MIRZA KHAN VS FEDERATION OF PAKISTAN through Secretary, Ministry of Finance, Islamabad, 2014 PTD-KARACHI-HIGH-COURT-SINDH 1332 (2013)

Customs Act (IV of 1969)---

----S.171---Constitution of Pakistan, Art.199---Constitutional petition---Factual controversy---Alternate remedy---Petitioner claimed that goods seized by authorities were not smuggled but were legally imported---Validity---After receiving show-cause notice, petitioner or any other claimant whoever could be, should have replied the show-cause notice to rebut allegations levelled therein with all available documentary evidence---In case concerned authorities were not satisfied with their reply, petitioner had an adequate remedy of challenging order in question before customs authorities to adjudicate such matter but he did not avail alternate remedy---To resolve issues whether confiscated goods were imported or smuggled or who was the actual importer, evidence had to be recorded being the issues related to factual controversy which could not be decided in extra constitutional jurisdiction---High Court declined to interfere in the matter as it was beyond its ambit---Petition was dismissed in circumstances.

Khalid Mehmood v. Collector of Customs, House, Lahore, 1999 SCMR 1881; Assistant Collector Customs and others v. Messrs Khyber Electric Lamps and 3 others 2001 SCMR 838; Commissioner of Income Tax v. Messrs Eli Lilly Pakistan (Pvt.) Ltd. 2009 PTD 1392; Manoo Gul and others v. Pakistan and others PTCL 1990 CL. 406; Collector of Customs v. Haji Noor-ul-Haq Lahore and others PTCL 2003 CL. 716; Assistant Collector of Central Excise and Land Customs v. Mst. Siddiqan Afzal and others 2007 SCMR 1149; Joint Secretary, Central Board of Revenue (Customs) and others v. Raja Nazar Hussain and another 1991 SCMR 647; Syed Muhammad Razi v. Collector of Customs (Appraisement), Custom House, Karachi and 2 others 2003 PTD 2821; Messrs Latif Trading Company v. Government of Pakistan through Secretary, Ministry of Finance, Islamabad and 2 others 1993 CLC 1663; Messrs Al-Rukiya Traders v. Central Board of Revenue Government of Pakistan, Islamabad and 2 others 1995 CLC 1456; Messrs Everluck Enterprises Proprietorship Kamran Wahid Khan, Karachi and others v. Federation of Pakistan through Secretary, Revenue Division (FBR), Islamabad and others 2013 PTD 471; Muhammad Javed and others v. Customs Central Excise and Sales Tax Appellate Tribunal Lahore Bench, Lahore 2001 YLR 635 and Messrs Salim Industries Ltd. v. Central Board of Revenue and others 1987 MLD 234 ref.

Muhammad Imran Shamsi and Isaac Ali Qazi for Petitioner.

Muhammad Iqbal Mahar for Respondents.

Ghulam Murtaza Korai for the State.

Date of hearing: 17th September, 2013.

ORDER

SHAHNAWAZ TARIQ, J.---This petition has been brought by the petitioner Mirza Khan with following prayers:--

(a)Declare the detention of the black peppers and white peppers to be illegal, void, ab initio and without jurisdiction.

(b)Declare the act of detaining the black and white peppers of the petitioner by the respondents Nos.2 and 3, to be illegal, ultra vires, without lawful authority, specially in presence of the valid import documents.

(c)Direct the respondents to give the interim custody of the black and white peppers to the petitioner till the final disposal of this petition for which he is ready to furnish surety.

(d)Grant any other relief which this court may deem fit and proper under the circumstances of the case.

2.Relevant facts spelt out from the petition, are that the respondent No.3 Intelligence Officer seized the goods of the petitioner i.e. black and white peppers, which were booked from Karachi for Lahore. The petitioner further alleges that the respondent No.3 has failed to appreciate the relevant valid import documents produced in this regard, hence, the seizure is not admissible in the eyes of law. The owner is not involved in smuggling of the goods, as the place of seizure is not the border area nor anything objectionable was recovered from the vehicle.

3.It is further averred in the petition that the respondents have failed to issue show-cause notice to the petitioner under section 180 of the Customs Act within 60 days after seizure of goods, hence, the entire process of seizure of goods is illegal.

4Prior to this petition, the petitioner had also filed petition being C.P. No. D-2037/2013 before this court which was withdrawn vide order dated 23-7-2013, as the same was not drafted properly as per the version of the petitioner, hence, this petition.

5.The respondents also filed the objections that the remedies are available to the petitioner by way of adjudication before the relevant authority and the seizure report of the peppers has been sent to the adjudication authority, so the petitioner may avail the remedy from proper forums. The petitioner is not a real owner of the seized consignment as per record of the prosecution; one Akbar Khan is the consignee and consignor while importer's name is Messrs Iqbal and Co., Lahore (having two different addresses). Further stated that since the petitioner has already filed a Petition No. D-2037/2013, in the same matter which was dismissed by this court, therefore, the present petition is not maintainable under the law. The petitioner was served with mandatory notice as required under the Customs Act, hence, the petition is liable to be dismissed. The notice under section 171 of the Customs Act, 1969 issued by the respondent No.3 is reproduced as under:--

"You are hereby informed through this notice that upon an information was received to effect that a huge quantity of foreign origin smuggled black and white pepper would be transported from Karachi to Lahore under the garb of irrelevant import documents through a container/trailer No. TLC-597, without any trade mark, country of origin and date of manufacturing/expiry etc (seems to be local "bardana" which is in loose condition) which is restricted under section 15 clause D(i)(ii) and Trade Mark Act, as defined under the Customs Act, 1969 also. Accordingly the staff of this Range Office Sukkur held a naka point at Rohri Bypass Rohri to foil the attempt of smuggling. On 3-6-2013 at about 4-00 a.m. the above said container/trailer reached at naka point, signaled to stop. Cursory checking of the container was conducted which shown the load of 157 bags of foreign origin black and white peper having words upon jute bags with looking self printed, without any trade mark, country of origin and date of manufacturing/expiry etc. as "Supper Diamond" Phone No.924237632369 only in the said container/trailer booked vide against bilty No.2219/157 in the name of one Akbar Khan (consignee and consignor) as per bilty issued by Messrs Yousaf Bilal Goods Transport Co. Karachi. Driver of the container/trailer namely Ayub Sabir son of Shamoon Maseh R/o. Chak No. 86/9-L Sahiwal was asked about the legal import documents foreign origin, he produced bunch of bilties issued by Messrs Yousaf Bilal Goods Transport Co., Karachi, but failed to produce relevant legal import documents in support of recovered foreign origin black and white pepper. As the container was fully loaded with other local miscellaneous goods and was not possible to check it thoroughly on the spot, therefore, the said container/trailer was brought into the range office, Sukkur for detail examination/verification and F/O black and white pepper were unloaded from the said container. The driver contacted with the Adda management who got email address of this office for supply of relevant import documents in this regard. The following document were received through email of one namely Tariq Khan (i) a copy of bill of lading No. APLU074772487 showing the load of 200 bags of black pepper and 50 bags of white pepper in the name of Azhar Iqbal and company 55 Circular Road, Lahore with a telephone No. 92212314542 another copy of same bill of lading number was also received which was contrary in nature of contents to the first supplied copy. (ii) A photograph of Container No. APZu 3337313 (iii) A photograph of examination shows, some bags open outside the container revealing those are packed in double packing material i.e. Inner side with white material while the outer side with jute bags. On the other hand the loaded consignments have been found packed in only single packing material i.e. only jute bag (seems to be local "bardana" which is in loose condition"). Further the address of the importer is also found contrary return upon the GD No. KCSI-HC-157008 dated 13-5-2013 with the address shown on the other documents. This contradiction in respect of different name of importer, Azhar Iqbal and Co. (showing two different addresses), name of sender and receiver as Akbar Khan and name of sending documents through email as Tariq Khan also indicates there are grounds that, some persons are importing the goods in the license of other Importer which is not legal under the eyes of Law. Further there no chain of transaction in between importer and consignee was found provided by anyone to show its lawful possession. The goods have been unloaded in the presence of driver and independent witnesses and some bags were weighed out and wt.bag of Black peppers comes to 70 kgs in jute bags while the wt. of white pepper comes to 60 kgs in gross which is also contrary to weight declared in the provided G.D. So same are being liable to confisation under violation of sections 2(s), 15(d)(i)(ii) and 16 Customs Act, 1969 read with section 3(1) of Imports and Exports Control Act, 1950 punishable under section 156(1)89 of the Customs Act, 1969 being contrary to the provided document in all aspects accordingly the same have been seized on 3-6-2013 and recovery memo. was prepared in the presence of witnesses. Accordingly Notice under section 171 of the Customs Act, 1969 was served upon owner (s) through driver namely Ayub Sabir and Messrs Yousaf Bilal Goods Transport Co. Karachi. The container/trailer was allowed to go along with other local cargo to its destination. In view of the above facts, it has been established without any shadow of doubt that the recovered foreign origin black and white peppers are smuggled, which have been brought into the contrary without payment of duty and taxes, therefore, the goods detailed as per recovery memo. are liable to outright confiscation in violation of section 15 clause D(i)(ii) & 16 read with Clauses(s) of section 2 of the Customs Act, 1969 and punishable under section 156(1)89 of the Customs Act, 1969."

6.Order sheet reveals that on 29-8-2013, by the consent of the parties, considering the apprehension of seized peppers being damaged soon, the respondents Nos.2 and 3 were directed to conduct public auction of seized peppers within 15 days after observing necessary formalities and thereafter, the auction proceeds be deposited with the Additional Registrar of this Court on 17-9-2013. The petitioner was also permitted to participate in auction proceedings. Pursuant to such order, the auction was held by the respondents and auction proceeds amounting to Rs.31,35000 through pay order No.4960871 vide receipt No.3176, dated 6-9-2013, has been deposited with the Additional Registrar of this Court.

7.We have heard the learned counsel for the parties, perused the record and also gone through the relevant case-laws relied upon by the learned counsel for the parties.

8.Mr. Muhammad Imran Shamsi, learned counsel for the petitioner has contended that the petitioner is bona fide owner of the seized black and white peppers but the respondent No.3 has seized the same purely with mala fide intention and has failed to appreciate the valid documents produced before the respondent No.3 for verification. Further submitted that all the proceedings conducted by the respondents regarding the raid, the search, the seizure and the prosecution of the petitioner's legally imported peppers are without lawfull authority, as no notice under section 180 of Customs Act, 1969, was issued to the petitioner, therefore, the seized peppers be returned to the petitioner or in alternate the sale amount of seized peppers deposited with the Additional Registrar of this Court be refunded to him.

9.Learned counsel for the petitioner in support of his arguments has relied upon the cases of Khalid Mehmood v. Collector of Customs, House, Lahore, (1999 SCMR 1881), Assistant Collector Customs and others v. Messrs Khyber Electric Lamps and 3 others, (2001 SCMR 838), Commissioner of Income Tax v. Messrs Eli Lilly Pakistan (Pvt.). Ltd.; (2009 PTD 1392), Manoo Gul and others v. Pakistan and others, (PTCL 1990 CL. 406), Collector of Customs v. Haji Noor-ul-Haq Lahore and others (PTCL 2003 CL. 716), Assistant Collector of Central Excise and Land Customs v. Mst. Siddiqan Afzal and others (2007 SCMR 1149), Joint Secretary, Central Board of Revenue (Customs) and others v. Raja Nazar Hussain and another, (1991 SCMR 647), Syed Muhammad Razi v. Collector of Customs (Appraisement), Custom House, Karachi and 2 others, (2003 PTD 2821), Messrs Latif Trading Company v. Government of Pakistan through Secretary, Ministry of Finance, Islamabad and 2 others, (1993 CLC 1663), Messrs Al-Rukiya Traders v. Central Board of Revenue Government of Pakistan, Islamabad and 2 others, (1995 CLC 1456), Messrs Everluck Enterprises Proprietorship Kamran Wahid Khan, Karachi and others v. Federation of Pakistan through Secretary, Revenue Division (FBR), Islamabad and others, (2013 PTD 471), Muhammad Javed and others v. Customs Central Excise and Sales Tax Appellate Tribunal Lahore Bench, Lahore, (2001 YLR 635). The cited rulings are almost on the same point that after the seizure and confiscation of goods by the Customs Officer, if show-cause notice is not issued without two months of the seizure of the goods, the officer is bound to return the seized goods to the person from whose possession they have seized. The statutory time of two months is mandatory and could not be extended. The cited rulings are not helpful to the petitioner, as the respondent No.3 has issued required notice under section 171 of Customs Act, 1969, to six concerned persons and same was also served upon the driver of the petitioner on the spot.

10.On other hand, Mr. Ghulam Murtaza Korai, learned counsel for the respondents has vehemently opposed the contention of the counsel for petitioner and has stated that the respondent No.3 during naka at Rohsi Bypass, has seized 157 bags containing smuggled foreign origin black and white peppers, loaded on the container/trailer No. TLC-597. But due to non-production of valid import documents, the recovered peppers were seized in accordance with law. Further submitted that different addresses mentioned in produced documents have proved that some unauthorized persons have imported the goods through the license of another importer which is illegal and not permissible under the law.

11.In support of his arguments, learned counsel for the respondents has placed his reliance upon the following cases.

12.In case of Messrs Salim Industries Ltd. v. Central Board of Revenue, and others, 1987 MLD 234 [Karachi], it has been held that Constitutional jurisdiction could interfere on the cases where orders passed by Tribunals below are based on evidence or such Tribunals had no jurisdiction in matter. Custom Authorities having jurisdiction in matter of charging customs duty on imported goods. Conclusion of Customs Authorities even if wrong, afforded no ground for interference by High Court in its constitutional jurisdiction.

13.In the case of Messrs Mubeen Enterprises Ltd., v. Federation Pakistan and 3 others, 1997 MLD 424 (Lahore), it has been held that the imported consignment on physical examination by Authorities, found to be different from the one which importer was required to import, Collector of Customs found that imported goods were assessable under different headings of Pakistan Customs Tariff. Controversy regarding import of goods was of factual nature. Importer had adequate remedy of challenging impugned order before forum of Collector of Customs being Competent Authority to adjudicate such matter. Constitutional petition was not competent in circumstances.

14.We are not inclined to agree with the objection raised by the counsel for the respondent that in absence of prior permission of this court to file a fresh petition, instant second petition is not maintainable under the law, because the Constitutional Petition No.2037 of 2013, was withdrawn vide the statement/C.M.A. No.7057 of 2013, dated 25-7-2013, filed by the counsel for the petitioner with prayer to file a fresh petition as the same was not drafted properly, therefore, the objection raised by the counsel for the respondent is discarded being devoid of any legal force.

15.The factum of last possession of seized peppers is not disputed, as per version of the petitioner, has foreign origin Black and White peppers were loaded in Trailer No.597, booked through Messrs Yousif Bilal Transport Co. Karachi for Lahore, but the same was intercepted by the respondent No.3, at Rohri Bypass, and loaded peppers were seized illegally, despite of production of valid import documents. On the other hand the respondent No.3 has also narrated the same story, that 157 bags containing smuggled foreign origin Black and White peppers being transported to Lahore, were seized during naka at Rohri Bypass, due to non production of valid documents. In the prevailing circumstances, there is no second thought that seized peppers were secured from the possession of the petitioner irrespective of the question of ownership. The involved controversy between the parties pertaining to the ownership of seized peppers is of factual nature, and to determine the question of fact, the petitioner was bound to resist the subject notice and to approach the competent authority to contest for his claim.

16.From the above detailed discussion of the relevant facts, pertinent circumstances and cited case-laws, we are of the firmed view that after receiving show-cause notice, the petitioner or any other claimant whoever may be should have reply the subject show-cause notice to rebut the allegations levelled therein with all available documentary evidence. In case the concerned authorities were not satisfied with their reply, the petitioner had an adequate remedy of challenging impugned order before forum of Collector of Customs being Competent Authority to adjudicate such matter, but he had not availed the alternate remedy. Therefore, in the prevailing circumstances instant constitutional petition is not competent and claimed relief is beyond the ambit of this court.

17.Furthermore, to resolve the issues whether the confiscated goods were imported or smuggled or who is the actual importer, evidence has to be recorded being the issues related to the factual controversy which could not be decided in the extra constitutional jurisdiction. Therefore, in the prevailing circumstances instant constitutional petition is not competent and claimed relief is beyond the ambit of this court. Hence, the instant constitutional petition stands dismissed being not sustainable under the law. However, the auction amount deposited with the Additional Registrar of this court be sent to the concerned Collector of Customs, with direction to afford proper: opportunity, to the petitioner or any other concerned pretender having legal character to plead their cause in accordance with law within the shortest possible period. The Competent Customs Authority is at liberty to deduct the legal duties/charges from the deposited auctioned amount subject to the adjustment if any amount already received regarding the seized peppers. None of the parties would be influenced or affected by the observations and findings as mentioned supra which are strictly to the extent of the maintainability of instant constitutional petition and the issue of prime controversy shall be decided by the competent Customs Authority purely on merits and in accordance with law.

MH/M-17/SindhPetition dismissed.