Case No: Criminal appeal Nos. 13, 14 and 15 of 1983
Judge: Badrul Haider Chowdhury,F.K.M.A. Munim,
Court: Appellate Division ,,
Advocate: Mr. Md. Aftab Hossain,Mainul Hosein,Moksudur Rahman,,
Citation: 36 DLR (AD) (1984) 113
Case Year: 1984
Appellant: A.K. Reazul Karim
Respondent: The State
Subject: Customs, Words and Phrases,
Delivery Date: 1983-8-17
FKMA Munim CJ
Badrul Haider Chowdhury J
Shahabuddin Ahmed J
Chowdhury ATM Masud J
Syed Md. Mohsen Ali J
A.K. Reazul Karim
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)
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
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)
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)
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 warehouses are to be done. Section 92 gives the absolute power to the appropriate officer to open and. examine the packages in the warehouse. Section 92 reads as under:
"92. Power to cause package lodged in warehouse to be opened and examined.- (1) the appropriate officer may at any time by order in writing direct that any goods or packages lodged in any warehouse shall be opened, weighed or otherwise examined; and after any goods have been so opened or examined may cause the same to be sealed or marked in such manner as he thinks fit.
(2) When any goods have been so sealed and marked after examination, they shall not be again opened without the permission of the appropriate officer; and when any such goods have been opened with such permission, the packages shall, if he thinks fit be again sealed or marked.
47. Section 107 provides for the application for clearance of goods and section 109 provides for re-assessment on alteration of duty. In India also similar provision can be found under the Customs Act, 1962. Incase when the petitioner applied for the clearance of the warehouse goods for home-consumption, they could not obtain the release of "the goods until the appropriate officer granted clearance under the Act. It was held that unless and until the goods are cleared for removal from the bonded warehouse and became capable if utilized for the purpose for which the import took place the process of importation into India is not completed. The Calcutta High Court held that only when the process is completed the goods became chargeable to duty under section 12 (1) at the then prevailing rates. (1981) I Cal HN 369 C.F. AIR Manual, Fourth Edition, Volume 15 page 98.
48. 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 Act and for preventing smuggling. For example, section 156(54) says if any warehouse goods are opened clandestinely in the absence of appropriate officer, such owner or person shall in every such case, be liable to a penalty not exceeding five thousand rupees. Again, in item 70—If the owner of any baggage fails to make a correct declaration of its contents or fails to produce the baggage for examination etc. the law provides for a penalty not exceeding three times the valuation of the goods in respect of which no declaration, etc. was made and such goods shall also be confiscated. Again item 2 provides for various types of offences which are visited with punishment of penalty not exceeding two thousand rupees and confiscation of such goods. Item 8 deals with smuggling which provides of penalty for confiscation of goods and also penalty not exceeding 10 times the value of the goods and upon conviction to imprisonment. "Smuggling" is defined in section 2(S)—to bring into or take out of Bangladesh in breach of any prohibition for restriction for the time being in force, or evading payment of customs duties or taxes leviable thereon and includes an attempt or abatement or connivance of so bringing in or taking out such goods.
49. When the cassettes arrived at Sylhet, a bill of entry was filed and Masuk Ali subsequently obtained an import permit but still the Assistant Customs Officer did not release the goods and they were taken into Customs Warehouse and the process of importation is not yet complete. The law is that warehouse can only be inspected by the owner to see condition of his goods and that must be in the presence of the Customs Officer. Again only the Customs Officer can inspect the packages which are lying in the Warehouse. The contention of the Anti-Corruption Officer that he has also been authorised to inspect goods on the ground that an offence has already been committed under the Customs Act and therefore the Notification empowering the Anti-Corruption Officer to inquire and investigate the offence of the Customs Act confers the jurisdiction is not tenable in law because s. 156(55) provides if any warehoused goods are opened in contravention of the provisions of section 92, the penalty is that such goods shall be liable to confiscation. In other words, section 92 only authorises the appropriate officer of the Customs. Appropriate officer can open and examine the goods or packages lodged in any warehouse and it is he and he alone who can open or examine and the law provides for sealing and unsealing by him. Here if the Anti-Corruption Officer in the purported exercise of power under the Notification intends to open the packages which he intended to do, then he brings it at once within the mischief of item 55 which says such goods shall be liable to confiscation.
50. The position becomes absurd. Suppose if the goods are not liable to confiscation, and still in the warehouse for the purpose of ascertaining or assessing of duty. Any inspection caused by the Anti-Corruption Officer in exercise of purported jurisdiction may result in the confiscation of the goods although duty of the goods had not been adjudicated. This clearly shows that the intendment or empowering the Anti-Corruption to inquire or investigate into the offence of Customs Act can mean only when the offence is complete. In the case of Vasantalal Ramchhoddas Patel and others vs. Union of India and others, A.I.R. 1967 Bombay 138 an officer of the Enforcement Directorate obtained a search warrant from the Chief Presidency Magistrate, Bombay under section 19 of the Foreign Exchange Regulation Act authorizing him to search shop No. 157 at Mumbadevi Road, Bombay and seize incriminating documents etc, for the purpose of the enquiry into offences under sections 4, 5 and 9 of the said Act. No incriminating document or other materials were found. However, one Patel was then present in the shop and he was searched and four packets containing diamonds, believed to be foreign cut diamonds, were found in his person. They were, therefore, seized. One of the Enforcement Officers then telephoned to a Customs officer about the seizure of the diamonds and two Customs Officers went there but as the diamonds bad already been taken charge of and also sealed they did not themselves seize them. They, however, started holding investigation in regard to these diamonds. The packets of diamonds remained in the custody of the Enforcement Directorate till 4th September and on that date the two Customs officers took charge of the diamonds from the Enforcement Directorate and seized them under section 110 of the Customs Act. The appellant applied to the Magistrate for orders directing the officer of the Enforcement Directorate to return the diamonds to them. It was urged on behalf of the Enforcement Directorate that the Diamonds had not been seized is pursuance of the search warrant issued by the Presidency Magistrate but that they had been seized under section 151 of the Customs Act, 1962 read with a Notification issued, by the Central Government on 23.5. 64. The matter came before the Bombay High Court, the learned Chief Justice considered that the seizure by the Enforcement Directorate was illegal and observed as under:
"Section 151 of the Customs Act empowers the officers mentioned in the section to this Act. The officers of the Enforcement Directorate acted under this section read with the Notification issued by the Central Government on 23rd May, 1964, when they seized the diamonds claimed by the appellants on 23rd and 24th July, 1964. Mr. Sorabjee, the learned Counsel for the respondents has, however, fairly conceded before us that he is unable to justify the seizure of the diamonds under the provisions of section 151. No other provision of law has been pointed out to us under whom the diamonds could have been seized or taken charge of by the officers of the Enforcement Directorate. The seizure of the diamond on 23rd and 24th July, 1964 therefore, appears to have been without authority of law."
In the present case the question more or less is the same whether the officer of Anti-Corruption have any power to cause search and seize arty goods. Agreeing with the Bombay High Court the opinion is that such power has not been conferred by the Customs Act.
51. It has already been noted that if an offence is committed in respect of any goods then it does not make any difference whether goods are in the Customs Shed or warehouse or they are cleared by the Customs Officer. In the Calcutta Case it has been held even after clearance the Customs Officer can issue show cause notice as to why penalty shall not be imposed if there were any circumstances for doing so. Again, the goods can only be inspected in warehouse by the Customs Officer and thus no process is yet complete as the Calcutta case noticed that unless and until the goods were cleared for removal from the bonded warehouse and become capable of being utilized for the purpose of which import took place the process of importation into India is not complete. Only when the process is completed the goods became chargeable to duty under section 12(1). In this view of the matter, the opinion is that the Anti-Corruption Officer had acted prematurely and there was no occasion for his inquiry or investigation with any offence under the Customs Act.
52. The goods have been imported by Masuk Ali and if such goods are restricted or prohibited the Customs authorities will complete the process for which section 81 provides the procedure and sets time limit but before this process is complete the offence is only committed by Masuk Ali and the Customs officer cannot be made an accused at this stage. He will be an offender if he is "guilty of willful breach of the provisions of the Act". The High Court Division could not specify any such provision. The legislature has used the expression ''willful breach". When the goods are not cleared and are still in the Customs shed how it can be said the Asstt. Customs Officer is guilty of willful breach of the provision of the Act.
53. Considering the facts and circumstances of the case the conclusions are as follows:
(1) The Customs Authorities have been given responsibility under the Customs Act and their tasks are assigned by it and no such function has been entrusted on any other functionary of the Government.
(2) The Police like any other can only come to assist the Customs officials and even if they detect any offence committed under the Customs Act, they are obliged under law to refer the matter to the Customs Officers at once.
(3) Neither the Police nor the Anti-Corruption can withhold the contraband goods or release them to the owner without the clearance of the Customs Authority.
(4) The Act empowers the appropriate Officer to cause packages lodged in warehouse to be opened and examined (vide section 92) and no such power has been conferred upon the Anti-Corruption Officer by the Notification dated 23.8.72.
(5) Section 156 (55) makes it an offence if the warehoused goods are opened in contravention of the provisions of section 92. The appropriate officer is defined in section 2(b) and the officer of Anti-Corruption does not answer the description.
(6) Importation of goods is not complete until and unless the whole process of assessment is complete, and deposit of goods without payment of Customs duty is permissible by law and therefore no offence was committed within the meaning of section 156 by the Asstt. Customs Officer especially when the goods were not released by him.
(7) Importation of contraband makes the importer liable for both assessment of duty, fine and confiscation (sec. 156(9) (i) and section 17).
(8) There is no estoppel against Statute and as such mere release of the goods by the Customs Officer would not create any estoppel for issuing a fresh show cause notice as to why penalty should not be imposed even after the clearance of the goods.
(9) The function of the Police and the Customs Officer are clearly defined in the respective enactments and any departure or deviation from the defined path will lead to chaos and confusion which emanate from departmental rivalry leading to the bitterness which cannot be said to be a happy augury for a good Government.
54. In view of these propositions of law and in the facts and circumstances of the case, the opinion is that the District Anti-Corruption Officer has misconstrued the notification dated 23.8.72 and in the purported exercise of such jurisdiction attempted to perform certain functions under the Customs Act, e.g. to open the packages which was not conferred on him by law. On the other hand, section 92 specifically confers such power, upon the Customs Officer who is the appropriate officer so to do. The action of Anti-Corruption Officer was premature.
In the result the appeals are allowed. Proceedings are quashed and the judgment of the High Court Division is set aside. There will be no order as to costs.
Shahabuddin Ahmed J.
I have gone through the judgment proposed to be delivered by my learned brother B. H. Chowdhury, J, I very much regret my inability to agree on his views that the Anti-Corruption Police got no jurisdiction to investigate the offences referred to in the proceedings in question and that facts alleged against the appellant do not constitute any criminal offence either. I also find it difficult to hold that “there is a fine line of demarcation" between the jurisdiction of the Anti-Corruption and Customs Officers requiring that jurisdiction of the Anti-Corruption will begin when process of investigation by the Customs Officers is completed. I find that the Anti-Corruption got jurisdiction to enquire into or investigate any customs-offence as soon as it is committed.
55. Facts of the cases out of which these appeals have arisen have been given in detail in the judgment of my learned brother B. H. Chowdhury, J. I will however refer to the salient points of A.G.R. Case No. 52 of 1980 in which the controversial issues have been raised. In that case accused Mashuk Ali (who has been charge-sheeted under Item (8) of section 156, Customs Act but has been absconding all along and who is not before us) imported, on 12 February 1979, 993 recorded Cassette Tapes contained in two packets from Singapore by an Airways Bill, and on arrival of the plane at Sylhet Airport the goods were carried by the Customs Officers on duty to the Customs Air Freight Godown. These were "contraband goods", since their import into Bangladesh was restricted under law but were brought into Bangladesh without necessary permit from the Controller of Imports and Exports. The District Anti-Corruption Officer having got secret information that attempts were being made to get these goods released wanted to verify the contents of the two packets but he was resisted by the Customs Officers including the appellant Reazul Karim, Assistant Collector, who took the ground that since the matter was being dealt with by them under the Customs Act, the Anti-Corruption got no authority to interfere in the matter. The District Anti-Corruption Officer moved the higher authorities of the Customs Department including the Collector of Customs but was refused permission to verify the goods. The Collector of Customs, on the contrary, initiated a proceeding against the District Anti-Corruption Officer and by an order dated 22 August 1980 imposed penalty upon him for interfering with the function of the Customs Officers. The District Anti-Corruption Officer then moved the National Board of Revenue and by obtaining permission from the Board seized the goods on 30 July 1979 in presence of Customs Officers and proceeded to investigate the offence of smuggling against the Importer, Masuk Ali, but he was not given any co-operation and assistance by the Customs Officers including the appellant who maintained that the Anti-Corruption got no jurisdiction so long they were dealing with the matter having all power to impose necessary penalty upon the Importer including penalty by way of confiscation of the goods and also by prosecuting the Importer of smuggled goods before the Magistrate under the Customs Act. The Importer, in the meantime obtained a Permit from the Assistant Controller of Imports on 9 March 1979 but the Anti-Corruption did not accept the Permit pointing out that the permit was obtained for import of "un-recorded Tapes", whereas the Tapes imported were recorded Tapes and contending that this ex-post-facto permit was also obtained by practicing 'fraud' at which the Customs Officers connived. In these circumstances, the District Anti-Corruption Officer lodged a First Information Report on 10 October, 1979, investigated the offences and submitted charge sheet on 14 October, 1980 against the Importer, Masuk Ali under section 156(8) and against the appellant and two other Customs Officers under sections 156(81) and (82) of the Customs Act. It has been alleged in the charge-sheet that accused Masuk Ali committed smuggling, whereas the accused Customs Officers who were employed for the prevention of smuggling committed willful breach of the provisions of the Customs Act laid down for prevention of smuggling and that these Customs Officers committed or abetted or connived at the commission of fraud for the purpose of injuring the Customs-revenue.
56. These proceedings were sought to be quashed under section 561A of the Criminal Procedure Code, but a Division Bench at Comilla by their order dated 2 November 1982 refused to quash the proceedings rejecting all the contentions of the appellant that the Anti-Corruption got no jurisdiction to investigate the offences so long the Customs Officers were dealing with the matter and that facts alleged did not constitute any offence under the Customs Act. Leave was granted to consider whether the impugned order of the High Court Division was based on correct interpretation of the relevant provision of law and proper appreciation of the facts of the case.
57. It should be noted first of all that the charge-sheet has been submitted against the Importer under Item (8) of section 156 for committing smuggling on 12 February 1979 and against the appellant and other two Customs Officers under Items (81) and (82) of section 156 for wilful breach of statutory provisions and fraud in the period between 12 February 1979 and 10 October 1979 by certain acts and omissions in connection with the "prevention of smuggling" as described in Chapter XVIII of the Customs Act. Of the four accused persons charge-sheeted, only one, namely the appellant, Assistant Collector of Customs, has challenged the proceedings by these appeals. Though the accused Importer is not challenging the proceedings against him, the entire proceedings have been challenged in these appeals on the ground that the Anti-Corruption got no jurisdiction to investigate the offence against the Importer or move into action unless and until the process of enquiry/investigation started by the Customs Officers is brought to a conclusion. That is why, it is found, the appellant Customs Officer resisted the Anti-Corruption from verifying or seizing the contraband goods when it was brought into the Customs Godown.
58. Mr. Mainul Hosein, learned Advocate for the appellant does not say that the bringing into Bangladesh of the contraband goods in question did not constitute 'smuggling' as defined in clause (S) of section 2 of the Customs Act, 1969-
'Smuggling' as defined there "means to bring into or take out of Bangladesh, in breach of any prohibition or restriction or evading payment of customs-duties of any goods".
There is no dispute that Recorded Cassette Tapes were notified in the Official Gazette as goods which could not be imported in to Bangladesh without permit from the Controller of Imports and Exports under the Bangladesh (Imports and Exports) Control Act, 1950 or that these Recorded Tapes were brought by accused Masuk Ali into Bangladesh without any permit. As such, this bringing into Bangladesh of the goods in question in violation of statutory provisions constituted "smuggling" on 12 February 1979. That permit was obtained subsequently will not have any effect upon the operation of law; the authorities however may not proceed against the importer in view of explanations given for not obtaining the permit prior to the importation. In the instant case, the permit obtained on 9 March 1979 also did not cover the goods actually imported since these are admittedly recorded Tapes as against un-recorded Tapes for which the permit was obtained. But Mr. Mainul Hussein’s contention is that the Anti-Corruption cannot move into action so long the Customs Officers are dealing with the matter. It is to be seen whether the Anti-Corruption got jurisdiction to inspect and seize the smuggled goods and start investigation. They claim jurisdiction to investigate the Customs offences as described in section 156 of the Customs Act under the Anti-Corruption Act, 1957 (Act XXVI of 1957). This Act has given jurisdiction to any appropriate officer of the Bureau of Anti-Corruption to investigate the offences included in the Schedule of that Act and also "offences notified by the Government". By a Notification dated 23 August, 1972 Customs offences were brought into the Schedule of the Anti-Corruption Act. Mr. Mainul Hosein contends that all Customs offences as mentioned in section 156 of the Customs Act shall be first enquired into or investigated by the Customs Officers, and that, after their process of enquiry/investigation is completed then only the Anti-Corruption will have jurisdiction to enquire into or investigate these offences, for simultaneous investigation by the Anti-Corruption will interfere with the statutory functions of the Customs Officers under the Customs Act. Mr. Mainul Hosein has referred to various powers and functions of Customs Officers under the Customs Act to deal with any goods whether imported legally or in violation of law, including the power not only to confiscate any goods and impose penalty for any breach of law, but also to investigate any offences for the purpose of prosecuting the offender before the Magistrate.
59. Mr. Moksudur Rahman, learned Deputy Attorney General, has, on the other hand, pointed out that the Anti-Corruption does not seek any jurisdiction for investigation of customs offences from the Customs Act but they claim jurisdiction from an independent special statute, namely, the Anti-Corruption Act. He has contended that under this Act any officer of the Bureau of Anti-Corruption may move into action as soon as any cognizable offence, such as 'smuggling' is committed or even suspected to have been committed. He has explained that by the Notification of 23 August 1972 the offences under section 156 of the Customs Act have been brought within the ambit of the Anti-Corruption Act. He has further contended that there is no provision in the Customs Act barring jurisdiction of the Anti-Corruption or of the General Police who got powers of investigation under section 5(2) of the Crl. Procedure Code.
60. To appreciate these contentions I would refer to the power and functions of the Customs Officers under the Customs Act and the impact of the Notification amending the Schedule of the Anti-Corruption Act, 1957. The Customs Officers have been given jurisdiction, power and authority to deal with the Customs offences under section 156 of the Customs Act, 1969. These functions may be divided into two categories. In one category will come the powers to deal with any offence by confiscating the goods and imposing penalty which may extend up to ten times the value of the goods This penalty shall be imposed by the 'appropriate custom officer" without bringing the matter to any Court of law. The other category includes those offences which must be brought before a Magistrate for trial. The Customs Officer may enquire into or investigate such offences and submit a report to Magistrate who thereupon may take cognizance and after convicting the accused, if found guilty, impose the punishment either by way of imprisonment or by fine or by both, as mentioned in the relevant Items of section 156. This section contains 98 items of offences and some of these items have got off-shoots increasing thus the number of offences beyond 98. All these items excepting 15 items relate to offences for which the Customs Officer alone is competent to impose penalty by confiscation. In those matters there shall be no investigation for prosecuting the offender. The remaining 15 items such as Items numbers 8, 77, 79, 81, 82, 83, 86, 87, 89, 91, 92, 93, 94, 97 and 98, are offences which must be tried by a Magistrate; and though no specific provision has been made in the Act as to how the prosecution will be launched before the Magistrate for securing conviction of an offender, it is necessarily implied that the Customs Officer, who has been given power to enquire into and investigate these offences, will bring the allegation before the Magistrate in the form of a report or complaint. Again, out of these 15 offences some are not only punishable by a Magistrate, but also they are punishable by the "appropriate" Customs Officer by way of confiscation in addition to conviction and punishment by the Magistrate. As for example, Item No. 8 may be mentioned. It says "If any goods be smuggled into or out of Bangladesh, the punishments are that:
"Such goods shall be liable to confiscation and any person concerned in the offence shall be liable to a penalty not exceeding ten times the value of the goods; and upon conviction by a Magistrate he shall further be liable to imprisonment for a term not exceeding six years and to fine not exceeding ten times the value of such goods, and, if the Magistrate in his discretion so orders, also to whipping."
The power of investigation for the purpose of prosecuting the offender before a Magistrate is quite distinct from power of enquiry or investigation for confiscation of any goods and imposition of penalty by the Customs Officer. In these two kinds of cases, the general police, such as the Officer-in-Charge of a Police Station, have been given a limited power, that is, to come in aid of the Customs officer. The police may seize any goods or arrest any person on reasonable suspicion but he shall immediately report the matter to the Customs Officer so that the goods seized or the person arrested may be dealt with by the Customs Officer in either of the manners as discussed above. In the instant case, the Anti-Corruption is not claiming any power of investigation under the Customs Act. They are claiming power to investigate the customs offences under the Anti-Corruption Act, 1957.
61. The Anti-Corruption Act provides for constitution of a Bureau to be called "Bureau of Anti-Corruption". Section 3 defines its power in the following words:
"3. Constitution and Power of the Bureau.— (1) Notwithstanding anything contained in the Police Act, 1861 (V of 1861), the Government may constitute a Bureau to be called the Bangladesh Bureau of Anti-Corruption for enquiry into and investigation in Bangladesh of, the offences specified in the schedule and offences notified by the Government.
(2) Subject to any orders which the Government may make in this behalf, officers of the Bureau shall have throughout Bangladesh in relation to the enquiry into, and investigation of, such offences all powers of seizure, search and arrest of persons concerned in such offences and all other powers, duties, privileges and liabilities which the police officers of Bangladesh have in connection with the investigation of such offences.”
The Schedule as referred to in sub-section (1) of section 3 did not originally contain the offences under the Customs Act but in exercise of powers conferred upon it by sub-section (1), the Government subsequently added the offences punishable under section 156 of the Customs Act to the Schedule' by the Notification dated 23 August 1972 as already referred to. It is, therefore, clear that the Anti-Corruption has been given jurisdiction to investigate the customs offences by the Anti-Corruption Act; it will not be correct to say that the Anti-Corruption is claiming jurisdiction merely under a Notification. This Notification is a statutory one and the offences "notified" there under are part and parcel of the main statute, namely, the Anti-Corruption Act. According to an express provision of law, namely, section 3 of the Anti-Corruption Act, the Anti-Corruption Officer exercised jurisdiction to investigate the offence of 'smuggling' which was prima facie committed by the Importer Masuk All on 12 February, 1979. In a cognizable offence the police got right to move into action the very moment it is committed and unless investigation by the police is barred by any express provision of law the investigation cannot be questioned or interfered with. That the Customs Officer got similar jurisdiction to deal with the customs offences does not stand in the way of the investigation by the Anti-Corruption. Acceptance of Mr. Husein's argument that the Anti-Corruption shall not exercise their jurisdiction unless the Customs authorities give clearance will lead to the drawing up of an arbitrary line of demarcation between them at the sweet will of the latter. Reference has been made to some decisions of the Indian jurisdiction. Those decisions are founded on the Customs Act only as there is no law in India corresponding to the Anti-Corrupts on Act of Bangladesh covering customs offences. In India, customs offences continue to be enquired into and investigated under the Customs Act.
62. Now the question is whether the charge-sheet under items 81 and 82 of section 156 against the appellant (and for that purpose against the other two Customs Officers) is sustainable in law in the facts and circumstances of the case, although the Anti-Corruption got jurisdiction to investigate the alleged offences against, them also. These allegations are that the Customs Officers were duly employed to take measures to prevent smuggling but although the Cassette Tapes were prima facie smuggled into Bangladesh on 12 February 1979 these officers did not seize the goods at once under section 17 or arrest the Importer under section 161 or issue any notice for confiscation of the goods under section 180 of the Customs Act. These sections run thus:
“17. Detention and confiscation of goods imported in breach of section 15 or section 16.— Where any goods are imported into or attempted to be exported out of Bangladesh in violation of the provisions of section 15 or of a notification under section 16, such goods shall without prejudice to any other penalty to which the offender may be liable under this Act, or any other law, but subject to rules, be liable to detention and confiscation."
"161. Power to arrest.— (1) Any officer of customs authorised in this behalf who has reason to believe that any person has committed an offence under this Act may arrest such person.
(2) Any person duly empowered for the prevention of smuggling who has reason to believe that any person who has committed an offence of smuggling under this Act may arrest such person."
"180. Issue of show-cause notice before confiscation of goods or imposition of penalty.— No order under this Act shall 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 (or if the persons concerned indicates in writing his preference 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."
63. Mr. Mainul Hosein contends that though the goods were not formally seized, but these were not released either; the goods were taken into the Customs godown, and submission of necessary documents by the Importer was being awaited. Mr. Mainul Hosein has submitted that the Importer did not yet submit his documents without which no action for confiscation of the goods could be initiated. I do not think that this argument will avail, for when the goods were prima facie smuggled; non-submission of the necessary documents connected therewith by the Importer was itself a ground for Initiating action for confiscation of the goods. No notice for show cause as to confiscation was issued till the First Information Report was lodged 8 months after the date of importation of the goods. It is argued that the Importer went to the Controller of Imports for obtaining permit with retrospective effect.
This was not at all a concern of the Customs Officers who were duty bound to initiate a proceeding for confiscation of the goods, which were brought into the country without the required permit; and if any permit were obtained during the proceeding for confiscation, it could have been considered while disposing of the proceedings.
11. Offence under item (81) is committed "if any officer of Customs or other person duly employed for the prevention of 'smuggling' commits willful breach of any provision of this Act."
The charge-sheet prima facie shows that the appellant committed willful breach of the provisions of the Customs Act relating to prevention of smuggling as referred to in paragraph 9. As to the offence under item (82), it is committed—
"if any officer of Custom or other person employed for prevention of smuggling, practices or attempt to practice, any fraud for the purpose of injuring the customs revenue or abets or connives at any such fraud, or any attempt to practice any such fraud."
The charge-sheet shows the presence of the ingredients of this offence, that is the Importer obtained a Permit by falsely representing that, the goods imported were un-recorded Tapes. It further shows that the Customs Officers, one of whom is alleged" to be the Importer's brother-in-law, by allowing him time and opportunity to obtain the ex-post facto permit, connived at this offence of fraud. This is an allegation; whether the allegation is true or not is to be decided by evidence during the trial.
64. It has been next contended that no in jury has been actually caused to the customs revenue nor any pecuniary advantage has been obtained by the Customs Officers. It should be noted that causing of actual injury to the customs revenue and the obtaining of pecuniary advantage are not the necessary ingredients of the offence under Item (82). Mentioning of these allegations in the charge sheet will not therefore affect the charge sheet which relates to 'fraud' or its abetment or connivance.
65. The last contention raised by Mr. Mainul Hosein is that the Customs Officers had no mala fide intention to resist the Anti-Corruption in the matter of investigation but they acted under a bonafide belief that they had exclusive jurisdiction to deal with the matter and that their stand was upheld by the highest authority of their Department. This contention is not found to be tenable, for up to the level of the Collector of Customs this contention was maintained; but, thereafter, this contention was not insisted upon. The Board of Revenue allowed the And-Corruption to initiate investigation; its Chairman did not express dissent when the Anti-Corruption Council by a Resolution finally decided to prosecute the Customs Officer though he attended the meeting of the Council; the Board also did not think it proper to refuse sanction for prosecution of these Customs Officers 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. If the Board of Revenue had reason to believe that these Customs Officers acted bona fide and had no ‘mens rea’, the Board could have refused sanction for prosecution or if sanction were given by the Government, should have recorded objection. A case of acrimony, grudge and rivalry between the two "departments" is sought to be made out. I do not find any basis for such a contention. When both the Customs Officers and the Anti-Corruption Officers got concurrent jurisdiction, then the one, in absence of clear provision of law, cannot keep the other away from the field by arbitrary action. The Anti-Corruption Officer is found to have acted under the authority of an independent law. Any action taken in the discharge of duty under law is not interference with the discharge of similar duties of any other Officer. The Customs Officers invoke the Customs Act. Section 156 of this Act itself provides that:
"Whoever commits any offence described in column 1 of the Table below shall, in addition to and not in derogation of any punishment to which he may be liable under any other law be liable to the punishment, mentioned against that offence in column 2 thereof".
66. Any other law as quoted above includes Prevention of Corruption Act, (Act II of 1947), President's Order No. 50 of 1972 in respect of smuggling punishable as a 'grave offence', and Special Powers Act in respect of prejudicial acts affecting economic or financial interest of the State. A custom offence is punishable under these Laws also, even if there were no Anti-Corruption Act in the field. In the face of these legal provisions conferring jurisdiction upon other forums, claim of exclusive jurisdiction by the Customs Officers is without any foundation. I therefore find no ground for quashing the proceedings in A.G. R. Case No. 52. Questions of law raised in the other two cases— A.G.R. Nos. 24 and 53, have been answered in this judgment. These proceedings also cannot be quashed.
In the result, all the appeals are dismissed. But the opinions expressed in this judgment are meant for disposal of the applications for quashing the proceedings. These opinions shall not influence the trial Court in disposing of the cases on merit.
Chowdhury A. T. M. Masud J.
I have gone through the judgment proposed to be delivered by my learned brother Badrul Haider Chowdhury, J. I regret my inability to agree with his views. It is not necessary to repeat the facts of the case which have been narrated at length in the judgment delivered by my learned brother.
68. In all the three appeals charge-sheets have been submitted against the appellant and some others under section 156(8), (81) and (82) of the Customs Act and section 5(2) of Act II of 1947. It has been urged by the learned Counsel for the appellant that the Bureau of Anti-Corruption had no jurisdiction to investigate the alleged offences against the appellant and that if after adjudication by Customs authority, it is found a case of smuggling and a fit case for prosecution in Court of law, only then the Bureau of Anti-Corruption would be competent to take up the case. The learned Counsel has referred to certain provisions of Customs Act, showing the function, power and duties of the Customs Authority. On an examination of these provisions, it would appear that these relate to levy of customs duties, adjudication, and confiscation of goods and penalty that may be imposed by the Customs authority.
69. Section 156 of the Customs Act deals with penal provision for offences defined under the Customs Act. An examination of various items of section 156 reveals that in respect of offence under item No. 8, persons involved in the offence, apart from confiscation and imposition of penalty by Customs authority, are liable to be convicted and sentenced on trial by a Court of law. Similarly, officers or persons involved in offences under items (81) and (82) are liable to be convicted and sentenced on trial Section 169 of the Customs Act gives power of adjudication to the Customs-officers only incases involving confiscation of goods or imposition of penalty under the Customs Act.
70. In such cases power of confiscation and penalty under Customs Act vests in the Customs authority but for offences liable to be tried in Court of law procedure has been provided in section 5(2) of the Code of Criminal Procedure.
71. Section 5(2) of the Act reads as follows: "All offences under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. Sub-section (1) of section 5 provides that all offences under the Penal Code shall be investigated, enquired into, tried and otherwise dealt with according to the provisions contained in the Code.
Offences under items 8, (81) and (82) of section 156 of the Customs Act are cognizable offences as per Schedule II of the Code of Criminal Procedure—entries relating to offence against other law.
72. Police has got statutory right to investigate cognizable offence for which no formal complaint by Customs authority is necessary. As per notification No. PMS/AC-24/ 72-346 dated 23.8.72 of the Ministry of Cabinet Affairs, Prime Minister's Secretariat, Anti-Corruption Section, issued under section 3(1) of the Anti Corruption Act (E.P. Act XXVI of 1957), the Bureau of Anti-Corruption has been empowered to enquire into and investigate offences punishable under section 156 of the Customs Act, 1969. The Bureau was already empowered to investigate offence under section 5(2) of Act II of 1947. As soon as the Bureau of Anti-Corruption gets any information of has reasons to suspect that an offence mentioned in the schedule of the Act has been committed; they can proceed with enquiry and investigation.
73. There is no specific provision in the Customs Act which debars the Bureau of Anti- Corruption to investigate an offence under the said Act, for which there is provision for conviction and sentence on trial. Offences under items (8), (81) and (82) of section 156 contain such provisions. It may be mentioned in this connection that earlier there was a provision in the Customs Act that no Court should take cognizance of any offence relating to smuggling of goods punishable under item 8 and (81) of section 167 (corresponding to the present section 156 of the Customs Act), except upon complaint in writing made by the Chief Customs Officer or any other officer of Customs not lower in rank than an Assistant Collector of Customs authorised in this behalf by the Customs Collector. This provision, being section 187A of the Customs Act, was inserted by the Customs Amendment Act, 1956 (Act XXV of 1956), but this was omitted by the Sea Customs Amendment Act, 1957 (Act XXXIV of 1957) and there remained no longer any legal requirement of complaint by the Customs Authority before cognizance could be taken. Conferment of exclusive powers on Customs authority under certain sections of the Customs Act does not mean that police or Bureau of Anti-Corruption have been debarred to discharge duties entrusted on them by law, more so when there is no specific provision in the Customs Act debarring them to discharge such duties.
74. There is nothing in the Customs Act to hold that Bureau of Anti-Corruption cannot inquire into and investigate offences punishable under section 156 of the Act, unless they are called upon to do so by the Customs authority.
When the aforesaid notification under sec. 3 (1) of the Anti-Corruption Act was issued empowering the Bureau of Anti-Corruption, to enquire in to and investigate offences punishable under section 156 of the Customs Act, the relevant authority was fully aware about existing provisions of the Customs Act.
75. For the aforesaid reasons I am unable to accept the contention that Bureau of Anti-Corruption had no authority to investigate and prosecute an offence alleged to have been committed under section 156 of the Customs Act. Sanction has been accorded for the prosecution of the appellant by the Anti-Corruption Council which consists among others of the head of the appellant's department, viz the Chairman, National Board of Revenue.
76. On the materials on record it is difficult to hold at this stage that no prima facie case has been made out against the appellant. No case for quashing the proceeding has been made out and the order of the High Court Division calls for no interference.
Syed Md. Mohsen Ali J.- I have gone through the judgments written by Badrul Haider Chowdhury, Shahabuddin Ahmed and Chowdhury A.T.M. Masud, JJ; I concur with the decision of Badrul Haider Chowdhury, J.
Order of the Court
By the majority opinion the appeals are allowed. Proceedings are quashed and the judgment of the High Court Division is set aside. There will be no order as to costs.