ABU BAKAR SIDDIQUE VS COLLECTOR OF CUSTOMS, LAHORE
2004 P T D 2187
[Supreme Court of Pakistan]
Present: Sh. Riaz Ahmed, C.J., Mian Muhammad Ajmal and Muhammad Nawaz Abbasi, JJ
ABU BAKAR SIDDIQUE and others
Versus
COLLECTOR OF CUSTOMS, LAHORE and another
Civil Appeals Nos.1574 of 2001 and 921 of 2002, decided on /01/.
th
February, 2003. (On appeal from the judgment of Lahore High Court, Lahore dated 6‑12‑2000 passed in Customs Appeal No. 26 of 1997 and dated 7‑6‑1999 of Lahore High Court, Rawalpindi Bench, passed in Customs Appeal No.51 of 1998).
(a) Customs Act (IV of 1969)‑‑‑
‑‑‑‑S. 181‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Leave to appeal was granted by Supreme Court to consider whether in view of S.181 of Customs Act, 1969, the Collector of Customs was not under obligation to give an option to the petitioner to pay fine in lieu of confiscated goods.
(b) Customs Act (IV of 1969)‑‑‑
‑‑‑‑S. 181‑‑‑Central Excises Act (I of 1944), S.34‑‑‑Sea Customs Act (VIII of 1878), S. 183‑‑‑Confiscation of goods‑‑Option to pay fine‑‑ Scope and distinction‑‑‑In case of confiscation of goods under the provisions of Central Excises Act, 1944, it is obligatory for the adjudicating officer to give option to the owner of the goods to day fine in lieu of confiscation and similarly under S.183 of Sea Customs Act, 1878, giving of such option was mandatory but under S.181, of Customs Act, 1969, the option is discretionary and not mandatory‑‑‑Distinction among the provisions of three laws is that Central Excises Act, 1944, deals with the goods which are manufactured in Pakistan and there is no restriction on the sale and purchase of such goods inside the country whereas the Customs Act, 1969, applies to the goods which are imported into Pakistan and exported out of Pakistan under the import and export policy of Government.
Kshetra Nath v. Collector, Land Customs AIR 1959 Cal. 356 ref.
(c) Customs Act (IV of 1969)‑‑‑
‑‑‑‑S. 2(s)‑‑‑Imports and Exports (Control) Act (XXXIX of 1950), Preamble‑‑‑Import of goods in personal baggage‑‑‑Scope‑‑‑Such import is in violation of import policy framed under Imports and Exports (Control) Act, 1950 and is illegal.
(d) Discretion‑‑‑
‑‑‑‑ Exercise of discretion Principles‑‑‑Authority enjoying the discretionary powers, exercise same without any guideline but at the same time such authority must not exercise the discretion in arbitrary and capricious manner‑‑‑It may not be obligatory for the concerned authority to exercise the discretion in a particular manner but exercise of such power in unreasonable manner is not proper and in such a case the order passed in discretionary jurisdiction is not immune from judicial review of superior Courts‑‑‑In a case in which statute authorizes a person for exercise of discretion to advance the cause of justice, the power is not merely optional but it is the duty of such person to, act in the manner it is intended.
(e) Words and phrases‑‑‑--
‑‑‑‑May‑‑‑Connotation and applicability‑‑‑Word 'may' is discretionary and an enabling word and unless the subject‑matter shows that the exercise of power given by the provision using the word 'may' was intended to be imperative for the person to whom the power was given, it might not put him under obligation to necessarily exercise such power but if it is capable of being construed as referring to a statutory duty, it is not entirely for such person to exercise or not to exercise the power given to him under the law‑‑‑Use of word 'may' in statute in plain meanings is to give discretion to public authorities to act in their option in the manner in which such authorities deem proper but if the public authorities are authorized to discharge their functions in their option in a positive sense, the word `may' used in the provision can be suggestive of conveying the intention of Legislature of imposing an obligation on them‑‑‑Word `may' usually and generally does not mean 'must' or 'shall' but it is always capable of meaning 'must' if the discretionary power is conferred upon a public authority with an obligation under law‑‑‑Word 'may' is not always used in statute with the intention and purpose to give uncontrolled powers to an authority rather oftenly it is used to maintain the status of authority on whom the discretionary power is conferred as an obligation and thus the legislative expression in the permissive form sometimes is construed mandatory‑‑‑Such however, is only in exceptional circumstances that a power is conferred on a person by saying that he may do a certain thing in his discretion but from the indication of the relevant provisions and the nature of the duty to be done, it appears that exercise of power is obligatory.
(f) Customs Act (IV of 1969)‑‑‑
‑‑‑‑S. 181‑‑‑Confiscation of goods‑‑‑Option of tine in lieu of confiscation‑‑‑Jurisdiction of adjudicating officer‑‑‑Scope‑‑‑Adjudicating Officer under S.181 of Customs Act, 1969, is not under obligation to give an option to the owner of goods for redemption in lieu of payment of fine and taxes‑‑‑By addition of proviso to S.181 of Customs. Act, 1969, the discretionary power of giving an option to the owner of goods is confined only to the extent of the goods which have not been kept‑ out of the purview of S.181 of Customs Act, 1969‑‑‑Classification of goods for the purpose of exercise of discretion under S.181 of Customs Act, 1969, manifestly indicates that it is not the intention of Legislature that in all circumstances, the giving of option under S.181 of Customs Act, 1969, for redemption of goods in lieu of payment of fine, should be entirely discretionary.
(g) Administration of justice‑‑‑
‑‑‑Exercise of mandatory and discretionary jurisdiction‑‑‑Principle‑‑‑All judicial, quasi‑judicial and administrative authorities while exercising mandatory or discretionary jurisdiction must follow the rule of fair exercise of power in a reasonable manner and must ensure dispensation of justice in the spirit of law.
(h) Customs Act (IV of 1969)‑‑‑--
‑‑‑‑S.181‑‑‑Order for redemption of goods in lieu of payment of fine‑‑‑Scope‑‑‑Use of word `may'‑‑‑Effect‑‑‑Use of word `may' in S.181 of Customs Act, 1969, cannot be read for `shall' but at the same time the concerned officer in absence of any compelling reasons, must not withhold the exercise of the discretion of giving an option to the owner of goods under S.181 of Customs Act, 1969, for redemption of goods in lieu of payment of fine, except in the cases in which goods cannot be allowed to be circulated in the market or the goods which were imported in violation of S.15 or of notification issued under S.16 of Customs Act, 1969.
(i) Customs Act (IV of 1969)‑‑‑--
‑‑‑‑Ss.2(s) & 181‑‑‑Term `smuggling'‑‑‑Object and scope‑‑‑Confiscation of goods‑‑‑Option of fine in lieu of confiscation‑‑‑Jurisdiction of adjudicating officer‑‑‑Item not banned under Import Policy‑‑‑Gold imported in personal baggage was confiscated by customs authorities‑‑ Plea raised by the appellant was that the adjudicating officer should have given option to him to pay fine in lieu of confiscation‑‑‑Validity‑‑ Smuggling is nothing but importation or exportation of goods intentionally or clandestinely without payment of customs duties or taxes payable or to bring into or take out of Pakistan the goods in breach of any prohibition or restriction imposed by law‑‑‑Bringing of gold in personal baggage, in violation of import policy was illegal but it being not a banned item was not included in the list of items specified by Central Board of Revenue, in which the option under S.181 of Customs Act, 1969, could not be given‑‑Import of gold under the Import Policy, 1995/96, was restricted to registered person or a company with a purpose to regulate its import and business‑ in local market but its import by unregistered person neither debarred the customs authorities from using the discretionary power under S.181 of Customs Act, 1969, nor the Legislature by using the word `may' in the section intended to give unbridled power to the Customs authorities to act entirely in their own wisdom‑‑‑Imperative for the Customs authorities to consider the provisions of S.181 of Customs Act, 1969, at the time of passing the confiscation, order in tire cases in which the provisions of the section could be invoked and passed an appropriate order for grant or refusal of option for redemption of goods in lieu of payment of fine and takes‑‑ Judgment passed by High Court was set aside and the matter was remanded to Collector for consideration of question of redemption of goods in lieu of payment of fine under S‑181 of Customs Act, 1969‑‑ Appeal was allowed.
Kshetra Nath v. Collector, Land Customs AIR 1959 Cal. 356 ref.
(j) Interpretation of statute‑‑‑--
‑‑‑‑Special provision relating to discretionary jurisdiction, interpretation of‑‑‑Principles‑‑‑Narrow interpretation of such provision may defeat the purpose of the provision‑‑‑Discretion must not be exercised to curtail the purpose of law and offend the statute, rather the discretion must be exercised to advance the cause of justice in just, fair ‑and reasonable manner‑‑‑Failure to exercise discretionary power under the statute without any legal justification amounts to refusal to use such power in an arbitrary and capricious manner.
Izharul Haque, Advocate Supreme Court for Appellants (in both cases).
A. Karim Malik, Advocate Supreme Court for Respondents (in both cases).
Date of hearing: 20th February, 2003.
JUDGMENT
MUHAMNMAD NAWAZ ABBASI, J.‑---We propose to dispose of the above two civil appeals involving common questions of law and facts by this single judgment.
2. Civil Appeal No.921 of 2002 has been directed, against the judgment, dated 7‑6‑1999 passed by a Division Bench of the Lahore High Court, Lahore in Customs Appeal No.51 of 1998 filed under section 196 of the Customs Act, 1969 wherein the judgment, dated 20‑5‑1999 passed by the Customs Excise And Sales Appellate Tax Tribunal, Islamabad was set aside and, the order, dated 9‑12‑1995 passed by the Collector of Customs was restored. Civil Appeal No. 1574 of 2001 has been directed against the judgment, dated 6‑12‑2000 passed, by a Division Bench of the Lahore High Court,' Lahore in Customs Appeal No.261 of 1997 arising out of the judgment, dated 31‑7‑1997 passed by the Customs Central Excise and Sales Tax Appellate Tribunal in an appeal filed against the order of confiscation of smuggled gold. Leave was granted in Civil Appeal No.921 of 2002 vide order, dated 19‑6‑2002 as under:‑‑
"Search of a Suzuki‑Van on 2‑1‑1988 in the area of Police Station Nawan Kot, Lahore in which the present petitioners were traveling had led to the recovery of two hundred rennies of gold each one of them weighing 10 tolas. The inscription/embossing on these rennies demonstrated that the same were of a foreign origin. An F.I.R. bearing No.7 of 1988 was consequently registered at the said Police Station Nawan Kot for the alleged commission of offences punishable under sections 156(‑1) (89)/157(2) of the Customs Act, 1969. While the investigation of the said criminal case was in progress, a show‑cause notice was also issued to the present petitioners, on 21‑2‑1988, to show cause why the said quantity of gold be not confiscated.
(2)Through an order, dated 3‑5‑1988, the Collector of Customs ordered confiscation of the said gold and also imposed penalty of Rs.200,000 on each of the five petitioners. However, on appeal, the Member (Judicial) of the Central Board of Revenue remanded the case back to the Collector for a fresh decision in the matter after allowing opportunity to the petitioners to examine members of the seizing agency and other witnesses. On remand, the Collector of. Customs, vide his order, dated 9‑12‑1995, again directed confiscation of the gold in question as also of the vehicle in which the said gold had been found. An option' was, however, given to the owner of the said vehicle to pay a fine of Rs.10,000 in lieu of the confiscation of the said vehicle.
(3)The petitioners questioned the said order of the Collector by way of an appeal which appeal was accepted by the Customs, Central Excise and Sales Tax Appellate Tribunal, Islamabad, through an order, dated 20‑5‑1998, the Collector of Customs impugned the said appellate order by way of a further appeal before the Lahore High Court being Customs Appeal No.51 of 1998 which appeal was allowed by a learned Division Bench of the Lahore High Court through a judgment, dated 7‑6‑1999 as a result of which the impugned appellate judgment of the learned Tribunal was set aside and the above‑mentioned order of the Collector of Customs was restored.
(4)This petition under Article 185(3) of the Constitution challenges the said judgment, dated 7‑6‑1999 of the Lahore, High Court, Lahore.
(5)They only question canvassed by the learned counsel in support of this petition was that as per the provisions of section 18.1 of the Customs Act of 1969, the officer directing confiscation of goods was obliged to give to the owners of the goods in question an option to pay fine in lieu of confiscation of the same and that since the said option had not been offered to the petitioners, therefore, the confiscation of the gold in question was bad in law. Reliance was placed by the learned counsel on an order, dated 5‑7‑2001 passed by this Court in Civil Petition No.50‑L of 2001 whereby leave had been granted to consider the question whether in view of section 181 of the Customs Act, 1969, the Controller of Customs was not under obligation to give an option to ‑the owners of goods to pay fine in lieu of confiscation of his goods.
(6)Mr. A. Karim Malik, Advocate, present on behalf of the respondent/Collector of Customs opposed the grant of leave in the present case on the ground that the provisions of section 181 of the Customs Act, 1969 were more than clear and categorical and thus did‑not admit of any interpretation. He took us through the legislative history leading up to the enactment of the provisions of section 181 as they presently stand in the Customs Act of 1969. He referred us to the provisions of section 183 of the Sea Customs Act being Act No. VIII of 1878 and submitted that in terms of the said provisions whenever confiscation of any goods was ordered, the officer directing such a confiscation was obliged to give the owner of the goods an option to pay fine in lieu of confiscation. The provisions of the said section 183 of Act VIII of 1878 read as under:‑‑
183. Option to pay fine in lieu of confiscation.‑‑‑Whenever confiscation is authorized by this Act, the officer adjudging it shall give to owner of the goods an option to pay in lieu of confiscation such fine as the officer thinks fit."
(Underlining is ours)
The learned counsel then also tools its through the provisions of section 34 of the Central Excise Act, 1944 which read as under:‑‑
(34) Option to pay fine in lieu of confiscation.‑‑‑Wherever confiscation is adjudged under this Act or the rules made thereunder, the officer adjudging it shall give the owner of the goods an option to pay in lieu of confiscation such fine as the officer thinks fit in addition to any duty and other charges due in respect of the goods."
(Underlining is ours)
The comparable provisions in the Customs Act of 1969, as has been mentioned‑above are contained in section 181 thereof which reads as under:‑‑
"181Option to pay fine in lieu of confiscated goods.‑‑‑Whenever an order for the confiscation of goods is passed under this Act, the officer passing the order may give the owner of the goods an option to pay in lieu of the confiscation of the goods such fine as the officer thinks fit.
Explanation.‑‑‑Any fine in lieu of confiscation of goods imposed under this section shall be in addition to any duty and charges payable in respect of such goods, and of any penalty that might have been imposed in addition to the confiscation of goods.
Provided that the Board may, by an order, specify the goods of class of goods where such option shall not be given:
Provided further that the Board may, by an order, fix the amount of fine which 1n lieu of confiscation shall be imposed on any goods or class of goods imposed in violation of the provisions of section 15 or of a notification issued under section 16 or Any other law for the time being in force."
(Underlining is ours)
Comparing the relevant provisions of the two earlier enactments with the provisions which now exist on the subject, the learned counsel for the respondent Collector submitted that the Word "SHALL" used ill tile said earlier provisions stood presently substituted with the words "MAY" which was a purposeful change as a result of which the mandatory obligation of the confiscating officers now stood converted into a discretion of the concerned officers to give of not to give an option to the owner of the confiscated goods regarding payment of fine in lieu of confiscation thereof. It was argued that it was a meaningful departure from the earlier provisions on the subject and consequently warranted treatment accordingly. Illustrating his submissions, the learned counsel contended that if this discretion was read as a obligation then the same would give a licence to unscrupulous persons to import banned and contraband goods into the country and then get away with it, in violation of laws, by merely paying fine in lieu of confiscation of the same. The learned counsel also relied upon the provisions of sections 2(s), 15, 16 and 156 of the Customs Act in support of his case
(8)Be that as it may, since this Court has already granted leave to consider the question therefore, we find it inappropriate to render a different decision in this petition. In this view of the matter, this petition is allowed and leave is granted in terms of the above‑mentioned order, dated 5‑7‑2001 passed by this Court in Civil Petition No.50‑L of 2001.
(9)Since the matter involves confiscation of goods and public revenue therefore, in our opinion the same deserves expeditious decision. We will, therefore, direct that this matter, alongwith the above‑mentioned connected matter; be set down for hearing at an early date subject to the order required for the purpose."
3. Leave was granted in Civil Appeal No. 1574 of 2001 vide order, dated 7‑5‑2001 as under:‑‑
"After hearing Mr. Izharul Haque, learned Advocate Supreme Court for the petitioner, Mr. K.M. Virk, learned counsel for the respondent‑department and Dr. Aftab Bhatti, Deputy Collector Customs, we are of the view that the following question of law arises for consideration in this case:‑‑
"Whether in view of section 181 of the Customs Act, 1969 the Collector of Customs was not under obligation to give an option to the petitioner to pay fine in lieu of his confiscated goods?"
(2) Leave is accordingly granted."
4. The, necessary facts for the disposal of Civil Appeal No.921 of 2002 are incorporated in the leave granting order and the facts, in small compass, giving rise to Civil Appeal 1574 of 2001 are that on 7‑10‑1995 on the arrival of PIA Flight (PK 233) at Lahore Airport from Dubai, the customs officials during the search of luggage of the passengers in the arrival lounge, recovered 78 biscuits of gold weighing 7hir Colas from personal baggage of the appellant who also traveled from Dubai to Lahore in the said flight. Upon failure of the appellant to show lawful import. of the gold, he was taken into custody and gold was seized. The Customs authorities initiated proceedings against the appellant for violation of section 8 of the Foreign Exchange Regulation Act, 1947, Section 3(1) of the Imports and Exports (Control) Act, 1950 and section 2(s), 16 and 139 of the Customs Act, 1969 and in addition to the departmental action, a criminal case was also registered against him. The Collector of Customs, Lahore, having concluded the proceedings confiscated the gold vide order, dated 15‑9‑1996 which was further upheld by the Customs, Central Excise and Sales Tax Appellate Tribunal, Customs House, Lahore in appeal filed by the appellant under section 194 of the Customs Act 1969. The Customs Appeal bearing No.26 of 1997 preferred by the appellant in the matter in the Lahore High Court, Lahore was also dismissed.
5. The sole question requiring determination in these two appeals would relate to the nature of jurisdiction of the Customs authorities under section 181 of the Customs Act; 1969. The gold recovered from the possession of the appellants having been brought into Pakistan in violation of Import Policy Order 1995/1996, was treated smuggled and was confiscated, accordingly.
6. Learned counsel for the appellants contended that prior to the enforcement of Import Policy 1995/1996, there was no restriction on bringing the gold by the incoming passengers from abroad in their personal baggage subject to the payment of duty and taxes and that the import of gold still was not banned rather it was restricted to registered persons and Companies and thus it being not a banned item, the Collector while passing the order of confiscation was under the statutory obligation to give an option to the appellants to pay fine in lieu of the confiscation of gold under section 181 of the Customs Act, 1969. In nutshell the argument was that import of gold was not prohibited but it was restricted to the registered persons and Companies, therefore, the confiscation of gold which was brought into Pakistan in personal baggage, without giving an option of release in terms of section 181 of the Customs Act, 1969.s not proper.
7. Learned counsel representing the Department, on the other, hand, has contended that option under section 183 of the Customs , Act, 1878 was mandatory whereas under section 181 of ,the Customs Act, 1969, it is discretionary with the concerned officer and in case such an option .is not given to the person who was found in possession of confiscated goods, the confiscation order would not be vitiated. Learned, counsel for the department with reference to Kshetra Nath v. Collector. Land Customs (AIR 1959 Calcutta 356) contended that the option under section 181 of the Customs Act, 1969 being discretionary, the customs authorities are not bound to offer, such, option in every case at the time of passing the order of confiscation, therefore, the officer concerned may or may not exercise the power of giving option to the owner of goods.
8. We have heard the learned counsel for the parties at length and examined the relevant provisions of the Customs Act, 1878 and 1969 and Central Excises Act, 1944 in detail.
9. In case of confiscation of goods under the provisions of Central Excises Act, 1944, it is obligatory for the adjudicating officer to give an option to the owner of goods to pay fine in lieu of confiscation and similarly, under section 183 of Customs Act, 1878 giving of such option was mandatory but under section 181 of the Customs Act, 1969, the h option is discretionary and not mandatory. However, the distinction is that the Central Excises Act, 1944 deals with the goods which are manufactured in Pakistan and there is no restriction on the sale and purchase of such goods inside the country whereas the Customs Act, 1969 applies to the goods which are imported into Pakistan and exported out of Pakistan under the Import and Export Policy of Government and import of goods in violation of any restriction or prohibition imposed by law hag been defined smuggling under Section 2(s) of the Customs Act, 1969. The import of goods in personal baggage in violation of the import policy framed under Import and Export (Control) Act, 1950 is certainly illegal, therefore, we without entering into the discussion whether import of gold in personal baggage in violation of import policy can or cannot be defined an act of smuggling under section 2(s) of the Customs Act, 1969 would prefer to concentrate on the question relating to the scope of section 181 of the Customs Act, 1969. The import of gold under Import Policy 1995/1996, was restricted to the registered persons and Companies and it being an importable item, its import was not banned, so much so prior to the enforcement of Import Policy 1995/96, the incoming passengers were permitted to bring gold in ' their accompanied baggage under Notification S.R.O. No. 1116(I)/89, dated 14th November, 1989 and Notification S.R.O. 214(I)/93, dated 21st August, 1993 subject to payment of duty, therefore, the question for consideration would be whether outright confiscation of the gold brought into Pakistan in violation of Import Policy, without giving option to the owners for payment of redemption fine in lieu of the confiscated gold under section 181 of the Customs Act, 1969 was proper. It is fundamental principle that authority enjoying the discretionary powers, exercises the same without any guideline but at the same time such authority must not exercise the discretion in an arbitrary and capricious manner. It may not be obligatory for the concerned authority to exercise D the discretion in a particular manner but exercise of such power in an unreasonable manner is not proper and in such a case the order passed in discretionary jurisdiction is not immune from judicial review of the superior Courts. It is well‑settled that word 'may' is discretionary a, an enabling word and unless the subject‑matter shows that the exercise' of power given by the provision using the word 'may' was intended to be imperative for the person to whom the power is given, it might not put him under an obligation to necessarily exercise such power but if it is capable of being construed as referring to a statutory duty, it will not be entirely for such person to exercise or not to exercise the power given to him under the law. The use of word 'may' in the statute in the plain meanings is to give discretion to the public authorities to act in their option in the manner in which such authorities deem proper but if the public authorities are authorised to discharge their functions in their option in a positive sense, the word 'may' used in the provision would be E suggestive of conveying the intention of Legislature of imposing an obligation. The word 'may' usually and generally does not mean 'must' or 'shall' but it is always capable of meaning 'must' if the discretionary power is conferred upon a public authority with an obligation under the law. The word 'may' is not always used in the statute with the intention and purpose to give uncontrolled powers to an authority rather oftenly it is used to maintain the status of the authority on whom the discretionary power is conferred as an obligation and thus the legislative expression in the permissive form, sometimes is construed mandatory. It is, however, only in exceptional circumstances in which a power is conferred on a person by saying that he may do a certain thing in his discretion but from the indication of the relevant provisions and the nature of the duty to be done, it appears that exercise of power is obligatory. This is an accepted principle of law that in a case in which the statute authorizes a person for exercise of discretion to advance the cause of justice, the power is not merely optional but it is the duty of such person to act in the manner it is intended. From the plain reading of section 181 of Customs Act, 1969, an impression would be gathered that the adjudicating officer is not under an obligation to give an option to the owner of goods for redemption in lieu of the payment of fine and taxes but by addition of proviso to this section, the discretionary power of giving an option to the owner of goods would be confined only to the extent of goods which have not been kept out of the purview of this section and thus the classification of goods for the purpose of exercise of discretion under section 181 of Customs Act, 1969 would manifestly indicate that it was not the intention of Legislature that in all circumstances, the giving of option under this section for the redemption of the goods in lieu of payment of fine; was entirely discretionary. It is fundamental principle of administration of justice that all judicial, quasi‑judicial and adminis trative authorities while exercising the mandatory or discretionary jurisdiction must follow the rule of fair exercise of power in a reasonable manner and must ensure dispensation of justice in the spirit of law. The use of word 'may' in section 181 of Customs Act, 1969 cannot be read for 'shall' but at the same time the concerned officer in absence of any compelling reasons, must not withhold the exercise of the discretion of giving an option to the owner of goods under said section for redemption of goods in lieu of payment of fine, except in the cases in which goods cannot be allowed to be circulated in the market or the goods which were imported in violation of section 15 or of the notification issued under section 16 of the Customs Act, 1969. "Smuggling" is defined in section 2(s) of the Customs Act, 1969 as under:‑‑‑
"Smuggle" means to bring into or take out of Pakistan, in breach of any prohibition or restriction for the time being in force, or evading payment of customs‑duties or taxes leviable thereon,‑
(i)gold bullion, silver bullion, platinum, palladium, radium, precious stones, antiques, currency, narcotics and narcotic and psychotropic substances; or
(ii)manufactures of gold or silver or platinum or palladium or radium or precious stones, and any other goods notified by the Federal Government in the official Gazette, which, in each case, exceed fifty thousand rupees in value; or
(iii)any goods by any route other than a route declared under section 9 or 10 or from any place other than a customs‑station.
And includes an attempt, abetment or connivance of so bringing in or taking out of such goods and all cognate words and expressions shall be construed accordingly."
10. In plain words, smuggling is nothing but importation or exportation of goods intentionally or clandestinely without payment of customs duties or taxes payable or to bring into or take out of Pakistan the goods in breach of any prohibition or restriction imposed by law.) The bringing of gold in personal baggage in violation of the Import Policy was definitely illegal but it being not a banned item was not included in the list of items specified by the Central Board of Revenue, in which the option under section 181 of the Customs Act, 1969 could import of gold under the Import Policy 1995/96, was restricted to a registered person or Company with the purpose to regulate its import and business in the local market but its import by an un registered person would neither, debar the customs authorities from using the discretionary power under section 181 of the Customs Act, 1969 nor the Legislature by using the word `may' in this section intended to give unbridled power to the customs., authorities to act entirely in their own wisdom. The narrow interpretation of, special provision in the statute relating to the discretionary jurisdiction may defeat the very purpose of the provision as it is settled law that discretion must not be exercised to curtail the purpose of law and offend the statute rather the discretion must be exercised to advance the cause of justice in just, fair and reasonable manner. The failure to exercise the discretionary power under the statute without any legal justification would amount to refusal to use such power in an arbitrary and capricious manner.
11. In the light of foregoing discussion, we are of the view that it is imperative for the customs authorities to consider the provision of section 181 of the Customs Act, 1969 at the time of passing the confiscation order in the cases in which the provision of this section can be invoked and pass an appropriate order for grant or refusal of option for the redemption of goods in lieu of the payment of fine and taxes. We therefore, set aside the impugned judgment and remand the case to the Collector Adjudication for consideration of the question of redemption of goods in lieu of payment of fine under section 181 of the Customs Act, 1969. The parties shall appear before Collector on 28‑2‑2003 and he shall make efforts for disposal of the case within two months. These appeals are allowed in the above terms leaving the parties to bear their own costs.
M.H./A‑420/SCase remanded.