SARMAD JALAL USMANI, J.- This is an applicant under Section 561-A of the Code of Criminal Procedure, praying for quashment of criminal proceedings initiated against the application in Case No. 98/97 before the Special Judge (Customs and Taxation) Karachi. Alongwith the main application M.A. No. 3485/97 has also been filed whereby the applicant has prayed that his goods lying at Peshawar seized by respondent No. 2 i.e. Customs Authorities may be released upon payment of duties etc. and so also allow the release of the applicant's goods lying at Karachi on the same basis. Additionally, it has also been prayed that the applicant may be exempted from personal appearance before the Special Judge (Customs and Taxation) Karachi, till the hearing and disposal of the main application.
2. The brief facts of the matter are that the applicant is the Director Finance of Prime Mirror Glass Industries (Pvt) Ltd. which company has an office and facility for the manufacture of looking glass mirrors at Gadoon Amazia, N.W.F.P, in 1997 the applicant filed six bills of Entry for home consumption of raw material imported by his company for the manufacture of looking glass mirrors, two of which were dated 10.4.1997, three dated 14.4.1997 and one dated 6.5.1997. Copies of these Bills of Entry have 'been filed as Annexures A/1 to A/6 to the main application, These Bills of Entry were processed by respondent No. 2 and upon payment of customs duties etc. the goods were released to the applicant. Subsequently the applicant also filed three more Bills of Entry two of which were dated 10.4.1997 and one dated 14.4.1997 for release of the raw material covered thereby into a Bonded Facility located in GadoOn Amazia N.W.F.P, for the purpose of the said materials despatch up country under the Safe Transport Scheme for which the applicant executed the necessary bonds acceptable to responded No. 2 whereafter the said material was transported to the applicant' Bonded Warehouse in Gadoon Amazia and arrived there safely which was verified by the Customs Authorities at Peshawar, in support of the aforegoing copies of the three Bills of Entry, KPT Gate Pass, TCS Receipt, Letter from Deputy Collector Customs Gadoon Amazia and its accompanying statement have been filed with the Main Application as Annexures B/1 to B/3, B/4 to B/6 and C to C/1 respectively.
3. Thereafter, as per averments made in the Main Application, the respondent No. 2 lodged an F.I.R, against the applicant with the Special Judge Customs and Taxation Karachi, without giving any Show-Cause Notice in which it was alleged that the goods meant to be bonded at Gadoon Amazia were in fact sold off by the applicant during transit in the Punjab. As a result of such F.I.R, the applicant in the first instance sought protective bail from the Lahore High Court and thereafter bail from the Special Court Customs and Taxation at Karachi which were both granted, in the meanwhile an interim challan was also issued by the respondent No. 2 whereby the applicant was nominated as the accused and charged with commission of various offences under the Customs Act. Thereafter the respondent No. 2's representative went to Gadoon Amazia and seized the goods lying in the applicant's Custom Bonded Warehouse after serving a notice under Section 171 of the Customs Act 1969. Copies of the F.I.R. Interim Challan, Notice, Seizure Memo, and Mushirnama have been filed along with the Mian Application as Annexures 'D' E' 'H' 'T' and 'J' respectively.
4. On the basis of the above facts leamed counsel for the applicant has impugned the FIR as well as the interim challan filed before the Customs Court and all subsequent proceedings taken thereunder as being without jurisdiction, mala fide and has also contended that there is no likelihood of any conviction of the applicant/accused resulting from such proceedings as the goods in question in fact have safely reached the applicant's bonded warehouse as certified by the Peshawar Collectorate. Learned counsel has also vehemently submitted that the actions of the Customs Authorities in seizing the applicant's goods lying at bonded warehouse at Gadoon Amazi were unlawful as no notice under section 171 of the Customs Act was issued before seizure of the same and also no search warrants were obtained before the said seizure. Similarly learned counsel has also contended that since the statutory time limit as contemplated under section 168 of the Customs Act had expired and as no notice as per section 180 of the Act was issued to the applicant, he was entitled to the return of his goods. Learned counsel further contends that as regards the Applicants goods lying at Karachi, the same could not be cleared due to the fact that the Customs Authorities had also seized all the documents etc. pertaining to these consignments which were lying with his clearing Agent and at the same time also sealed his office, in these circumstances, it is contended that the Applicant is entitled to a delayed detention certificate from the Customs Authorities so that he. may not be burdened with port charges etc. which he would otherwise have to pay due to no fault of his.
5. On the other hand, learned Assistant Collector of Customs Dr. Muhammad Zubair has vehemently opposed the various contentions raised by learned counsel for the applicant. He submits that the issuance of the Show-Cause Notice under Section 168 of the Customs Act is within time as the same was issued on 7.8.1998 and enlarged vide letter dated 16.7.1997 up to 17.8.1998. in any event according to him, as the goods seized at Gadoon Amazia would be required for the purpose of proceedings before the Special Judge Customs at Karachi, they cannot be released into the custody of the applicant. Regarding the release of the applicant's goods lying at Karachi, the learned ACC does not oppose the same provided the same are for home consumption only.
However, he opposes the issuance of a delayed detention certificate as according to him this can only be issued for goods which have been seized under the Customs Act which is not the case as far as the applicant's goods lying at Karachi Port are concerned since only the documents pertaining to such goods have been seized, it would thus appear that learned counsel for the applicant has challenged both adjudication proceedings before the Customs Authorities as well as proceedings pending in the Customs, Court. Regarding proceedings pending in the Customs Court learned counsel has challenged the same on the following grounds:-
(A) That the Customs Court has no jurisdiction to either entertain the FIR because the goods seized by the Customs Authorities were at Peshawar and, therefore, the Customs Court at Peshawar would have jurisdiction for such proceedings;
(B) Even otherwise since the provisions of section 171 of the Customs Act have not been fulfilled as to notice thereunder as such the proceeding before the Customs Court suffers from grave infirmity;
(C) Even otherwise the provisions of section 163 of the Customs Act have been violated inasmuch as no cogent reason has been given by the Customs Authorities to search' the applicant's Bonded Warehouse without warrant and thereafter arrest the applicant; and
(D) There is no likelihood of any conviction of the applicant/accused resulting from the proceedings pending before the Customs Court as the goods in fact safely reached the applicant's Bonded Warehouse as certified by the Collectorate at Peshawar.
Regarding adjudication proceedings before the Customs Authorities learned Counsel has attacked it on the following grounds:-
(i) That the Customs Authorities have no jurisdiction in the matter as the goods in question were landed at Karachi Port and therefore, the impugned seizure of the goods at Peshawar by the Customs Authorities are a nullity in the eye of law;
(ii) That no notice was given under section 171 of the Customs Act and that the provisions of section 163 have not been complied with; and
(iii) That no notice as contemplated under section 168 of the Customs Act was ever given and hence the applicant is entitled to receive the goods back.
6. Reverting to the first issue regarding the jurisdiction of the Customs Court to entertain the FIR it could be seen that as per section 185 of the Customs Act the Federal Government has authority to appoint as many Special Judges by notification which would also specify the headquarters of each Special Judge and the territorial limit which within he may excise jurisdiction under this Act.
Similarly section 185 (a) further provides that the Special Judge can only take cognizance of those offences which are alleged to be committed within the limit of his jurisdiction, it is an admitted position that the Special Judge at Karachi exercises jurisdiction within the Province of Sindh and, therefore, he can only take cognizance of any offence committed within this Province. As per the FIR the allegations against the applicant are that the goods of the applicant, which wee meant to be delivered at the applicant's Bonded Warehouse at Gadoon Amazia were disposed of to various dealers located in Rawalpindi,. Multan, Faisalabad and Islamabad thus giving rise to the offences under the Customs Act i.e.. being violative of the provisions of sections 30, 32, 86, 97 and 219 thereof which was punishable under sections 10(a)(4) and 151 of the said Act. it would also appear that the interim challan further discloses that upon subsequent investigation of the matter the Collectors of Customs, Faisalabad, Lahore, Rawalpindi, Peshawar and Multan were contacted for seizure of the goods despatched by the Afridi International Goods Transport Co. and accordingly the Collector of Customs, Faisalabad and Multan have telephonically clear that the Special Court at Karachi had no jurisdiction in the matter to entertain the FIR for a crime which has been allegedly committed in the Punjab and NWFP. Admittedly though the road receipts whereby the consignment of glass for delivery to various consignees in Punjab were prepared in Karachi but actually the act of delivery of the said consignment was committed in the Punjab. Therefore, in any event the Customs Authorities in Punjab would have jurisdiction in the matter. Accordingly I have no hesitation in holding that the proceedings before Special Court at Karachi are liable to be quashed on the ground of lack of jurisdiction, in this respect the following case-law is relevant:-
(1) 1987 P.Cr.L.J. 351 (Haji Muhammad Sodo v. The State)
(2) 1986 P.Cr.L.J. 503 (Muhammad Iqbal Toor v. The State)
Reverting to the other ground on which the quashment ha s been sought i.e.. non-compliance of sections 171 and 163 of the Customs Act, it would be seen that section 171 of the Customs Act prescribes: "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 may be, 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."
Learned counsel has contended that as no such notice was given 'therefore, the entire edifice of criminal proceedings against the applicant suffers from gross illegality and thus liable to be quashed. On the contrary the learned Assistant Collector of Customs has contended that in fact there is notice under Section 171 of the Customs Act 1969, which appears on page 121 of the main application, whereby the provisions of the said section have been fulfilled, it would be advantageous to reproduce the said notice which provides as under:- "Whereas during the course of investigation the consignment consisting of 36 Crates and 10 Crates lying at the Bonded Warehouse of M/s. Gadoon Amazia has been found different from the consignments released by Customs House, Karachi under Safe Transportation System for the above said bonded warehouse therefore the same have been seized u/S. 168 of the Customs Act, 1969 against a proper Masheernama. Therefore as per provision of section 171 of the Customs Act 1969 you are informed accordingly. You are accordingly directed not to remove forthwith or otherwise deal with the above-stated goods except with the previous permission of the adjudicating authorities of the Collectorate of Customs Appraisement, Custom House, Karachi."
The said notice has allegedly been received by one Gul on 10.6,1997 who was the Chowkidar of the applicant's Bonded Warehouse from which the goods were seized, it would be seen that the said notice under Section 171 of the Act does give reasons for seizure of the goods, and also it was received by the person i.e.. Chowkidar from whose possession the goods were seized. Therefore the said notice adequately satisfy the provisions of Section 171 of the Customs Act and accordingly I hold that the proceedings before the Customs Court cannot be faulted on the basis of non- issuance or defect in the issuance of the notice under the said Section: in this regard the Honourable Supreme Court has laid down in 1993 SCM R 311 (State through Deputy Attorney General v. Banda Gul and 2 others) as under:- "Non-service of notice under S. 171, Customs Act, 1969 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." in the present case the seizure memo, at page 123 and the Mashirnama at page 125 also adequately mention the grounds of seizure.
7. Reverting to the contents of the provisions of section 163 (1) (2)(3) the same have also not been followed inasmuch as search of the applicant's premises and seizure of his goods and his subsequent arrest were carried out without any search warrant, it would be seen that this appears to be the correct position as the Customs Authorities have not denied either by way of any documentation or at the time of arguments that any search warrant was obtained before search of the applicant's premises and his subsequent arrest, in this respect it is pertinent to note that under Section 163(1) of the Customs Act the powers to dispense with the search warrants is only available when the officer conducting the search has reasonable grounds for believing that any goods liable to confiscation or any documents or things which in his opinion will be useful for or relevant to any proceeding under this Act are kept in any place and that there is a danger that they may be removed before a search can be effected under section 162. Further the said officer can only conduct the search after preparing a statement in writing of the grounds of his belief and of the goods, documents or things for which search is to be made. Secondly as per sub-section (2) the said officer is duty bound to leave a signed copy of such statement in or about the place searched and shall, at the time search is made or as soon as is practicable thereafter, deliver furthermore a signed copy of such statement to the occupier of the place at his last known address, it is an admitted position before me that no such statement was ever made by the Customs Authorities before carrying out the search and subsequent seizure of the applicant's goods and of his arrest and neither the said statement was delivered to the applicant or his representative before the said search or arrest. Under the circumstances I also find that the provisions of Section 163(1)(2)(3 of the Act were not complied with by the Customs Authorities before search of the applicant's premises and his arrest. Therefore, to the extent the proceedings before the Customs Court suffers from a patent Illegality and in the circumstances are also liable to be quashed, in this respect reference can be made to PLD 1981 Lahore 13 (Shaukat v. Zulfiqar Ahmad) and PLD 1986 Karachi 28 (Muhammad Mahfooz v. Collector of Customs, Karachi).
8. As regards the adjudication proceedings before the Customs Authorities, it may be noted that the same are quite independent of the criminal proceedings before the learned Special Court, in fact a separate hierarchy has been established for these proceedings including the confiscation of goods, imposition of fine and appeals against such action. it cannot be said by any stretch of imagination or the law that these proceedings are amenable to the jurisdiction or powers of the High Courts within the meaning of Section 561-A of the PPC which essentially provides for corrective measures where the act complained of arises from criminal proceedings. Accordingly in the circumstances of the case, in my opinion this Court has no power to grant reliefs in exercise of powers vested under Section 561-A of the CPC to the extent of quashment of the adjudication proceedings under the Customs Act against the appellant as prayed for in M.A. 3485/97. However as regards the other prayer in the said Application for release of the applicant's goods lying at Karachi, it was admitted before me by the learned ACC that the same do not form any part of the adjudication proceedings against the appellant, in fact a statement was made by the learned ACC on 10.7.1998 that he would have no objection if said goods were cleared for home consumption only. However, he has opposed the issuance of the delayed detention certificate on the ground.
That the applicant himself did not come forward to clear the goods and, therefore, the delay in this respect and the corresponding financial burden upon the applicant is due to no fault of the Customs Authorities. On the other hand, learned counsel for the applicant submits that after seizure of the applicant's goods at Gadoon Amazi, his clearing agent's office was raided and sealed by the Customs Authorities after removal of all the documents found therein including those relating to the applicant's goods which are now stuck up at Karachi Port. Accordingly the applicant has been unable to clear the goods due to no fault of his but due to the fact that the documents required for this purpose are still under the custody of the Customs Authorities. When I questioned the learned ACC regarding the veracity of this statement he confirmed the same and also admitted that the Customs had never written a single letter to the applicant to collect these documents when it had been determined that they were no longer required for the purpose of any pending proceedings or which were proposed to be launched against the applicant, in fact learned ACC very candidly admitted that where documents/property which had been seized and were no longer required for the purposes of either adjudication or criminal proceedings then the persons from whom they have been seized approach the Customs Authorities for their release.
However, learned ACC was not able to refer to any provision of the Customs Act or for that matter any other law which would support his contentions. in these circumstances, I am of the view that the citizens of this Country should not suffer due to the negligence or tardiness of the Customs Authorities. Consequently, I hold that where any document or goods are taken into the custody of the Customs Authorities and no proceedings are initiated thereon against the owner of such document/goods under the Customs Act or any other law, it is the duty of the Customs Authorities to return such documents/goods to their owner as soon as possible so that the owner is enabled to clear the same. Where this is not done said owner should not suffer the consequences following upon failure to do so. I accordingly direct the Customs Authorities to forthwith return all the documents, books, ledgers, etc. pertaining to the applicant's goods lying at Karachi Part so as to ensure their prompt clearance for the purpose of home consumption and also to issue the applicant with a delayed detention certificate and any other documents permissible as per practice and law so as to enable the applicant to clear his goods without payment of KPT charges such as demurrage, wharfage etc.
9. The result is that the main application is allowed and the proceedings before the Customs Court are quashed as having been undertaken without jurisdiction and otherwise being defective in terms of Section 163 of the Customs Act. M.A. 3485/97 is also allowed to the extent that the applicant would be entitled to clear his goods which are lying at Karachi Port after receipt of all papers, documents ledgers etc. Relating there to from the Customs Authorities including a delayed detention certificate pertaining to such goods. Of course the applicant would be free to file appropriate proceedings for his goods detained at Gadoon Gmazai by the Customs Authorities..