MUHAMMAD AKBAR VS GOVERNMENT OF PAKISTAN, 2015 PTD-QUETTA-HIGH-COURT-BALOCHISTAN 116 (2014)

(a) Customs Act (IV of 1969)---

----Ss. 156, 179, 181, 193 & 196---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability--- Alternate remedy---Laches, principle of---Confiscated goods, return of---Scope--- Petitioner was searched by the customs authorities and foreign origin gold was recovered from him but he was acquitted from the charge---Contention of petitioner was that customs authorities were bound to return the seized gold subject to payment of customs duty---Validity---Gold was seized by the customs authorities on 20-1-1994 but present constitutional petition had been filed after the lapse of more than 16 years which was hit by principle of laches---Petitioner had not approached the customs authorities which was an adjudication authority for the matter in dispute---Appeal and revision had been provided under Ss. 193 & 196 of Customs Act, 1969 but same had not been availed by the petitioner---Petitioner had alternate and efficacious remedy by approaching the concerned forum available in the hierarchy of Customs Law---Article 199 of the Constitution was not meant to short-circuit the statutory proceedings---Constitutional jurisdiction might be exercised where impugned order was without jurisdiction or apparently contrary to law or was result of miscarriage of justice---Petitioner had not assailed any such order of adjudication authority and present constitutional petition was not maintainable---Constitutional petition was dismissed in limine.

(b) Customs Act (IV of 1969)---

----Ss. 156, 179 & 181---Confiscation of goods, adjudication of---Trial Court, powers of---Scope---Powers of Trial Court were restricted to the trial of the accused and adjudication of confiscated goods would exclusively fall within the domain of customs authorities for which Trial Court had no jurisdiction.

Adam v. Collector of Customs, Karachi PLD 1969 SC 446 rel.

Zahoor Ahmed Baloch and Najam-ud-Din Mengal for Petitioners.

Date of hearing: 17th July, 2014.

JUDGMENT

MUHAMMAD EJAZ SAWATI, J.---The petitioner was intercepted by the customs authorities of Gawadar on 19th January 1994 at Gawadar International Airport on his arrival from Masqat in flight No.PK-502. He was searched by the custom authorities in baggage hall and following description of gold were recovered from west belt of the petitioner.

Pursuant to above recovery of foreign origin gold, the petitioner was arrested for contravention of section 25 of the Customs Act, 1969 (hereinafter referred as to "the Act") punishable under sections 156(1)(8) and (89) of the Act. The recovery memo. was prepared on the spot. Notice under section 171 of the Act was also served upon the petitioner and in consequent thereof challan was submitted before the Special Judge Customs Mekhran at Turbat (hereinafter referred as to "the trial Court").

2.The petitioner was charge sheeted on 26th October 1994. The trial Court after recording evidence of the parties acquitted the petitioner of the charge, vide judgment dated 11th December 1994. The relevant paragraph of the judgment is reproduced hereunder:--

"The accused admits possession of gold and with willing to pay tax as some one at Pakistan Embassy informed him for carrying gold subject to travelling by P.I.A. and payment of tax. If he without declaring gold would have crossed the Customs counter then he would have committed an offence he was apprehended on F.I.A. counter or near F.I.A. counter. From the evidence on record the prosecution failed to bring home the charge to the accused beyond all reasonable doubt, therefore, the accused has not committed any offence, he is acquitted of the charge"

3.The present petition has been filed by the petitioner seeking following relief:--

"It is accordingly humbly prayed that in the above mentioned circumstances the order passed by the custom authorities may kindly be set-aside and directions may kindly be passed to the respondents to issue notices to the petitioner for filing reply and after payment of prescribed custom duty the said gold may kindly be released, in the interest of justice."

4.The learned counsel for the petitioner contended that the gold was not a contraband item and it was incumbent upon the custom authorities to return the seized gold to the petitioner subject to payment of custom duty, however, the custom authorities without providing any opportunity illegally seized 300 tolas of gold; and that soon after arrival at Gawadar International Airport the petitioner was willing to declare the gold but prior to that he was apprehended in baggage hall and opportunity of his intended declaration was also declined. He further stated that the trial Court was competent to pass orders for release of seized gold, as the trial Court held that the petitioner had committed no offence, therefore, the custom authorities be directed to release the seized gold to the petitioner subject to payment of customs duty.

5.We have examined the contention as agitated on behalf of the petitioner. The gold was seized by the custom authorities at Gawadar on 20th January, 1994 and the instant writ petition has been filed on 30th July 2010 after the lapse of more than 16 years nor did the petitioner approach the authorities under the Act. There is a specific provision in section 179 of the Act before adjudication authority and sections 193 and 196 of the Act respectively provide for an appeal and revision. Section 193 of the Act is reproduced herein below:--

"193 Appeals.---Any person aggrieved by any decision or order passed by an officer of customs under this act may, within thirty days of the date of receipt of such decision or order, appeal therefrom to the Board, or, in such cases as the Federal Government, directs, to any officer of customs not lower in rank than a Deputy Collector of Customs, and the appellate authority may thereupon make such further inquiry as it may consider necessary, and, after giving him an opportunity of being heard if he so desires, pass such order as it thinks fit, confirming, altering or annulling the decision or order appealed against:

Provided that no order confiscating goods of greater value, or enhancing any fine in lieu of confiscation, or imposing or enhancing any penalty, or requiring payment of any duty not levied or short-levied shall be passed unless the person affected thereby has been given an opportunity of showing cause against it and of being heard in person or through a counsel or other person duly authorised by him."

6.The petitioner had alternate and efficacious remedy under sections 179, 193, 194-A and 196 of the Act, by approaching the concerned forum available in the hierarchy of Customs Law. Article 199 of the Constitution of the Islamic Republic of Pakistan is not meant to short-circuit the statuary proceedings. The Court may exercise such jurisdiction where it is found that the order impugned was without jurisdiction or apparently contrary to settled provision of law or was likely to result in miscarriage of justice. In the present case the petitioner has neither assailed any order of adjudication authority nor any such order has been accompanied along with petition and instead of availing the alternate and efficacious remedy, filed the present petition which is not maintainable. The petitioner also offered no explanation for the inordinate delay of filing the present petition, which is hit by laches

7.The contention of the learned counsel that since the trial Court held that action of the custom authorities of seizing of the gold from petitioner was illegal as he was willing to declare the gold before the custom authorities, therefore, he is entitled for the release of 300 tolas of gold is also untenable. It is admitted that powers of the trial Court are only restricted to trial of the accused who has or have been charged for violation of section 2(s) of the Act, punishable under sections 156(1)(8) and (89) of the Act. However, adjudication of the property subject matter of seizure exclusively falls within the domain of custom authorities for which the trial Court would not have jurisdiction as contemplated by sections 179 and 181 of the Act. Reference in this regard is made to the case of Adam v. Collector of Customs, Karachi (PLD 1969 SC 446).

In view of the above the instant writ petition is dismissed in limine.

AG/70/BalPetition dismissed in limine.