ORDER: MR. JUSTICE AJMAL MIAN.-(l).This is a petition for leave to appeal against the judgment dated 22.05.1997 passed by a Division Bench of the Lahore High Court in Writ Petition No. 4293 of 1990, filed by the respondent against the seizure of automobile parts etc. Mentioned in the body of the petition on'the ground that the mandatory notice under Section 180 of the Customs Act, 1969, hereinafter referred to as the Act, was not given within two months, allowing the same.
2. The brief facts are that the petitioners on a source report that smuggled auto spare parts were lying at the store of the respondent conducted a raid and carried out search of a godown where a truck bearing No. QAD 9822 full of imported smuggled auto spare parts was found parked there, the driver of which ran away. According to the petitioners-department the persons present at the godown could not give any proof of valid import of the aforesaid automobile spare parts.
Accordingly, a case was registered under FIR No. 356/89, dated 19.11.1989 under Sections 156/157/89(l)/178 of the Act at Police Station Misri Shah, Lahore. A memo of recovery and seizure qua the articles was prepared. The articles were left in the godown after getting a bond executed by one Haji Jalal, who was tenant of the godown. It seems that on the same day a notice was given to the Driver and Cleaner of the truck under Section 171 of the Act and another FIR bearing No. 362, dated 22.11.1989 was also lodged at the above Police Station in respect of other goods found in the godown. It seems that no show cause notice was served under Section 180 of the Act within two months as required under Section 168 thereof. The Collector of Customs under proviso to sub- section (2) of Section 168 of the Act extended the period for two months by his order dated 11.01.1990, then for another month by an order dated 13.01.1990, which was further extended on 18.02.1990 for another period of one month. After completion of enquiry two show cause notices dated 13.02.1990 and 18.03.1990 were issued in respect of the above two cases. The respondent, who claimed to be the owner of the goods mentioned in the memo of petition, filed the aforementioned writ petition which was allowed. The petitioners have, therefore, filed the present petition for leave to appeal.
3. In support of the above petition Mian Qamar-ud-Din Ahmed, leamed ASC for the petitioners, has urged that the learned Judges of the Division Bench have failed to take into consideration the factum that clauses (kk) and (rr) which were incorporated by Finance Act, 1989, and Finance Act, 1987, respectively, defining the terms "detain" and "seize" which have changed the legal position inasmuch as the judgments relied upon by the High Court in the impugned judgment were rendered prior to the incorporation of the aforesaid definitions. It has been further contended by him that the case in hand is covered by the definition of 'detention' and not by the definition of 'seizure' and hence no mandatory notice of two months as required under Section 180 pursuant to sub-section (2) of Section 168 of the Act was to be given.
On the other hand, Mr. S. M. Zafar, leamed Sr. ASC appearing for the respondent/caveator, has submitted that the case in hand is covered by sub-section (1) of Section 168 of the Act and that the mere fact that the goods were allowed to remain with Haji Jalal against a bond does not make any difference.
4. In order to appreciate the above contentions it may be pertinent to reproduce clauses (kk) and
(rr) of Section 2, and subsection (1) & sub-section (2) of Section 168 of the Act, which read as follows:-- Clauses (kk) and (rr) of Section 2: "(kk) "detain", in relation to goods, means to prohibit the disposal or use of the goods, pending the finalisation of any proceedings under this Act in relation to the goods or the owner thereof;" "(rr) "seize" means to take into custody, physically or otherwise, goods in respect of which some offence has been committed or is believed to have been committed under this Act or the rules, and all cognate words and expressions shall be construed accordingly;" Sub-sections (1) and (2) of Section 168: "168. 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 order 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 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: Provided that the aforesaid period of two months may, for reasons to be recorded in writing, be extended by the Collector of Customs by a period not exceeding two months." A perusal of the above quoted clause (kk) of Section 2 indicates that the term "detain" has been defined in relation to goods as means to prohibit the disposal or use of the goods, pending the finalisation of any proceedings under the Act.
Whereas clause (rr) defines the term "seize" as means to take into custody,. Physically or otherwise, goods in respect of which some offence has been committed or is believed to have been committed under the Act or the rules, and that all cognate words and expressions shall be construed accordingly.
It may be noticed that above quoted sub-section (1) of Section 168 of the Act empowers the appropriate officer to seize goods liable to be confiscated under the Act. It also authorizes that 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 order that he shall not remove, part with, or otherwise deal with the goods except with the previous permission of such officer.
It may further be observed that sub-section (2) of above Section lays down that where any goods are seized under sub-section (1) and no show cause in respect thereof is given under Section 180 within two months of the seizure of the goods, the goods shall be returned to the persons from whose possession they were seized. However, the proviso thereof provides that the aforesaid period of two months may, for reasons to be recorded in writing, be extended by the Collector of Customs by a period not exceeding two months.
5. In our view, the goods in question were in fact seized under sub-section (1) of Section 168 of the Act but they were left with Haji Jalal against a bond as it was not practicable to remove all the goods to another place in terms of above sub-section. The definition of the term "seize" given in above quoted clause (rr) of Section 2 includes seizure by taking the goods in custody physically or otherwise. The word "otherwise" would include leaving the goods with any person holding them in terms of subsection (1) of Section 168 of the Act. In this view of the matter 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 varsus Raja Nazar Hussain and another (1991 SCM R 647). The petition has, therefore, no merits.
6. Then it was submitted by leamed counsel for petitioners that the petitioner-department is entitled to recover the customs duty etc. In respect of the goods ordered to be released by the High Court and, therefore, we should not allow the respondent to deal with the seized goods. Since we are maintaining the judgment of the High Court, we cannot accede to the above request. However, it is clarified that if the petitioner-department is entitled to take any further action in accordance with law, there is no embargo on its power to do so. However, leave is refused.