Messrs BULK SHIPPING & TRADING (PVT.) LTD. VS COLLECTOR OF CUSTOMS, 2004 PTD-KARACHI-HIGH-COURT-SINDH 509 (2003)

Customs Act (IV of 1969)---

----Ss.16, 23, 156(1)(9) & 168---General Clauses Act (X of 1897), S.24-A---Constitution of Pakistan (1973), Art.199---Constitutional petition---Seizure/impounding of vessel as `derelict'---Issuance of show -cause notice---Customs Authorities found vessel grounded in sea which appeared to be abandoned- --Customs Authorities being of the opinion that vessel fell within definition of `derelict', seized/impounded it in terms of S.168 of Customs Act, 1969---Notice was issued to the petitioners who were Shipping Agents of vessel to show cause as to why action should not be taken against them for violation of Customs Act, 1969---Petitioners appeared before Collector and sought time to file a reply to said show-cause notice and matter was adjourned---Petitioners instead of filing reply before Collector, filed Constitutional petition, alleging that show-cause notice issued to them was void ab initio and illegal and that owners of vessel neither had abandoned nor had intended to abandon vessel at any time and that Authority had wrongly declared vessel as `derelict'---Validity---Show-cause notice was issued to petitioners who had to explain as to why vessel could not be treated as `derelict' and in response to said show-cause notice petitioners should have produced evidence---By issuance of show-cause notice Authority had not made any final determination about status of vessel as being `derelict'---Constitutional petition was not maintainable against a show -cause notice---Petitioners had already availed adequate remedy available under law by seeking time to file a reply to show-cause notice-- Petitioners, in circumstances, should follow normal procedure provided in Customs Act, 1969 and contest proceedings before Collector who would decide the issue on the basis of evidence on record according to law.  

Al-Ahram Builders v. ITAT 1993 SCMR 29 ref.

Shakeel Ahmed for Petitioner.

Date of hearing: 11th July, 2003.

ORDER

S. AHMED SARWANA, J.---This petition has been filed to seek a declaration that the Show-Cause Notice No.ASO/Misc./12/03/930 dated 21-6-2003 issued by Collectorate of Customs Sales Tax and Central Excise to Bulk Shipping and Trading (Pvt.) Ltd. ("The petitioner") is ab initio illegal, unlawful and has no legal effect in the eye of law and to direct the Collector of Customs (Preventive) (respondent No.1) to hand over the possession of the vessel M. T. Al-Akeel-II to the petitioner. The brief facts giving rise to the show-cause notice as available from the petition and the documents attached therewith are that the Customs Authorities received an information that a vessel had grounded somewhere in the vicinity of Patiani Creek and had been abandoned. Consequently the Customs Officials proceeded to the indicated, area which they reached at 0600 hours on 21-4-2003 and found the said vessel grounded with its name "Al-Akeel-II, painted on the bridge while on both front sides of the vessel the name of the vessel as "Hypek" was visible. There was neither any crew nor any other person on board the vessel and on inspection they found it to be an oil tanker without any cargo. From the captain's cabin and other cabins several documents relating to the vessel were found including the Ship Licence which had expired on 21-11-2002, which indicated that the oil tanker was plying on a sea voyage without any lawful authorization. At about 3-30 p.m. on the same day the personnel of Maritime Security Agency (MSA) arrived at the site of the vessel and informed the Customs personnel that they had received a SOS message from the vessel pursuant to which they had rescued the crew of the vessel/Oil Tanker during the night of 20/21 April, 2003 who were found to be of Indian Nationality. The details of the rescue and the investigation carried out by MSA are stated in the show-cause notice. The Collector of the Customs (Adjudication-II) (respondent No.2) in the circumstances, being of the opinion that the vessel fell within the definition of a "derelict", seized/impounded the same in terms of section 168 of Customs Act, 1969 and issued the aforesaid notice to the petitioner to show cause why action should not be taken against them for violation of the Customs Act and the vessel confiscated. The notice was issued to the petitioner because it had communicated to the Customs Department that they were the Shipping Agents of the vessel and represented its owners. The petitioner appeared before the Collector on 28-6-2003 and sought time to file a reply to the show-cause notice when the matter was adjourned to 17-7-2003.

Mr. Shakeel Ahmed, learned counsel for the petitioner, contended that the show-cause notice is void, ab initio and illegal as respondent No.2 had declared the vessel as a "derelict" and on that assumption decided to confiscate the same under section 16 read with clause 9 of section 156(1) and section 23 of the Customs Act, 1969. Learned counsel referred to Halsbury's Laws of England, Third Edition, Volume 35 page 722, which discusses the term "derelict" as follows:

"`Derelict' is property, whether vessel or cargo (q), abandoned at sea by those Incharge of it without hope on their part of recovering or intention of returning to it (r). A vessel is not derelict which is left temporarily by her master and crew with the intention of returning to her/(s), even though the management of the vessel may have passed into the hands of salvors(t).; On the other hand, a vessel deserted by her master and crew with the intention of abandoning her does not cease to be derelict because they subsequently change their intention and. try to recover her (u), Whenever the question arises whether a vessel is derelict or not, the test to be applied is the intention of expectation of the master and crew at the time to quitting her, and, in the absence of direct evidence, that is determined by consideration of all the circumstances of the case (a)."

He also referred to "Words and Phrases" Permanent Edition, Volume 12, page 308 wherein several authorities have been quoted to explain the meaning of the term "derelict" two; of which read as follows:--

"The abandonment must be complete and so a vessel anchored a mile or two from shore in comparatively calm weather, and left by her crew with the intention to return, is not a "derelict". The Minnie E. Kelton, 181 F.237, 242.

A vessel found at sea in a situation of peril, with no one aboard of her, is prima facie a "derelict"; but when the crew have left her temporarily, with intention of returning to resume possession, she is not technically a derelict, but is what may be termed a "quasi derelict." The Alcazar, D.C.N.C., 227 F.633, 650."

On the basis of the aforesaid legal authorities, and, inter alia, copies of the correspondence exchanged between the petitioner, the agents of the alleged owners, Al-Qadeer Marine Shipping LLC of Dubai and Bulk Shipping and the Customs Department, Mr. Shakeel Ahmed, learned counsel for the petitioner, vehemently contended that the owners had neither abandoned nor had intended to abandon the vessel at any time and because the vessel had grounded while being towed to a port in India as the tug's tow broke near Port Qasim and the petitioner was making efforts to re-float the vessel for which a local company had been engaged. The show-cause notice was thus issued on the wrong interpretation of the term "derelict" and consequently any action taken by respondent No.2 was without jurisdiction and should be declared to be void ab initio and of no legal effect. He added that the fact whether a vessel is a "derelict" according to the authorities cited by him, depends on abandonment or intention of abandonment of the vessel which must be established before: the relevant Court or authority determines that vessel to be a derelict. The determination depends upon the evidence produced by the parties before the Court or authority.

We have heard the learned counsel at length. It is an admitted position that respondent No.2 has issued a show-cause notice to the petitioner who has to explain why the vessel cannot be treated as a "derelict" in view of the circumstances stated above for which the petitioner must produce/present evidence before respondent No. 2. The Honourable Supreme Court has deprecated the tendency to by-pass the remedy provided under the relevant statute by invoking the Constitutional jurisdiction of the High Court under Article 199 of the Constitution (Al-Ahram Builders v. ITAT : 1993 SCMR 29, 38-39). From a bare reading of the show-cause notice, it is evident that respondent No.2 has not made any final determination about the status of the vessel. It is also well-established that a Constitutional petition is not maintainable against a show-cause notice. The petitioner has already availed the adequate remedy available under the law by seeking time to file a reply to the show-cause notice; they should therefore, follow the normal procedure produced in the Customs Act, 1969 and contest the proceedings before the Collector (Adjudication-II) and produce their evidence before him who shall decide the issue on the basis of the evidence produced before him in accordance with law and would naturally, pass a. speaking order as required under section 24-A of the General Clauses Act, 1897. The petition is not bona fide and is accordingly dismissed in limine alongwith all the interlocutory applications.

H.B.T./B-83/KPetition dismissed.