2010 P T D 1177
[Supreme Court of Pakistan]
Present: Iftikhar Muhammad Chaudhry, C.J., Ch. Ijaz Ahmad and Mahmood Akhtar Shahid Siddiqui, JJ
POULTRY FEEDS CONTAINING PIG MEAT: In re.
Civil Miscellaneous Nos. 2482 of 2007 and Suo Motu Case No. 15 of 2007, decided on 07/07/2009.
Customs Act (IV of 1969)---
----Ss.32 & 156(4)---Constitution of Pakistan (1973), Art.184(3)---Constitutional jurisdiction of Supreme court---Import of poultry feed containing trances of pork meat/bones---Supreme Court, in exercise of suo motu powers issued notices to the importers and authorities regarding import of poultry feed containing traces of pork meat/bone and disposed of the matter in the terms that importers against whom penalty was imposed under S.156(4) read with S.32 of Customs Act, 1969 as well as for violation of import policy, would make payment of the same to Customs department; that customs department or importers would not further agitate the matter either within the hierarchy of Customs Act, 1969, or before High Court or any forum and orders of adjudication would be treated final for all intents and purposes; that importers who could manage re-export of consignment would do the same on their own responsibility, after taking into permission from concerned quarters, within the period of three weeks, failing which all consignment which was dumped in different places would be destroyed under the supervision of responsible officers of customs department as well as importers, subject to payment of damages etc. by importers individually and undertaking had to be given from importers against whom penalty was imposed that they would be careful in future and if there was any violation, strict action would be taken against them according to law, which entailed punishment---Supreme Court directed that such exercise should be completed within four weeks under the supervision of Member Customs Federal Board of Revenue.
Sardar Muhammad Latif Khan Khosa, Attorney-General for Pakistan and Dr. Riffat Ayesha Chief Nutritionist, NIH on Court notice.
Raja Abdul Ghafoor, Advocate Supreme Court/Advocate-on Record, Munir Qureshi, Member (Customs), Mumtaz Ahmed, Member (Legal).
Najmul Hassan Kazmi, Senior Advocate Supreme Court for Punjnad Feed.
Tariq Mehmood, Advocate Supreme Court for National Feed.
Zulfiqar Khalid Maluka, Advocate Supreme Court for Olympia Feed, Shahzor Feeds, Shabbir Edible Feeds, Ghazi Brothers and A One Feeds.
Taufiq Asif, Advocate Supreme Court for Sadiq Brothers and Chakwal Feeds.
M. Bilal, Senior Advocate Supreme Court for Syed Fish.
Nemo for others
ORDER
IFTIKHAR MUHAMMAD CHAUDHRY, C.J.---In pursuance of our earlier order, Member Customs has placed documents on record, according to which 14 importers have imported poultry feed/organic fertilizers containing traces of pork meat/bones. Names of the importers are reproduced herein below:---
1)Messrs Punjnad Feed, Lahore
2)Messrs Olympia Feed, Lahore
3)Messrs Lahore Feeds, Lahore
4)Messrs National Feed, Ltd., Lahore
5)Messrs Shazor Feeds (Pvt.) Ltd., Lahore
6)Messrs Shamim Feeds Industries, Bahawalpur
7)Messrs Shabbir Edible Foods (Pvt.) Ltd., Lahore
8)Messrs Sadiq Brothers, Rawalpindi
9)Messrs Chakwal Feeds. (Pvt.) Ltd., Rawalpindi
10)Messrs Ghazi Brothers, Karachi
11)Messrs A One Feeds, Hyderabad
12)Messrs A.R. Autos, Karachi
13)Messrs Pak Feeds
14)Messrs Syed Fish, Karachi
2. It may be observed that in the earlier order due to some clerical omission the number of importers have been mentioned as 41 whereas fact is that they are 14, against whom it is alleged that they have imported poultry feed containing traces of pork meat and bones, whereas the names of the three importers have been duplicated and consignments of three were detained. A summary of the same has been placed on record which may be read as part of this order. It is the case of the Customs been mentioned hereinabove from serial No.1-14, had imported poultry feed containing traces of pork meat/bones, they were proceeded against and on the basis of laboratory reports, penalties were imposed against some of them, whereas few out of them contested the matter and against that adjudication is pending in different forums. Inasmuch as in some cases permission has been granted to them for re-export of their consignment and in some cases it has already been done. The cases of the importers by and large are that they had no intention to import into Pakistan any such item like feed etc. which contains pork meat or bones, as before importing the same they had obtained certificate from the manufacturers of the poultry feed from outside the country testifying that they are free from pork meat and bones, therefore at the best the imports of such items can be considered under bona fide mistake, for which they cannot be held responsible. They have also objected to the authenticity of the reports issued by PCSIR and HAG, however, they have stated that now the import of such poultry feed has been discontinued by them and there is not a single container of poultry feed containing pork meat/bones, imported into the country.
3. Learned Attorney General on instruction of Member Customs Department stated that now strict supervision is being carried out, furthermore the department is very much vigilant and there is no compromise of whatsoever nature in allowing the import of poultry feed containing traces of pork meat/bones.
4. Instant proceedings have been initiated under suo motu jurisdiction and sufficient material has been collected for and against and it has also been brought to our notice that, the importers who had imported poultry feed having traces of pork meat/bones and they have been penalized according to the provision of section 156, sub-sections (14), (15) read with section 32 of the Customs Act, 1969 as well as the import policy. The importers, who have been penalized, have further agitated the matter within hierarchy of Customs Act or before Tax Ombudsman and in some of the cases re-export has also been allowed and few cases are lying in Reference before respective Hon'ble High Courts. As far as the question of their adjudication is concerned, it is not within the domain of this Court. Ultimately this exercise has to be carried out by the High Courts in their jurisdiction under Customs Act or under Constitution. Therefore, it would not be appropriate for us to finally decide the case. Learned Attorney General also informed that if the permission is granted for destroying the containers containing poultry feed having traces of the pork meat and bones because it is otherwise causing pollution and the importers are also under financial burden as they have to pay demurrage etc. and if anyone of them manage the re-export to the country from where it was imported that aspect may also be examined.
5. After having considered the arguments of parties counsel and going through the available record, it is considered appropriate to dispose of the matters in the following terms:---
(i) the importers against whom penalty has boon imposed under section 156, subsection (14) read with section 32 of the Customs Act as well as for violation of the import policy, shall make the payment of the same to the Customs Department.
(ii) The Customs Department or the importers shall not further agitate the matter either within the hierarchy of Customs Act or before the High Court or any forum and orders of the adjudication shall be treated final for all intent and purposes.
(iii) The importers who can manage re-export of the consignment shall do the same on their own responsibility, after taking permission from the concerned quarters, within the period of three weeks, failing which all the consignments which have now been dumped in different places i.e. Karachi and Lahore shall be destroyed under the supervision of responsible officers of the Customs department as well as the importers subject to the payment of damages etc. by the importers individually.
(iv) An undertaking has to be taken from the importers against whom penalty has been imposed that they shall be careful in future and if there is any violation, strict action shall be taken against them according to law, which entails punishment.
The above exercise shall be completed within four weeks under the supervision of Mr. Munir Qureshi, Member Customs, FBR. The compliance report shall be sent to the Registrar for our perusal in Chambers.
Proceedings stand disposed of.
M.H./P-16/SCOrder accordingly.