JAVED IQBAL SIDDIQUI VS State, 2012 PTD-KARACHI-HIGH-COURT-SINDH 1905 (2012)

Customs Act (IV of 1969)---

----Ss. 9, 14, 86, 90 & 156(1)---Notification S.R.O. 594(1)/2009 dated 25-6-2009---Criminal Procedure Code (V of 1898), Ss.265-K & 561-A---Alleged mis-declaration of goods---Application for quashment of proceedings, dismissal of---Exporter (accused/applicant) declared consignment in question to be Lead Concentrate while laboratory report described the same as Lead Powder, which was subject to regulatory duty---F.I.R. was lodged against exporter---Application filed by exporter under S. 265-K, Cr. P. C, was dismissed by Trial Court on grounds that it was yet to be determined whether contents of consignment were the same as declared by exporter, which controversy could only be decided after prosecution evidence was brought on record, therefore it could not be held that there was no probability of exporter being convicted---Contentions of exporter were that alleged mis-declaration was neither intentional nor deliberate but same was due to lack of knowledge and even customs authorities were not sure about the correct classification until same had been decided by Customs Tarrff Committee, and that in the charge sheet no mens rea or intention of tax evasion had been alleged, therefore, the charge was groundless---Validity---Mis-declaration had been admitted---Question as to whether mis-declaration was intentional/deliberate or in good faith was yet to be ascertained---Order of Trial Court warranted no interference in circumstances---Application was dismissed in circumstances.

Miraj Khan v. Gul Muhammad 2000 SCMR 122 and Collector of Customs v. Messrs Power Electronic Pakistan (Pvt.) Ltd. Lahore 2011 PTD 2837 distinguished.

Syed Mehmood Alam Rizvi for Applicants.

Imtiaz Ahmed, Standing Counsel.

Date of hearing: 31st July, 2012.

ORDER

SYED MUHAMMAD FAROOQ SHAH, J.---By this Criminal Miscellaneous Application, the applicants have sought quashment of the proceedings of Criminal Case No. 93 of 2011 (The State v. Javed Iqbal and another) pending before the court of Special Judge, (Customs Taxation and Anti-Smuggling) Karachi, where the application filed by the applicants under section 265-K, Cr.P.C. was dismissed vide order dated 24-3-2012, impugned herein.

2. Relevant facts are that Messrs Century Engineering Industry, B-35-36, SITE, Super Highway, Karachi NTN No.0860378, filed a goods declaration electronically through his clearing agent Messrs Cavish Associates, CHALLAN No. 982 vide CRN E-G-1731391 dated 25-2-2011 for export of 50385 Kg Lead Concentrate under H.S. Code 2607.00000, valuing US$ 17634.75, in two containers No.CAXI 2579699 and HPLU 3304020, destined to Mundra, India. The consignment was intercepted on entrance of the container at port and forwarded for physical examination. The lab reported the description of consignment as Lead Powder that is classifiable under H.S. Code 7804.2000, as against the declared description of Lead Concentrate. The export of Lead Powder is subject to Regulatory Duty @ 25% vide S.No.4 of Notification S.R.O. 594(I)/2009, dated 25-6-2009. The complainant lodged F.I.R. on 17-32011 and after completing the investigation the applicants were charge sheeted on 18-11-2011 before the trial Court.

I have heard Mr. Syed Mehmood Alam Rizvi, Advocate for applicants/accused and Mr. Imtiaz Ali, Standing Counsel for the State and have also carefully perused the material and law available on the subject.

Concluding paragraph of impugned order passed by learned Special Judge (Customs Taxation and Anti-Smuggling Karachi) reads as under:

"I have considered the arguments and perused the record. It is an admitted fact that the applicant/accused submitted the GD for export of 50385 kg lead Concentrates which comes under HS Code 2607.0000 whereas it was information to the complainant that the exporter has attempted to export lead Powder which is subject to regulatory duty 25% of it's value therefore, they seized the consignment under mashirnama. Accused disagreed with the opinion of complainant therefore, the samples were drawn from the consignment under export and sent to different laboratories for test. The matter was also referred to PCT where ultimately item under export was estimated as of Lead Oxide Sulphate under head of 2620.2900 and no regulatory duty was payable on both the goods covered under head 2607.0000 and head 2620.0900. To that extend it is established that the accused have caused no loss in regulatory duty to the Government exchequer but the charge of mis-declaration apparently still remains in field as the description of GD shows the goods under export as Lead Concentrate covered under head 2607.0000 whereas on examination, impugned goods were classified as Lead Oxide Sulphate comes under head 2620.2900, hence it is yet to be determined that contents of consignment were the same as mentioned in GD and classified by PCT which controversy can only be decided after the prosecution evidence is brought on record therefore, at this stage it cannot be held that if the case is proceeded their would be no probability of the accused being convicted. As such no case for their acquittal under section 265-K Cr.P.C. is made out. I therefore dismiss the application".

It appears that on similar grounds agitated before the learned trial Court the present application under section 561-A Cr.P.C. for quashment of the proceedings has been preferred. In grounds Nos.10 to 12 of instant application the wrong declaration of PCT on export documents being PCT heading 2607.0000 instead of 2620.2900 has been admitted to the extent that such violation neither restrict the goods from export nor Regulatory Duty was payable. However, it is stated that mis?declaration was neither intentional nor deliberate but the same was due to lack of knowledge even the customs authorities were not sure about the correct PCT Heading until the same has been decided by the PCT Committee and even in the charge sheet no mens-rea or any intention to tax evasion has been alleged, therefore, charge against the applicant is groundless. Learned counsel for the applicant argued that High Court can exercise jurisdiction in exceptional cases under section 561-A, after dismissal of application under section 249-A or 265-K, Cr.P.C. and in this regard reliance is being placed on the case titled Miraj Khan v. Gul Muhammad reported as 2000 SCMR 122. In the cited judgment, Hon'ble Supreme Court of Pakistan held that in exceptional cases, the High Court can exercise jurisdiction under section 561-A, Cr.P.C. without waiting for trial Court to pass order under section 249-A or. 265-K, Cr.P.C, if the facts of the case so warrant. The main consideration to be kept in view would be, whether the continuation of the proceedings before the trial forum would be futile exercise; wastage of time and abuse of process of Court or not. However, in the instant case, admitted facts ofmis-declaration are there. In this view of the matter the referred citation is not applicable in the circumstance of the instant case and is distinguishable. Reliance has also been placed on another case titled Collector of Customs v. Messrs Power Electronic Pakistan (Pvt.) Ltd., Lahore reported as 2011 PTD 2837, this citation is also not attracting in the circumstances of present case.

Learned Standing Counsel on the other side, contended that the consignment referred hereinabove was intercepted on entrance of the containers at Port and forwarded for physical examination. The consignment was examined and representative samples were drawn and forwarded to Custom House Lab for confirmation of description etc. The Lab vide his Test Report, reported the description as Lead Powder that is classifiable under H.S., Code 7804.2000, as against the declared description of lead Concentrate. The export of Lead Powder is subject to Regulatory Duty @ 25% vide S. No. 4 of notification S.R.O. 594(I)/ 2009 dated 25-6-2009. The consignment has therefore been seized under section 168 of the Customs Act, 1969 in presence of two independent musheers against a musheernama prepared on the spot to this effect. The trader/exporter Jawad Iqbal Siddiqui of Messrs Century Engineering Industry, B-35-36, S.I.T.E, Super Highway, Karachi, NTN 0860378, his clearing agent Irfan Ahmed Faridi of Messrs Cavish Associates, C.H.A.L. 982, Karachi, in collusion with their associates have therefore, violated the provisions of sections 18, 32, 155(B), (C), (D), (E) and 192 of the Customs Act, 1969, punishable under Clauses 9, 14, 86 and 90 of section 156(1) of the Customs Act, 1969 and have thus caused a colossal loss to the government exchequer amounting to Rs.1982902 being export Regulatory Duty. It is further stated that the impugned order does not suffer from any irregularity or illegality.

I have carefully perused the law available on the subject and considered the arguments advanced from both sides. Suffice to say that it is yet to be ascertained that the mis-declaration was intentional/deliberate or has been claimed in good faith, therefore, the impugned order is exceptionable, which does not warrant any interference by this Court. In the result, instant application filed under section 561-A, Cr.P.C. is dismissed. However, the learned trial Court is directed to expedite the trial and conclude it on merits preferably within 2 months -from the receipt of this order, and if application repeated under section 265-K, Cr.P.C. afresh, will be decided after recording the evidence of material witnesses, if so advised.

MWA/J-9/K??????????????????????????????????????????????????????????????????????????? Application dismissed.