ISHER SINGH VS SUPERINTENDENT CUSTOMS (TRAFFIC), ALLAMA IQBAL INTERNATIONAL AIRPORT, LAHORE, 2006 PTD-LAHORE-HIGH-COURT-LAHORE 383 (2005)

Customs Act (IV of 1969)---

----Ss.126, 142, 171 & 168(1)---Afghan Transit Trade Agreement, 1965---Constitution of Pakistan (1973), Art.199---Constitutional petition---Baggage of passenger in transit to Afghanistan---Detention of baggage at first instance, and then its seizure liable to confiscation---Validity---Detention report being earlier in time and an immediate response to declaration coupled with report of authority would have precedence over seizure report prepared subsequently---Reasons recorded in both such reports were contradictory and had different impact---Goods detained would be liable to be returned under S.142 of Customs Act, 1969, while goods confiscated and seized would be liable to be sold under S.201 thereof---Contradictory reports would create doubts regarding conduct of proceedings in a transparent manner---Detention of baggage itself proved that three essential conditions of S.142 of Customs Act, 1969 were met, thus, petitioner, would be entitled to return of baggage on his leaving Pakistan---Transshipment of baggage would be covered under Afghan Transit Trade Agreement, 1965---High Court accepted constitutional petition declaring petitioner (Afghan National) to be entitled to return of baggage at Torkham Border on his leaving Pakistan.

Mian Abdul Ghaffar for Petitioner.

Ahmar Bilal Sufi for Respondents.

ORDER

SYED HAMID ALI SHAH, J.---The petitioner, an Afghan national, while returning to his native country (Afghanistan) opted the route through Pakistan, landed on 21-7-2005 at Lahore Airport through PIA Flight No.PK 271. He was carrying in his baggage' four bags of "Saris" and six bags of spangles (Sitara). The petitioner statedly made, on his arrival, declaration of baggage which was detained through detention memo. dated 21-7-2005. Staff of respondent No. 1 subsequently prepared a seizure report on the basis. of recovery memo., which according. to the petitioner was result of procuring his signature on blank printed form through misrepresentation. The petitioner through the instant writ petition has voiced his grievance against the seizure of his goods which consequent upon seizure, are liable to be confiscated under section 168(1) of the Customs Act, 1969.

2. Learned counsel for the petitioner has argued that the petitioner has made correct and true declaration, resultantly, the petitioner has the right to carry his goods to his country, within the contemplation of section 142 of the Customs Act, 1969. He in the course of his arguments has taken serious exceptions to the stance of the respondents that good's in question, were meant for consumption in Pakistan and facility of green channel was misutilized.

3. Learned counsel for the respondents, on the other hand, filed summary of case and parawise comments, wherein the assertions made in the petition are controverted. The factum of true declaration as asserted, was denied and seizure of goods was attributed to false declaration, which according to the respondents come to their knowledge, on examination of goods. It was also urged that the petitioner intended to get the goods released, on payment of duty but the same was delivered on the plea that goods recovered being in commercial quantity, did not constitute bona fide baggage of the petitioner. It was lastly contended that transshipment of goods to Afghanistan is not covered under the Afghan Transit Trade Agreement, 1965.

4. I have heard the learned counsel for the parties and perused the material available on the record.

5. Admittedly, the goods of the petitioner at first instance were detained and a detention memo. was prepared. The report in this respect was prepared by respondent No.2, which is re-produced hereunder:--

"3. The factual position is that Mr. Ishar Singh son of Teja Singh, Afghan Passport No.OR-849907 while returning from India to Afghanistan through PIA Flight PK-271 via Pakistan arrived at Lahore Airport on 21-7-2005, he had brought 440 pieces Saris and 540 Kgs. Sitara with him for carrying the same to Afghanistan. In the first instance, the goods were detained but subsequently the same were seized under section 168(1) of the Customs Act, 1969.

4. Since the passenger had declared his baggage containing aforesaid goods, the proper course of action would have been either to detain the goods and allow him to re-export the same to India in terms of section 142 of the Customs Act, 1969 or the A goods should have been allowed to be taken to Afghanistan under proper escort. However, the seizure of the goods which were properly declared by the passenger was not proper, on the Superintendent Customs Incharge Shift "A" has confirmed the correct declaration of the Passenger declared under section 139 of the Customs Act, 1969."

The respondents prepared a detention memo. which course is only adopted, when the provisions of section 142 of the Customs Act, 1969:--

(a) Dutiable, restricted or prohibited articles are imported.

(b) A true declaration, under section 139 of the Customs Act, with regard to the goods is made.

(c) Appropriate officer is satisfied that goods were not imported with intention of consumption in Pakistan.

The goods in question, were detained which itself proves that three essential conditions within the contemplation of section 142 are met, therefore, the petitioner is entitled under section 142 of the Customs Act, 1969 for return of goods to him, on his leaving Pakistan.

6. Goods of the petitioner were held subsequently liable to confiscation goods and were seized under section 171 of the Act, 1969. The reasons stipulated in the seizure report, in terms of section 171, run counter to the detention report. Both the reports are contradictory and have different impact. Goods detained, are liable to be returned under section 142, while goods confiscated and seized, are liable to be sold under section 201. The way the respondents have proceeded in the matter, do not seem to be reasonable. Detention report being earlier in time and an immediate response to the declaration, coupled with the report of respondent No.2, has the prudence over the seizure report. Contradictory reports must be availed as such reports give rise to the suspicions that proceedings have not been conducted in a transparent manner.

7. The arguments of the learned counsel for the respondents that transship of goods in question, is not covered under Afghan Transit Trade Agreement, 1965, is not well-founded. Chapter XIII of Customs Act and provisions thereunder, by virtue of section 126, do not apply to baggage.

8. For the foregoing reasons, the petition is accepted and the petitioner is declared to be entitled to the return of goods, on his leaving Pakistan and the impugned action of the respondents qua the seizure and confiscation of goods is declared to have been taken without any lawful authority and with no legal effect.

9. To ensure that goods, subject-matter of this petition, are not consumed in Pakistan, the respondents are directed to seal the goods and deliver the same to the petitioner, at his expense, at Turkham Border.

S.A.K./I-114/L??????????????????????????????????????????????????????????????????????????????????? Petition accepted.