(Chapter XVIII - Prevention of Smuggling -Powers of Search, Seizure & Arrest - Adjudication of Offences.)

CHAPTER XVIII

PREVENTION OF SMUGGLING - POWERS OF SEARCH, SEIZURE

AND ARREST - ADJUDICATION OF OFFENCES

158. Power to search on reasonable ground. (1) The appropriate officer, if he has reason to believe that any person is carrying about himself goods liable to confiscation or any documents relating thereto, may search such person, if he has landed from or is on board or is about to board a vessel within the Pakistan customs-waters, or if he has alighted from, or is about to get into or is in any other conveyance arriving in or proceeding from Pakistan, or if he is entering or about to leave Pakistan, or if he is within the limits of any customs-area.

(2) Without prejudice to the provisions of sub-section (1) the appropriate officer may search a person, if he has reason to believe that such person is carrying about himself smuggled Platinum, any radio-active mineral, gold, silver or precious stones manufactures of Platinum, any radioactive mineral, gold, silver or precious stones, or currency, or any other goods or class of goods notified by the ¹[Federal Government] in the official Gazette, or any documents relating to any one or more of the aforementioned goods.

159. Persons to be searched may desire to be taken before gazetted officer of customs or Magistrate. (1) When any officer of customs is about to search any person under the provisions of section 158, the officer of customs shall inform such person about his right to be taken to a gazetted officer of customs or Magistrate, and if such person so desires take him without unnecessary delay to the nearest gazetted officer of customs or Magistrate before searching him, and may detain him until he can be so taken.

(2) The gazetted officer of customs or the Magistrate before whom such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person and record reasons for doing so, or else direct search to be made.

(3) Before making a search under section 158, the officer of customs shall call upon two or more persons to attend and witness the search and may issue an order in writing to them or any of them so to do, and the search shall be made in the presence of such persons and a list of all things seized in the course of such search shall be prepared by such officer or other person and signed by such witnesses.

(4) A female shall not be searched except by a female.

160. Power to screen or X-Ray bodies of suspected persons for detecting secreted goods. (1) Where the appropriate officer has reason to believe that any person liable to search under section 158 has any goods liable to confiscation secreted inside his body, he may detain such person and produce him without unnecessary delay before an officer of customs not below the rank of an Assistant Collector or Deputy Collector of Customs.

(2) The aforesaid officer, if he has reasonable grounds for believing that such person has any such goods secreted inside his body and that it is necessary to have the body of such person screened or X-Rayed, may make an order to that effect, or else discharge such person forthwith, except where he is held on any other grounds .

1. Substituted by the Finance Ordinance, 1972 (XXI of 1972) w.e.f. 17th June, 1972

  3) Where the aforesaid officer orders such person to be screened or X-Rayed, the appropriate officer shall, as soon as practicable, take him to a radiologist possessing such qualifications as may be recognized by the ²[Federal Government] for that purpose and such person shall allow the radiologist to screen or X-Ray his body.

(4) The radiologist shall screen or X-Ray the body of such person and forward his report thereon, together with any X-Ray pictures taken by him to the aforesaid officer without unnecessary delay.

(5) Where on the basis of a report from a radiologist or otherwise, the aforesaid officer is satisfied that any person has any goods liable to confiscation secreted inside his body, he may direct that suitable action for bringing such goods out of his body be taken on the advice and under the supervision of a registered medical practitioner and such person shall be bound to comply with such direction:

Provided that in the case of a female no such action shall be taken except on the advice and under the supervision of a female registered medical practitioner.

(6) Where any person is brought before an officer of customs not below the rank of an Assistant Collector or Deputy Collector of Customs as aforesaid, he may direct that pending completion of all action under this section such person be detained.

(7) No person shall be subjected to screening or X-Ray if he confesses that goods liable to confiscation are secreted inside his body and of his own consent agrees to suitable steps being taken to bring out such goods.

161. Power to arrest. (1) Any officer of customs authorized 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.

(3) Every person arrested under this Act shall be taken forthwith before the nearest officer of customs authorized by the Collector of Customs to deal with such cases, or, if there is no such officer of customs within a reasonable distance, to the officer-in-charge of the nearest police-station.

²[(4) When any person arrested under this Act is taken before an officer of customs or the officer-in-charge of a police-station, as required by sub-section (3),or when such officer of customs or officer-in-charge of a police-station himself arrests any person under this Act, such officer or officer-in-charge shall, if the offence is bailable, admit him to bail to appear before the Special Judge having jurisdiction or, if the offence is non-bailable, have him taken in custody to the Special Judge or if there is no Special Judge within a reasonable distance, to the ²[nearest Judicial Magistrate,] within twenty-four hours of such arrest, excluding the time necessary for the journey from the place of arrest to the Court of the Special Judge or, as the case may be, of such Magistrate.

1. Substituted by the Finance Ordinance, 1972 (XXI of 1972) w.e.f. 17th June, 1972

2. Substituted by the Prevention of Smuggling Act, 1977 (XII of 1977) w.e.f. 16th May, 1977.

3. Substituted by the Federal Laws (Revision & Declaration) Ordinance, 1981 (XXVII of 1981) w.e.f.

8th July, 1981

(5) When any person is taken under sub-section (4) before the Special Judge, he may, on the request of such person, after perusing the record, if any, and after giving the prosecution an opportunity of being heard, admit him to bail on his executing a bond, with or without sureties, or refuse to admit him to bail and direct his detention at such place as he deems fit:

Provided that nothing herein contained shall preclude the Special Judge from cancelling the bail of any such person to a subsequent stage if, for any reason, he considers such cancellation necessary, but before passing such order he shall afford such person an opportunity of being heard, unless for reasons to be recorded he considers that the affording of such opportunity shall defeat the purposes of this Act.

(6) When such person is taken under sub-section (4) before a Magistrate, such Magistrate may, after authorizing his detention in such custody, at such place and for such period as he considers necessary or proper for facilitating his earliest production before the Special Judge, direct his production before the Special Judge on a date and time to be fixed by such Magistrate, or direct such person to be forthwith taken to, and produced before, the Special Judge and he shall be so taken.

(7) Nothing in sub-section (5) or sub-section (6) shall preclude the Special Judge or the Magistrate from remanding any such person to the custody of the officer of customs or the officer-in-charge of a police-station holding inquiry against that person if such officer makes a request in writing, to that effect and the Special Judge or the Magistrate, after perusing the record, if any, and hearing such person, is of the opinion that for the completion of inquiry or investigation it is necessary to make such an order, provided that in no case the period of such custody shall exceed fourteen days.

(8) When any person arrested under this Act is brought before an officer of customs or the officer-in-charge of a police-station as required by sub-section (3), or when such officer of customs or officer-in-charge of a police-station himself arrest any person under this Act, ,such officer shall, if he is an officer of customs, record the fact of arrest and other relevant particulars in the register mentioned in sub-section (12) or, if he is an officer-in-charge of a police-station, record such fact in the register ordinarily maintained by him, and shall immediately proceed to inquire into the charge against such person and if he completes the inquiry within twenty-four hours of his arrest, excluding the time necessary for journey as aforesaid, he may, after producing such person before the Special Judge or the ¹[nearest Judicial Magistrate] make a request for his further detention in his custody.

(9) While holding an inquiry under sub-section (8), the officer of customs shall exercise the same powers as are exercisable by an officer-in-charge of a police-station under the Code of Criminal Procedure, 1898 but such officer and the officer-in-charge of a police-station shall exercise such powers subject to the foregoing provisions of this section while holding an inquiry under this Act.

(10) If the officer of customs or the officer-in-charge of a police-station, as the case may be, after holding an inquiry as aforesaid, is of the opinion that there is no sufficient evidence or reasonable ground for suspicion against such person, he shall release him on his executing a bond, with or without sureties as the officer may direct, to appear, as and when required, before the Special Judge, may make a report to the Special Judge for the discharge of such person and shall make a full report of the case to his immediate superior.

1. Substituted by the Federal Laws (Revision & Declaration) Ordinance, 1981 (XXVII of 1981) w.e.f. 8th July, 1981

(11) The Special Judge to whom a report has been made under sub-section (10) may, after the perusal of record of the inquiry and hearing the prosecution, agree with such report and discharge the accused or, if he is of the opinion that there is sufficient ground for proceeding against such person, proceed with his trial and direct the prosecution to produce evidence.

(12) The officer of customs empowered to hold inquiry under this section shall maintain a register to be called "Register of Arrests and Detention" in the prescribed form in which he shall enter the name and other particulars of every person arrested under this Act, together with the time and date of arrest, the details of the information received, the details of things, goods or documents recovered from his custody, the name of the witnesses and the explanation, if any, given by him and the manner in which the inquiry has been conducted from day to day; and such register or authenticated copies of its aforesaid entries shall be produced before the Special Judge whenever such officer is so directed by him.

(13) After completing the inquiry, the officer of customs shall submit to the Special Judge a report in the form and manner, as early as possible, in which the officer-in-charge of a police-station submits a challan before a Court, or if such inquiry has been conducted by an officer-in-charge of a police-station, he shall submit a challan before the Special Judge.

(14) The officer of customs, or as the case may be, the officer-in-charge of a police-station shall immediately intimate the fact of the arrest of a person under sub-sections (1), (2) or (4) to the Special Judge who may direct such officer to produce that person at such time and place and on such date as the Special Judge considers expedient and such officer or officer-in-charge shall act accordingly.

(15) Any Magistrate of the first class may record any statement or confession during inquiry under this Act, in accordance with the provisions of section 164 of the Code of Criminal Procedure, 1898.

(16) Without prejudice to the foregoing provisions of this section, the Federal Government may, by notification in the official Gazette authorize any other officer also to exercise the powers and perform the functions of an officer of customs or officer-in-charge of a police-station under this section, subject to such conditions, if any, that it may deem fit to impose.]

162. Power to issue search warrant. (1) Any ¹[Judicial Magistrate] may, on application by a gazetted officer of customs stating the grounds of his belief that goods liable to confiscation or documents or things which in his opinion will be useful as evidence in any proceeding under this Act are secreted in any place within the local limits of the jurisdiction of such Magistrate, issue a warrant to search for such goods, documents or things.

(2) Such warrant shall be executed in the same way, and shall have the same effect, as a search-warrant issued under the Code of Criminal Procedure, 1898.

1. Substituted by the Federal Laws (Revision & Declaration) Ordinance, 1981 (XXVII of 1981) w.e.f. 8th July, 1981.

163. Power to search and arrest without warrant. (1) Whenever any officer of customs not below the rank of an Assistant Collector or Deputy Collector of Customs or any other officer of like rank duly employed for the prevention of smuggling has reasonable grounds for believing that any goods liable to confiscation or any documents or things which in his opinion will be useful for or relevant to any proceeding under this Act are concealed or kept in any place and that there is a danger that they may be removed before a search can be effected under section 162, he may, after preparing a statement in writing of the grounds of his belief and of the goods, documents or things for which search is to be made, search or cause search to be made for such goods, documents or things in that place.

(2) An officer or person who makes a search or causes a search to be made under sub-section (1) shall leave a signed copy of the aforementioned statement in or about the place searched and shall, at the time the search is made or as soon as is practicable thereafter, deliver furthermore a signed copy of such statement to the occupier of the place at his last known address.

(3) All searches made under this section shall be carried out mutatis mutandis in accordance with the provisions of the Code of Criminal Procedure, 1898 (V of 1898).

(4) Notwithstanding anything contained in the foregoing sub-sections and subject to previous authorization by an officer of customs not below the rank of an Assistant Collector or Deputy Collector of Customs, any officer of customs or any person duly empowered as such may, with respect to an offence related to exportation of such goods as the ¹[Federal Government] may, by notification in the official Gazette, specify in this behalf —

(a) arrest without warrant any person concerned in such offence or against whom reasonable suspicion exists that he is about to be concerned in such offence;

(b) enter and search without warrant any premises to make an arrest under clause (a), or to seize any goods which are reasonably suspected to be intended for exportation contrary to any prohibition or restriction for the time being in force, and all documents or things which in his opinion will be useful for or relevant to any proceeding under this Act; and

(c) for the purpose of arresting, detaining or taking into custody or preventing the escape of any person concerned or likely to be concerned in such offence, or for the purpose of seizing or preventing the removal of any goods in respect of which any such offence has occurred or is likely to occur, use or cause to be used such force to the extent of causing death as may be necessary.

(5) The provisions of sub-section (4) shall apply only to the areas within five miles of the land frontier of Pakistan, and within a five miles belt running along the sea coast of Pakistan.

(6) No suit, prosecution or other legal proceeding shall be instituted, except with the previous sanction in writing of the ¹[Federal Government], against any person in respect of anything done or purporting to be done in exercise of the powers conferred by sub-section (1) or sub-section (2) or, in the areas specified in sub-section (5), by sub-section (4).

1. Substituted by the Finance Ordinance, 1972 (XXI of 1972) w.e.f. 17th June, 1972.

  164. Power to stop and search conveyances. (1) Where the appropriate officer has reason to believe that within the territories of Pakistan (including territorial waters) any conveyance has been, is being or is about to be, used in the smuggling of any goods or in the carriage of any smuggled goods, he may at any time stop any such conveyance or, in the case of an aircraft, compel it to land, and —

(a) rummage and search any part of the conveyance;

(b) examine and search any goods thereon; and

(c) break open the lock of any door, fixture or package for making search.

(2) Where in the circumstances referred to in sub-sections (1) —

(a) it becomes necessary to stop any vessel or compel any aircraft to land, it shall be lawful of any vessel or aircraft in the service of the Government while flying her proper flag or bearing flag marks and any authority authorized in this behalf by the ¹[Federal Government] to summon such vessel to stop or the aircraft to land, by means of an international signal, code or other recognized means, and thereupon such vessel shall forthwith stop or such aircraft shall forthwith land, and if it fails to do so chase may be given thereto by any vessel or aircraft as aforesaid and if after a gun is fired as a signal the vessel fails to stop or the aircraft fails to land, it may be fired upon;

(b) it becomes necessary to stop any conveyance other than a vessel or aircraft, the appropriate officer may use or cause to be used all lawful means for stopping it or preventing its escape including, if all other means fail, firing upon it.

165. Power to examine persons. (1) The appropriate officer may, during the course of an inquiry in connection with the smuggling of any goods,—

(a) require any person to produce or deliver any document or thing to such officer,

(b) examine any person acquainted with the facts and circumstances of the case.

(2) The appropriate officer shall exercise the powers in sub-section (1) only in relation to a person who is readily available or present before him and shall be subject to the same provisions as an officer-in-charge of a police-station is subject to under the Code of Criminal Procedure, 1898 (V of 1898), when investigating a cognizable offence.

166. Power to summon persons to give evidence and produce documents or things. (1) Any gazetted officer of customs shall have power to summon any person whose attendance he considers necessary either to give evidence or to produce a document or any other thing in any inquiry which such officer is making in connection with the smuggling of any goods.

1. Substituted by the Finance Ordinance, 1972 (XXI of 1972) w.e.f. 17th June, 1972.

(2) A summon to produce documents or other things may be for the production of certain specified documents or things or for the production of all documents or things of a certain description in the possession or under the control of the person summoned.

(3) All persons so summoned shall be bound to attend either in person or by an authorized agent, as such officer may direct; and all persons so summoned shall be bound to state the truth upon any subject respecting which they are examined or make statement and produce such documents and other things as may be required:

Provided that the exemption under section 132 of the Code of Civil Procedure, 1908 (V of 1908), shall be applicable to any requisition for attendance under this section.

(4) Every such inquiry as aforesaid shall be deemed to be judicial proceeding within the meaning of section 193 and section 228 of the Pakistan Penal Code, (XLV of 1890) 1860.

167. Person escaping may be afterwards arrested. If any person liable to be arrested under this Act is not arrested at the time of committing the offence for which he is so liable, or after arrest makes his escape, he may at any time afterwards be arrested and dealt with in accordance with the provisions of ¹[ *****] section 161 as if he had been arrested at the time of committing such offence.

168. Seizure of things liable to confiscation. (1) The appropriate officer may seize any goods liable to confiscation under this Act, and where it is not practicable to seize any such goods, he may serve on the owner of he goods or any person holding them in his possession or charge an order that he shall not remove, part with, or otherwise deal with the goods except with the previous permission of such officer.

(2) Where any goods are seized under sub-section (1) and no show cause notice in respect thereof is given under section 180 within two months of the seizure of the goods, the goods shall be returned to the person from whose possession they were seized.

Provided that the aforesaid period of two months may, for reasons to be recorded in writing, be extended by the Collector of Customs by a period not exceeding two months.

(3) The appropriate officer may seize any documents or things which in his opinion will be useful as evidence in any proceeding under this Act.

(4) The person from whose custody any documents are seized under sub-section (3) shall be entitled to make copies thereof or take extracts therefrom in the presence of an officer of customs.

²[169. things seized how dealt with. (1) All things seized on the ground that they are liable to confiscation under this Act shall, without unnecessary delay, be delivered into the care of the officer of customs authorized, to receive the same.

1. Omitted by the Prevention of Smuggling Act, 1977 (XII of 1977) w.e.f. 16th May, 1977.

2. Substituted by the Finance Ordinance, 1979 (XXX of 1979) w.e.f. 28th June, 1979. 

  (2) If there be no such officer at hand, such things shall be carried to and deposited at the custom-house nearest to the place of seizure.

(3) If there be no custom-house within a convenient distance, such things shall be deposited at the nearest place appointed by the Collector of Customs for the deposit of things so seized.

(4) When any thing liable to confiscation under this Act is seized by the appropriate officer under section 168, the Collector of Customs or any other officer of customs authorized by him in this behalf may, notwithstanding the fact that adjudication of the case under section 179, or an appeal under section 193, or a revision under section 196 or a proceeding in any court, is pending, cause the thing to be sold in accordance with the provisions of section 201 and have the proceeds kept in deposit pending adjudication of the case or as the case may be, disposal of the appeal or revision or the final judgement by the Court.

(5) If on such adjudication or, as the case may be, in such appeal or revision or proceeding in court, the thing so sold is found not to have been liable to such confiscation, the entire sale proceeds, after necessary deduction of duties, taxes or dues as provided in section 201, shall be handed over to the owner.]

170. Procedure in respect of things seized on suspicion by the police. (1) When any things liable to confiscation under this Act are seized by any police-officer on suspicion that they had been stolen, he may carry them to any police-station or court at which a complaint connected with the stealing or receiving of such things has been made, or an inquiry connected with such stealing or receiving is in progress, and there detain such thing until the dismissal of such complaint or the conclusion of such inquiry or of any trial thence resulting.

(2) In every such case the police-officer seizing the things shall send written notice of their seizure and detention to the nearest custom-house and immediately after the dismissal of the complaint or the conclusion of the inquiry or trial, he shall cause such things to be conveyed to and deposited at, the nearest custom-house, to be there proceeded against according to law.

171. When seizure or arrest is made, reason in writing to be given. When anything is seized, or any person is arrested under this Act, the officer or other person making such seizure or arrest shall, as soon as may be, inform in writing the person so arrested or the person from whose possession the things are seized of the grounds of such seizure or arrest.

172. Power to detain packages Containing certain publications imported into Pakistan. (1) Any Officer of customs duly authorized by the Collector of Customs or any other officer authorized by the Provincial Government in this behalf may detain any package, brought whether by land, air or sea into Pakistan which he suspects to contain—

(a) any newspaper or book as defined in the ¹[*****] West Pakistan Press and Publication Ordinance, 1963 (W.P. Ord. XXX of 1963).

(b) any documents,

1. Omitted by the Federal Laws (Revision & Declaration Ordinance, 1981 (XXVII of 1981) w.e.f. 8th July,1981.

containing any reasonable or seditious matter, that is to say , any matter the publication of which is punishable under Section 123A or Section 124A, as the case may be, of the Pakistan Penal Code, 1860 (XLV of 1860), and shall forward such package to such officer as the Provincial Government may appoint in this behalf.

(2) Any officer detaining a package under sub-section (1) shall, where practicable, forthwith send by post to the addressee or consignee of such package notice of the fact of such detention.

(3) The Provincial Government shall cause the contents of such package to be examined, and if it appears to the Provincial Government that the package contains any such newspaper, book or other document, as aforesaid, it may pass such order as to the disposal of the package and its contents as it may deem proper, and, if it does not so appear, shall release the package and its contents unless the same be otherwise liable to seizure under any law for the time being in force.

Provided that any person interested in any package detained under the provisions of this section may, within two months of the date of such detention, apply to the Provincial Government for release of the same, and the Provincial Government shall consider such application and pass such order thereon as it may deem to be proper.

Provided further that, if such application is rejected, the applicant may, within two months of the date of the order rejecting the application, apply to the High Court for release of the package or its contents on the ground that the package or the contents do not contain any such newspaper, book or other document.

(4) No order passed or action taken under this section shall be called in question in any court save as provided in the second proviso to sub-section (3).

Explanation.- In this section "document" includes any writing, painting, engraving, drawing or photograph, or other visible representation.

173. Procedure for disposal by High Court of applications for release of packages so detained. Every application under the second proviso to sub-section (3) of section 172 shall be heard and determined, in the manner provided by section 99D to 99F of the Code of Criminal Procedure, 1898 (V of 1898), by a special bench of the High Court constituted in the manner provided by section 99C of that Code.

174. Power to require production order permitting clearance of goods imported or exported by land. The appropriate officer may require any person-in-charge of any goods which such officer has reason to believe to have been imported, or to be about to be exported, by land from, or to, any foreign territory to produce the order made under section 83 permitting inward clearance of the goods or the order passing the bill of export made under section 131 permitting export of the goods:

Provided that nothing in this section shall apply to any imported goods passing from a foreign frontier to an inland customs-station by a route prescribed under clauses (c) of section 9:

Provided further that the Board may, by notification in the official Gazette, direct that the provisions of this section shall not apply to any particular area adjoining foreign territory in relation to goods of any specified description or value.

175. Power to prevent making or transmission of certain signals or messages. If an officer of customs or police or any member of the armed forces of Pakistan has reasonable grounds for suspecting that any signal or message connected with smuggling or intention or designs of smuggling any goods into or out of Pakistan is being or is about to be made or transmitted from any conveyance, house or place, he may board or enter such conveyance, house or place, and take such steps, as are reasonably necessary to stop or prevent the making or transmission of the signal or message.

176. Power to station officer in certain factories. An officer of customs not below the rank of an Assistant Collector or Deputy Collector of Customs may, if he so deems fit, station an officer of customs in any factory or building used for commercial purposes and situated within five miles of the frontier of Pakistan with the object of ensuring that the factory or building is not used in any way for the unlawful or irregular importation or exportation of goods and the officer so stationed shall have the power to inspect at all reasonable times the records of the factory or business carried on in the building and such other powers as may be prescribed by rules.

177. Restriction on the possession of goods in certain areas. (1) This section shall apply to such areas adjacent to the frontier of Pakistan as may, from time to time, be notified by the Board in the official Gazette.

(2) In any area to which this section for the time being applies, no person shall have in his possession or control any such goods or class of goods in excess of such quantity or value as may from time to time be notified by the ¹[Federal Government] or, with the previous approval of the ¹[Federal Government], by the Provincial Government, in the official Gazette, except under a permit granted by the Government which issued the notification in respect of the particular goods or class of goods, or by an officer authorized by such Government.

178. Punishment of persons accompanying a person possessing goods liable to confiscation. If any two or more persons in company are found together and they or any of them, have goods liable to confiscation under this Act, every such person having knowledge of this fact is guilty of an offence and punishable in accordance with the provisions of this Act as if goods were found on such person.

179. Power of adjudication.

1. Substituted to sub-section (2), in cases involving confiscation of goods or imposition of penalty under this Axt or the rules made thereunder, the jurisdiction and pawers of adjudication of the officers of Customs shall be as follows:-

              (i)       Collector                            Without limit

              (ii)      Additional Collector         Confiscationof goods the value of whichdoes notexcludeing the value of conveyance                                                                       and value of non-dutiable goods, and imposition of the penalty under the rules.

              (iii)    Deputy Collector                Confiscation of goods the value of which does not exceed Rs. 500,000/- exculding the                                                                       value of conveyance andd value of non-dutiable goods, andimposition of the penalty                                                                       under the rules.     

(2)    The Board may, by notification in the official Gazette, very the jurisdiction and powers of any Officer of Customs or a class of officers.

(3)   A Collector, an Additional Collector or an Deputy Collector Shall decide the case within forty-five days of the issuance of show cause notice or with in such extended period for which for reasons shall be recorded in writing, provided that such extended period shall in no case exceed ninety days.

(4)   The Board shall have the powers to regulate the system of adjudication including transfer of cases and extension of time limit in exceptional circumstances.

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 person 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 authorized agent.

181. Option to pay fine in lieu of confiscated goods. Whenever an order for the confiscation of goods is 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.

²[Provided that the Board may, by an order, specify the goods or class of goods where such option shall not be given:

Provided further that the Board may, by an order, fix the amount of fine which, in lieu of confiscation, shall be imposed on any goods or class of goods imported in violation of the provisions of section 15 or of a notification issued under section 16, or any other law for the time being in force.;]

Explanation.- 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.

182. Vesting of confiscated property in the Federal Government. When any goods are confiscated under this Act they shall forthwith vest in the ³[Federal Government], and the officer who orders confiscation shall take and hold possession of the confiscated goods.

1. Inserted by the Prevention of Smuggling Act, 1977 (XII of 1977) w.e.f. 15th May, 1977 and Omitted by the Finance Ordinance,

1979 (XXX of 1979) w.e.f. 28th June, 1979

2. Added by the Finance Act, 1992

3. Substituted by the Finance Ordinance, 1972 (XXI of 1972) w.e.f. 17th June, 1972

183. Levy of penalty for departure without authority or failure to bring-out. (1) If any conveyance actually departs without a port clearance or permission in writing or, in the case of a vessel, after having failed to bring-to when required at any station appointed under section 14, the penalty to which the person-in-charge of such conveyance is liable may be adjudged by the appropriate officer of any customs-station, to which, such conveyance proceeds, or in which it for the time being is.

(2) A certificate in respect of such departure or failure to bring-to when required, purporting to be signed by the appropriate officer of the customs-station from which the conveyance is stated to have so departed, shall be prima facie proof of the fact so stated.

¹[184. Power to try summarily. (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (V of 1898), a Special Judge may, if he thinks fit, try in a summary way, any offence under this Act where the value of the goods involved in such offence does not exceed one thousand rupees.

(2) In the trial of an offence under sub-section (1), the provisions of sub-section (1) of section 262 and section 263, 264 and 265 of the said Code shall, so far applicable and with the necessary adaptation, apply.

(3) No proceeding under this section shall be called in question merely on the ground that the value of the goods involved was more than the limit specified in sub-section (1).

Explanation.- For the purpose of this section, "value"—

(i) in the case of goods, whether imported or indigenous, which are lawfully sold in open market in Pakistan, means the wholesale price of such goods in open market;

(ii) in the case of goods, whether imported or indigenous, the price of which has been fixed by the Government, means the price so fixed; and

(iii) in the case of goods the import of which is absolutely prohibited, means the price of similar or comparable indigenous goods sold in open market in Pakistan or, where no such goods are sold in open market in Pakistan, the price fixed by the Federal Government, by general or special order.

²[185. Special Judges. (1) The Federal Government may by notification in the official Gazette, appoint as many Special Judges as it considers necessary and, where it appoints more than one Special Judge, shall specify in the notification the headquarters of each Special Judge and the territorial limits within which he shall exercise jurisdiction under this Act.

(2) No person shall be appointed as a Special Judge unless he is or has been a Sessions Judge.

(3) Notwithstanding the provisions of sub-sections (1) and (2), the Federal Government may, for the areas comprising the districts of Lasbela ¹[ , Turbat, Panjgoor and Gwadur], appoint any other officer as Special Judge and specify in the notification his headquarters and the limits of his territorial jurisdiction under this Act.

1. Substituted by the Prevention of Smuggling Act, 1977 (XII of 1977) w.e.f. 16th May, 1977 w.e.f. 16th May, 1977.

2. Substituted by the Customs (Amendment) Ordinance, 1977 (XLI of 1977)

[1969: Act IV]

(Chapter XVIII - Prevention of Smuggling -Powers of Search,

Seizure & Arrest - Adjudication of Offences.)

(4) If a Special Judge is, for any reason, temporarily unable to perform his duties under this Act, he may generally or specially authorise the Sessions Judge ¹[*****] of the district to perform such duties of an urgent nature as he may deem proper and such Sessions Judge ¹[*****] shall perform such duties.

185A. Cognizance of offences by Special Judges. (1) Notwithstanding anything contained in this Act or any order law for the time being in force, a Special Judge may, within the limits of his jurisdiction, Cognizance take cognizance of any offence punishable under this Act —

(a) upon a report in writing made by an officer of customs or by an officer-in-charge of a police-station or by any other officer especially authorized in this behalf by the Federal Government; or

(b) upon receiving a complaint or information of facts constituting such offence made or communicated by any person; or

(c) upon his own knowledge acquired during any proceeding before him under this Act or under the Prevention of Smuggling Act, 1977,

(2) Upon the receipt of report under clause (a) of sub-section (1), the Special Judge shall proceed with the trial of the accused.

(3) Upon the receipt of a complaint or information under clause (b), or acquired in the manner referred to in clause (c) of sub-section (1), the Special Judge may, before issuing a summon or warrant for appearance of the person complained against, hold a preliminary inquiry for the purpose of ascertaining the truth or falsehood of the complaint, or direct any Magistrate or any officer of customs or any police officer to hold such inquiry and submit a report, and such Magistrate or officer shall conduct such inquiry and make report accordingly.

(4) If, after conducting such inquiry or after considering the report of such magistrate or officer, the Special Judge is of the opinion that —

(a) there is no sufficient ground for proceeding, he may dismiss the complaints, or

(b) there is sufficient ground for proceeding, he may proceed against the person complained against in accordance with law.

(5) A Special Judge or a Magistrate or an officer holding inquiry under sub-section (3) may hold such inquiry, as early as possible, in accordance with the provisions of section 202 of the Code of Criminal Procedure, 1898 (Act V of 1898).

1. Omitted by the Federal Laws (Revisions & Declaration) Ordinance, 1981 (XXVII of 1981) w.e.f. 8th July, 1981).

185B. Special Judge, etc. to have exclusive jurisdiction. Notwithstanding anything contained in this Act or in any law for the time being in force —

(a) no court, other than the Special Judge having jurisdiction, shall try an offence punishable under this Act;

(b) no other court or officer, except in the manner and to the extent specifically provided for in this Act, shall exercise any power, or perform any function under this Act;

(c) no court, other than the Special Appellate Court, shall entertain, hear or decide any applicaton, petition or appeal under Chapters XXXI and XXXII of the Code of Criminal Procedure, 1898 (Act V of 1898), against or in respect of any order or direction made under this Act; and

(d) no court, other than the Special Judge or the Special Appellate Court, shall entertain any application or petition or pass any order or give any direction under Chapters XXXVII, XXXIX, XLIV or XLV of the said Code.

185C. Provisions of Code of Criminal Procedure, 1898, to apply. (1) The provisions of the Code of Criminal Procedure, 1898 (Act V of 1898), so far as they are not inconsistent shall apply to the proceedings of the court of a Special Judge and such court shall be deemed to be a Court of Session for the purposes of the said Code and the provisions of Chapter XXIIA of the Code, so far as applicable and with the necessary modification, shall apply to the trial of cases by the Special Judge under this Act.

(2) For the purposes of sub-section (1), the Code of Criminal Procedure, 1898 (Act V of 1898), shall have effect as if an offence punishable under this Act were one of the offences referred to in sub- section (1) of section 337 of the Code.

185D. Transfer of cases. (1) Where more than one Special Judge are appointed within the territorial jurisdiction of a Special Appellate Court, the Special Appellate Court, and where not more than one Special Judge is so appointed, the Federal Government, may, by order in writing direct the transfer, at any stage of the trial, of any case from the court of one Special Judge to the Court of another Special Judge for disposal, whenever it appears to the Special Appellate Court or, as the case may be, the Federal Government, that such transfer will promote the ends of justice or tend to the generally convenience of the parties or witnesses.

(2) In respect of a case transferred to a Special Judge under sub-section (1), such Special Judge shall not, by reason of the said transfer, be bound to recall and rehear any witness whose evidence has been recorded in the case before the transfer and may act upon the evidence already recorded or produced before the court which tried the case before the transfer.

185E. Place of sittings. A Special Judge shall ordinarily hold sittings at his headquarters but, keeping in view the general convenience of the parties of the witnesses, he may hold sittings at any other place.

185F. Appeal to Special Appellate Court. (1) Any person, including the Federal Government, aggrieved by any order passed or decision made by a Special Judge under this Act or under the Code of Criminal Procedure, 1898 (Act of 1898), may, subject tot he provisions of Chapters XXXI and XXXII of the Code, within ¹[sixty days] from the date of the order or decision, prefer an appeal or revision to the Special Appellate Court, and in hearing and disposing of such appeal or revision, such Court shall exercise all the powers of a High Court under the said Code.

(2) Except as otherwise provided in sub-section (1), the provisions of the Limitation Act, 1908 (Act IX of 1908), shall apply to an appeal or revision preferred under sub-section (1).

185G. Persons who my conduct prosecution etc. (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (Act V of 1898), a Special Prosecutor appointed under section 47 of the Prevention of Smuggling Act, 1977, shall be competent to conduct prosecution before a Special Judge for and on behalf to he Federal Government and to withdraw prosecution when so required by the Federal Government.

(2) A law officer appointed under the Central Law Officers Ordinance, 1970 (Ordinance VII of 1970), shall be competent to conduct proceedings before a Special Appellate Court on behalf of the Federal Government and to withdraw such proceedings when so required by the Federal Government.]

186. Detention of goods pending payment of fine or penalty. (1) When any fine or penalty has been imposed, or while imposition of any fine or penalty is under consideration, in respect of any goods, such goods shall not be removed by the owner until such fine or penalty has been paid.

(2) When any fine or penalty has been imposed in respect of any goods, the appropriate officer amy detain any other goods belonging to the same owner pending payment of such fine or penalty.

187. Burden of proof as to lawful authority etc. When any person is alleged to have committed an offence under this Act and any question arises whether he did any act or was in possession of anything with lawful authority or under a permit, licence or other document prescribed by or under any law for the time being in force, the burden of proving that he had such authority, permit, licence or other document shall lie on him.

188. Presumption as to documents in certain cases. Where any document is produced by any person under this Act or has been seized under this Act from the custody or control of any person, and such document is tendered by the prosecution in evidence against him, the Special Judge shall,—

(a) unless the contrary is proved by any such person, presume -

(i) the truth of the contents of such document;

1. Substituted by the Finance Ordinance, 1982 (XII of 1982) w.e.f. 14th June, 1982

(Chapter XVIII - Prevention of Smuggling -Powers of Search,

Seizure & Arrest - Adjudication of Offences.)

(ii) that the signature and every other part of such document which purposes to be in the handwriting of any particular person or which the Special Judge may reasonably assume to have been signed by, or to be in the handwriting, of, any particular person, is in that person's handwriting, and in the case of a document executed or attested that it was executed or attested by the person by whom it purports to have been so executed or attested;

(b) admit the document in evidence, notwithstanding that it is not duly stamped, if such document is otherwise admissible in evidence.

189. Notice of conviction to be displayed. (1) Upon the conviction of any person for the offence of smuggling, the ¹[Federal Government] may require him to exhibit in or outside, or both in and outside his place of business, if any, notices, of such number, size and lettering, and placed in such positions and containing such particulars relating to the conviction as it may determine, and to keep them so exhibited continuously for a period not less than three months from the date of conviction, and, if he fails to comply fully with the requirement, he shall be deemed to have committed a further offence under this Act of the nature of the original offence for which he was convicted.

(2) If any person so convicted refuses or fails to comply fully with any such requirement, any officer authorized in that behalf by an order of the ¹[Federal Government] in writing may, without prejudice to any proceedings which may be brought in respect of any such refusal or failure, affix the notices in or outside, or both in and outside, the place of business of such person in accordance with the requirement of the ¹[Federal Government] in pursuance of sub-section (1).

(3) If, in any case, the ¹[Federal Government] is satisfied that the exhibition of notices in accordance with the requirements of the provisions of sub-section (1) or sub-section (2) will not effectively bring the conviction to the notice of persons dealing with the convicted person, the ¹[Federal Government] may, in lieu of, or in addition to any such requirement, require the convicted person to exhibit for such period, not being a period less than three months, on such stationery used in his business as may be specified in the requirement, a notice placed in such position and printed in type of such size and form and containing such particulars relating to the conviction as may be specified in the requirement; and, if he fails to comply fully with the requirement, he shall be deemed to have committed a further offence under this Act of the nature of the original offence for which he was convicted.

190. Power to publish conviction. If the ¹[Federal Government] is satisfied that it is necessary so to do, the conviction and the particulars relating to the conviction of any person for the offence of smuggling may be published in the official Gazette.

191. Imprisonment may be of either description. Imprisonment for any offence under this Act may, in the discretion of the ^2[Special Judge], be either simple or rigorous.

1. Substituted by the Finance Ordinance, 1972 (XXI of 1972) w.e.f. 17th June, 1972

2. Substituted by the Prevention of Smuggling Act, 1977 (XII of 1977) w.e.f. 16th May, 1977.

192. Duty of certain persons to give information. (1) Any person who comes to know of the commission of any offence under this Act, or an attempt or likely attempt to commit any such offence, shall, as soon as may be, give information thereof in writing to the officer-in-charge of the nearest custom-house or customs-station, or if there is no such custom-house or customs-station, to the officer-in-charge of the nearest police-station.

(2) The officer-in-charge of a police-station who receives any information mentioned in sub-section (1) shall as soon as possible communicate it to the officer-in-charge of the nearest custom-house or customs-station.