1 took up the stand that the consignment in dispute was placed in the truck by some other persons without his knowledge. Similarly the co- accused Ali Akbar asserted that the vehicle was not loaded in his presence and thus, he had no knowledge of the smuggled goods. The learned Special Judge took the view that provisions of section 171 are mandatory, and as no notice thereunder was served on the accused, the seizure of the goods and all subsequent proceedings were wholly illegal. He also maintained that even the copy of the recovery memo. Exh. P.W. 1/1 was not given to the respondents. Consequently, he acquitted the accused vide his judgment, dated 25th August, 1985.
3. The State challenged this acquittal through a revision, but the learned Single Judge upheld the view taken up by the learned Special Judge that non-compliance with the provisions of section 171 rendered the entire action as illegal. The other reason which weighed with the High Court was that the case property was not produced before the trial Court. In this view of the matter, the High Court declined to interfere with the acquittal order. Its judgment in this behalf is dated 30th June, 1990.
4. As regard the other Appeal (No. 207 of 1990), on an information received by the Customs Department that contraband goods were being smuggled into the down country by road, via Checkpost Kotal, Mr. Ziauddin, Inspector Customs, who on 10th January, 1981, was on -duty at the Checkpost at 1-30 a.m., intercepted Truck No. PRC-5082 and its search led to the recovery of the following goods of foreign origin :-- "(1) Biri leaf 25 bundles each weighing 50 kg. Total 1250 kgs. (gross) bearing labels of India Government and Marks (AGMARK SHEEKAKM POWDER) transit to Afghanistan.
(2) Pad locks Diamond Brand (Made in China) numbering 192 Dozens.
(3) Playing Cards "BONUS", made in USA numbering 144 Dozens.
(4) Combs "Ship" brand of foreign origin numbering 7000 Nos."
The truck driver made good his escape in the darkness of the night. However, the other two occupants of the vehicle, who are respondents Nos. 1 and 2 herein, were arrested as they failed to produce any document justifying the possession of the goods which apparently had been smuggled without any lawful authority. The goods were taken into custody by the Inspector Customs by means of recovery memo. Exh. P. 1/1. On his report a case under section 156(1)(89) of the Customs Act, 1969 was registered against the three accused, and they were arraigned before the Special Judge (Central) Anti-Smuggling, Peshawar. Before the trial Court the respondents raised the plea that no notice under section 171 was served on them. The Court found that the Customs Authorities despite their claim that such notice was served, could not bring any material on the record to establish the service of notice; held that the provisions of section 171 are mandatory which were violated and, therefore, the recovery of the goods as well as the arrest of the respondents was illegal. Accordingly, the respondents were acquitted of the charges against them. With this acquittal the High Court did not differ and upheld the trial Court's finding that it was obligatory on the Customs Authority to have served a notice in writing under section 171 on the respondents, informing them of the reasons of their arrest and nature of the property recovered from them. The High Court also noticed that the seized goods were not produced before the trial Court, and that as the truck driver had escaped in the opinion of the learned Judge, it was obligatory for the prosecution to have established that the two respondents sitting in the truck had the requisite knowledge of the contraband goods under section 178 of the Customs Act. It was maintained that in the absence of any evidence attributing knowledge to the respondents, they could not be convicted under section 156(1)(89) of the Act. Consequently by judgment dated 13th December, 1989 the respondents' acquittal was maintained and the criminal appeal brought by the State dismissed.
5. We have heard the learned counsel for both the sides. As observed earlier, there is a conflict of views in the Karachi High Court and Quetta High Court on the construction and scope of section 171 ibid. In Azizullah v. The State (PLD 1981 Kar. 250) a Single Bench of the Karachi High Court relying on an earlier decision of that Court in S.M. Yousuf arid others v. Collector of Customs and others (PLD 1968 Kar. 599) maintained that provisions of section 171 are mandatory and thus prosecution of a person and seizure of goods from him on the ground that he smuggled prohibited goods into Pakistan, in the absence of service of notice under section 171 of the Customs Act, are wholly illegal.
It is to be noticed that in S.M. Yousufs case section 172-A of the Sea Customs Act, 1878, provisions whereof are similar to section 171 had fallen for consideration before the High Court, and its breach was considered as fatal to the prosecution of the accused person. However, the High Court of Baluchistan in Hizbullah v. The State and another (PLD 1984 Quetta 1) maintained that the trial of an accused is not dependent on issuance of notice under section 171 and its requirement would stand satisfied, if at the trial the accused has sufficient notice of the charges levelled against him. The conflict of views in the interpretation of this provision should no longer subsist, for, this issue has already been decided by this Court in Abdul Rauf Khan v. Collector, Central Excise and Land Customs, Peshawar and 3 others (1980 SCMR 114) and it has been held that non-service of notice under section 171 is not fatal to the prosecution and seizure of contraband goods, if the recovery memo, mentioning the ground of seizure is furnished to the accused. It appears that this judgment was not brought to the notice of this Court, while granting leave to appeal. Seemingly the purpose of notice under section 171 is to post accused with the knowledge of the allegations against him and service of such notice is not the condition precedent for launching the prosecution. This requirement is substantially complied with where a recovery memo, is prepared in the presence of the accused or otherwise is brought to his notice and from its terms the accusation against the person concerned can reasonably be spelt out. What section 171 ordains is that when anything is seized or any person is arrested on account of violation of the provisions of the Customs Act, as soon as possible he maty be informed in writing of the grounds of the seizure or arrest, as the case may be. Neither there is anything in the section itself nor in other provisions of the Act specifying any consequence of nullification for non-compliance therewith, which is generally a hallmark of the statutory provision mandatory in character. If the information sought to be conveyed to the accused by virtue of notice under section 171 is passed on to him through other steps taken in the course of the proceedings commenced against him, the requirement of notice would stand fulfilled substantially and validity of the action shall remain unaffected.
6. It needs to be ascertained whether or not a substantial compliance of section 171 has been made in the two cases before us. As regards Criminal Appeal No. 7-P of 1991, we feel that the preparation of the recovery memo. Exh. P.W. 1/1 and tendering thereof in evidence, for the purposes of section 171 constituted sufficient notice. Similarly, in the other case, there is the recovery memo, prepared by Mr. Ziauddin, Inspector Customs, produced in evidence by him as Exh. P; 1/1. Further in the proceedings before the Customs Department respondents Nos. 1 and 2 confessed the recovery of foreign goods on the interception of the truck by the raiding party. It, therefore, cannot be said that the respondents were not posted with the knowledge of the grounds of seizure. The view taken by the High Court, therefore, cannot be sustained.
7. As stated above, in the opinion of the High Court, as the driver of the truck slipped away, there was no evidence to attribute knowledge of smuggling of the goods to the two co- accused. It appears to us that these observations have been made in oblivion of the provisions of section 156(90) and 187 of the Customs Act, under which burden of proof lay on the accused. It was, therefore, for the latter to have proved that they were unaware that prohibited goods were being smuggled.
8. It is not in every case that the non-production of the case property is fatal to the prosecution case. The object of production of the seized goods in the Court was to establish that these were of foreign origin, but this purpose could well be achieved through other evidence mustered by the prosecution. The High Court has not adverted to this aspect of the case, The view taken by it, therefore, cannot be upheld.
For the foregoing reasons, both th& appeals are accepted, the impugned judgments set aside and the cases are remanded to the trial Court for decision afresh inter de novo trial.