JUDGMENT TASSADUQ HUSSAIN JILANI, J.- Through this Constitutional petition the petitioner has called in question the show-cause notices issued to him pursuant to the search and seizure made by the Customs Authorities after the raid and it is prayed that the goods seized by them may be returned to the petitioner as the respondents failed to issue show-cause notices within the period stipulated in Section 168(2) of the Customs Act, 1969.
2. Brief facts giving rise to the filing of the instant petition are that on a source report that smuggled auto spare parts are lying at the store of the petitioner, a raid was conducted by the Customs Authorities, search of the godown was carried out, a truck bearing No. QAD 9822 full of imported smuggled auto spare parts was found parked there, the driver of which ran away, the persons present at the godown could not give any proof of valid import of the afore-referred articles, a case was registered vide FIR No. 356/89, dated 19.11.1989 under Sections 156/157/89(1)/178 of the Customs Act, 1969 PS Misri Shah Lahore. A memo, of recovery and seizure qua the articles was prepared and having seized, the same, these were kept at the same godown under a bond obtained from one Haji Jalal. The same day a notice was given to the Driver and the Cleaner of the truck under Section 171 of the Customs Act. On 22.11.1989 yet another FIR (No. 362, dated 22.11.89 PS Misri Shah) was registered against the owner of the godown wherein the details of the smuggled goods found in the godown were given. A separate recovery and seizure report of the same date was prepared with regard to these goods. No show-cause notice was served under Section 180 of the Customs Act within two months as mandated under Section 168. The Collector of Customs extended the period for two months vide order dated 11.1.1990 (in case FIR No. 356/89 seizure dated 18.11.90) and for one month vide order dated 13.1.1990 (in case FIR No. 363/89, dated 22.11.1989). This period was further extended on 18.2.1990 (FIR No. 356/89) and 18.2.1990 (FIR No. 362/89) for one month in both the afore-referred cases. After completion of inquiry two show-cause notices dated 13.2.1990 and 18.3.1990 were issued in respect of the cases registered which have been challenged through the instant petition.
3. Mr. S.M. Zafar, Advocate, learned counsel for the petitioner while referring to the provisions of Section 168 of the Customs Act submitted that as the Customs Authorities has failed to issue show- cause notice under Section 180 of the Customs Act which two months of the seizure of the goods, the said goods are liable to be returned to the petitioner in terms of sub-section (2) of Section 168 referred to above. He further argued that so-called order of extension passed by the Collector Customs dated 11.1.1990 does not assign "reasons" and therefore, is not an order in the eyes of law and in absence of a valid order extending time, the period of two months having elapsed without any notice under Section 180 of the Act, the petitioners are entitled to return of the goods seized.
With regard to extension of time in seizure in FIR No. 362/89, dated 23.11.1989 under Sections 178/157/90/ 89(1)/156 of the Customs Act, 1969 PS Misri Shah of Lahore he submitted that initially the period was extended for one month which expired on 12.2.1991 whereas the second extension m this case was granted on 18.2.1990 and that too without "reasons" which order could not have been passed as this was passed after the extended period had expired and not during the currency of the extended period. In support of his submissions, he relied on Ilam Khan v. Government of Pakistan and 3 others (1983 CLC 786), Shah Madar Khan and 2 others v. SHO PS Kamokey and 2 others (1983 P.Cr.L.J. 2481), M/s. Latif Trading Company v. Government of Pakistan (1993 CLC 1663) and Joint Secretary Central Board of Revenue (Customs) and others v. Raja Nazar Hussain and others (1991 SGMR 647).
4. Learned counsel for the Customs Department Mr. Izharul Haq Sheikh, Advocate defended the action of the Customs Department by submitting that the order dated 18.11.1989 was not a seizure in the eyes of law and that the goods were only detained for the purpose of inspection at the godown and it was only on 23.11.1989 that the order of seizure was passed. He further submitted that Section 168 of the Customs Act does not control provisions of Section 180 of the- Act and, therefore, the proceedings and adjudication to be made under the letter Section cannot be stultified for noncompliance with any -provision of Section 168 of the Act. In support of the pleas he relied on Abdul Zabir and another v. Director General Pakistan Coast Guards and 4 others (PLD 1990 Karachi 412) and M/s. Yousaf Re-Rolling Mills v. Collector of Customs (Appraisement) Katedii and another (1986 CLC 77).
5. Having heard learned counsel for the parties and having gone through the precedent case-law to which reference has been made at the bar we are of the view that following questions have been mooted for consideration of this Court in the instant case:-
(i) Whether the orders of seizures dated 18.11.1989 (in case FIR No. 356/89 PS Misri Shah Lahore and dated 22.11.1989 (in case FIR No. 362/89 PS Misri Shah) were seizures within the contemplation of Section 168(2) of the Customs Act or the goods in question were merely detained by the Customs Authorities?
(ii) Whether in absence of recorded "reasons" which the law enjoins, the order dated 11.1.1990 (R-12) in seizure relating to FIR No. 356/89 PS Misri Shah Lahore) extending period for two months and the order dated 13.1.1990 (R-13) in seizure relating to FIR No. 362/89 PS Misri Shah Lahore for extending the period could be deemed to be the orders under proviso to sub-section (2) of Section 168 of the Act?
(i.e) If no show-cause notice is issued under Section 180 of the Customs Act within two months of the seizure of the goods in question and if there is no valid order for extension within the said period either, is the petitioner entitled to the return of the goods seized?
To better appreciate the points in issue it is necessary to reproduce Section 168 of the Customs Act which reads as under:- _ .
"Seizure of things liable to confiscation. (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 orders 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 subsection (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 proceedings 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 extracts the reform in he presence of an officer of customs."
6. A bare reading of the orders dated 18.11.1989 and 22.11.1989 would show that these orders were in fact seizure reports pertaining to the goods in question. In the para were comments submitted by the Assistant Director Intelligence^ and Investigation (Customs & Excise) Lahore these orders have been described as seizures. This is corroborated by the fact that these seizures were followed by notices issued by the seizing officer the same day under Section 171 of the Customs Act. This notice is R-7 with the para were comments (at page 143) and these notices can only be issued after the seizure has taken place. Section 171 reads as under: - 'When seizure or arrest is made, reason in writing to be given: When anything is seized or any person is arrested under this Act, the officer or other person making such seizure or arrest shall, as soon as maybe, inform in writing the person so arrested or the person from whose possession the things are seized of the grounds of such seizure or arrest."
The attempt by the learned counsel for the Customs Department to describe the orders as detention orders of the goods in question is not only in conflict with the comments submitted and the material on record but the word "detention" is alien to Section 168(2) of the Customs Act under which admittedly the respondent authorities had proceeded against the petitioners.
7. Argument of the learned counsel for the respondent is also contrary to the law laid down in Messrs Yousaf Re- Rolling Mills v. Collector of Customs (Appraisement), Karachi and another (1986 CLC 77) wherein at page 83 it was held ais under:- "Since two different expressions, namely, "Detention" and "Seizure" have been used in the Act and as not only these expressions appear to - be somewhat different connotations, but further the consequences of seizure have been specifically detailed in the Act, while no such consequences in relation to detention have been spelt out or indicated in the Act, the inference suggested is that the Legislature has used the two expressions in different senses. The Supreme Court of Pakistan, in Zai- ur-Rehman's case (PLD 1973 SC 49) has held that use of different expressions by the Legislature in different clauses of the same article was indicative of different intentions, and observed in this behalf as follows:- It is a well-established rule that we have to gather the intention of the law maker from the words used by it; and if it has in two clauses of the same Article and different words, then it follows that its intention is not the same. Particularly, where such a conclusion also appears to be in consonance with reasons and just."
8. The "seizure" of goods can be either of the two forms i.e. Either the Customs Authorities may take the goods away and keep them under their on custody or where the same is not possible, can be kept with the owner after obtaining bond for their safe custody. In Ram Khan v. Government of Pakistan (1983 CLC 786) at page 788 it was held as under:- "However, seizure of goods under the Section may take place either by physical taking over of such goods by the Customs Officer or where physical taking over of the goods is not possible or practicable it may be affected by serving on the owner of the goods or any person holding these goods in 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. The effect in both the cases is same, namely, the owner or the person in possession of goods is deprived of the right to deal with goods in any manner."
9. Coming to the question whether the orders dated 11.1.1990 and 13.1.1990 extending the time by two months and one month respectively are orders in terms of Section 168(2) of the Customs Act, it is necessary to reproduce the orders which are given below:- GOVERNMENT OF PAKISTAN COLLECTORATE OF CUSTOMS, CUSTOMS HOUSE, LAHORE.
ORDER Dated 11.1.1990 In pursuance of the powers conferred upon me under Section 168(2) of the Customs Act, 1969, I hereby grant an extension of two months as requested by the Deputy Director, Intelligence and Investigation (Customs & Excise) Lahore, vide his letter C. No. I.I.B.(Cus.) 207/89/28, dated 4.1.1990, in case FIR No. 356/89 dated 19.11.1989, for the purpose of issuance of show-cause notice and completion of inquiry/investigation.
Sd/- (Muhammad Akmal) Collector Customs (Lahore)."
GOVERNMENT OF PAKISTAN GOLLECTORATE OF CUSTOMS, CUSTOMS HOUSE, LAHORE.
Lahore, dated the 13th January, 1990.
In pursuance of the powers conferred upon me under Section 168(2) of the Customs Act, 1969, I hereby grant an extension of one month as requested by the Deputy Director, Intelligence and Investigation (Customs & Excise) Lahore, vide his letter C. No. LLB. (CUS) 209/89/79, dated 11th January, 1990, in case FIR No. 362/1989, dated 2311.1989, for the purpose of issuance of show-cause notice and completion of inquiry/investigation.
Sd/- (Muhammad Akmal) Collector Customs (Lahore)."
With regard to FIR No. 362 of 1998, this period was further extended for one month on 18.2.1990 but this time reason was given i.e. "since the inquiry/investigation has not been finalized and as requested by Deputy Director."
10. A deeper look at Section 168 of the Customs Act would show that the intention of law-makers appears to be that the period for seizure should not b^ prolonged and that the Customs Authorities must give a show-cause notice for confiscation of the goods in question within two months of seizure failing which the person from whom the goods were recovered earns a right tobe restored the possession of those goods. This period of two months can be extended as provided in sub- section (2) but the order of extension has to be justified by "reasons to be recorded in writing". The Collector of Customs cannot abdicate his authority to a subordinate functionary and pass mechanical order, he has to justify the extension-by reasons. Even if the reasons are not contained in the orders the reasons may be part of the relevant i.e indicating conscious application of mind on the part of the Collector. In the instant case neither the orders extending the period contain any reason nor the relevant i.e has been produced to show that the concerned Collector has passed those orders after a conscious application of mind and had reasons to do the same. Even in the comments submitted and during arguments no reference was made to the reasons for extending time. In answer to para(c) of the grounds in the amended writ petition the reply given is as under:- "Here in this case, as discussed in the preceding paragraph (a) the date of seizure of goods is 22.11.1989 when the search was completed and when recovery-cum-seizure memo. Was prepared.
Thereafter, on request made by the competent officer firstly on 11.1.1990 and secondly on 13.2.1990, the Collector of Customs granted extension of period of one month for the first time on 16.1.1990 vide order dated 13.1.1990 and another one month for the second time on 18.12.1990 vide order dated 18.2.1990 after recording reasons warranting extension of time ' in both the orders."
The so-called orders of extension dated 18.1.1990 and 22.1.1990 by the Collector Customs cannot be deemed to be orders within the meanings of proviso to sub-section (2) of Section 168 of the Customs Act. This is in line with a judgment of the Karachi High Court reported in Abdul Zabir and another v. Director General Pakistan Coast Guards and 4 others (PLD 1990 Karachi 412) at page 418 it was held as under:- "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 requirement 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 i.e 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."
In an earlier case reported as Dr. Sher Bahadur Khan Panee, Deputy Inspector General of Prisons, Northern Range, Peshawar u. The Government of West Pakistan, through the Chief Secretary, West Pakistan Government, Lahore and another (PLD 1956 WP Peshawar 7) a Division Bench of the said Court had declared the order to be of no legal effect , where "public grounds" had not been given in the order which the relevant law mandated.
11. In view of the precedent case-law referred to above since in the initial orders of extension the Collector concerned did not' give any reasons these orders would be of no. Consequence and the show-cause notices under Section 180 of the Customs Act not having been issued within the period of two months of the seizure as contemplated in law are not sustainable in law. The owner of the goods have earned a right for return of the goods in question. The mandatory provision for a notice within two months has been enshrined for twofold purposes, firstly, to ensure that the Customs Authorities proceed and adjudicate the matter expeditiously and secondly that the affected persons are not left at the vagaries of Customs Authorities to the utter peril of their business.
Beneficial construction has to be accorded and any violation thereof follows a consequence which deprives the Customs Authorities to retain the goods and confers right on the person from whom the goods were recovered to claim their restoration. This is in line with a judgment of the Hon'ble Supreme Court to which reference has been made by the learned counsel for the petitioner i.e. Joint Secretary, Central Board of Revenue (Customs) and others v. Raja Nazar Hussain and another (1991 SCMR 647) wherein at page 651 it was held as under:- "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 shall be returned to the person from whose possession they were seized."
12. The non-compliance of sub-section (2) of Section 168 it may be observed, however, creates a right for the return of the goods but it may not absolve the delinquent from liability of a i.e if the same in warranted in law. In the afore-referred judgment of the Hon'ble Supreme Court reference was also made to this aspect of the matter and it was observed as under:- "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 158(89) should not be taken, though on a date after two months of seizure of goods."
13. For what has been discussed above and subject to our observations in para 12 above also, we allow this petition and direct that the goods subject-matter of this petition be returned to the petitioner. There shall, however, be no orders as to costs.