' Amin Gul, Truck Driver and Astana Gul its Conductor, were sentenced to suffer rigorous imprisonment for one year and to pay a fine of Rs, 5,000 each or in default of its payment to further undergo rigorous imprisonment for six months under section 156(1)(89) read with section 178 of the Customs Act, by Mr. Abdul Hafeez Cheema, Special Judge, Customs and Taxation, Lahore, vide his judgment and order passed on 28-4-1975. The convicts have come up in appeal.
2. An F. I. R. Was registered at Police Station, Saddar Campbellpur, on 4-9-1943 at 4.20 a.m. On a report of Karam Elahi Saleem, Inspector Custom (P. W. 1). According to that report when a Truck No, R I B-3577 from Peshawar side on its way to Rawalpindi reached the Customs Check Post, Attock bridge on 3-9-1973 at 9.50 p.m., it was subjected to usual custom checking. It was driven by Amin Gul appellant while Astana Gul appellant was with him. The checking was conducted by Karam Elahi Saleem, Customs Inspector P. W., Ishar-ul-Hasan, Customs Inspector P. W., Muhammad Sharif P. W. And Dool Badshah (not examined) both of whom were posted as custom sepoys at the check post. They found from underneath the crates of grapes loaded in the Truck two bags which contained handkerchiefs, battery cells and locks. On further checking of the truck they found from a box under the seat of the driver three pinion-rings which were spare parts of Bed Ford truck and also found from the tool box of the truck six tins of foreign gear oil and cloth of foreign origin. Since the appellants failed to produce any document in proof of bona fide purchase of those articles of foreign orign those were seized under section 156/89 of the Customs Act. The truck was also seized under section 157 of the Customs Act. The value of the smuggled goods was estimated at Rs, 9,500 and the value of the truck was mentioned as Rs, 21,000. It was also mentioned in that report that both the accused had been arrested and the investigation was being conducted by the Department. That report was signed and sent on 4-9-1973 at 3 a.m. To the Police Station on the basis of which formal F. I. R was registered as mentioned above. The recovery memo. Of the seized goods is Exh. P. A. While that of the truck is Exh. P. B. On record.
' Karam Elahi Saleem, Customs Inspector (P. W. 1), submitted challan against the appellants for trial in Court of the Assistant Commissioner, Campbellpur, on or about 17-9-1973, and some prosecution evidence was recorded by the Assistant Commissioner as trial Court in the case and proceedings continued there upto 30-7-1974. Then the case was transferred to the Court of the Special Judge, Customs and Taxation, Lahore and was registered in his Court, on 22-8-1974, whereafter the trial was conducted and on conclusion of the trial the judgment and order under appeal was passed by the learned Special Judge.
3. At the trial the prosecution examined six witnesses in all. Karam Elahi Saleem (P. W. 1), lzhar-ul- Hasan Naqvi (P. W. 2), Sikandar Hayat (P. W. 3), Inspector Customs apart from Faiz Bakhsh (P. W. 4), Noor Muhammad (P. W. 5), labourers, and Muhammad Sharif (P. W. 6) custom sepoy were examined as witnesses of recovery of the smuggled goods seized in the case and proved its recovery from the truck driven by Amin Gul appellant when Astana Gul appellant accompanied him as Cleaner of the truck. Karam Elahi Saleem P. W. Also proved his written report (Exh. P. C.) on the basis of which formal F. I R. Was registered at the Police Station. He also deposed that he seized goods in the case which were of foreign origin, he also conducted the investigation and submitted the challan in the Court for trial of the appellants but did not give the value of the total goods seized in the case except that he deposed in cross-examination that the estimated value of the locks and handkerchiefs was Rs, 3,000 but he could not give the exact value. He did not base his opinion about the value of the goods seized in the case on any material. Sikandar Hayat Customs Inspector, P. W. Also deposed that the value of the goods seized was more than Rs, 5,000. Noor Muhammad (P. W. 5) deposed that he worked as a Labourer at the Customs Check Post at the relevant time and according to him number of the handkerchiefs and battery cells seized from the truck was about 5,000/7,000 but did not depose about value of the seized goods. No other evidence was led with regard to the value of the goods.
4. The appellant pleaded not guilty to the charge. When examined under section 342, Cr. P. C. They denied the allegations of the prosecution, further denied the recovery of smuggled goods from their possession valued at more than Rs, 5,000 and disowned its ownership. The appellants stated that they had been falsely implicated on account of enmity and the prosecution witnesses were stock witnesses of the Customs Department due to which they had deposed in favour of the prosecution. Amin Gul appellant examined Muhammad Buland (D. W. 1), ann Sikandar (D. W. 2) in his defence. Both the defence witnesses deposed that they were present at the Attock Custom Check Post at the time the smuggled goods are alleged to have been recovered from the truck of Amin Gul appelant and they saw that the truck of Amin Gui appellant was loaded with crates of grapes only and no smuggled articles wepe recovered from that. Truck,
5. The learned Special Judge believed the recovery of goods from the truck of Amin Gul appellant who was accompanied by Astana Gul appellant and came to the conclusion that the articles so recovered were of foreign origin and were smuggled goods because the appellants did not produce any proof of lawful import of the seized goods. He also found that the value of the goods seized was more than Rs, 5,000 and convicted the appellants as aforementioned because in his view Amin Gul appellant was driver of the truck from which seized articles were recovered while Astana Gul was accompanying him in that truck and both were equally liable by virtue of the provisions contained in section 178 of the Customs Act ([V of 1969).
' The learned counsel for the appellants did not address any argument so far as the factual position is concerned. He raised two-fold objections. He argued that the learned Special Judge had no jurisdiction under section 185-A(6) of the Customs Act because there was no complaint in writing before him by a competent person who had been notified by the Central Board of Revenue to sign the complaint. His second objection was that value of the goods seized was less than Rs, 5,000 and there could be no prosecution in the absence of any proof by the prosecution that its value was more than Rs, 5,000 which alone could give jurisdiction to the learned Special Judge to try the appellants under section 156(1)(89) of the Customs Act.
6. I have considered the objections raised by the learned counsel for the appellants and have perused the evidence in the case. The seisure of smuggled goods in this case is alleged to have been effected at the Custom Check Post, Attock Bridge, on 3-9-1973 at 9-50 p.m. And after the investigation of the case by the Customs Inspector, Karam Elahi Saleem, (P. W. 1), the challan in this case was filed before the learned Assistant Commissioner, Campbellpur because till that time no appointment of a Special Judge, Customs and Taxation, had been notified which was done on or about 11-12-1973. According to the provisions contained in section 185-A(3) of the Customs Act which section was added by the Finance Act, 1973, on the appointment of a Special Judge, Customs and Taxation, all cases pending in any other Court immediately before such appointment stood transferred to the Special Judge. The provisions contained in subsection (6) of that section that a Special Judge can take cognizance and have jurisdiction to try the offences triable under subsection (3) only upon a complaint in writing made by such officer of Customs or such other person invested with the powers of an officer of Customs as may be authorised by the Central Board of Revenue in this behalf by a general or special order in writing was applicable to the challans which were submitted after the appointment of a Special Judge but did not cover those cases in which challans had earlier been filed before the ordinary criminal Courts and were pending there which stood automatically transferred by operation of law on the appointment of a Special Judge. According to the law prevailing at the time challan in this case was submitted by the Customs Inspector, in September 1973, in the Court of the Assistant Commissioner, Campbellpur there was no such bar as provided in subsection (6) of section 185-A of the Customs Act. The Customs Inspector had the power to stop the Vehicle, search and investigate cases according to the provisions contained in sections t64 to 166 of the Customs Act and also had the power to arrest the accused under section 161(2) of the same Act. The offence under section 156(1)
(89) alleged to have been committed by any person, without lawful excuse, in carrying smuggled goods or suspected to be carrying smuggled goods, was a cognizable offence being punishable for a term not exceeding six years besides fine etc. Provided value of such goods exceeded Rs, 5,000. Therefore, I am of the view that the offence being cognizable there was no bar to the trial of persons accused of offence under section 156(1)(89) of the Customs Act by ordinary Criminal Courts on the challan sent by the Customs Inspector prior to the appointment of the Special Judge under the law. Again wider section 7 of the Land Customs Act, 1924 it was permissible to file complaint/challan by a Land Custom Officer appointed under section 3(1) thereof and by notification No, SRO-48(R) 67, dated 13-4-1967, the Central Board of Revenue had authorized various B officers of the Customs including the Inspector Customs in the areas including that of Attock Check Post to be land Customs Officers. As such the objection of the learned counsel for the appellants that the complaint in this case was not filed by a competent person has no force and is repelled.
7. The condition precedent for trial of the persons accused of offend under section 156(1)(69) of the Customs Act is that value of the smuggled goods must exceed Rs, 5,000 otherwise, only departmental adjudication is provided and trial of the persons accused of having committed such offence is not provided thereunder. This was the position existing in September 1973 when the goods in question were alleged to have been seized from the truck of the appellants. The subsequent addition of section 185-A in the Customs Act only changed the forum and cid not bring about any change with regard to the aforementioned condition for trial. In the report sent by the Customs Inspector, Karam Elahi Saleem, (P. W. 1), tie mentioned an estimated value of the seized goods as Rs, 9,500. He did not refer to any material on which he bad based the value nor even did he mention therein that he .Was basing it on the declaration of the accused or on the price list.
During the investigation also he failed to verify the value of seized goods from the market or to get the value appraised by an appraiser or value in the department who were considered to be expert and did not attach with D the challan paper any other material including the opinion of any shopkeeper about the value of the goods seized by him. The value of seized goods was not even mentioned by him in the recovery memo. Exh. P. A. At the trial he did sot depose that value of the goods seized by him from the truck of the appellants was more than Rs, 5,000 rather in cross- examination h deposed that he was unable to give accurate value of part of the goods. As a matter of fact it was he who had effected seizure and had conducted the investigation and sent challan due to which he was the proper person to depose about the value of the goods seized in the case, It was only the Customs Inspector, Sikandar Hayat P. W., who was the witness of recovery posted at the Attock Customs Check Post who deposed that value of the goods was more than Rs, 5,000 but he was neither expert on the subject nor did he produce any material on which he had based his opinion about the value of the goods seized in the case. At one stage I thought of satisfying myself and on my enquiry the learned counsel appearing for the Customs Department informed that some of the goods were sold in the year 1973 and others in the year 1975 for a total value of Rs, 2310.60 while the value of two items still lying in the godown had been appraised during the pendency of appeal at Rs, 3608.00. That information is not admissible in evidence and was obtained by me for remand because at that time I was of the view that the goods must have been appraised before filing of the challan. However, my enquiry revealed that no appraisement of the seized goods was made before or after filing of the challan except after I had made enquiry about it. The prosecution did not lead sufficient evidence to prove that value of! The goods seized was more than Rs, 5,000 and I am of the considered view, that for failure in that behalf the trial of the appellants before the learned Special Judge was vitiated in law. In the circumstances of the case, I do not' consider it a fit case for remanding it to the learned Special Judge for additional evidence on this point for the reasons given above because most of the goods have already been disposed of and no assessm ent or appraisement of the whole lot of goods seized in the case was made before or after filing the challan in Court and no evidence was led during the proceedings of trial in Court of the learned Special Judge.
8. For the foregoing reasons, the appeal is accepted, the convictions and sentences of the appellants are set aside and they are acquitted of all charges. Their sentences were suspended and they were ordered to be released on bail by this Court, on 12-5-1975, they are discharged from their bail bonds.