1971 S C M R 686

Present : Fazle Akbar, C. J. and Hamoodur Rahman, J

THE STATE-Petitioner

versus

HAMTHO-Respondent

Petition for Special Leave to Appeal No. K-12 of 1968; decided on 17th
September 1968.

(On appeal from the judgment and order of the High Court of West
Pakistan, Karachi, dated the 16th January 1968, in Criminal Acquittal
Appeal No. 128 of 1967).

(a) Interpretation of statutes-Statute creating a special offence and
laying down a special procedure for trial of such offence-Such
procedure must be followed and not ordinary procedure.

(b) Sea Customs Act (VII of 1873) read with Criminal Procedure Code
(V of 1898)-Persons accused of contravention of provisions of Sea
Customs Act-Cannot be sent up by police officers for trial under a
challan under Cr. P. C.

S. Murtaza Hussain, Advocate Supreme Court instructed by Shafiq
Ahmad, Senior Attorney for the State.
Nemo for Respondent.

Date of hearing : 17th September 1968.

JUDGMENT

HAMOODUR RAHMAN, J.-This is a petition for special leave to
appeal from the judgment of a Division Bench of the High Court of
West Pakistan at Karachi upholding the acquittal of the respondent by
the Sessions Judge, Tharparkar, in appeal.

The respondent had been convicted by a Sub-Divisional Magistrate for
an offence under section 167(81) of the Sea Customs Act. It was
contended before the learned Sessions Judge in appeal that the
conviction was void as the accused could not be challaned by the police
for trial either under the provisions of the Sea Customs Act or under the
Land Customs Act. The procedure for trial of such offences was,
according to this plea, prescribed by section 7, subsection (2) of the
Land Customs Act, 1924 and this required that the Land Customs
Officer should in the case of an offence committed by bringing in or
taking out prohibited goods by land, make a complaint to a Magistrate.

The High Court agreed with this view and repelled the contention of the
Assistant Advocate-General that the amendment of section 9 of the
Land Customs Act by the Customs Acts (Amendment) Ordinance, 1962,
had not empowered Police Officers to send up persons for trial in any
other manner. By virtue of the amendment Police Officers could only be
notified as Land Customs Officers but that did not confer upon them the
power of sending up cases for trial in any manner other than that
prescribed in subsection (2) of section 7 of the Act.

The learned counsel appearing in support of this petition concedes that
no complaint was lodged as required by subsection (2) of section 7 of
the Land Customs Act but reiterates the arguments that were advanced
in the High Court, namely, that the amendment of section 9 of the Land
Customs Act by the Amending Ordinance of 1962, gave to the Police
powers to send up persons for trial even in respect of offences alleged to
have been committed under the Land Customs Act in the ordinary
manner prescribed under the Criminal Procedure Code and that section
7 of the Land Customs Act had not altered that procedure.

Having examined the relevant provisions of the Land Customs Act and
the Sea Customs Act, we are unable to agree with this contention. It is
now well settled that where a statute g has created a special offence and
lays down a special procedure for the trial of such offence, it is that
procedure that must be followed and not the ordinary procedure.

The learned counsel has not been able to show us any provision in the
Sea Customs Act authorising Police Officers to send up persons accused
of contraventions of the provisions of the Sea Customs Act, for trial
under a challan under the Criminal Procedure Code.

In the circumstances there is no substance in this petition and it is
accordingly dismissed.

Petition dismissed.