Law: Sea Customs Act, 1878

Section: 167

(a) Sea Customs Act (VIII of 1878)--(as amended by Ordi­nance 111 of 1954), Ss. 167 (81) and 177-A-Burden of proving lawful import of goods, transactions regarding which must have taken place before introduction of S. 177-A-Not on accused-Writ issued against confiscation order-Constitution of Pakistan, Art. 170. Clause 81 of section 167, and section 177-A, Sea Customs Act (VIII of 1878) were introduced by Ordinance III of 1954, on 18th December 1954. Under section 177-A, the burden of proving lawful import of cloth was placed on the person from whose possession banned foreign cloth was recovered. On the day, section 177-A was made a part of the Act, i.e., 18th December 1954, at about 8 or 11 a. m, as variously stated by the petitioners and the Customs authorities, banned cloth was seized from the petitioners Held : that, whether the cloth was seized at 8 or 11 a. m. on 18th December 1954 it represented transactions which must have taken place prior to 18th December 1954 because the cloth could not have been purchased during the interval of few hours between the time the Ordinance was promulgated and the time it was seized. The transaction in respect of it must have taken place prior to the promulgation of the enactment, when there was no duty cast upon the person found in possession of the foreign cloth to prove that it was lawfully imported. The burden of proof rested not on the petitioners but, in accordance with the previous law, on the Customs authorities. Retrospective effect of a penal enactment was not permissible in the absence of an express provision. Order of confiscation of cloth under section 167 (81) was, therefore, set aside by a writ of certiorari as the order was held to be against principles of natural justice. Neither could the order be maintained by the application of section 167 (8) of the Sea Customs Act; as the Court had no jurisdiction to do so. (b) Interpretation of Statutes-Retrospective effect-Not to be given unless there is express provision, especially in case of penal enactments. Presumption is always against retrospectivity of an enactment, and more so when the latter is of a penal nature. In fact enactments are presumed to be…

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