Supreme Court Urges Parliament to Amend Prevention of Smuggling Act 1977

Top court says serious procedural and substantive lacunas exist in the Prevention of Smuggling Act, 1977, which, in our opinion, necessitates Parliament's intervention to amend the law

Supreme Court Urges Parliament to Amend Prevention of Smuggling Act 1977

The Supreme Court referred the Prevention of Smuggling Act 1977 to the Parliament on Friday to make amendments, end an existing procedural lacuna, and give the state the right of appeal.

"We are compelled to observe in light of the points explained in the preceding paragraphs that serious procedural and substantive lacunas exist in the Prevention of Smuggling Act, 1977, which, in our opinion, necessitates Parliament's intervention to amend the law," the top court observed in a written judgment issued on Friday.
Justice Shahid Waheed issued the seven-page judgement while deciding an appeal in which the Anti-Narcotics Force (ANF) challenged a 2012 ruling of the Peshawar High Court (PHC) regarding properties acquired through smuggling.

"The Act does not provide any room for rectification of an incorrect order, as it is only a "person aggrieved" who may appeal against an order of the Special Judge under Section 43, which, in essence, renders the order in favour of the accused final," the top court noted.

"It is further to be noted that we examined the practices and statutes pertaining to property forfeiture resulting from criminal activity in other jurisdictions," it added. 

"In our research, we found a consistent provision expressly providing the right to the state or government to appeal against an order of a court if it is not satisfied by the outcome in almost all jurisdictions," it further said. 
"Therefore, we deem it appropriate to refer the matter to Parliament to consider providing the state or government the right of appeal under Section 43 by amending the Act, in order to achieve its true objective 
and intended purpose," the top court ruled.

On April 28, 1998, the ANF furnished information to the Special Judge (Central), Customs, Taxation, and Anti-Smuggling in Peshawar. The information stated that the private respondents, the accused, had specific properties that were suspected to have been acquired through smuggling (proceeds).
In response, the Special Judge issued a notice under Section 31 of the Act, calling on the accused to explain why the properties should not be declared as acquired through smuggling. The accused 
were also required under Section 31(2) of the Act to indicate the source of their income, the income and assets used to acquire these properties and provide evidence to refute the complaint against them.

The accused denied the allegations against them. After reviewing the explanation and evidence presented and allowing the 
accused to be heard, the Special Judge recorded his finding on January 15, 2004, that the accused had acquired up to 40% of the alleged properties through smuggling. Subsequently, the special judge declared that under Section 32 of the Act, the share of the properties acquired by smuggling stood forfeited to the federal government, while the share of properties acquired through legitimate means belonged to the accused.

Since the share of the accused could not be easily separated, they were given the option to pay a fine equivalent to the market value of the property prevalent at the time, which amounted to Rs9.46 million in lieu of forfeiture of that part of the property under Section 34 of the Act.

The state, through the deputy attorney general, filed an appeal under Section 43 of the act against the order of the special judge before the special appellate court.

However, the accused objected to the maintainability of the appeal under Section 43 of the Act because the PHC, in another case, had ruled that the right of appeal under Section 43 of the Act was restricted to a "person" who did not include the state.

Since the PHC division bench had approved this precedent, the Special Appellate Court in March 2005 found it binding and dismissed the state's appeal as being not maintainable. 

After the plea's dismissal, the state and ANF jointly filed a petition under Article 199 of the Constitution in the PHC for quashing the orders.

However, the PHC upheld the Special Appellate Court's view and dismissed the petition in an order dated May 30, 2012.

The matter subsequently landed in the top court.

According to Section 43 of the Act, any person aggrieved by an order of the special judge passed under Section 31, Section 32 or Section 34 may, within 30 days from the date of such order, prefer an appeal before the Special Appellate Court whose decision thereon shall be final.

The top court, in its order, said that the words "person aggrieved" seem to be the governing words and show that the object of the legislature is to give an appeal where the legal right of the person is infringed and he has suffered a legal wrong or injury, in the sense that his interest, recognised by law, has been prejudicially and directly affected by the order passed by the special judge under section 31, 32 or 34 of the Act.

"To perfect the understanding of this point, we deem it appropriate to quote here the remarks made by James L. J. in Re Sidebotham. He said, 'the words "person aggrieved" does not really mean a man who is disappointed of a benefit which he might have received if some other order had been made. A "person aggrieved" must be a man who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully deprived him of something, or wrongfully refused him something, or wrongfully affected his title to something."

However, in this case, it is said the ANF, being the complainant, was "aggrieved" as it had informed the special judge that the properties were acquired by smuggling, which was erroneously found not true by the special judge."

"We are not disposed to accept that," the top court said, adding that a plain reading of the Act's scheme, particularly Section 31, clarifies that the Special Judge may receive information (complaint) from 'any person'. In this case, the informer was the ANF.

After the information was conveyed to the sSpecial judge, the informer had no further role, as there was no statutory duty for the informer to appear before the Special Judge nor to produce evidence supporting the information.

The informer was also not required to file a written statement in response to the accused's position, and the special judge was not required to adjudicate between the accused and the informer.

"Quite the contrary, after receiving the information, the matter entirely had become one between the special judge and the accused. This is so because, under Section 33 of the Act, the accused bears the burden of proving that any property specified in a notice under Section 31 is not acquired through smuggling."

The top court said that it appears that it was for this reason the ANF, apart from the information presented to the special judge, did not adduce any oral or documentary evidence.

"At that, its no legal right was infringed, and it had suffered no legal wrong or injury." 

Give the circumstances, the top court added that the ANF—which could not succeed in getting a forfeiture order against all the properties of the accused—could be said, to be annoyed by the findings of the special judge. As a result, the top court said, its appeal was rightly held to be not maintainable. 

The top court directed its Registrar Office to send the copy of the instant judgment to the chairperson of the Law and Justice Commission, the Attorney General for Pakistan and Secretary Law to Government of Pakistan for their information and appropriate action.

The writer is an Islamabad based journalist working with The Friday Times. He tweets @SabihUlHussnain