FAZAL QADIR QALBANI VS COLLECTOR OF CUSTOMS, 2009 PTD-QUETTA-HIGH-COURT-BALOCHISTAN 303 (2008)

Customs Act (IV of 1969)---

----Ss.171 & 187---Seizure and confiscation of vehicle on allegation of being smuggled one---Non-service of notice upon owner of vehicle as required by S.171 of Customs Act, 1969---Effect---Such charge was within knowledge of owner, thus, no prejudice had been caused to him by non-service of such notice---Owner had neither raised such plea before Adjudication Officer nor asked for supply of copy of seizure memo, containing such allegation---Non-compliance of S.171 of Customs Act, 1969 held, was not fatal in circumstances.

1980 SCMR 114; PTCL 2004 CL 592 (sic); 1989 PCr.LJ 631; 2005 PTD 23; 2003 PTD 2821; 2004 PTD 369; 1983 CLC 786; PLD 1986 Kar. 28; PLD 1981 Lah. 1318 and 1993 SCMR 311 ref.

1980 SCMR 114 and 1993 SCMR 311 rel.

Syed Ayaz Zahoor for Appellants.

Qahir Shah for Respondent.

Ch. Mumtaz, Standing Counsel.

JUDGMENT

AKHTAR ZAMAN MALGHANI, J.---By this common judgment we intend to dispose of Customs Reference No.25 of 2007 filed against order of Customs, Excise and Sales Tax Appellate Tribunal, Karachi Bench-I Karachi, dated 17-9-2007 and C.P. No.101 of 2008 as identical questions of facts and law are involved.

2. Briefly stated, facts of case are that on 6-3-2007 staff of Intelligence and Investigation (Customs and Excise), Quetta intercepted a Toyota Land Cruiser bearing no registration plate driven by respondent who on demand could not produce any proof regarding its legal import, as such; the said vehicle was seized under the relevant provisions of Customs Act, 1969. A show-cause notice was accordingly issued to respondent by Adjudication Officer who after hearing the parties vide order, dated 17-4-2007 outright confiscated the vehicle. The respondent No.2 being dissatisfied by order-in-original preferred an appeal before Collector of Customs (Appeals) who maintained the order-in-original and dismissed the appeal. The respondent No.2 thereafter presented appeal before the Customs, Excise and Sales Tax Appellate Tribunal, Karachi which was allowed and the order of outright confiscation passed by Adjudication Officer and maintained by Collector (Appeals) was set aside, hence this reference.

3. The respondent has also instituted constitutional petition praying therein that the Customs Authorities may be directed to release the vehicle in light of order, dated 17-9-2007 passed by Member Technical, Customs Excise and Sales Tax Appellate Tribunal Karachi.

4. We have heard the learned standing counsel as well as learned counsel for responded. Learned Standing counsel vehemently contended that the Member Technical failed to take note of the fact that import documents relied upon by the owner of vehicle were fake and forged, as such; burden of proof for lawful possession in terms of section 187 of Custom Act, 1969 was shifted to responded who failed to discharge the same. He further contended that Member Technical also erred in law by setting aside the order of two forums below on the ground of violation of section 171 of Customs Act, 1969 as no prejudice was caused to respondent by any violation of section 171 of the Customs Act, 1969 because he was well aware of the charge and was being defended by an Advocate. In this regard he placed reliance on judgment reported in 1980 SCMR 114. He further argued that no ground with regard to non-service of notice was agitated before Adjudication Officer and Collector Appeals, as such the order of confiscation was not liable to be interfered on such ground.

On the other hand learned counsel for respondent vehemently contended that the vehicle in question was lawfully imported into country which was confirmed by bill of entry and the learned Appellate Tribunal rightly set aside the confiscation order and directed for release of vehicle. He was also of the view that violation of section 171 of Customs Act had made the seizure illegal and invalid. He further contended that respondent was bona fide purchaser who had purchased already imported vehicle from open market, as such he had discharged the burden in terms of section 187 of Customs Act, 1969 and the vehicle was rightly released. He further argued that despite release order the customs authorities had illegally detained vehicle, and directions of this Court were required for release of vehicle.

5. We have carefully considered the contentions put forth by the parties' learned counsel and have also gone through the impugned order, perusal whereof indicates that appeal filed by respondent No.2 was allowed mainly for the reason that notice as required under section 172 of Customs Act, 1969 was not served upon him before seizure of vehicle which provisions in light of different judgments, were held to be mandatory by the learned Appellate Tribunal. The learned Tribunal in support of its conclusion placed reliance on the judgments reported in PTCL 2004 CL 592(sic), 1989 PCr.LJ 631, 2005 PTD 23, 2003 PTD 2821, 2004 PTD 369, 1983 CLC 786, PLD 1986 Karachi 28, PLD 1981 Lahore 1318 and judgment of Hon'ble High Court of Sindh in C.P. No.D-281/2005 and in light thereof held that non-compliance of mandatory provisions of section 171 would vitiate all the proceedings. With all humbleness and due deference we are unable to endorse the views expressed in the above referred judgments in light of judgments of Hon'ble Supreme Court reported in 1980 SCMR 114 and 1993 SCMR. 311 which appears to have not been brought in the kind notice of Hon'ble Judges. The Hon'ble apex Court in the judgment reported in 1980 SCMR 114 held as under:--

Recovery memo mentioning grounds of seizure furnished to person from whose possession goods recovered--Requirement of S.171, held, met notwithstanding refusal of such person to receive same--Petitioner at liberty to ask later on for recovery memo. of grounds of seizure---Such request however, never made---Objection as to violation of requirements of section 171 in circumstances, held, without substance".

The same view was reiterated by Hon'ble apex Court in the judgment reported in 1993 SCMR 311 wherein it was observed as under:--

"We have heard the learned counsel for both the sides. As observed earlier, there is a conflict of views in the Karachi High Court and Quetta High Court on-'the construction and scope of section 171 ibid. in Azizullah v. The State (PLD 1981 Karachi 250) a single Bench of the Karachi High Court relying on an earlier decision of that Court in S.M. Yousaf and others v. Collector of Customs and others (PLD 1968 Kar. 599) maintained that provisions of section 171 are mandatory and thus prosecution of a person and seizure of goods from him on the ground that he smuggled prohibited goods into Pakistan, in the absence of service of notice under section 171 of the Customs Act, are wholly illegal. It is to be noticed that in S. M. Yousaf's case section 172-A of the Sea Customs Act, 1878, provisions whereof are similar to section 171 had fallen for consideration before the High Court, and its breach was considered as fatal to the prosecution of the accused person. However, the High Court of Balochistan in Hizbullah v. The State and another (PLD 1984 Quetta 1) maintained that the trial of an accused is not dependent on issuance of notice under section 171 and its requirement would stand satisfied. If at the trial the accused has sufficient notice of the charges levelled against him. The conflict of views in the interpretation of this provision should no longer subsist, for, this issue has already been decided by this court in Abdul Rauf Khan v. Collector, Central Excise and Land Customs, Peshawar and 3 others (1980 SCMR 114) and it has been- held that non-service of notice under section 171 is not fatal to the prosecution and seizure of contraband goods, if the recovery memo. mentioning the ground of seizure is furnished to the accused. It appears that this judgment was not brought to the notice of this Court; while granting leave to appeal. Seemingly the purpose of notice under section 171 is to post accused with the knowledge of the allegations against him and service of such notice is not the condition precedent for launching the prosecution. This requirement is substantially complied with where a recovery memo. is prepared in the presence of the accused or otherwise is brought to his notice and from its terms the accusation against the person concerned can reasonably be spelt out. What section 171 ordains is that when anything is seized or any person is arrested on account of violation of the provisions of the Customs Act, as soon as possible he may be informed in writing of the grounds of the seizure of arrest, as the case may be. Neither there is anything in the section itself nor in other provisions of the Act specifying any consequence of nullification for non-compliance therewith, which is generally a hallmark of the statutory provision mandatory in character. If the information sought to be conveyed to the accused by virtue of notice under section 171 is passed on to him through other steps taken in the course of the proceedings commenced against him, the requirement of notice would stand fulfilled substantially and validity of the action shall remain unaffected".

6. Applying the above laid down principles to the facts of instant case, it may be observed that it was a simple case of seizure of vehicle on the allegations of being smuggled one brought into the country without payment of customs and other duties, which allegations were well within the knowledge of respondent No.1 and no prejudice has been caused to him by non-service of notice as required by section 171 of Act, 1969 which is also evident from the fact that no such plea was taken by him before Additional Collector of Customs Quetta (Adjudication Officer) nor he ever asked for supply of copy of seizure memo. containing such allegations, as such, non-compliance of section 171 was not fatal and the learned appellate Tribunal erred in law by allowing appeal on such technical ground.

For the foregoing reasons, we are inclined to allow the customs reference by setting aside order, dated 17-9-2007 rendered by Customs, Excise and Sales Tax Appellate Tribunal Karachi Bench-I Karachi and remand the matter to it with the direction to decide appeal filed by respondent No.1 on its own merits in accordance with law. Consequently the constitutional petition filed by respondent is dismissed.

S.A.K./15/QCase remanded.