FAZAL-UR-REHMAN HANIF VS STATION HOUSE OFFICER, TALUKA POLICE STATION, MIRPURKHAS, 2008 PTD-SUPREME-COURT 2003 (2007)

(On appeal from the judgment dated 7-10-2003 passed by High Court of Sindh at Karachi in Constitutional Petition No.D-961 of 1993 and Special Customs Appeal No.61 of 1998).

Customs Act (IV of 1969)---

----Ss. 6, 156(1)(8)(89), 168(2), 171 & 180---Constitution of Pakistan (1973), Art.185(3)---Three thousand tolas of gold belonging to petitioner having been recovered from vehicle driven by the petitioner, case under S.156(1)(8)(89) of Customs Act, 1969 was registered against 'him and recovered gold with vehicle was confiscated and penalty was also imposed on the petitioner---Appeal filed before Customs Appellate Tribunal and Special Customs Appeal filed by the petitioner had been dismissed by the High Court---Contentions of the petitioner were; that Traffic Police Inspector having not been notified as Customs Officer under S.6 of the Customs Act, 1969, he was not empowered to search the vehicle and make seizure of gold; that no notices under Ss.168(2), 171 & 180 of Customs Act, 1969 had been given which were mandatory requirement of law, the action on the part of Police and Customs Authorities including the adjudication proceedings, were illegal and that neither the recovered gold was proved to have been smuggled nor said questions of law were properly considered by the High Court in appeal and in constitutional petition---Contentions raised by the petitioner had sufficient force to be considered; leave to appeal was granted to consider the contentions of the petitioner.

Sohail Muzaffar, Advocate Supreme Court and Akhlaq Ahmed Siddiqui, Advocate-on-Record for Petitioner.

A.S.K. Ghori Advocate-on-Record for Respondents Nos.3 and 4 (in Civil Petitions Nos.893-K and 894/K of 2003).

Akhtar Ali Mehmood, D.A.G. on Court notice.

Date of hearing: 16th April, 2007.

JUDGMENT

MUHAMMAD NAWAZ ABBASI, J.---These connected petitions arising out of the judgment dated 7-10-2003 passed by a learned Division Bench of High Court of Sindh, Karachi whereby the Constitutional Petition No.D-961/1993 and Special Customs Appeal No.61 of 1998 involving common question of law and facts, have been disposed of together.

2. The short facts leading to these petitions, are that traffic police having intercepted a vehicle being driven by Mitho driver of the petitioner on the highway, recovered 3000 tolas of gold belonging to the petitioner from the vehicle which was being taken to Mirpurkhas. In consequence thereto, a case under section 156(1) (8)(89) of the Customs Act, 1969 was registered and on completion of investigation, challan was submitted against the petitioner and his co-accused for the trial before the Special Judge (Customs and Taxation), Karachi. The Seizing Officer was also proceeded against for misappropriation of 2820 tolas of recovered gold. However, concerned customs authorities, on coming to know about the seizure of the gold by the police initiated the adjudication proceedings and adjudicating officer having come to the conclusion that petitioner has not been able to prove the lawful import of gold into Pakistan, confiscated the gold with the vehicle and also imposed penalty on the petitioner under the Customs Act. 1969 vide order dated 23-7-1997. The petitioner being aggrieved of the order of confiscation of gold filed an appeal before the Customs Appellate Tribunal mainly on the ground that no notice under section 171 of the Customs Act, 1969 was given to the petitioner and further no notice to the owner of goods, under section 180 of the Customs Act, 1969 as well as under section 168(2) of the ibid Act was given to the person from whose custody offending goods were recovered, therefore, all proceedings subsequent to the seizure of gold and the order of its confiscation was illegal. The petitioner on dismissal of appeal by Tribunal vide order dated 22-9-1998, filed a Constitutional Petition bearing No.D-961 of 1993 as well as Special Customs Appeal No.61 of 1998, before the High Court of Sindh at Karachi and a learned Division Bench of the High Court having considered the question of law raised therein, dismissed the Constitutional petition as well as custom appeal vide impugned judgment.

3. Learned counsel for the petitioner in support of this petition has contended as under:--

(a) That the traffic police Inspector having been not notified as custom officer under section 6 of the Customs Act, 1969 was not empowered to search the vehicle and make seizure of gold.

(b) That no notices under section 171 and under section 168 (2) and then notice under section 180 of the Customs Act, 1969 were given which was mandatory requirement of law, therefore, the action on the part of police and customs authorities including the adjudication proceedings were illegal and without justification and the seized gold, on expiry of the prescribed period of notice under section 168 of the Act was to be necessarily returned to the owner.

(c) That neither the recovered gold was proved to have been smuggled nor the above question of law were properly considered by the High Court in appeal and also in Constitutional petition.

4. We having heard the learned counsel for the parties and perused the record with their assistance, have found that in the peculiar facts and circumstances of the present case, the above contentions have sufficient force to be considered for authoritative announcement and consequently, we grant leave in these petitions inter alia to consider the above questions. These petitions are pending since 2003 therefore, we direct for fixation of the appeals within a period of six months on the present record with permission to the parties to bring on record the additional documents if so required.

H.B.T./F-15/SCLeave granted.