SYED ZAHID HUSSAIN, J. -- The factual background x>f this case is very brief and is as follows-
2. On 19.5.1963, 50-1/2 'tola' gold was seized from Muhammad Afzal, .The predecessor-in-interest of the petitioners by the Customs Staff under Section 167(81) of the Sea Customs Act, 1878. As stated by the learned counsel mo proceedings whatsoever were taken by the Customs Authorities till 8.8.1978, when a show-cause notice was issued by an Assistant Collector of Customs, Faisalabad alleging contravention of Section 167(81) of the Sea Customs Act, 1878 read with Section 9 of the Land Customs Act/Section 156(l)/89 of the Customs Act, 1969. Reply to the said notice was given on 1.9.1978 that the notice issued on 8.8.1978 was violative of Section 168(2) read with Section 221 of the Customs Act, 1969. It was also prayed that the gold so seized may be returned. On 21.4.1981, an Assistant Commissioner of Customs ordered the confiscation of the seized gold under Section 167(81) of the Sea Customs Act, 1878 read with Section 9 of the and Customs Act, 1924 and Section 156(l)/89 of the Customs Act, 1969. An appeal was filed thereagainst which was dismissed by the Collector (Appeals), Northern Zone, Lahore on 19.3.1982. The revision filed thereagainst before the Government of Pakistan met the same fate and was rejected by a Joint Secretary on 30.12.1982.
These orders have been challenged by the petitioners through this petition.
2. It is contended by the learned counsel for the petitioners that the seizure of the goods took place on 19.5.1963, no proceedings were taken by the Department for a long time till 8.8.1978, by which time, Sea Customs Act, 1878 had been repealed and Customs Act, 1969 had come into force. It is his contention that by operation of Section 221 of Customs Act, 1969 after the repeal of the said Act and coming into force of the Customs Act, 1969, the proceedings were to be taken in accordance with the repealing Act which provided for issuance of a show-cause notice under Section 168 read with Section 180 of the Customs Act, 1969. According to him, the period of two months prescribed by Section 168 could be counted from the date of enforcement of the Customs Act, 1969 i.e. 1.1.1970. It is his case that the show-cause notice was clearly time-barred and no confiscation of the goods could take place in such proceedings. It is also contended by the learned counsel that the revision petition has been rejected by a non-speaking order in a perfunctory. Manner which does not evince even the application of judicial mind to the points arising in the matter.
3. Mr. Izharul Haq, Advocate, the learned Standing Counsel for the Department, however, contends that the limitation of two months for issuance of show-cause notice was not the requirement of the repealed Act of 1878, therefore, Section 168(2) of the Act could not be made applicable to this case as the goods had been seized long before coming into force of the Customs Act, 1969. According to him, Section 221 of the Apt would not make Section 168 applicable to this case.
4. Undisputedly, the seizure took place on 19.5.1963 when Sea Customs Act, 1878 was in force. No proceedings thereafter were initiated by the respondent during the currency of Sea Customs Act, 1878 which was repealed by Customs Act, 1969 which as per Notification dated 31.12.1969 came into force with effect from 1.1.1970. Under the repealed Act (VHI of 1878), the things seized were to be dealt with under Section 179 and adjudication to take place under Section 182 of the Act. After such proceedings of adjudication the confiscated things were to vest in the Government. It is to be noted that no limitation was prescribed for a show- cause notice in the repealed Act.
5. Section 179 of the repealing Act (IV of 1969) empowers the authorities mentioned therein for the adjudication of cases involving confiscation of goods. Section 180 of the Act lays down that-"No order under this Act shall be passed for confiscation of goods or for imposition of any penalty on any person unless the owner of the goods" is informed in writing of the grounds on which it is proposed to confiscate the goods or the penalty and is given an opportunity of representation and of being heard. Reference to Section 168(2) of the Act would show that "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". There is a proviso to the sub-section that the Collector of Customs may extend this period of two months tor another two months for the reasons to be recorded by him in writing. In order to determine as; to whether even after the repeal of Act (VHI of 1878), a show-cause notice could be issued without any constraint of limitation, reference to Section 221 of the Repealing Act (IV of 1969) which is of the nature of saving clauses, may be of relevance and is reproduced hereunder:- "Saving. --(1) Notwithstanding anything contained Section 6 of the General Clauses Act (1897) anything done or any action taken under the repealed -enactment in so far as it is not inconsistent with the provisions of this Act shall without prejudice to anything already done or any action already taken be deemed to have been done or taken under this Act: Provided that nothing in this Act shall be so construed as to have the effect of enhancing the punishment of an offence committed before the commencement of this Act: Provided further that where the period of limitation for the submission of an application or the filing of an appeal or revision prescribed under any of the repealed enactments had expired or had begun to run before the commencement of this Act the provisions of those enactments shall continue to apply to such limitation.
(2) The provisions of the General Clauses Act, 1897, in particular, Section 6, Section 8 and Section 24 thereof, shall apply to the repeal and re-enactment of the said enactments by this Act, subject to the provisions of sub-section (1).
(3) Nothing in this Act shall affect any law for the time being in force relating to the constitution and powers of the trustees of any port or other port authority."
The perusal of sub-section (1) would show that it was to take effect "notwithstanding anything contained in Section 6 of General Clauses Act, 1897" and anything done or action taken under the repealed enactments was to be deemed to have been done or taken under this Act. Lt has a proviso that "where the period of limitation for the submission of application or the filing of an appeal or revision prescribed under any of the repealed enactments had expired or had begun to run before the commencement of this Act the provisions of those enactment?Shall continue to apply to such limitation". The case of the present nature does not fall within the ambit of proviso as admittedly there was no limitation for a show-cause notice provided in the repealed Act (VIH of 1878). Again by sub-section (2), the applicability of the provision of General Clauses Act, 1897 has been made subject to the provisions of sub-section (1)". It thus covers certain situations visualized by the Legislature and specific provision to meet the same were enacted.
6. The effect of repeal has been considered in Understanding Statutes by S.M. Zafar at page 399 as follows:- "The effect of repealing a statute is to obliterate it as completely from the records of the Parliament as if it had never been passed; and it must be considered as a law that never existed except for the purpose of those actions which were commenced, prosecuted and concluded whilst it was an existing law,"
7. Except for the matters falling within the ambit of Section 6 of the General Clause Act, ordinarily, as a consequence of the repeal of Act (VHI of 1878) no action could be commenced. However, alive of certain situations the Legislature by enacting Section 221(1) provided that seizure of the goods would be deemed to have been done under the repealing Act. As mentioned above, the seizure itself does not result in the conclusion of the proceedings or confiscation of the goods. That is why a show-cause notice, dated 8.8.1978 was issued not only under Section 67(81) of the Sea Customs Act i.e. The repealed Act but also under 156(1) 89 Of the Customs Act, 1969 i.e. The repealing Act. But this notice had to conform to Section 180/ read with Section 168 of the Repealing Act. It may be mentioned again that such an notice was to be given within a period of two months of the seizure of the goods but in the context of this case by operation of Section 221(1), the seizure had to be deemed to have been done, under the repealing Act and two months' time tor issuance of such a show-cause notice would have run from 1.1.1.970 when the repealing Act came into force. Notice in the instant case was issued on 8.8.1978 i.e. Long thereafter, it was clearly a time-barred notice.
8. As to the effect of the time-barred notice issued under Section 168(2) of the Customs Act (IV of 1969) there is a Division Bench judgment of this Court in Haji Noor ul Haq v. Collector of Customs and others (1998 M LD 650) in which after considering number of precedents it was laid down as follows:- "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 be 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 to be restored the possession of those goods."
It may be mentioned that the judgment of the Division Bench was upheld by the Hon'ble Supreme Court by dismissing the petition for leave to appeal on 20.10.1997 (C.P.L.A, No. 767-L of 1997) and it was observed by their Lordships that:- "The petitioners were required to serve notice under Section 180 of the Act by virtue of above- quoted sub-section (2) of Section 168 thereof. No doubt that the period was extended from time to time as stated above by the Collector but since no reasons were recorded by him, the exercise of the above power was not in terms of the proviso. We are, therefore, of the view that the impugned judgment is unexceptionable and is in consonance with the judgments of this Court inter alia in the case of Joint Secretary, Central Board of Revenue (Customs) and others v. Raja Nazar Hussain and others (1991 SCM R 647). The petition has, therefore, no merits."
It is not the case of the respondent/Department that period had at any time been extended by the Collector in terms of the proviso in this case.
9. For the view that I have taken as to the effect of repeal of Act (VIII of 1878) and the saving clause
(1) of Section 221 of the Repealing Act (IV of 1969), the seizure had to be deemed to have been made under the Repealing Act (IV of 1969), the procedure for confiscation as prescribed under Section 180 read with Section 168 had to be followed by the respondent. Since no notice envisaged by Section 168(2) was issued within limitation available to the respondents, orders of confiscation passed by the respondents are not sustainable in law and are declared as illegal and without lawful authority.
As a result of the above, this petition is accepted with the direction to the respondents to return the goods, subject-matter of the petition to the petitioner. No order as to costs.