Haji MUHAMMAD ASLAM VS DIRECTOR-GENERAL PAKISTAN COAST GUARDS, KARACHI, 2012 PTD-KARACHI-HIGH-COURT-SINDH 629 (2012)

Customs Act (IV of 1969)---

----Ss. 2(o), 3, 3A 3B, 3C, 3D, 3DD, 4, 6, 193 & 196---Pakistan Coast Guards Act (XVIII of 1973), Ss. 2(9), 3, 4 & 14---Seizure of gold by Pakistan Coast Guards---Release of seized goods to its owner ordered by Adjudicating Officer---Appeal against such order to Appellate Authority filed by Director General Pakistan Coast Guards---Dismissal of appeal for its filing by an incompetent officer---Order of Appellate Tribunal remanding case to Appellate Authority for its decision on merits---Validity---Appeal under S. 193 of Customs Act, 1969 could not be filed by officers of Customs against an order passed by officer of Customs not below the rank of Assistant Collector---Officer of Customs appointed under S. 3 of Customs Act, 1969 would exercise such powers and discharge such duties as conferred or imposed on him by or under Act, 1969 or rules made thereunder---Board of Revenue through notification under S. 6 of the Customs Act, 1969 could entrust conditionally or unconditionally any function of an officer of customs under Customs Act, 1969 to an officer of Federal/Provincial Government, State Bank of Pakistan or Scheduled Bank---Provision of S.6 of Customs Act, 1969 related only to delegation of powers to facilitate performance of functions and duties under the Act but did not provide for appointment of Customs Officer---Such powers could be delegated not necessary by reference to designation or rank of Customs Officer, but by numeration, definition or description of power itself---Functions of Pakistan Coast Guards would include prevention of smuggling as officers of Customs, if entrusted to them under the Customs Act, 1969---Officers of Pakistan Coast Guards had not been defined as officer of Customs either in the Customs Act, 1969 or Pakistan Coast Guards Act, 1973---Director General, Coast Guards being not an Officer of Customs, appeal filed by him before the Collector of Customs, (Appeals) under S.193, Customs Act, 1969 was competent in law---High Court dismissed the reference, in circumstances.

Sultan Muhammad v. Commandant Pishin Scouts, Chaman PLD 1991 Quetta 36; Haji Abdullah Jan and others v. The State 2003 SCMR 1063; Iqbal Akhtar v. Ch. Muhammad Mushtaq and 4 others PLD 1977 Lah. 1318 and Muhammad Yousuf and others v. The State 1987 PCr.LJ 722 ref

Sultan Muhammad v. Commandant Pishin Scouts, Chaman PLD 1991 Quetta 36 rel.

Nisar Ahmed Tarar for Applicant.

Ms. Firdoos Farride for Respondent No.1.

Date of hearing: 23rd November, 2011.

JUDGMENT

AQEEL AHMED ABBASI, J.---Being aggrieved and dissatisfied with the order dated 10-2-2010 passed by the Customs, Excise and Sales Tax Appellate Tribunal, Bench-I, Karachi, whereby the order-in-appeal dated 28-4-2009 passed by the Collector of (Appeals), Customs, Sales Tax and Federal Excise, we set aside, the applicants have preferred instant Reference Application under section 196 of the Customs Act, 1969.

2.Following questions of law are said to have arisen from the impugned order:--

(1)Whether Director General (DG), coast Guard (respondent No.1) is deemed to be any person aggrieved and/or authorized/ competent to invoke or file appeal before Collector (Appeals) Customs and Federal Excise under sections 193 and 194-A of Customs Act, 1969 against Order-in-Original passed in favour of accused/claimant or before Customs, Excise and Sales Tax Appellate Tribunal under section 194 of the Act?

(2)Whether Director General (DG), coast Guard (The respondent No.1) is deemed to be an officer of the Customs by virtue of powers delegated and functions entrusted to him along with all other officers of the coast guards under section 6 and of the Customs Act, 1969 in terms of section 14 of the Coast Guards Act, 1973, for filing of appeal under section 193 of the Customs Act, against order-in-original passed by Additional Collector of Customs MCC, Preventive (Adjudication) where Coast Guards conducted proceedings as Customs Officers and relieve was granted to the claimants/accused?

(3)Whether the appeal filed on behalf of respondent No.1 by an officer of the Coast Guards without instructions and supporting authority, is competent and maintainable?

3.Brief facts as recorded by the Tribunal leading to filing instant Reference Application are that on 19-6-2002 at about 2-30 a.m. on the basis of a credible information, Major Muhammad Asif Khan, Acting Commandant 2 Battalion along with other members of the Pakistan Coast Guards apprehended respondent No.3 at Cantt. Railway Station and found him in possession of gold weighing 8.765 Kgs of foreign origin. He failed to produce any legal documents in respect of its import, therefore, the same was seized in presence of mashirs for violation of section 2(s) of the Act. After necessary legal proceedings and service of the show cause notice the Adjudication Officer passed the Order-in-Original No.4 of 2008 dated 30-6-2008, whereby the charges as contained in show cause notice were vacated and the applicant was directed to release the seized gold weighing 8840 gms to its owner. An appeal was preferred against the said order which was dismissed on the ground that the appellant was not authorized to file the same under section 193 of the Act.

4.Being aggrieved by such order, the Director General, Pakistan Coast Guards through Deputy Assistant Judge Advocate General, Headquarters, Pakistan Coast Guards, preferred Custom Appeal No.K-378 of 2009 before the Customs, Excise and Sales Tax Appellate Tribunal, Bench-I, Karachi, who vide impugned order dated 10-2-2010 has set-aside the order passed by the Collector (Appeals) and remanded thesametotheCollector (Appeals)foritsdecisiononmeritsafterhearing both the parties. Being aggrieved by such direction of the Collector (Appeals), the applicants have filed instant reference application under 196 of the Customs Act, 1969 for an opinion on the proposed questions.

5.It is inter-alia contended by the learned counsel for the applicants that the impugned order is erroneous in law and fact as the learned Tribunal could not appreciate that Director General of Coast Guards is an officer of Customs, having powers as entrusted under section 6 of the Customs Act, 1969. Learned counsel for the applicants has also referred to the provision of section 193 of the Customs Act to show that any person, other than the officer of Customs, aggrieved by any decision or order passed under sections 79, 80 and 179 of this Act, not below the rank of Assistant Collector, can file an appeal before the Collector (Appeals). Per learned counsel, since the Director General, Coast Guards has been entrusted certain function under section 6 of the Customs Act, 1969, therefore, he is an Officer of Customs, hencecannot file an appeal under section 193 of the Customs Act, 1969. It is further contended that if the officer of the Coast Guards are not the officer of Customs, then all their actions including registration of F.I.R. etc. shall be without jurisdiction and all such proceedings shall beillegal.

In support of his contention, learned counsel has placed reliance in following case-law:-

(1)Sultan Muhammad v. Commandant Pishin Scouts, Chaman PLD 1991 Quetta 36

(2)Haji Abdullah Jan and others v. The State 2003 SCMR 1063

(3)lqbal Akhtar v. Ch. Muhammad Mushtaq and 4 others PLD 1977 Lahore 1318

(4)MuhammadYousufandothersv.TheState1987PCr.LJ722

6.Conversely, learned counsel for the respondent has supported the impugned order, which according to the learned counsel, is based on proper appreciation of law applicable to the fact of this case. It is contended by the learned counsel that the Director General, Coast Guards is not an officer of Customs, on the contrary, he is an officer of defence services of Pakistan or the Force, whose appointment is made in terms of Section 4 of the Pakistan Coast Guards Act, 1973. Per learned counsel, all the powers of the officer appointed under Pakistan Coast Guards Act, 1973 are governed by section 14, whereas, the jurisdiction and its scope has been defined under section 3 of the Act, 1973. Per learned counsel, in terms of section 6 of the Customs Act, 1969, certain functions have been entrusted to the Pakistan Coast Guards officers for prevention of smuggling etc. However, per learned counsel, on mere entrustment of such functions to the officer of Pakistan Coast Guards, they do not become the officer of Customs. The officers of Customs are appointed under section 3 of the Customs Act, 1969, whereas, entrustment of function of custom officer to certain other officer has been provided under section 6 of the Customs Act. It is further contended that under the facts and circumstances of this case, the Director General, Pakistan Coast Guards was an aggrieved person, and since he is not an officer of Customs, therefore, appeal under section 193 filed before the Collector Customs (Appeals) was competently filed. Per learned counsel, the impugned order does not suffer from any illegality, therefore, does not require any interference by this Court.

7.We have heard both the learned counsel and perused the record. The precise controversy involved in the instant Reference Application is to examine "as to whether the appeal preferred by the Director General, Pakistan Coast Guards, before the Collector (Appeals) in terms of section 193 of the Customs Act, 1969, was competent in law or not?" The learned Tribunal through impugned order while interpreting the provision of section 193 read with sections 3 and 6 of the Customs Act, 1969, has held that the Director. General, Pakistan Coast Guards is not the custom officer, therefore, being an aggrieved person in the instant case, has competently filed appeal against the Order-in-Original passed by the Additional Collector Customs.

8.Under the Scheme of Customs Act, 1969, various functions have been assigned to different authorities. In order to appreciate the controversy involved in the instant case, it will be advantageous to reproduce the provisions of section 193 of the Customs Act, 1969, which read as follows:--

"Section 193. Appeals to Collector (Appeals).---(1) Any person other than an officer of customs aggrieved by any decision or order passed under sections 79, 80 and 179 of this Act by an officer of Customs not below therank of an Assistant Collector may prefer appeal to the Collector (Appeals) within thirty days ofthedateofcommunicationtohimofsuchdecisionororder:

Provided that an appeal preferred after the expiry of thirty days may be admitted by the Collector (Appeals) if he is satisfied that the appellant had sufficient cause for not preferring the appeal within that period.

(2)An appeal under this section shall be in such form and shall be verified in such manner as may be prescribed by rules made in this behalf.

(3)An appeal made under this Act shall be accompanied by a fee of one thousand rupees to be paid in the manner that may be prescribed by the Board."

9.Section 193 of the Customs Act, 1969, provides that, any person, other than officer of Customs, who is aggrieved by any decision or order passed under sections 79, 80 and 179 of the Customs Act, within 30 days of the date of communication of such decision or order, can file an appeal against an order passed by the officer of Customs not below the rank of Assistant Collector. However, from perusal of the provisions of section 193 of the Customs Act, 1969, it is noted that the officers of Customs have been debarred from filing an appeal under section 193 of the Customs Act, against an order passed by the officer of Customs not below the rank of Assistant Collector.

10.The term "officer of Customs" has been defined in section 2(o) of the Customs Act, 1969, which read as under:--

"Section 2(o) "Officer of Customs" means an officer appointed under section 3 of the Customs Act, 1969."

Similarly, appointment of officer of Customs has been provided under section 3 of the Customs Act, 1969, which read as follows:--

"Section 3. Appointment of officers of customs.---For the purposes of this Act, the Board may, by notification in the official Gazette, appoint, in relation to any area specified in the notification, any person to be-

(a)a Chief Collector of Customs;

(b)a Collector of Customs;

(c)a Collector of Customs (Appeals);

(d)an Additional Collector of Customs;

(e)a Deputy Collector of Customs;

(f)an Assistant Collector of Customs;

(g)an Officer ofCustoms with any other designation."

11.It will not be out of place to refer to provision of sections 3-A to 3-DD of the Customs Act, 1969, which define other officers of Customs including Directorate General of Intelligence and Investigation, Directorate General of Internal Audit, Directorate General of Training and Research, Directorate General of Valuation and Directorate General of Post Clearance Audit. In terms of section 3-E of the Customs Act, 1969, it has been provided that the Federal Board of Revenue may specify the function, jurisdiction and powers of the officers specified in sections 3-A to 3-DD by notification in the official gazette. Whereas, powers and duties of officer of Customs appointed under Section 3 have been defined under section 4 of the Customs Act, 1969, whereby it has been provided that an officer of Customs appointed under section 3 shall exercise such powers and discharge such duties as are conferred or imposed on him by or under this Act, or the rules made thereunder. In terms of section 4 it has been further provided that Board may, by general or special order impose such limitation or conditions on the exercise of such powers and jurisdiction of such duties as it thinks fit.

12.Having examined the above provisions of law, we would now refer to the provisions of section 6 of the Customs Act, 1969, which read as follows:--

"Section 6. Entrustment of functions of customs officers to certain other officers.---(1)The Board may, by notification in the official Gazette, entrust, either conditionally or unconditionally, any functions of any officer of customs under this Act to any officer of the Federal Government, Provincial Government, State Bank of Pakistan and Scheduled Banks:

Provided that where any officer in performance of his functions under this section commits any offence under this Act, such officer shall, in addition to any other penalty which may be imposed under any other law for the time being in force, be liable to such punishment as is specified in subsection (1) of section 156 for the offence committed by him.

(2)No officer entrusted with any functions of any officer of customs under subsection (1) shall interfere in any manner in the performance or discharge of any duty by an officer of customs in places notified under section 9."

13.On examination of the above provisions of law, it appears that the Board has been authorized to entrust either conditionally or unconditionally any functions of any officer of Customs under this Act to any officer of the Federal Government, Provincial Government, State Bank of Pakistan and scheduled bank, through notification in the official gazette. It is further noted that under section 6 of the Customs Act, 1969, no appointment as an officer of Customs has been visualized, whereas only entrustment of certain functions of customs officer to certain other officer has been provided in order to facilitate the performance of functions and discharge of duties under Customs Act, 1969. As a matter of fact, section 6 of the Customs Act relates to delegation of powers only and does not provide for appointment of custom officer. Such powers can be conferred not necessarily by reference to designation or rank of Customs officer but by numeration, definition or description of the power itself.

14.Whereas, officers of Coast Guards are appointed under section 4 of the Pakistan Coast Guards Act, 1973, their powers and functions are defined under section 3 of the Pakistan Coast Guards Act. One of the functions of the Pakistan Coast Guards includes prevention of smuggling. In terms of subsection (9) of section 2 of the Pakistan Coast Guards Act, 1973, the term "Officer" has been defined as "a person other than a junior commissioned officer, who is commissioned, gazetted or in pay as an officer of any of the defence services of Pakistan or of the force." Section 14 of the Pakistan Coast Guards Act, 1973 provides for the powers of the officers of the force. It will be advantageous to reproduce the provisions of section 14 of the Pakistan Coast Guards Act, 1973, which read as follows:--

"Section 14. Powers of the officers of the Force.---(1) The officers and members of the force shall performs such functions of officers of customs as may be entrusted to them and exercise such powers under the Customs Act, 1969 (IV of 1969), as may be delegated to them under section 6 of that Act for the purposes of prevention of smuggling along the coastal areas of the Provinces of Sindh and Baluchistan, excepting the limits of the various ports in those areas.

(2)In addition to the powers conferred under subsection (1), the officers and junior commissioned officers of the Force shall exercise all the powers conferred on the officer in charge of a police station under the Police Act, 1861 (V of 1861), and under the Code of Criminal Procedure, 1898 (Act V of 1898).

15.In terms of section 14 of Pakistan Coast Guards Act, 1973, the officers of the Pakistan Coast Guards have been empowered to perform such functions of the officers of Customs as may be entrusted to them and shall exercise such powers under the Customs Act, 1969, as may be delegated to them under section 6 of the Act for the purposes of preventing the smuggling along with Coastal areas of the provinces of Sindh and Balochistan, excepting the limits of the various ports of those areas. However, it may be seen that, nowhere under the Customs Act, 1969 or the Pakistan Coast. Guards Act, 1973, officers of Pakistan Coast Guards have been defined as officers of Customs. In terms of section 6 of the Customs Act, they are only entrusted to perform certain limited functions to prevent the smuggling in the coastal areas.

16.In view of hereinabove, we are of the view that the impugned order of the learned Tribunal does not suffer from any factual or legal error. We are also inclined to concur with the finding of the tribunal, whereby it has been held that the Directorate General Coast Guards is not an officer of Customs, and the appeal filed by him before the Collector (Appeals) under section 193 of the Customs Act, 1969 was competent in law. The case-law relied upon by the learned counsel for the applicants is of no assistance to the applicants as the facts of the instant case are distinguishable from the facts of the cited case-law, whereas, in none of the cited cases, there has been any finding contrary to the decision of the tribunal in the instant case. On the contrary, in one of the cited case by the learned counsel for the applicants i.e. Sultan Muhammad v. Commandant Pishin Scouts, Chaman PLD 1991 Quetta 36, it has been held as follows:--

"Provisions of Chapter XVIII of Customs Act clearly show that Customs authorities have exclusive jurisdiction for adjudication of seized goods and conveyance. However aggrieved party has right of appeal and revision as contained in Chapter XIX of the CustomsAct.Therefore,alltheagenciesentrustedwithpowers of Custom Officers within the purview of section 6 of Customs Act are obliged to comply with verdict given by Customs Authorities concerning adjudication of goods or conveyance. Obviously respondents do not enjoy any immunity from law."

17.Accordingly, we do not find any merits in this case, which is hereby dismissed. Consequently, the proposed question No.1 is answered in affirmative, whereas question No.2 is answered in negative, both against the applicants and in favour of the respondent. As regards question. No.3, since no arguments whatsoever have been advanced by the learned counsel for the applicants in support of the proposed question nor any material in this regard has been produced by the applicants, therefore, we are not inclined to answer such question, which otherwise is a question of fact.

Reference application is disposed of in above terms, however, with no order as to costs.

S.A.K./M-8/KOrder accordingly.