PLJ 2022 Lahore 508
Criminal Procedure Code, 1898 (V of 1898)--
----S. 550--Constitution of Pakistan, 1973, Art. 199--Seization of non-custom paid vehicle--Application for custody of vehicle--Dismissed--Jurisdiction of Special Judge Custom--Authority of police for seization--Order for registration of case--Challenge to--No FIR was stood registered for theft or otherwise of such vehicle nor it was found in circumstance that it could have been taken into possession under such section particularly when there was no evidence of tempering of chassis number etc--Even police have no authority to stop or seize non-custom paid vehicle because Customs Act, 1969 does not authorize police to take such action which authority rest with Custom Officers--If it was mistakably taken, even then subordinate officer was bound to inform Officer Incharge of Police Station and not Magistrate as section says--Petitioner has thus performed his duty and no breach or violation can be attributed to him--It was duty of Officer Incharge of Police Station to inform Magistrate if he could have found that above conditions of section are met, otherwise he was under duty to inform Custom officers for further proceedings which is in consonance with Customs Act, 1969--Special Judge Customs has no jurisdiction for adjudication of property subject-matter of seizure which exclusively falls within domain of Customs authorities--Special Judge Customs has no jurisdiction to intervene into these matters, there is no question of vesting jurisdiction on Magistrates or Sessions Judges to entertain such proceedings--Police was not authorized to seize non-custom paid vehicle--If police have taken vehicle into custody, it did not bind them to inform Magistrate about seizure when they were already in correspondence with Directorate of Intelligence & Investigation FBR, Multan--ASJ should not have passed order for registration of case--Petition was allowed.
[Pp. 511, 513, 514, 515 & 516] A, D, E, F & G
2013 PTD 1988, 2018 PTD 1716 and 2019 PTD 1595 ref.
Custom Act, 1969 (IV of 1969)--
----S. 170--Duty of officer incharge of police station--It was duty of Officer Incharge of Police Station to inform Magistrate if he could have found that above conditions of section are met, otherwise he was under duty to inform Custom officers for further proceedings which is in consonance with Customs Act, 1969. [P. 511] B
Prevailing of Special Law--
----It is trite that provisions of special law prevail over general law; a special procedure has been given in Customs Act, 1969 with respect to seizure of non-custom paid vehicle and dealing with offence therein. [P. 513] C
Sardar Tariq Sher Khan, Advocate for Petitioner.
Maher Muhammad Mumtaz Hussain Mirali, Assistant Advocate General.
Mian Ashfaq Hussain, Advocate/Legal Advisor for Respondent No. 4 (Custom Department).
Date of hearing: 9.2.2022.
PLJ 2022 Lahore 508
[Lahore High Court, Multan Bench]
Present: Muhammad Amjad Rafiq, J.
versus
ADDITIONAL SESSIONS JUDGE etc.--Respondents
W.P. No. 6132 of 2018, decided on 9.2.2022.
Order
Muhammad Zaman petitioner was working as “Dafaydar” in Border Military Police at Check Post Bawata, when on 01.09.2017, he halted and seized a Vitz Car, bearing registration No. LEH-2307-13, Model 1999 from one Suleman Khan. For whose custody later Director Custom Intelligence, D.G. Khan and said Suleman Khan moved applications before the Magistrate who vide order dated 02.02.2018 dismissed both the applications; however, directed the Director Custom to approach concerned special Court for like relief. Said order was challenged by Suleman Khan, upon which impugned order was passed by learned Additional Sessions Judge on 03.04.2018, whereby he has overturned the order of Magistrate directing therein to conduct inquiry u/S. 523, Cr.P.C. before taking decision about custody of vehicle; further directed to take action against the petitioner by lodging a case under Article 155-C of Police Order, 2002 because he has not reported the matter to Magistrate forthwith as required u/S. 523, Cr.P.C. Challenge was thrown against direction for lodging of FIR on the ground that vehicle was taken into custody u/S. 550, Cr.P.C. by the petitioner and as being subordinate officer immediately through Rapt No. 5 dated 01.09.2017, intimated the high ups and as such has discharged his function in accordance with law. It has also been observed that vehicle was one that could not have been taken into custody under Section 550, Cr.P.C. by the police. To better appreciate the contention, Section 550, Cr.P.C. is reproduced as under;
550. Powers of police to seize property suspected to be stolen: Any police officer may seize any property which may be alleged or suspected to have been stolen, or which may be found under circumstances which create suspicion of the commission, of any offence, such police officer, if subordinate to; the officer Incharge of a police station, shall forthwith report the seizure to that officer.
Two conditions are necessary for seizure of property which are as follows:
i. any property which may be alleged or suspected to have been stolen or
ii. found under circumstances which create suspicion of the commission of any offence
What is stolen property, it has been defined in Section 410 PPC which is as follows;
410. Stolen Property;
Property, the possession whereof has been transferred by theft, or by extortion, or by robbery, and property which has been criminally misappropriated or in respect of which criminal breach of trust has been committed, is designated as stolen, property, "whether the transfer has been made, or the misappropriation or breach of trust has been committed within or without Pakistan. But if such property subsequently comes into the possession of a person legally entitled to the possession thereof it then ceases to be stolen property.
Whereas “found under the circumstance” means, some offence has been committed by use of such vehicle in any area.
170. Procedure in respect of things seized on suspicion by the police.--(1) When any things liable to confiscation under this Act are seized by any police-officer on suspicion that they had been stolen, he may carry them to any police-station or Court at which a complaint connected with the stealing or receiving of such things has been made, or an inquiry connected with such stealing or receiving is in progress, and there detain such things until the dismissal of such complaint or the conclusion of such inquiry or of any trial thence resulting.
(2) In every such case the police-officer seizing the things shall send written notice of their seizure and detention to the nearest custom-house and immediately after the dismissal of the complaint or the conclusion of the inquiry or trial, he shall cause such things to be conveyed to and deposited at, the nearest custom-house, to be there proceeded against according to law.
It is clear from above section that police can carry such vehicles to any police-station or Court at which a complaint connected with the stealing or receiving of such things has been made and can kept under custody till the conclusion of inquiry or trial but not otherwise and as per sub-section (2) they are bound to inform the nearest custom-house.
3. Coming to the question of application of Section 523, Cr.P.C. in this case which was not as complex as learned Additional Session Judge has perceived because correspondence of police was started immediately with Directorate of Intelligence & Investigation FBR, Multan and police was finally directed to hand over the said vehicle to the Directorate. Before proceeding further, let see what the Section 523, Cr.P.C. says which is as under:
523. Procedure by police upon seizure of property taken under Section 51 or stolen: (1) The seizure by any police officer of property taken under Section 51, or alleged or suspected to have been stolen, or found under circumstances which create suspicion of the commission of any offence shall be forthwith reported to a Magistrate who shall make such order as he thinks fit respecting the disposal of such property or the delivery of such property to the person entitled to the possession thereof, or if such person cannot be ascertained, respecting the custody and production of such property.
(2) Procedure where owner of property seized unknown: If the person so entitled is known, the Magistrate may order the property to be delivered to him on such conditions (if any) as the Magistrate thinks fit. If such person is unknown, the Magistrate may detain it and shall, in such case, issue a proclamation specifying the articles of which such property consists, and requiring any person who may have a claim thereto, to appear before him and establish his claim within six months from the date of such proclamation.
This section requires that seizure of property shall be forthwith reported to “a Magistrate” which does not mean Area Magistrate in all cases but one who is authorized under the law to deal with property so taken. If the vehicle is seized under Control of Narcotics Substance Act, 1997, only Court concerned would deal with the vehicle and not the Area Magistrate, similar is the case for all other special laws. Police was bound to hand over such vehicle to Directorate of Intelligence & Investigation FBR, Multan. That was a right course, involvement of Magistrate in such matter is not required under the law who could only tackle the properties mentioned in Section 523, Cr.P.C. It is trite that provisions of special law prevail over general law; a special procedure has been given in the Customs Act, 1969 with respect to seizure of non-custom paid vehicle and dealing with offence therein. Such procedure is more comprehensive as per section sections 179 and 180 and it also includes a provision of regularization of such vehicles as per following section;
Honourable Supreme Court in the case of “Adam vs. Collector of Customs, Karachi and another” reported in PLD 1969 Supreme Court 446, has observed as follows:
“………. The intention of the Legislature in thus clear that the disposal of the goods seized under the Act is left entirely in the jurisdiction of the custom authorities. The proceedings taken by the custom authorities for the confiscation of the goods are more in the nature of departmental proceedings which have been characterized in English and American jurisprudence as proceedings in condemnation of the goods for the purpose of revenue and are regarded as proceedings of a civil nature, despite their penal character ……”
This view has been affirmed in “State through Director-General, Pakistan Coast Guards, Turbat vs. SABRO and another” reported in (1992 P Cr. L J 1795), another Single Judge (Munawar Ahmed Mirza, C.J., as he then was) acting under the Appellate Jurisdiction under the Customs Act (Quetta) has observed as follows:-
“………….. Therefore, in the peculiar circumstances question of adjudication vested in Custom forums as authoritatively determined by the Honorable Supreme Court in case Adam v. Collector of Customs Karachi and another P L D 1969 SC 446. It is quite evident that powers of Special Judge Customs are only restricted to trial of the accused who have committed offence for the violation of Custom Act.
However, adjudication of property subject-matter of seizure exclusively falls within the domain of Customs authorities as contemplated by sections 179 and 181 of the Customs Act.”
This view is supported with above cited Judgment of Honourable Supreme Court reported as PLD 1969 Supreme Court 446 wherein it was held as under:
“Both are concurrent remedies but each is independent of the other. They cannot, therefore, be deemed to be mutually exclusive. Therefore, no question of double jeopardy arises when simultaneously or subsequently a trial is held to determine the guilt of the individual, who has been concerned in the offences in respect of the goods, which are the subject-matter of the adjudication proceedings. And since the proceedings for adjudication by the Customs Authorities and the criminal prosecution of the offender in the Court are not interdependent, they can proceed simultaneously and neither can remain under suspension for the sake of the other.”
Similar view was reiterated in another case reported as “Government of Pakistan through Additional Secretary (Customs), Ministry of Finance, Islamabad and another vs. Mahmood Ahmed Qureshi and another” (PTCL 2002 CL. 579).
“The question emerging for consideration of this Court is whether the vehicles seized have been lawfully imported and the persons importing them have paid the duties and taxes leviable thereon. The answer to the question is simple no. When this being the case, the learned Additional Sessions Judge could not have passed an order for their disposal under Section 516-A of the Cr.P.C. nor could the High Court in the hierarchy affirm such order.”
In two other cases reported as “Bhutto Khan and 4 others versus Director General Of Police Khyber Pakhtunkhwa Peshawar and 4 others” (2018 PTD 1716) and “Muhammad Salam versus the State and another” (2019 PTD 1595); it has been held:
“Admittedly, the vehicles in question were neither brought into settled area in accordance with the provisions contained in the Customs Act, 1969 nor the custom duty nor any duties and taxes leviable thereon were paid by its importers, hence, neither the High Court nor Sessions Judges nor judicial Magistrates have power to release such vehicles on superdari. These vehicles are subject to departmental adjudication as envisaged under the Customs Act, 1969.”
The Customs Act, 1969 authorizes the police to take possession of any vehicle only for the assistance of Custom Officers and not for any other purpose; relevant section is reproduced for reference:
7. Assistance to the officers of customs:.--All officers of Federal and Provincial Governments, including Inland Revenue, Police, National Highways and Pakistan Motorway Police, Civil Armed Forces, Border Military Police (BMP) and officers engaged in the collection of land-revenue are hereby empowered and required to assist the officers of customs in the discharge of their functions under this Act. The provision of assistance so requested shall be binding.
17. The police personnel who seized the vehicles in question, were not authorized officer under the Custom Act, and they were never conferred with such power of seizer, in case when there was no tempering of chassis etc. since then all the further proceeding conducted in consequence thereof in regard to illegal seizure falls to ground and the vehicles shall not be out rightly confiscated in the shield of S.R.O. 499(I)/2009.
In the same judgment further reliance was upon an earlier decided case in the context of this query, which the Court has referred as under:
18. This proposition has been already settled by the learned Tribunal Karachi Bench, Karachi in case of Sheikh Nazir Ali v. Customs Central and Excise and others (PTCL 2002 CL 340) and thereafter consistently followed by Courts of the country in this regard. This Court in an unreported case of "Additional Director Intelligence and Investigation, Peshawar v. Sartaj Khan" [T.R. 5-P/20120] decided on 5-6-2012 has held similar view as:
"It was also held that under the relevant provision of Customs Act, 1969, the police have no power to take into possession of the said vehicle. Moreover, no tempering was deciphered on its chassis number, thus the same was held to be non-duty paid vehicle there to release the vehicle on payment of fine equal to 20% of its customs value in addition to leviable duty and taxes was declared as legal order passed by the learned Appellate Tribunal Peshawar."
171. No police officer to be liable to any penalty or payment of damages on account of acts done in good faith in pursuance of duty.--No police officer shall be liable to any penalty or to payment of damages on account of an act done in good faith in pursuance or intended pursuance of any duty imposed or any authority conferred on him by any provision of this Order or any other law for the time being in force or any rule, order or direction made or given therein.
6. For what has been discussed above, this writ petition is allowed, order of Learned Additional Sessions Judge D.G Khan dated 03.04.2018 is set aside as prayed for; however, Custom authorities can recourse to legal remedy available under the law as explained in this decision for custody of vehicle and confiscation thereof.
(Y.A.) Petition allowed
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