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Prevention of Smuggling Act, 1977

 

SECTIONS

CONTENTS

 

CHAPTER I

 

PRELIMINARY

1

Short title, extent and commencement.

2

Definitions.

 

CHAPTER II

 

PREVENTIVE DETENTION

3

Preventive detention.

4

Powers to deal with an absconding person.

5

Review Boards.

6

Power to revoke or modify detention order.

7

Delegation.

 

CHAPTER III

 

SECURITY AND OTHER PROCEEDINGS

8

Power to require person suspected of smuggling to appear.

9

Power of Special Judge to have inquiry conducted by Magistrate, etc.

10

Power to proceed against person accused of smuggling.

11

Report to Magistrate in respect of absconder; etc.

12

Summons, etc., to embody substance of order.

13

Power to dispense with personal appearance.

14

Inquiry by Special Judge.

15

Power to require bond.

16

Contents of bond, etc.

17

Habitual offenders.

18

Action where Special Judge does not proceed under section 15 or 17.

19

Order in respect of person in custody or detention.

20

Power to reject surety.

21

Person failing to give security.

22

Surety may ask for cancellation of bond.

23

Cancellation of bond and execution of fresh bond.

24

Deposit of money in lieu of execution of bond.

25

Forfeiture of bond.

26

Execution of fresh bond in certain circumstances.

27

Recovery of amount of penalty.

28

Person required to execute bond may be photographed, etc.

29

Appeal.

 

CHAPTER IV

 

FORFEITURE OF PROPERTY

30

Property acquired by smuggling not to be held.

31

Notice to person holding property suspected to be acquired by smuggling

32

Order of Special Judge

33

Burden of proof

34

Option to pay fine in lieu of property ferfeited.

35

Transfer of certain property void.

36

Notice, etc., not to be called in question.

37

Special Judge, etc., to have certain powers of civil Court.

38

Power of Special Judge to conduct inquiry, investigation, etc.

39

Forfeitd property to be surrendered.

40

Rectification of mistakes.

41

Finding of other Court, etc.

42

Service of notice.

43

Appeal.

 

CHAPTER V

 

MISCELLANEOUS

44

Appointment of Special Judges.

45

Transfer of cases.

46

Constitution of Special Appellate Courts.

47

Special Prosecutors, etc.

48

Indenmity.

49

Act to override other laws.

50

Power to make rules.

 

The

Prevention of Smuggling Act, 1977

No. XII OF 1977

9th  May, 1977

An Act to provide for effective

prevention of smuggling and for matters connected therewith.

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WHEREAS it is expedient to provide for effective prevention of smuggling and for matters connected therewith;

It is hereby enacted as follows:–

CHAPTER I
PRELIMINARY

1. Short title, extent and commencement. : — (1) This Act may be called the Prevention of Smuggling Act, 1977.

(2) It extends to the whole of Pakistan.

(3) It shall come into force on such day, as the Federal Government may, by Notification in the official Gazette, appoint.


2. Definitions. : — (1) In this Act, unless there is anything repugnant in the subject or context,–

(a) “associate” in relation to a person, means—

(i) any individual who is or has been residing in the residential premises, including outhouses and servant-quarters, of such person;

(ii) any individual who is or has been managing the affairs or keeping the accounts of such person;

(iii) any association of persons, body of individuals, partnership firms, or private limited company within the meaning of Companies Act, 1913 (VII of 1913), of which such person is or has been a member, panner or director;

(iv) any individual who is or has been a member, panner or director of an association of persons, body of individuals, partnership firm or a private limited company referred to in sub-clause (iii);

(v) a trustee of any trust created by such person; or

(vi) where the Special Judge, for reasons to be recorded, considers that any property of such person is held on his behalf by any other person, such other person;


(b) “prescribed” means prescribed by rules made under this Act;


(c) “property” includes property held outside Pakistan and any interest in property;


(d) “property acquired by smuggling” means property acquired, whether before or after the commencement of this Act, by any person the aggregate value of the property held by whom exceeds one lac rupees, either wholly or partly.
Explanation. : — In this clause, “value” means the market value at the time property in question was acquired;


(e) “relative”, in relation to a person, means—

(i) spouse of the person;

(ii) brother or sister of the person;

(iii) brother or sister of the spouse of the person;

(ix) any lineal ascendant or descendant of the person;

(v) any lineal ascendant or descendant of the spouse of the person;

(vi) spouse of a person referred to in sub-clause (ii), (iii), (iv) or (v); or

(vii) any lineal descendant of a person referred to in sub-clause (ii) or (iii);


(f) “smuggling” has the same meaning as in clause (s) of Section 2 of the Customs Act, 1969 (IV of 1969), but, in Chapter II, relates only to the taking of goods out of Pakistan;


(g) “Special Appellate Court” means a Special Appellate Court constituted under section 46; and


(h) “Special Judge” means a Special Judge appointed under section 44.


(2) Expressions used in this Act but not herein defined shall have the same meaning as are assigned to them in the Code of Criminal Procedure, 1898 (V of 1898), or the Customs Act, 1969 (IV of 1969).

 

CHAPTER II
PREVENTIVE DETENTION

 

3. Preventive detention. : — (1) In order to maintain supplies essential to the community, if the Federal Government or a Provincial Government is satisfied that, for preventing any person from indulging in smuggling, it is necessary to detain him, it may, by an order in writing, direct the arrest and detention of such person for such period as may, subject to the provisions of this Act, be specified in the order.

(2) When an order of detention is made by the Provincial Government, it shall immediately forward to the Federal Government a report in respect of that order and, when such order is made by the Federal Government, it shall immediately intimate this fact to the Provincial Government of the Province in which such person ordinarily resides.

(3) An order of arrest under sub-section (1) may be addressed to a police officer or any other person and such officer or person shall have the power to arrest the person mentioned in the order and, in doing so, he may use such force as may be necessary.

(4) The Police Officer or other person, as the case may be, arresting a person in pursuance of an order under sub-section (1) shall commit the arrested person to such custody as may be specified under sub-section (5).

(5) Every person in respect of whom a detention order has been made shall be detained in such custody and under such conditions as to maintenance, interviews or communication with others, discipline and punishment for breach of discipline as the Federal Government may, by general or special order specify.

(6) Where a detention order has been made under sub-section (1) against any person, the Government making the order shall, as soon as may be, but not later than fifteen days from the date of detention, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order:

Provided that the Government may refuse to disclose facts the disclosure of which it considers to be against the public interest.

(7) Where a representation is made to the Government under sub-section (6), it may, on consideration of the representation and giving the person detained an opportunity of being heard, modify, rescind or confirm the order.


4. Powers to deal with an absconding person. : — (1) If the Federal Government, or as the case may be, a Provincial Government: has reason to believe that a person in respect of whom a detention order has been made is absconding or is concealing himself so that the order cannot be executed, that Government may—

(a) send a report in writing of the fact to the Magistrate having jurisdiction in the place where such person ordinarily resides or has his property, and thereupon the Magistrate shall take proceedings under sections 87, 88 and 89 of the Code of Criminal Procedure, 1898 (Act V of 1898), in respect of such person and his property as if the detention order were a warrant issued by such Magistrate; or

(b) by order published in. the official Gazette or any newspaper, direct such person to appear before such officer, at such place and within such period as may be specified in the order; and if such person fails to comply with such direction, he shall, unless he proves, that it was not possible for him to comply therewith and. that he had, within the period specified in the order, informed the officer. mentioned in the order of the reason which rendered compliance therewith impossible and of his whereabouts, be punishable with imprisonment for a term which may extend to two years, or with fine, or with both.

(2) A police officer, not below the rank of sub-inspector, if satisfied on the receipt of credible information that a person against whom an order of arrest and detention has been made under sub-section (1) of section 3 is present within his jurisdiction, may arrest him without a warrant in the same manner as he would have done if such order of arrest had been addressed to him and thereupon commit the arrested person to such custody as may be specified under sub-section (5) of section 3, or, if he receives any requisition in this behalf from the police officer or other person to whom the detention order has been addressed for execution, he shall commit the person arrested to the custody of such police officer or other person.

(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (Act V of 1898), an offence under clause (b) of sub-section (1) shall be cognizable and non-ballable.


5. Review Boards. : — (1) As soon as may be, the Federal Government and each Provincial Government shall constitute one or more Review Boards, each consisting of a Chairman and two other persons, each of whom is or has been a Judge of the Supreme Court or a High Court to be appointed by the Chief Justice of Pakistan.

(2) The opinion of the Review Board shall be expressed in terms of the views of the majority of its members, including the Chairman.

(3) A person shall not be detained under an order made under section 3 for a period exceeding three months unless the Review Board, to which a reference shall be made by the Government making such order, has reported, before the expiration of the said period, that there is, in its opinion, sufficient cause for such detention, and, if the detention is continued after the said period of three months, unless the Review Board has again reviewed his case and reported, before the expiration of each period of three months, that there is, in its opinion, sufficient cause for such detention.

(4) For the purpose of the proviso to clause (7) of Article 10 of the Constitution, smuggling shall be an anti-national activity.

(5) Where a person is to be detained for a period exceeding three months, the Federal Government, or as the case may be, the Provincial Government, shall, before the expiration of that period, refer his case to the Review Board and shall furnish to the Review Board all documents relevant to the case unless a certificate, signed by a Secretary to the Government concerned, to the effect that it is not in the public interest to furnish any documents, is produced.

(6) The Review Board shall, after affording the person detained an opportunity of being heard in person and considering the material placed before it, including the representation, if any, made by such person and, if necessary, calling for any further information from the Government, submit its report, before the expiration of the period of three months mentioned in sub-section (3), to the Government.

(7) If, in any case, the Review Board reports that there is, in its opinion, no sufficient cause for further detention of the person whose case has been referred to it, the Government concerned shall revoke the detention order mid direct that such person be released immediately or on the expiry of the period of detention.

(8) If the Board reports that there is, in its opinion, sufficient cause for the detention of such person, the Government concerned may, subject to the provisions of sub-section (3), continue to detain him for such period as it may deem fit.

(9) The Review Board shall determine the place of detention of the person detained and fix a reasonable subsistence allowance for his family; and thereupon such person shall, if he is detained elsewhere in pursuance of an order made under sub-section (4) of section 3, immediately be shifted to and detained at the place specified by the Board.

(10) A person whose case has been referred to the Review Board under sub-section (5) shall not be entitled to be represented or defended by a legal practitioner before the Board, and the proceedings and the report of the Board, excepting that part of the report in which the opinion of the Board is specified, shall be confidential.


6. Power to revoke or modify detention order. : — (1) Without prejudice to the provisions of section 21 of the General Clauses Act, 1897 (X of 1897), a detention order may, at any time, be revoked or modified—

(a) by the Government by which such order was made; or(b) by the Federal Government if the order was made by any of its officers or by any Provincial Government or any officer of that Government.

(2) The revocation, otherwise than on the recommendation of the Review Board, of a detention order against any person, or the expiry of any such order, shall not bar the making, against the same person and on the same grounds, of a fresh detention order:

Provided that, a person shall not be detained under successive orders on the same grounds for a period exceeding three months in the aggregate unless the Review Board has reported before the expiration of the said period that there is, in its opinion, sufficient cause for such detention.

Explanation. : — In computing the aggregate period of three months, there shall be excluded any period for which the person concerned has been detained with the authority of the Review Board under section 5.


7. Delegation. : — The Federal Government or, as the case may be, a Provincial Government may, by Notification in the official Gazette, delegate all or any of its powers under this Chapter to any of its officers, not below the rank of a Joint Secretary, in case the delegation is to be made by the Federal Government, and, not below the rank of a Secretary, if the delegation is to be made by a Provincial Government.

 

CHAPTER III
SECURITY AND OTHER PROCEEDINGS

 

8. Power to require person suspected of smuggling to appear. : — Whenever a Special Judge has information that there is within the limits of his jurisdiction any person who, within or without such limits, is indulging in smuggling, such Judge may, if he is of the opinion that there is sufficient ground for proceeding, require such person, in the manner hereinafter provided, to appear before him.

9. Power of Special Judge to have inquiry conducted by Magistrate, etc. : — (1) If the Special Judge receives credible information that any person within his jurisdiction is indulging in smuggling but there is no sufficient ground for proceeding against him under section 8, the Special Judge may direct any Magistrate or police officer or officer of any other Department to hold a preliminary inquiry into the truth of such information and submit his report within such period as the Special Judge may specify and such Magistrate or officer shall comply with such direction.

(2) On the receipt of such report, if the Special Judge is satisfied that there is sufficient ground for proceeding against the person in respect of whom the report has been received, the Special Judge shall proceed under section 8.

(3) If the report discloses no sufficient ground for proceeding against the person under any provision of this Act, the Special Judge may file the report.

10. Power to proceed against person accused of smuggling. : — (1) When the Special Judge acting under section 8 deems it necessary to proceed against the person in respect of whom such information has been received, he shall make an order in writing setting forth the substance of such information and his reasons for taking action.

(2) If the person in respect of whom such order is made is present in Court, it shall be read over to him and, if he so desires, the substance thereof shall be explained to him.

(3) If such person is not present in Court, the Special Judge shall issue a summons requiring him to appear or, if such person is in custody, make an order directing the officer in whose custody he is to bring him before the Court:

Provided that, the Special Judge may, at any time, issue a warrant, bailable or non-bailable, for the arrest and production of such person before him if he is satisfied that—

(i) such person is purposely avoiding service of summons; or

(ii) such person does not appear inspire of service of the summons; or

(iii) for any other reason to be recorded;


It is necessary to issue a warrant.


11. Report to Magistrate in respect of absconder, etc. : — If the Special Judge has reason to believe that a person against whom a warrant of arrest has been issued under sub-section (3) of section 10 has absconded or is concealing himself to avoid the execution of the warrant, the Special Judge may make a report to the Magistrate having jurisdiction in the area where such person ordinarily resides or has property, and the Judicial Magistrate shall take proceedings under sections 87, 88 and 89 of the Code of Criminal Procedure, 1898 (Act V of 1898), in respect of such person and his property as if the warrant were a warrant issued by such Magistrate.

12. Summons, etc., to embody substance of order. : — Every summons or warrant issued under sub-section (3) of section 10 shall, so far as possible, embody the substance of the order made under sub-section (1) of that section.

13. Power to dispense with personal appearance. : — The Special Judge may, for sufficient reason, dispense with the personal attendance of any person called upon to show-cause under section 10 and may permit him to appear by an advocate, subject to such conditions, if any, that the Judge may deem fit to impose and may, at any time, revoke the order dispensing with such attendance.

14. Inquiry by Special Judge. : — (1) When an order made under sub-section (1) of section 10 has been read over under sub-section (2) thereof, or when any person appears or is brought before the Special Judge in compliance with, or its execution of, a summons or a warrant issued under sub-section (3) of that section, the Special Judge shall proceed to inquire into the truth of the information upon which the action has been taken and to take such further evidence as may appear necessary:

Provided that, if, before the commencement of evidence, the person complained against requests for a copy of such information, it shall be supplied to him free of cost.

(2) Such inquiry shall, subject to the provisions of this Act, be made, as nearly as may be practicable, in the manner prescribed in the Code of Criminal Procedure, 1898 (Act V of 1898), for conducting trials and recording evidence in cases triable by a Court of Session, except that no charge need be framed:

Provided that, any omission or failure to follow that procedure shall not, unless it has occasioned a failure of justice, vitiate the proceedings.

(3) For the purpose of conducting inquiry under this Chapter, the Special Judge shall have all the powers of a Sessions Judge for issuing summons and warrants, compelling the attendance of witnesses and production of documents, examination of witnesses and issuing commissions for examination of witnesses.

(4) Pending the completion of the inquiry under sub-section (1), the Special Judge may direct the person against whom the inquiry is pending to execute a bond, with or without sureties, undertaking therein to desist from indulging in smuggling until the conclusion of the inquiry and to appear before the Special Judge on every date of hearing, and may detain him in custody until such bond is executed or, in default of execution, until the inquiry is concluded:

Provided that, the Special Judge may, for reasons to be recorded, instead of taking a bond as aforesaid, order the detention of such person in such prison as the Special Judge thinks suitable, but such detention shall not exceed three months.

(5) Where two or more persons have been associated in the matter under inquiry, they may be dealt with in the same or a separate inquiry as the Special Judge deems fit.

15. Power to require bond.-If, upon such inquiry, the Special Judge is satisfied that, with a view to preventing such person from indulging in smuggling, it is necessary that he should be required to execute a bond with sureties for a period not exceeding three years, the Special Judge shall make an order accordingly:

Provided that—

(a) the amount of each bond shall be fixed with due regard to the circumstances of the case; and

(b) if such person is a minor, the bond shall be executed only by his sureties.

16. Contents of bond, etc. : — In the bond to be executed under section 15, such person shall undertake to desist from indulging in smuggling for the period specified in the bond and the commission or abetment of, or attempt to commit, the offence of smuggling, shall be a breach of the bond.


17. Habitual offenders. : — (1) If, upon such inquiry, the Special Judge is satisfied that such person—

(a) habitually indulges in smuggling; or

(b) habitually receives smuggled goods; or

(c) habitually protects, harbours or aids, financially or otherwise, persons indulging in smuggling:

Such Judge may, in addition to, or in substitution of, requiring such person to execute a bond under section 15, direct—

(i) that his movements be restricted to any place or area and that he shall report himself at such time and place and in such mode as may be specified in the order; or

(ii) that he shall not reside within the area specified in the order and shall report himself at such time and place and in such mode as may be specified in that order:

Provided that, if such person, at the time when an order is made under this sub-section, is sentenced to, or is under-going a sentence of, imprisonment or is detained under any law providing for preventive detention, the operation of the order shall be deferred till the expiry of the period of imprisonment or detention.

(2) No order made under sub-section (1) shall be operative for a period of exceeding three years.

(3) If a person against whom an order has been made under sub-section (1) fails, without reasonable, cause, to comply with such order, he shall be punished with imprisonment for a term which may extend to three years, or with fine, or with both.

(4) An offence under sub-section (3) shall be cognisable and non-bailable.


18. Action where Special Judge does not proceed under section 15 or 17. : — If, upon such inquiry, the Special Judge does not consider it necessary to take any action under section 15 or section 17, he shall make an order accordingly and the person against whom the inquiry has been conducted shall be discharged and, if he is in custody only for the purpose of the inquiry, he shall be released forthwith.


19. Order in respect of person in custody or detention. : — If any person in respect of whom an order requiring security has been made under section 15 is, at the time when such order is made, sentenced to, or undergoing a sentence of imprisonment or is detained under any law providing for preventive detention, the period for which such security is required shall commence on the expiration of such sentence or detention.


20. Power to reject surety. : — (1) A Special Judge may refuse to accept any surety offered, or may reject any surety previously accepted by him or his predecessor, on the ground that such surety is an unfit person for the purpose of the bond:

Provided that, before so refusing to accept or rejecting any such surety, he shall either himself hold an inquiry on oath into the fitness of the surety or cause such inquiry to be made by any Executive Magistrate.

(2) The Special Judge, or as the case may be, the Magistrate who has been directed to hold such inquiry, shall, before holding the inquiry, give reasonable notice to the surety and the person by whom the surety was or has been offered and shall in making the inquiry record the substance of the evidence adduced before him.

(3) If the Special Judge is satisfied after considering the evidence so adduced before him, or before a Magistrate deputed under sub-section (1) and the report of such Magistrate, that the surety is an unfit person for the propose of the bond, he shall make an order refusing to accept or rejecting, as the case may be, such surety after recording his reasons therefor:

Provided that, before making an order rejecting any surety who has previously been accepted, the Special Judge shall issue a summons or warrant as he thinks fit and cause the person for whom the surety is bound to appear or to be brought before him.


21. Person failing to give security. : — (1) If any person ordered to give security under section 15 does not give such security on or before the date on Which the period for which such security is to be given commences, he shall be committed to prison or, if he is already in prison, be detained in prison until he gives the security or such period expires:

Provided that, the period for which any person is imprisoned for failure to give security shall not exceed three years.

(2) If the security is tendered to the officer-in-charge of the prison, he shall forthwith refer the matter to the Special Judge who made the order and shall await his orders.

(3) Imprisonment for failure to give security may be simple or rigorous as the Special Judge may direct.

(4) Whenever the Special Judge is of the opinion that for reasons of health or otherwise it is expedient to release any person imprisoned for failing to give security under section 15, he may direct the release of such person either without conditions or upon any condition which such person accepts:

Provided that, any condition imposed shall cease to be operative on the expiration of the period for which such person was ordered to give security.

(5) If the condition, if any, upon which any such person has been released is, in the opinion of the Special Judge by whom the order of release was made of his successor, not fulfilled, he may cancel the conditional order passed under sub-section (4) and direct that such person may be arrested and produced before him.

(6) When such person is brought before the Special Judge, he may be directed to give security in accordance with the terms of the original order for the unexpired portion of the term for which he was in the first instance ordered to be detained for his failure to give security and, if he fails to give such security, the Special Judge may remand such person to prison to undergo the unexpired portion of the term, after deducting such period of conditional discharge as the Special Judge may deem fit to specify.

(7) A person remanded to prison under sub-section (6) shall be released on his given security in accordance with the terms of the original order for the unexpired portion of the terms specified in that order.


22. Surety may ask for cancellation of bond. : — Any surety may at any time apply to the Special Judge for the cancellation of a bond executed by him under this Chapter and the Special Judge may issue a summons or warrant, as he thinks fit, requiring the person for whom such surety is bound to appear or to be brought before him.


23. Cancellation of bond and execution of fresh bond. : — When a person for whose appearance a summons or warrant has been issued under the proviso to sub-section (3) of section 20 or under section 22 appears or is brought before him, the Special Judge shall cancel the bond executed by such person and shall direct such person to give, for the unexpired portion of the period of such bond, fresh security of the same description as the original security and every such direction shall, for the purpose of sections 20, 21 and 22, be deemed to be an order made under section 17.


24. Deposit of money in lieu of execution of bond. : — A person required to execute a bond, with or without sureties, under this Chapter, may be permitted by the Special Judge to deposit in such manner a sum of money or Government promissory notes or bank guarantee to such amount as the Special Judge may specify, in lieu of executing a bond.


25. Forfeiture of bond. : — (1) Whenever it is proved to the satisfaction of the Special Judge that a bond executed under this Chapter has been forfeited, he may call upon any person bound to pay the penalty thereof.

(2) If the penalty or any part thereof is not paid, the Special Judge may proceed to recover the same by issuing a warrant for the attachment and sale of the movable or immovable property, or both, belonging to such person, or his estate if he dies after the order for forfeiture of the bond is passed.

(3) When executing the warrant for the attachment and sale of the property or estate of such person, the Special Judge shall, as nearly as possible, follow the procedure for attachment and sale of property as laid down in section 88 of the Code of Criminal Procedure, 1898 (Act V of 1898):

Provided that, if such person, after the attachment of his property, pays the penalty, the order of attachment shall be withdrawn.

(4) If such penalty or any part thereof is not paid and cannot be recovered by such attachment and sale, such person shall be liable, by order of the Special Judge who issued the warrant, to imprisonment for a term which may extend to one year; and such imprisonment may either be simple or rigorous, as the Judge may direct.

(5) The Special Judge may, for reasons to be recorded, remit any portion of the penalty and enforce payment in part only.

26. Execution of fresh bond in certain circumstances. : — When a surety to a bond under this Chapter becomes insolvent or dies, or when the bond is forfeited under section 25, the Special Judge by whose order such bond was taken may order the person from whom the bond was demanded to execute a fresh bond in accordance with the directions of the original order and, if such person fails to do so, the Special Judge may proceed as if there had been a default in compliance with such original order.

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