A.K. Reazul Karim (Appellant)
FKMA Munim CJ
Badrul Haider Chowdhury J
Shahabuddin Ahmed J
Chowdhury ATM Masud J
Syed Md. Mohsen Ali J
August 17, 1983.
The Customs Act, 1969 (IV of 1969)
Customs officers are authorized to deal with offences mentioned in the Customs Act.
The Bureau of Anti-Corruption cannot investigate an offence under section 156 of the Customs Act on the strength of a Government notification when it is being carried out by the Customs Authority as improved by the prosecution of the Customs Act itself……………(2)
Customs Act has assigned the role envisaged under sections 80-83 only to a Customs Officer who is kingpin of the entire enactment……………..(22)
The Customs Act, 1969 (IV of 1969), Section 6
Customs officer’s authority under the Customs Act and that the Police Officer under the Code of Criminal Procedure are different. The Police officer has not been given any function under the Customs Act…………..(35)
The Customs Act, 1969 (IV of 1969, Section 156;
Anti-Corruption Officer’s jurisdiction is attracted only when the offence is committed………….(41)
Scheme of the Customs Act-Augmenting Revenue
The entire scheme of the Customs Act shows that the main concern of the Customs Authority is to augment the revenue by levying tariff duties under the Customs and Tariff Acts and for preventing smuggling…………..(48)
Customs Act, 1969 (IV of 1969), Section 156
Offences under the Customs Act fall under two categories- One class of offence dealt with by the Customs Officers themselves and another class is dealt with by the Magistrate who on trial may impose sentence or punishment. Even those which are triable by the Magistrate, the Customs Officer may in addition confiscate the goods…………..(60)
Smuggled goods- non-submission of necessary parts-itself an offence entailing confiscation of goods………………..(63)
Words and phrases
The provision for sanction is intended to protect officers of the Government from harassment by unnecessary, frivolous or malicious prosecution. No prosecution shall lie against, these public servants without prior sanction……………….(65)
The Customs Act, 1969 (IV of 1969), Section 156
For customs offences which are triable by the Magistrate, procedure for trial is provided by section 5(2) of the Code of Criminal Procedure…………(70)
Items (8), (82) of section 156 of the Customs Act are cognizable offences and as such the police can investigate such on its own motion. No formal complaint by the Customs Authority is necessary……………(71 & 72)
The Anti-Corruption Act, 1957 (E.P. Act No. XXVI of 1957)
Anti-Corruption Bureau can investigate under the Anti-Corruption Act, 1957 (E.P. Act No. XXVI of 1957) as he is already empowered by section 5 (2) of the Act II of 1947.
Cases Referred to-
Dy. Supdt. of Customs Vs. Sitaram Navsaria, AIR 1968 Cal. 274; Illias Vs. Collector of Customs AIR 1970 (SC) 1065; AIR 1962 (SC) 276; AIR 1953 Cal. 219; AIR 1967 (SC) 1298; Mohammed Sarwar Vs. The State 1969 21 DLR (SC) 182; Ghulam Abbas Vs. The State 20 DLR (WP) 48; PLD 1969 (SC) 278; Lakshminarayan Vs. Collector of Customs AIR 1961 Cal. 616.
Mainul Hosein, Advocate (Md. Joynal Abedin, Advocate with him) instructed by Md. Aftab Hossain, Advocate-on-Record— For the appellant.
Moksudur Rahman, Deputy Attorney-General, instructed by Shahabuddin Ahmed, M. R. Khan, and A. W. Mian, Advocate-on-Record — For the respondent.
Criminal appeal Nos. 13, 14 and 15 of 1983.
(From the Judgment and order dated 2-11-1982 passed by the High Court Division in Criminal Revision Nos. 503, 504 and 526 of 1982).
FKMA Munim CJ- I have gone through the judgments of Badrul Haider Chowdhury, J. and also those of Shahabuddin Ahmed and Chowdhury A.T.M. Masud JJ. and agree with the reasonings as well as the conclusion reached by Badrul Haider Chowdhury J. Without duplicating the lines of arguments in his judgment adopted by him, I would like only to add a few words on the question of conflicting claims as to jurisdiction of the two important departments of the Government, the Customs and Anti-Corruption, to investigate any offences punishable under section 156 of the Customs Act. As one of the major revenue earning departments of the Government, the Customs Department has primarily been authorised by an Act of the legislature, namely, Customs Act, 1969 to deal with the import and export of goods into and from Bangladesh. Their authority to deal with offences and penalties is provided in the Table below section 156 of the Act. Elaborate provisions regulating the procedure relating to investigation of the offences are also provided in the Act. As these provisions have been noted in the judgment of Badrul Haider Chowdhury J, they need not be once more repeated here. From these provisions in the Customs Act, it is apparent that the legislature has conferred ample authority upon the Department of Customs to handle the clearance and delivery of goods both on their arrival to and departure from any port in Bangladesh as well as to deal with the offences mentioned in the Act which may have been committed by persons bringing such goods into or sending them out from Bangladesh. One of the primary duties of the Department of Customs in addition to checking in or checking out of such goods is as to imposition of duties on them, whenever necessary. On the other hand, the Bureau of Anti-Corruption which was set up under the Anti-Corruption Act, 1957 has been authorised under the Government Notification dated 23.8.72 to inquire into and investigate the offences punishable under section 156 of the Customs Act, 1969. It appears that the Government by issuing this notification attempted to provide the Bureau with the power of enquiry into and investigating offences committed in the course of import and export of goods into and from Bangladesh. Apparently the provision in clause (4) of the Notification would seem to have conferred concurrent jurisdiction on the Bureau of Anti-Corruption to enquire into and investigate customs offences as mentioned therein.
2. To me, it seems that though the conferment of jurisdiction on the Bureau of Anti-Corruption may ordinarily appear to be concurrent with that of the Customs Department there is, for all theoretical and practical purposes, a fine line of demarcation between the exercises of jurisdiction by these two departments in the matters mentioned above. It can surely be said and it is undoubtedly right to say so that the Bureau of Anti-Corruption was empowered to carry on an enquiry into and investigate Customs offences along with the Department of Customs. The question is, can it, therefore be conceded and does it, therefore, follow from the conferment of such power upon the Bureau of Anti-Corruption that such powers has led to the ouster of jurisdiction of the Customs department to exercise the same power which has been conferred upon it by the Customs Act. The answer must be in the negative for the simple reason that had the legislature contemplated such ouster of jurisdiction of the Customs department upon making similar claim by the Bureau of Anti-Corruption there should have been express provisions in the Customs Act itself. In the absence of any such express provisions would it be assumed that the provisions of Clause (4) in the Government Notification dated 24,8.72 has led to such ouster. Moreover, when it is a well-established principle of law that no subordinate legislation can nullify the express provisions of an Act of the legislature though they may be in conflict with such notification. Had it been the intention of the legislature, while enacting the Customs Act, to oust the jurisdiction of the Customs Department, it would have done so in clear words.
3. The point, therefore, remains how the two departments are to act when offence under the Customs Act has been committed. I have no doubt in my mind and I think, I would not be wrong to say that the Bureau of Anti-Corruption can come in to hold an enquiry into and investigate any offence under the Customs Act when similar enquiry and investigation has either been completed as contemplated by the Act or when no such enquiry and investigation has at all been undertaken by the Customs Authority. The former begins when the latter has ended or did not at all start and the time for holding the enquiry has expired. The time for such enquiry and investigation under the Customs Act being still open to the Customs officers, any claim by the Bureau of Anti-Corruption to start an enquiry and investigation before they are undertaken by the Department of Customs would not only lead to chaos and confusion but such premature attempt at enquiry and investigation would lead to the frustration of the legislature’s aims and objects as mentioned above. If that was the intention of the legislature, this should have been expressly provided in the Customs Act itself. By a process of interpretations the scope of the provisions in the Government notification cannot be widened. This Court expresses its inability to enlarge the power of enquiry and investigation by the Bureau of Anti-Corruption so as to enable it to start such inquiry and investigation even prior to one by the Customs department. Whenever there is any scope for possible conflict in exercising the respective powers of more than one authority similarly empowered, areas of operation require strict delimitation between them. What is the object of the Customs Act? It relates to levy and collection of Customs-duties and provides for other allied matters. To achieve this object certain powers and functions have been conferred upon the customs officials. Since the levy and collection of duties of customs are considered to be of paramount importance, sections 5 and 7 of the Act have provided for entrustment of functions of the Customs officers to officers of any other Government department which can be done by a notification of the Board of Revenue and also for assistance to customs officers by officers of Excise, Police and Civil Armed Forces so they may discharge well their functions conferred upon by this Act.
4. Detection of offences under the Customs Act is one of such functions of the customs officials. Now, if by Government notification issued under the Anti-Corruption Act, the Bureau of Anti-Corruption has been empowered to discharge the aforesaid function concurrently with the customs officers, how they can do? The Government notification has prescribed no procedure for exercising such concurrent powers. Mere conferment of substantive power is not enough, when for its exercise no procedure has been laid, and more so, when its exercise leads to interference with the paramount duties and functions of the customs officers imposed upon them by the Customs Act.
5. If, even before the customs officers have started their normal duties under the Act which involves detection of offences by intending importers or exporters, the officers of the Anti-Corruption department claim to exercise the powers entrusted to the former, this would not only tantamount to interference but result in complete demoralisation of the customs officers as a whole thus frustrating the very object and purpose of setting up the Customs Department, or if the officers of the Anti-Corruption claim to proceed against the customs officers, hew can this be permissible even before the latter has started functioning? I confess that I fail to understand the rationale of their approach. Such approach is neither justified if the most elaborate provisions of the Customs Act are properly looked into and considered, nor can it find support if the reality and sequence of the situation is borne in mind.
6. Judging from these view points, the claim of the Customs Authority which has been made by the highest authority controlling that department, namely, the Board of Revenue, must be conceded. The attempt of the Bureau of Anti-Corruption to make the enquiry into and investigation of the alleged offence, therefore, seems to be premature. I fully agree with the views of the Board of Revenue in this respect.
7. Before conclusion, I cannot help mentioning that the attempt to prosecute the appellant even before he started functioning as provided in the Customs Act is neither legally permissible nor desirable. I shall also mention and it bears repetition that in view of the express opinion of the highest authority of the Department of Customs, namely, the Board of Revenue, against the claim of the Bureau of Anti-Corruption, it should have restrained its hands. Claim to exercise legal power, whether conferred by an Act of the legislature or any subordinate legislation hereunder requires adjustments and modifications. Such adjustments and modifications may be necessary due to restriction appearing elsewhere, either in the express provisions of any other Act or any restrictive interpretation by the Court appearing from their absence in such Act. Besides, there is the need of maintaining departmental courtesy. When apparently there have been such conflicting claims by the two departments of the Government the matter should have been referred to the Ministry of Law or even the Government for their opinion as decision, as the case may be, by any one or both the departments concerned. I have nothing further to add.
Badrul Haider Chowdhury J.-These three appeals by special leave arise out of the judgment and order passed by a Division Bench of the High Court Division, Comilla Bench in Criminal Revision No. 503 of 1982, 504 of 1982 and 526 of 1982 discharging the Rules for quashment of the proceeding in A.G.R. Case No. 52 of 1980, A.G.R. Case No. 24 of 1979 and A.G.R. Case No. 53 of 1980.
9. Facts are as follows: In A.G.R. Case No. 52 of 1980 the allegation is that accused Masuk Ali imported two packets of Cassette Tapes containing one thousand recorded Cassette Tapes vide Air Ways Bill No. 997-8004-9509 dated 30.1.79 from Singapore which reached Sylhet Airport on 12.2.79. These Tapes were carried to the Customs Air Freight-cum-Biman godown. The Importer obtained an Import Permit dated 9.3.1979 from the Assistant Controller of Import and Exports, Sylhet and with the help of the said Imports Permit Masuk Ali was trying to release the said consignments. The District Anti-Corruption Officer, Sylhet got secret information about it and he wanted to verify the contents and seize the contraband goods. This was, however, resisted by the Customs officer on the point of jurisdiction. The District Anti-Corruption however, on 30.7.79 opened the consignment and seized them by a seizure list. Thereafter they filed a F.I.R. on 10.10.79 against the petitioner, the Customs Officer and others under section 5(2) of the Prevention of Corruption Act, 1947 alleging that the importer in collusion with the Customs Officer ”was trying to release the said consignments” and the Customs officer misused their official position for obtaining pecuniary advantage for themselves or for the said Masuk Ali and thus committed offence punishable under section 5(2) of the Prevention of Corruption Act.”
10. In the said F.I.R. the complainant made allegations that A.G.R. Case No. 24 of 1979, 56 items of old and used clothes valued at Tk. 600/- and one old sewing machine valued at Tk. 800/- was not seized and the Import Permit holder Ana Mia with accused clearing agent Abdul Hamid in collusion with the Customs Officials tried to clear the goods and thereby deceive the Government by evading Customs duty and sales tax”. The Customs officials it is alleged did not take any action in spite of their knowledge about the suspected evasion of duty.
11. In A.G.R. Case No. 53 of 1980, 20 dozens of handkerchiefs were imported which were banned items “but through contrivance the importer was allowed to release the goods and the Customs officials deliberately made short assessment” and when the investigation started the Customs Officials in order ”to save their skin issued a demand notice for further amount”.
On these allegations charge-sheet was submitted on 14.10.79 against the petitioner and 3 other accused persons.
12. The appellant Deputy Collector of Customs filed petition for quashing of these proceedings which are now pending in the Court of Sub-Divisional Magistrate. The High Court Division noticed that in the first two cases, namely, A.G.R. case No. 54 of 1980 and A.G.R. Case No. 24 of 1979 the importer “tried to clear the goods by evading customs duty and sale taxes to the tune of Tk. 38,350/- due to the State” and the allegation in A.G.R. Case No. 24 of 1979 is that the Customs Official “tried to clear the goods and thereby deceive the Government by evading customs duty and sale taxes and in A.G.R. Case No. 53 of 1980 they deliberately made underassessment”. The High Court Division then noticed the background of the case namely “bitter recrimination with the officials of Bureau of Anti-Corruption over their authority and jurisdiction in dealing with the matter under the view that the Bureau of Anti-Corruption had no authority to inspect their work”. This bitterness went to such extent that ultimately the District Anti-Corruption had to move the National Board of Revenue for permission to investigate the offence. In passing, the Division Bench noticed the grudge of the Customs Officials against the Anti-Corruption Officer and came to the conclusion that the goods were not released to the importer so far A.G.R. Case No. 52 of 1980 and 24 of 1979 are concerned.
13. Leave was granted to consider the contention that the allegation does not constitute any offence and admittedly the imported goods are still in the custody of Customs and no order was passed for clearance of the same. The contention is that in such circumstances the question of obtaining pecuniary advantage within the meaning of Prevention of Corruption Act does not arise and therefore the criminal prosecution should be quashed.
14. Mr. Mainul Hosein, the learned Counsel drew our attention to the observation of the High Court Division which is as under:-
“It is true that the allegations as made in charge-sheets in the aforesaid two cases do net disclose that any pecuniary advantage was actually obtained either by the Customs Officials or others or that the Government suffered any loss or revenue”.
Notwithstanding this observation the High Court Division discharged the rules as the allegations “are far more serious in that the officials were said to be in collusion with the importers and have deliberately failed to take appropriate steps under the Act to safeguard the Government interest and been making attempt to obtain pecuniary advantage constituting an offence of criminal misconduct”. In this view of the matter rules were discharged.
15. The learned Counsel contended that it was really a jockeying competition between the Customs and the Anti-Corruption Department. The District Anti-Corruption Officer attempted to interfere in the jurisdiction of the Customs Officer on the purported authority of a Notification dated 23.8.72. The learned Counsel contended that being armed with such a notification, the Anti-Corruption Department attempted to interfere in the exercise of jurisdiction of the Customs officers which has been exclusively conferred upon the Customs officer by the Customs Act, 1969. The Notification dated 23.8.72 is as under:
“No. FMB/AC-24/72-346-23rd August 1972-in exercise of the powers conferred by sub-section (1) of section 3 of the Anti-Corruption Act, 1957(E.P. Act XXVI of 1957), the Government of the People’s Republic of Bangladesh is pleased to notify that the Bangladesh Bureau of Anti-Corruption shall also enquire into and investigate the offence mentioned below:
(1) Offence punishable under sections 186, 188, 189, 332, 363, 489A, 489B, 489C, 489D and 489E of the Penal Code, 1860 (Act XLV of 1860).
(2) Offence punishable under the Official Secrets Act, 1923 (Act XLV of 1923).
(3) Attempts, abetments and conspiracies in relation to, or in connection with, offences mentioned in serial numbers 1 and 2 above.
(4) Offence punishable under section 156 of the Customs Act, 1969 (Act IV of 1969).”
16. The learned Counsel canvassed that the notification enabled the Bangladesh Anti- Corruption to enquire into an investigate the offence punishable under section 156 of the Customs Act 1969. In this case even the finding of the High Court Division is that though no offence was committed under section 156 of the Customs Act but the allegations is that the “officials were said to be in collusion with the importers and have deliberately failed to take appropriate steps under the Act to safeguard the Government interest and been making attempt to obtain pecuniary advantage constituting an offence of criminal misconduct.
17. Section 156 provides for the punishment of the offence mentioned in column 1 of the table and as many as 98 categories of offence are mentioned therein. Of these only items 81 and 82 are relevant for the purpose of the disposal of the appeals.
They are as follows:
“81. If any officer of customs, or other person duly employed for the prevention of smuggling, is guilty of a willful breach of such officer or person shall, on conviction before a Magistrate, be liable to imprisonment for a term not exceeding three years, the provisions of this Act.
82. If any officer of customs, or other person duly employed for the prevention of smuggling, practices or attempts to practice, any fraud for the purpose of injuring the customs-revenue, or abets or connives at any such fraud, or any attempt to practise any such fraud. or to fine, or to both. Such officer or persons shall on conviction before a Magistrate, be liable to imprisonment for a term not exceeding three years, or to fine or to both.”
18. Facts as narrated above show that the recorded cassettes were lying with the Customs. Although the importer obtained an import permit on 9.3.79 from the Assistant Controller of Imports, Sylhet the Customs officials did not release the goods. Be it noted that the goods were imported on 12.2.79. The District Anti-Corruption Officer wanted to seize this contraband goods on getting secret information. The Customs Officers resisted such attempt by the District Anti-Corruption Officer. The matter came to crisis over this point. The attitude maintained by the Anti-Corruption Officer was that it was within his jurisdiction to seize goods as they were contraband whereas the attitude adopted by the Customs Officers that the matter still awaits adjudication by them.
19. The question is whether the offence under 81 or 82 has been committed. Could it be said that the Customs officer is guilty, of willful breach of the provision of this Act within 156(81) or could it be said that the Customs officer practiced or attempted to practice any fraud for the purpose of injuring the customs revenue or abet or connive at any such fraud or any attempt for practicing any such fraud. The learned Judges of the High Court Division clearly came to the conclusion that the facts do not disclose that any pecuniary advantage was actually obtained-either by the customs officials or others or that Government suffered any loss of revenue. Thus the offence under section 156(82) is clearly ruled out. The only question is whether any offence under section 156(81) has been committed, namely, whether the officer is guilty of a willful breach of the provision of the Act.
20. The learned Counsel placed before us the sections and provision of the Customs Act. Section 2 (o)-“Officer of customs” means an officer appointed under section 3 and in section 3 four categories of officers are mentioned. Section 4 retained the powers and duties of officers of customs. Section 5 deals with delegation of powers. Section 6 deals with the entrustment of functions of the customs officers to certain other officers of the Government. In India Police officer have been conferred powers of such seizure under certain circumstances which will be discussed in details in the appropriate place. Section 7 provides for assistance to the officer of customs-” All officers of Central Excise, Police and the Civil Armed Forces and all officers engaged in the collections of land-revenue are hereby empowered and required to assist officers of customs in the discharge of their function under this act”. Sections 12 & 13 give the power to the Collector of Customs to appoint public warehouses and to license private warehouse wherein dutiable goods may be deposited without payment of customs-duty. Chapter V deals with levy of, exemption or repayment of custom duty. Then section 79 deals with the entry for home consumption or ware housing and section 80 provides for assessment of duty of such goods. Section 81 provides for provisional assessment of duty when goods are allowed to be cleared or delivered on the basis of such provisional assessment provided that the importer furnishes a bank guarantee to cover the excess of the final assessment of duty over the provisional assessment. Then conies section 82 which are as follows:
“82. Procedure in case of goods not cleared or warehoused or transshipped within two months after unloading if any goods are not entered and cleared for home consumption or warehouse or transshipped within two months of the date of unloading thereof at a customs-station or within such extended period as the appropriate officer may allow, such goods may after due notice given to the owner if his address could be ascertained, or published in the official gazette, if his address could not be ascertained, be sold under the orders of the appropriate officer:
(a) animals and perishable and hazardous goods may, with the permission of the appropriate officer, be sold at any time;
(b)arms ammunition or military stores, may be sold or otherwise disposed of at such time and placed and in such manner as the Board may, with the approval of the Central Government direct;
Provided further that nothing in this section shall authorize removal for home-consumption of any dutiable goods without payment of customs duties thereon”.
Section 83 provides for clearance of goods after assessment of duty and payment thereof. If the appropriate officer is satisfied that the import of the goods is not prohibited or in breach; any restrictions or conditions applying to the import of such goods, then he can make an order for the clearance of the same.
21. In all the aforesaid sections of the Act two types of officers are mentioned, namely, ‘customs officer’ and ‘appropriate officer’ which again is defined in section 2(b) which means-“in relation to any functions to be performed under this act, means the officer of Customs to whom such functions have been assigned by or under this Act”.
22. Thus the Customs Act has assigned the role only to a customs officer who is king-pin of the entire enactment. The jurisdiction is conferred on him and on him alone by law. So far as entry of dutiable goods are concerned and until its clearance the Customs officer is obliged to scrutinise the document of the importer and keep the goods in the customs warehouse. Section 82 provides for a period for clearance namely within two months from the date of unloading or within such extended period as the appropriate officer may allow except in the case of perishable and hazardous goods which may be sold with the permission of the appropriate officer.
Next, we come to the provision under Chapter XVIII dealing with Prevention of Smuggling— Powers of search, seizure and arrest—adjudication of offences.
23. Section 158 gives power to search to the appropriate officer Section 159 provides that the search could be taken before a Gazetted officer if such a person so desires. Section 161 gives the power to arrest by the Customs officer. Sub-sections (2) and (3) provides for the arrest of any person who has committed an offence of smuggling but such person must be taken to the nearest Customs Officer and if there is no customs officer such person can be taken to the officer-in-charge of the nearest Police Station. Sub-section (5) provides that the customs officer shall proceed against such person and sub-sections (6) and (7) say—
(6) For the purpose of an inquiry under sub-section (5), the officer of customs may exercise the same power, and shall be subject to the same provisions, as an officer-in-charge of a Police-station may exercise and is subject to under the Code of Criminal Procedure, 1898 when investigating a cognizable offence. Provided that if the officer of customs is of opinion that there is sufficient evidence or reasonable grounds of suspicion against the accused person, he shall, if the offence be bailable, either admit him to bail to appear before a Magistrate having jurisdiction, or have him taken in custody before such Magistrate.
(7) If it appears to the officer of customs that there is no sufficient evidence or reasonable ground of suspicion against the accused person, he shall release the accused person on his executing a bond, with or without sureties as the officer may direct, to appear, if and when so enquired, before the Magistrate having jurisdiction and shall make a full report of the case to his immediate superior. Section 163 gives the power to an officer of the Customs not below the rank of an Assistant Collector of Customs to search and arrest without warrant. Section 166 gives the power to any Gazetted officer of customs to summons persons to give evidence and produce documents or things. Then section 169 provides—how the seized things will be dealt with. All these functions are to be performed by Customs Officer or an appropriate officer.
24. Then comes section 170 which provides the procedure in respect of things seized on suspicion by the police and sub-section (2) says as under:
“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 enquiry 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.”
Section 179 deals with power of adjudication which is as under:
“179. Power of adjudication.—In cases involving confiscation of goods or imposition of penalty under this Act, the jurisdiction and powers of the officers of customs shall be as follows:
(1) A Collector of Customs may deal with cases where, the value of the goods exceeds ten thousand rupees;
(2) A Deputy Collector of Customs may deal with cases where the value of the goods does not exceed ten thousand rupees:
(3) An Assistant Collector of Customs may deal with cases where the value of the goods does not exceed two thousand five hundred rupees;
(4) Any other officer of customs as the Board may authorize by virtue of his powers may deal with cases where the value of the goods does not exceed two hundred and fifty rupees;
(5) Any officer of customs shall be competent to impose any penalty under section 156 in any case which he is authorised to deal with:
Provided that the Board may, by notification in official Gazette reduce or extend the jurisdiction and powers of any particular officer or class of officers.
Section 180 provides for issue of show cause notice before confiscation of goods or imposition of penalty. They read as follows;
“180. Issue of show cause notice before confiscation of goods or imposition of penalty—No order under this Act be passed for the confiscation of any goods or for imposition of any penalty on any person, unless the owner of the goods, if any, or such person—
(a) is informed in writing (or if the person concerned consents in writing orally) of the grounds on which it is proposed to confiscate the goods or to impose the penalty.
(b) is given an opportunity of making a representation in writing for if the person concerned indicated in writing his preferences for it orally) within such reasonable time as the appropriate officer may specify, against the proposed action; and
(c) is given a reasonable opportunity of being heard personally or through a counsel or duly authorised agent.
Section 161 gives an option to pay fine in lieu of confiscated goods. It says whenever an order for the confiscation of goods in passed under this Act, the officer passing the order may give the owner of the goods an option to pay in lieu of the confiscation of the goods such fine as the officer thinks fit. The explanation says—Any fine in lieu of confiscation of goods imposed under this section shall be in addition to any duty and charges payable in respect of such goods, and of any penalty that might have been imposed in addition to the confiscation of goods. Section 198 gives power to the appropriate officer to open package and examine the containers. Section 200 provides that owner to make all arrangements and bear all expenses for opening and unpacking, etc. Section 201 provides procedure for sale of goods and section 202 provides for recovery of Government dues. Section 218 provides for notice of proceedings without which no proceeding in the court other than a suit shall be commenced against a Customs officer.
The entire Chapter XXVIII have conferred power only oh the Customs Officer or the appropriate officer and no where in the Customs Act any police officer or in other class officer has been assigned any role.
25. Section 6 corresponds to section 6 of the Indian Customs Act, 1962 which reads as follows:
“The Central Government may, by notification in the official. Gazette, entrust either conditionally or unconditionally to any officer of the Central or the State Government or a local authority any functions of the Board or any officer of Customs under this Act.
The Indian Government by notification—S.0928 Gaz. Ind. 27.3.1965, Pt. II. S.3 (ii) page 1030 provided for entrustment of functions under section 100 (Power to search), 102 (to be searched, before the Magistrate), 106 (Power to stop and search conveyances) 110 (Seizure of goods), 101 (Power to search suspected persons) and 104 (Power to arrest) to certain police officer in the districts of Thajjavur Tirunelvell, Ramanath-Puran and Kanyakumari in the State of Madras (now Tamil Nadu). Again by a notification No. 12-Customs/F No. 394/12/-77-CUS III (A.S) dt. 14.2.1981 all officers of the Coast Guard constituted under the Coast Guard Act, 1978 have been entrusted all functions under section 37 (Power to board conveyances), 38 (Power to require production of documents), 100 to 104 (Power to search, seizure and arrest), 106 (Power to stop and search conveyances), 107 (Power to examine persons), and 110 (Seizure of goods).
Thus in India by specific Notification Police officer and Coast Guard have been entrusted specifically certain powers under the Customs Act, 1962.
26. Our Customs Act was promulgated in 1969 (Act IV of 1969) and the Sea Customs Act, 1878 and Land Customs Act of 1924 were repealed. In the Land and Sea Customs Act Notification No. 67-C dated 24th December, 1954 was promulgated empowering the officer of Police Department not below the rank of Sub-Inspector of the Tharparkar, Nawabshah, Sukkur and Sanghar Districts, Officers of the Police Department, not below the rank of Assistant Sub-Inspector and the officers of Tatta District, Coastal Watching Staff not below the rank of Assistant Sub-Inspector and the officers of the Sind Principal Excise Department not below the rank of Assistant Inspector who shall within their respective jurisdiction exercise the powers and perform the duties laid down in section 169 (Power to search on reasonable suspicion) 170 (search before the Magistrate or the Customs Collector), 171 (Power to stop vessel etc and search), 173 (arrest of suspected persons), 178 (seizure of things liable to confiscation and 181 (reasons in writing to be given for seizure or arrest).
27. Thus the Legislative policy appears to be that whenever power was conferred on any officer other than Customs officer, appropriate Gazette notification was always made entrusting the officer designated for performing the function under the Customs Act.
28. The only notification that has been placed before us is the one dated 23.8.1972 which has been quoted above. When the goods arrived on 12.2.1979 these cassettes were taken to the Customs Godown. The Importer obtained an Import Permit dated 9.3.79. Even then Customs Officer did not release the said consignment. The District Anti-Corruption Officer wanted to seize the goods acting on the purported authority of the Notification dated 23.8.72. This was resisted by the Customs Officer and the quarrel was initially over the question of jurisdiction. It is not disputed by the respondent that the initial question was the question of jurisdiction. In other words, whether the Customs Officer had the exclusive jurisdiction to deal with the contraband goods or whether the Police officer acting on secret information could verify and seize the contraband goods which was lying in Customs Godown. The matter ultimately was taken to the highest level inasmuch as the conflict of jurisdiction between the two parties were evident.
29. Mr. Mainul Hosein pointed out section 192 and argued that even under sub-section (2) the officer-in-charge of the Police could receive any information of any offence under the Customs Act shall, as soon as possible, communicate it to the officer-in-charge of the nearest Customs house or Customs station. Again section 161 sub-sections (6) and (7) clearly show that the ultimate authority is the Customs officer to take any decision regarding the seizure of goods and arrest of a person and the police officer merely acts to assist officer of Customs in the discharge of their function under this Act” (Section 7). Thus the Customs Act, 1969 has empowered only the Customs officer and in present case no such power had been conferred on the Anti-corruption as was done in India and Pakistan under the Land Customs Act, 1878 as mentioned above insofar the border police and coast guard are concerned. No other Notification empowering the Police officer to perform function under the Customs Act has been produced before us.
30. In the case of Deputy Superintendent, Customs, Preventive, West Bengal Vs. Sitaram Navsaria and another, AIR 1968 Calcutta 274 Police seized a lorry loaded with bundle of cinnamon and cloves of foreign origin and certain categories of goods mostly ball bearing and steel files which were believed to be smuggled property. The seizure was done under section 54 Cr. P. C. or under section 411 I.P.C. while the case was pending for investigation by the Police, the Customs authority made an application to the Chief Presidency Magistrate praying for a direction on the Investigating Officer concerned to hand over the seized goods to them, at the conclusion of, the investigation or trial to facilitate proceeding under the Customs Law against the offender concerned. This petition was ordered to be put up at the concision of the Police Investigation. The police ultimately submitted final report and the Chief Presidency Magistrate considered the prayer of the Customs Authority that the goods seized may be handed over to them. The learned Magistrate declined to pass such order and thought that the proper order would be to return the goods to the accused and the Customs Authority may, if necessary, thereafter mike their own independent seizure from the person who take delivery of goods without further reference to the Court. The propriety of such order was questioned before the Calcutta High Court and the learned Single Judge noticed section 110 which empowers the Customs Officer for seizure of goods, document etc. and observed:
“Section 110 of the Customs Act gives the Customs Authorities a very wide power of seizure of goods, documents and things. Section 151 of the Customs Act imposes a statutory duty amongst others on officers of police to assist the Customs Authorities in the execution of the Act”.
The learned Single Judge considered that the order of the Chief Presidency Magistrate and it was observed:
“Under the Customs Act itself, the Customs Authorities would have the power given to them in section 110 to seize the goods from the custody of the Police and there may be a conflict between the Customs Authorities eager to exercise their powers and the police authorities anxious to carry out the orders of the Court”.
31. It was considered that the Magistrate on being satisfied prima facie that section 110 of the Customs Act would be attracted to the case, might very well direct the seized goods to be made over to the Customs Authorities for being dealt with by them in accordance with law.
It was observed:
“that would avoid a conflict between the Customs authorities and the Police and also a conflict between an order of the Magistrate and the statutory powers of the Customs Authorities under the Customs Act. In view of the above, I find that the learned Magistrate was not correct in rejecting the prayer of the Customs Authorities in the two cases”.
32. In Illias Vs. The Collector of Customs, AIR, 1970 Supreme Court 1065 the Supreme Court of India considered the question whether the statements of the accused recorded by the Customs Authorities under the provision of Customs Act, 1962 were admissible in evidence on their trial for their alleged offence under section 170B of the Penal Code read with section 135 of Customs Act and section 23 (la) and 23(b) of the Foreign Exchange Regulation Act, 1947 and the Rule 131B of Defense of India Rules. The learned Judge exhaustively considered the rules on the point and observed that even though under the new Customs Act, 1962 a Customs officer has been invested with many powers which are not to be found in the provision of the law of Sea Customs Act, 1878 he cannot be regarded as a Police officer within the meaning of section 25 of the Evidence Act and the statement made therein are admissible in evidence. He reiterated the principle laid down in AIR 1962 S.C. 270 which has been summarized as under:
“The Police is the instrument for the prevention and detection of crime which can be said to be the main object of having the police. The powers of Customs Officers are really not for such purpose and are meant for checking the smuggling of goods and due realisation of customs duties and for determining the action to be taken in the interest of the revenue of the country by way of confiscation of goods on which no duty had been paid and by imposing penalties and fines.
The Customs staff has merely to make a report in relation to offence which are to be dealt with by a Magistrate. The Customs Officer, therefore, is not primarily concerned with the detection and punishment of crime but he is merely interested in the detection and prevention of the smuggling of goods and safeguarding the recovery of customs duties.
The powers of search, etc. conferred on the Customs Officers are of a limited character and have a limited object of safeguarding the revenue of the State and the statute itself refers to police officers in contradiction to customs, officers.
If a Customs officer takes evidence under section 171A and there is an admission of guilt, it will be too much to say that that statement is a confession to a police officer as a police officer never acts judicially and no proceeding before him is deemed to be a judicial proceeding for the purpose of sections, 198 and 228 of the Indian Penal Code or for any other purpose”.
33. With respect, in the aforesaid decision the Indian Supreme Court has made a comparison between duties and powers of Police officer and Customs officer which has a persuasive force. The function of the two authorities is of different nature and clearly spelt out in the Customs Act itself. The decision of the Calcutta High Court reported in AIR 1953 Cal. 219 was disapproved where contrary proposition was made namely that the preventive officer of the Customs-department is a police officer within the meaning of section 25 of the Evidence Act and as such no confession made to him shall be proved against person accused of any offence.
34. In A.I.R. 1967 SC 1298 the Court considered the argument that section 105 of the Customs Act confers an unguided and arbitrary power on the Assistant Collector of Customs to make a search, the only condition being that he has reason to believe in existence of the facts mentioned therein, whereas under section 165 (1) or the Code of Criminal Procedure the Police officer has to record in writing the grounds of his belief.
The Court after considering the contention concluded:
“But in our view, section 105 of the Act and section 165(1) of the Code of Criminal Procedure are intended, to meet totally different situations. While under section 105 of the Act the Assistant Collector of Customs either makes the search personally or authorises any officer of Customs to do so, if he has reason to believe the facts mentioned therein, under section 165 (1) of the Code of Criminal Procedure the recording of the reasons for believing the facts is only to enable him to make a search urgently in a ease where search. Warrants in the ordinary courts cannot be obtained. It is, therefore not possible to invoke the condition and apply it to a situation arising under section 105 of the Act.
35. The Court repelled the contention that section 105 gives an unguided and arbitrary power on the Assistant Collector of Customs and observed:
“The object of the section is to make a search for the goods liable to be confiscated or the documents secreted in any place which are relevant to any proceeding under the Act. The Legislative, policy reflected in, the section is that the search must be in regard to the two categories mentioned therein, namely, goods liable to be confiscated and documents relevant to a proceeding under the Act. No doubt the power can be abused. But that is controlled by other means (e.g. section 136)”.
36. It is thus clear power of Customs officer under the Customs Act and that of a Police officer under the Code of Criminal Procedure and Police Act are completely different and unless specific powers are conferred on the Police Officer for performing the function under the Customs Act as contemplated under section 6, Police Officer has no function to perform under the Customs Act and any such purported exercise of powers will be without jurisdiction. It has been noticed that in India the Police Officer and the Coast Guards have been given some function of the Customs Act specifically by Notification. That was also the position in Pakistan which has been quoted above but no such Notification entrusting the function of the Customs Act have been promulgated and therefore any attempt to function as a Customs Officer by the Police will be without jurisdiction. The respondents have relied on the Notification dated 23.8.72 which says:
“In exercise of the powers conferred by sub-section (1) of section 3 of the Anti Corruption Act, 1957 (E.P. Act XXVI of 1957), the Government of People’s Republic of Bangladesh is pleased to notify that Bangladesh Bureau of Anti-Corruption shall also enquire into and investigate the offence mentioned below:
(4) Offence punishable under section 156 of the Customs Act 1969 (Act IV of 1969).
This Notification has merely included the offence under the Customs Act within the ambit of Anti-Corruption Act. We have seen that under the Customs Act only two items, are referable to Corruption e.g. section 156(81) and 156(81). The High Court Division has exonerated the Customs officer from the offence under section 156(81).
So the only offence is that under section 156(82) which say:
If any officer of customs or other person duly employed for the prevention of smuggling is guilty of willful breach of the provisions of this Act. Argument has been advanced that the Customs officer did not take any step for confiscating the contraband goods and this act of omission has rendered him guilty of misconduct.
37. Criminal misconduct is a well-known conception by now and need not detain us here. The only question is which of the provisions of the Customs Act were contravened or the appellant is guilty of willful breach of the provisions of the Customs Act. The Deputy Attorney General could not point out to any such specific breach and found it difficult to argue that the appellant had already committed any offence.
38. It is strange that a Criminal Prosecution had been launched at only such meager materials whereas the contrabands which are still awaiting release and further action by the Customs Officer. In the case of Mohammad Sarwar Vs. The State, 21 DLR (SC), 182=P.L.D. 1969 (SC) 278 the question before the Supreme Court was; “when does investigation commence in a case under Anti-Corruption Laws”. The Supreme Court overruling the view of the Full Bench Decision of the Lahore High Court of West Pakistan in the case Ghulam Abbas Vs. The State, 20 DLR (WP) 48=P.L.D. 1968 Lahore 101 observed that the majority Judges of the Full Bench laid down erroneous rule that investigation in respect of receiving bribe commences when the complainant informs the Anti-Corruption Police that a Government servant has made a demand or agreed to receive a bribe. The Supreme Court further noticed that the Prevention of Corruption Act, 1947 has not provided anything as to the manner of investigation. The provision of the Code of Criminal Procedure in respect of investigations are apprehended to the offence under sections 161, 162, 163, 164, 165A of the Penal Code and the offence of criminal misconduct under the Prevention of Corruption Act. The Court observed:
“A police officer, on receipt of information from any person regarding its commission or attempt at its commission, is bound to comply with the requirements of Chapter XIV of the Code of Criminal Procedure relating to cognizable offence, so far as they are applicable to an offence under the Prevention of Corruption Act and if on the basis of the aforesaid information he has reasons to suspect the commission of the offence, and takes steps towards the entertainment of the offence and the culprit thereof, the investigation will be deemed to have commenced”.
The definition of the term “investigation” in section 4 is not exhaustive and it is to be understood in the light of enactment in question itself. Section 3 of the Anti-Corruption Act, 1957 provides for constitution and powers of the Bureau for enquiry into and investigation of offence and the procedures have been laid down for investigation and by amendment the offence under the Customs Act have been brought within the Schedule to the Anti-Corruption Act, 1957. The investigation in an offence under the Customs Act only commences when the offence is itself is committed but when the offence is not yet committed by the parity of the reasoning given by the Pakistan Supreme Court in P.L.D. 1969 (SC) 278, how it can be said that occasion has arisen for investigation into any offence. In the facts of this case when the goods are still in the custody of the Customs and the said had not been released the question of any collusion between the Customs officer and the owner of the goods for evading the customs duty do not arise. The High Court Division had rightly mentioned that offence under section 156(82) has not been committed.
39. The only question is whether 81 is attracted or in other words whether the Customs Authority could be said to be guilty of willful breach of the provision of the Act. Willful means, “Deliberately”. An allegation of willful breach necessarily calls for stronger elements to show that the of mens rea the accused manifested in his overt act. The facts of the case show that the District Anti-Corruption Officer wanted to examine the goods in question and the difference of opinion started on the particular point of jurisdiction. The Customs officer held the view that the Anti-Corruption Officer and no power to perform the function of Customs Officer while the Anti-Corruption Officer held the view that the notification dated 23.8.1972 gave him ample authority for investigation and inquiry of an offence under section 156 of the Customs Act.
40. The foregoing analysis clearly shows that the Anti-Corruption Officer has not been given any function to be performed under the Customs Act. His jurisdiction is only attracted when the offence is committed and he can enquire and investigate into such offence. Had it been the case that the cassettes were released in favour of owner and the owner cleared them out for home consumption then an allegation could be led against the Customs officer for having committed an offence under section 156(81) and also against the owner of the goods although such clearance would not exonerate the owner. In Lakshminarayan vs. Collector of Customs, AIR 1961 Cal. 616 the Calcutta High Court observed that when the importer has committed an offence under section 167(8) has nothing to do with the passing of the goods beyond the customs barrier. There will be no estoppel against the Customs authorities and the Customs officers is entitled to issue a show because notice why penalty should not be imposed ever after the clearance of the goods.
41. Nothing had happened like that, on the contrary, a controversy ensued as to whether the Anti-Corruption Officer could inspect those goods or seize them on the strength of Notification dated 23.8.1972. Having examined Customs Act and also nature and function of the Police Officer in the foregoing paragraphs the opinion is that Anticorruption Officer had no jurisdiction to interfere with the work and activities of the Customs officer and he could not claim to open packages or examine the packets because no such function was entrusted on him by law.
42. It was a clear case of encroachment on the part of District Anti Corruption Officer and certain amount of over jealousness is perceptible on the part, of the Anti-Corruption Officer. The law presumed one to be dutiful than to over zealous and specifically when such over zealousness demonstrates departmental rivalry which is to be scoffed at the earliest opportunity. The learned Deputy General has placed before us certain view of the highest authority in the Government which need not be mentioned in our judgment but it can be said that the authorities have appreciated that such departmental rivalry is not conducive for good government.
43. The gist of the offence according to the charge sheet is that the recorded cassettes being restricted items are liable to be seized and confiscated under sections 16 and 17 of the Customs Act and the District Anti Corruption Officer attempted to “check the contents of the packets” which was resisted by the Customs Officer and ultimately at the intervention of the National Board of Revenue the packets were opened on 30.7.79 in presence of the Customs Officer and others and 993 recorded cassettes/tapes were recovered and seized and it further said during investigation he seized the goods and relevant document in the face of serious non-co-operation from the accused Customs Officer and the offence was that through the false declaration of Import Permit the Importer tried to clear the goods by evading customs duty and sales tax to the tune of Tk. 38,350/- through the help and connivance of accused Customs Officer”. The Anti-Corruption Officer passed his observation on surmise that A. K. Reazul Karim, Asstt. Collector of Customs did not take action although in similar case the same officer seized the recorded cassettes and confiscated the goods and therefore an inference has been drawn that the Customs Officer intended to help the Importer “to get away these. 900 items by misusing their official power, position as public servant.”
44. To say the least if the facts of the case are viewed in its correct perspective it cannot be said that the facts will lead to such inference or conclusion to a reasonable person. It seems the District Anti-Corruption Officer had over stepped the departmental limit and since he was refused by the Customs Officer for checking the items that had enraged him. He took the matter to the higher authority namely, National Board of Revenue and the authorities presumably for avoiding any such departmental conflict allowed the Anti-Corruption officer to open the package and seize goods.
45. The only question is whether the Customs officer had decided to release the goods in favour of Masuk Ali, if so, what is the evidence. No evidence could be offered because the goods were still lying in the Customs’ custody. It must be understood clearly that unless the goods are released question of offence by the Customs Officer can not arise. This point must be understood clearly. The Customs Officer will be guilty of breach of any law only when it could be shows that he had released the goods without imposing any penalty or deliberately by assessing at much lower figure In any case Anti-Corruption Officer has no part to play as long as the goods are lying in the Customs’ custody. Even if he suspects some of the customs officers are in collusion with the importer he will only wait till the goods are released or decisive action is taken and until and unless such stage had arrived, there is no occasion for the Anti-Corruption officer to appear on the scene. It is regrettable that the learned Judges have overlooked the provisions of section 80(2) which provide that the Customs Officer can re-assess the duty if it is found that the statements or information are false and this action can be taken “without prejudice to any other action”.
46. Now the question is at what stage the goods imported become dutiable. Section 84 provides that when the owner of any goods has paid the import duty and other charges, if any in respect of the same, the appropriate officer, if he is-satisfied that the import of the goods is not prohibited or in breach of any restrictions or conditions applying to the import of such goods may make an order for the clearance of the same. Section 82 provides that either the goods must be cleared for home-consumption or warehouse within two months of the date of unloading. This time may be extended by the appropriate officer. There is a provision for assessment of duty and provisional assessment of duty (sections 80 and 81). Section 79 provides that when any goods are imported for home-consumption or if the owner makes a declaration that he is unable to make a complete entry of the goods for want of full information, then the Customs officer may deposit such goods in the public warehouse pending the production of such information. Sections 84 to 89 provide how war