SHER FARAZ KHAN VS ADDITIONAL COLLECTOR OF CUSTOMS, KARACHI
2005 P T D 1646
[Karachi High Court]
Before Anwar Zaheer Jamali and Syed Zawwar Hussain Jaffery, JJ
SHER FARAZ KHAN through Attorney
Versus
ADDITIONAL COLLECTOR OF CUSTOMS, KARACHI and another
Constitutional Petition No. D‑148 of 2005, decided on /01/.
th
April, 2005. Customs Act (IV of 1969)‑‑‑----
‑‑‑‑Ss. 32, 168 & 171‑‑‑Constitution of Pakistan (1973), Art. 199‑‑ Constitutional petition‑‑‑Import of merchandise goods under garb of unaccompanied baggage‑‑‑Notice to passenger after seizure of goods liable to confiscation‑‑‑Appointment of attorney by, passenger to get such goods cleared‑‑‑Refusal of Customs Authorities to accept status of attorney or, the ground that his power of attorney seemed to be fabricated‑‑‑Validity‑‑‑Mere such assertion that power of attorney was fabricated would not be enough‑‑‑Such issue, if necessary, could be considered in pending proceedings before Customs Authorities by calling upon original documents of consignment, passport and power of attorney of passenger or any other relevant record‑‑‑High Court accepted Constitutional petition while allowing attorney to pursue the case of passenger for clearance of his consignment.
Sohail Muzaffar for Petitioner.
Raja Muhammad Iqbal for Respondents.
ORDER
By this Constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan 1973, the petitioner, who is being represented in this petition through his attorney, Aminur Rehman has prayed for the following reliefs:
"It is therefore prayed that the Honourable Court may be pleased to declare, that the consignment imported as unaccompanied baggage comprises of freely importable items and as such cannot be detained for want of Original passport of the passenger:
And while granting such declaration the Honourable Court may be pleased to pass an order that the contents of the container be examined by the Nazir of this Honourable Court and if the goods imported in 20 feet container No. EMAU 304852‑9 are as per declaration filed by the petitioner along with power of attorney, then the consignment should be released to the attorney of the petitioner on basis of the power of attorney and photocopy of the passport of the petitioner on payment of leviable duties and taxes.
Further restrain the respondents, their subordinate staff or any one representing through them from adopting any coercive measures against the petitioner.
The petitioner prays for the costs. "
Briefly stated, case of the petitioner is that on 8th January, 2005, when he arrived at Karachi, keeping in view the law and order situation prevalent here, instead of carrying the baggage, he booked a 20 feet Container No. EMAU 304852.9 for Karachi, which contained artificial jewelry and such declaration was made by him. Due to short period of leave allowed to the petitioner, while leaving the country, he appointed Mr. Aminur Rehman as his attorney to get the container cleared, but during that process, Customs Authorities refused to accept the status of Mr. Aminur Rehman as attorney of the petitioner with the following objection:‑‑‑
"The person issuing attorney a/w original passport did not appear. Attorney cannot be accepted."
On notice of this petition, respondents have submitted their comments/reply, wherein, in denial of the claim of the petitioner, they have given a brief summary of the relevant facts relating to this petition, which reads thus:
"Brief facts of the case are that the staff of the respondent received an information in the Collectorate that one Sher Faraz Khan S/o Muhammad Raoo Khan in association with other culprits had smuggled a consignment of Imitation jewelry. Cannulas with injection valves and Auto Parts under the garb of import of unaccompanied baggage vide IGM No.157 of 2005, vassel Corinthiakos, Index No.243, B/L No. DXB/KHI/AQ/20050011, Container No. EMAU‑304852‑9 with declared description of goods as "Personal Effects" pursuant to the said information a team of officers of ASO was constituted to trace out the subject consignment and keep it under Customs surveillance. Ultimately the container was traced out while it was lying at Badruddin Yard East Wharf. Since there existed a specific information particulars of the Shipping Agent were obtained from the Yard operators and the container was kept under Customs surveillance. Documents pertaining to the subject consignment were collected from Shipping Agent Messrs Raivan Maritime (Pvt.) Ltd. and scrutiny of the documents almost authenticated the contents of the information. Therefore, Detention Notice were served upon the Yard operators and Notice under section 26 of the Customs Act, 1969 was also issued to the owner Sher Faraz Khan S/o Muhammad Raoo Khan village Opp. Mumtaz General Store, Gul Ahmed Mill, Lal Colony, Landhi Karachi P.P. No. KD751405 asking the relevant documents pertaining to the subject consignment and copies of the notice were also endorsed to the Shipping Agent and the Yard operators (Copy annexed as A). The owner Sher Faraz Khan S/o Muhammad Raoo Khan did not respond to the notice nor did he submit any such documents. Resultantly permission was obtained from the competent authority to conduct the examination of the subject consignment in presence of representative of Shipping Agent and Yard Operators, which was granted accordingly. On 14‑2‑2005 as stipulated earlier the subject consignment was examined in presence of DCP/HQ, ACP/UAB and ASO staff. Before starting the examination process the seal of the loaded Container No.EMAU‑304852‑9, was got duly confirmed by PO Muhammad Shafiq of Customs, Mr. Ramzanullah of Messrs Riavan Maritime (Pvt.) Ltd., Mr. Anwar Rabbani of Messrs Badruddin Yard and Mr. Naeemuddin Sharif of Messrs Unicom Marine Services (Surveyor) and it was confirmed by the aforesaid representatives as well by the undersigned that the Seal No. DXB PR‑0432094 was intact in all respects. The process of examination was started at 10:31 A.M. in presence of Musheers namely Muhammad Shafiq and M. Saleem Akram and continued till 4‑30 P.M. as a result of this exercise goods so recovered are detailed in the column No.4 of the F.I.R. (Annexed B).
Since the recovered goods have been smuggled into the country under the garb of un‑accompanied baggage, therefore, the contraband goods as per inventory along with Container No. EMAU‑304852‑9 have been seized undercover of Musheernama prepared on the spot. In the absence of the owner of his clearing agent Notice under section 171 of the Customs Act, 1969 was issued to Sher Faraz Khan S/o Muhammad Raoo Khan village Opp. Mumtaz General. Store, Gul Ahmed Mill, Lai Colony, Landhi, Karachi through courier service and copies were also endorsed C/o the Shipping Agent Messrs Raivan Maritime (Pvt.) Ltd. and the Yard operators Messrs Badruddin Yard at the given address. Thus it has been found that Sher Faraz Khan S/o Muhammad Raoo Khan village Opp. Mutmaz General Store. Gil Ahmed Mill, Lal Colony, Landhi, Karachi, has knowingly and intentionally smuggled the recovered goods in the garb of un‑accompanied baggage in collusion and connivance with other culprits with the declared description as "Personal Effects" and thus violated the provisions of section 2(s), 16, 32(1) and (2) 139 punishable under clauses (8), 14 and 70 of section 156(1) of the Customs Act, 1969 and S.R.O. 450(I)/2001 read with section 3(1) of the Import and Export (Control) Act, 1950. Tentative value of the seized goods has been taken, however, the matter is being referred to the concern department of Appraisement/Valuation. First Information Report in this regard has been registered. Seizure Report was also forwarded to the Collectorate of Adjudication‑II for adjudication under section 179 of the Customs Act, 1969. Show‑Cause Notice is being issued by the competent authority. "
Mr. Sohail Muzaffar, learned counsel for the petitioner submits that he is not pressing this petition for any further relief except that the attorney of the petitioner may be allowed to represent him before the Customs Authorities on the basis of Power of Attorney executed in his favour of the petitioner Sher Faraz Khan.
In reply to this submission of the learned counsel, Mr. Raja Muhammad Iqbal submits that the Power of Attorney produced before the Customs Authorities seems to be a fabricated document, therefore, appearance of the petitioner before the Customs Authorities, through his alleged attorney Aminur Rehman was rightly declined.
We are not impressed by such submission of the learned counsel for respondents for the reason that mere assertion of respondent No. 1 in this regard, that the Power of Attorney is fabricated, is not enough. However, this issue, if necessary, could be considered in the pending proceedings before the Customs Authorities by calling upon the original documents of the disputed consignment, Passport and Power of Attorney of the petitioner or any other relevant record.
With the above observations, we dispose of this petition and allow the attorney Aminur Rehman to pursue the case of the petitioner for clearance of his consignment/container artificial jewelry, but strictly in accordance with law. This order will not hamper any further proceedings which the respondents may like to initiate against the petitioner in accordance with law.
S.A.K./S‑110/KPetition disposed of.