UNITED AGRO CHEMICALS VS GOVERNMENT OF PAKISTAN through Collector Customs House, 2016 PTD-QUETTA-HIGH-COURT-BALOCHISTAN 582 (2015)

Customs Act (IV of 1969)---

----Ss. 2(s), 156(1)(8)(i) & 171---Constitution of Pakistan, Art. 199---Constitutional petition---Smuggling---Imported fertilizer---Three trucks loaded with DAP fertilizer were taken into possession by the authorities on the ground that the same contained fertilizer to be smuggled out of Pakistan---Validity---Seized DAP fertilizer was lawfully imported and was seized by respondents in the interior of country and not at the Pak-Afghan border, therefore, no Provisions of Customs Act, 1969, had been violated---If the trucks loaded with DAP fertilizer were seized near Pak-Afghan border, the situation would have been altogether different---Mere presumption of authorities that seized trucks loaded with imported DAP fertilizer were going to be smuggled to Afghanistan through unauthorized route could not be made a basis to seize the same or to initiate proceedings against petitioner under the provisions of Customs Act, 1969, particularly when the same were under transportation in the interior of country and not at the Pak-Afghan border---High Court declared that interception of trucks, loaded with imported DAP fertilizer, its subsequent seizure and issuance of notice to petitioner under S. 171 of Customs Act, 1969, were without lawful authority and of no legal effect---High Court directed the authorities to release/return the trucks loaded with imported DAP fertilizer to petitioner and quashed proceedings initiated by authorities and notices issued to petitioner under S. 171 of Customs Act, 1969---Petition was allowed in circumstances.

State v. Anwar Khattak PLD 1990 FSC 62 and Ghulam Murtaza v. State 1987 MLD 1948 rel.

Collector of Customs v. Universal Gateway Trading Corporation 2005 SCMR 37 distinguished.

H. Shakeel Ahmed and Sadbar Jan for Petitioners.

Syed Ikhlaq Shah, Standing Counsel for Respondents.

Date of hearing: 7th October, 2015.

JUDGMENT

NAEEM AKHTAR AFGHAN, J.---This judgment disposes of Constitution Petition No.798/2015 wherein the petitioners have prayed for the following relief:--

"(a)that the impugned action of the respondents, whereby they have detained three trucks of DAP fertilizer of the petitioners bearing registration Nos.TKV-516, containing 680 bags, TKV-421, containing 560 bags and TKE-421, containing 540 bags, of the petitioners, is illegal, void, in excess of authority, mala fide, arbitrary and of no legal effect;

(b)that all the proceedings drawn by the respondents are illegal, thus, liable to be quashed. Consequently, the goods in question may immediately be released to the petitioners;

(c)pending disposal of the petition, the respondents may be restrained from initiating any adverse action the petitioners in any manner whatsoever in nature, and the goods may be released.

(d)Any other order, as may be deemed fit and appropriate in the circumstances of the case may also be passed along with the cost of the petition in the interest of justice."

2.Facts of the case are that 2000 metric tons of DAP Fertilizer was imported by Messrs United Agro Chemicals (Petitioner No.1) from Australia. In this regard Goods Declaration (GD-I) is available on record. The petitioner No.2 being dealer of petitioner No.1 was dispatched different consignments of the imported DAP fertilizer to Quetta; that subsequently, 650 bags of the imported fertilizer in truck No.TKB-810, 650 bags of imported DAP fertilizer in truck No.TKV-516 and 650 bags of imported DAP fertilizer in truck No.TKV-421 were dispatched by petitioner No.2 for village Malik Yar and Village Huramzai of Pishin district; that on the way, all the three trucks each loaded with 650 bags of imported DAP fertilizer were stopped by Pishin levies at Batezai levies check post in the night of 21/22nd of August 2015; that in the same night the said three trucks along with the loaded imported DAP fertilizer were handed over by Pishin levies to Frontier Corps (FC) Killa Saifullah Scouts. The handing over/taking over memo. reveals the registration numbers of three trucks as under:--

1.TKV-421

2.TKV-516

3.TKE-810

In this regard certificate dated 25th August 2015 has also been issued by the Deputy Commissioner Pishin. Subsequently, the Custom Intelligence and Customs Collectortate were also informed by the District Administration who prepared separate seizure memos. of the three vehicles and the imported DAP fertilizer loaded thereon, whereafter the instant petition was filed on 25th August 2015. Subsequent to filing of the petition, the petitioner No.2 has also been issued notices dated 26th August, 2015 under section 171 of the Customs Act, 1969 (hereinafter "the Act").

3.In pursuance of preadmission notice issued on 26th August 2015 to the respondents and learned DAG, the respondent No.2 has filed para-wise comments raising legal objections that factual controversy involved in the matter cannot be resolved in exercise of constitutional jurisdiction; that the petitioners should avail the alternate remedy as provided under the Act; that cognizance has already been taken by the Custom Authorities under the Act; that the three trucks loaded with DAP fertilizer were heading towards Afghan border adjoining Pishin District; that on information, the Customs Intelligence immediately rushed to the spot and with the help of District Administration as well as FC, the three trucks were intercepted at Batezai, whereafter they were brought under escort to the premises of FC Fort Pishin for safe storage of the sized DAP fertilizer and the three trucks; that the seized DAP fertilizer was going to be smuggled out of country through illegal and unauthorized routes from Pak-Afghan border.

4.Learned counsel for the petitioners stated that the petitioner No.2 is authorized dealer of petitioner No.1 who has lawfully imported DAP fertilizer into Pakistan; that the seized imported DAP Fertilizer loaded on three trucks was lawfully imported; that petitioner No.2 being authorized dealer of petitioner No.1 was issued the consignments of the imported DAP fertilizer through different trucks which was stocked by petitioner No.2; that the three seized trucks were not heading towards the Afghan border for smuggling of DAP Fertilizer to Afghanistan but the same were heading towards village Malik Yar and village Huramzai, which is an agricultural area and both the villages are not situated on the Pak-Afghan border; that the seized imported DAP fertilizer was needed for the requirement of the local farmers; that being lawfully imported fertilizer, there was no occasion for the authorities to stop/seize the said trucks and the loaded DAP fertilizer at Batezai levies Chowki as the same is not situated in the area of Pak-Afghan border.

Learned counsel for the petitioners while referring sections 2(s) and 156(8) of the Act and relying upon the case of State v. Anwar Khatak, PLD 1990 FSC-62 stated that it is only at the border of Pakistan that taking out or bringing in of prohibited goods would be an offence.

Learned counsel for the petitioners stated that Batezai has not been notified as border area/area adjacent to the Frontier of Pakistan as it is 102 kilometers away from Afghan border. While referring section 177 of the Act, Learned counsel also referred to the notification dated 12th February 1983 whereby the area of 05 miles adjacent to the Frontier of Pakistan with India and Iran has been declared as notified area. Learned counsel further stated that no specific notification has been issued for the notified area of Pak-Afghan border.

5.Learned standing counsel while opposing the petition stated that the petition is not maintainable as after taking cognizance by the Custom authorities, notices under section 171 of the Act have already been issued to the petitioner No.2 and the petitioner No.2 having alternate remedy should approach the Custom Authorities by filing reply to the notices under section 171 of the Act; that the petitioner No.2 should face the adjudication proceedings instead of pressing the instant petition. In this regard, learned Standing counsel relied upon the case of Collector of Customs v. Universal Gateway Trading Corporation, 2005 SCMR 37 and common judgment l4 July 2015 passed by this court in C.Ps. Nos.622 and 623 of 2015.

Learned Standing counsel further stated that the documents filed by the petitioner No.2 showing himself as dealer of United Agro Chemicals are not authentic and the three billies relied upon by the petitioner No.2 do not disclose the name of the person who had booked the consignments nor it bears the name of the recipient. Learned Standing counsel further stated that the seized fertilizer was going to be smuggled to Afghanistan through unauthorized route as export of fertilizer to Afghanistan has been prohibited by the Federal Government due to its use in explosives and the same is included in the list of the notified items.

6.Heard the learned counsel and perused the available record. There is no denial to the fact that the seized DAP fertilizer has lawfully been imported into Pakistan from Australia by the petitioner No.1. In this regard the Goods Declaration (GD-I) have not been refuted by the respondents. Different Product Shipment Advice /Convoy Notes reveal that different consignments of imported DAP fertilizer were dispatched to Quetta by petitioner No.1 for petitioner No.2 in the month of July 2015. It further transpires that in the night of 21/22nd of August, 2015 the three seized trucks each loaded with 650 bags of imported DAP fertilizer were dispatched by petitioner No.2 and same were intercepted by Pishin levies at Batezai levies check post which is admittedly not situated in the Pak-Afghan border area. The road from Batezai check post leads towards Barshore as well as to other villages of the area including village Malik Yar and village Huramzai, which admittedly are interior of the country and are not situated at Pak-Afghan border. Vide notification dated 12th February 1983, the area of five miles adjacent to the Frontier of Pakistan with India and Iran has been declared as notified area, but no such notification in respect of Pak-Afghan border has been brought on record.

7.Section 2 (s) (i) (ii) and (iii) of the Act reads as follows:--

(s)"smuggle" means to bring into or take out of Pakistan, in breach of any prohibition or restriction for the time being in force, or en route pilferage of transit goods or evading payment of customs-duties or taxes leviable thereon,--

(i)gold bullion, silver bullion, platinum, palladium, radium, precious stones, antiques, currency, narcotics and narcotic and psychotropic substances; or

(ii)manufacturers of gold or silver or platinum or palladium or radium or precious stones, and any other goods notified by the Federal Government in the official Gazette, which, in each case, exceeds one hundred and, fifty thousand rupees in value; or

(iii)any goods by any route other than a route declared under section 9 or 10 or from any place other than a customs-station

And includes an attempt, abetment or connivance of so bringing in or taking out of such goods; and all cognate words and expressions shall be construed accordingly."

Section 156(1)(8)(i) of the Act reads as follows:--

(8)(i). If any goods be smuggled into or out of Pakistan.---Such goods shall be liable to confiscation and any person concerned in the offence shall be liable to a penalty not exceeding ten times the value of the goods; and upon conviction by a Special Judge he shall further be liable to imprisonment for a term not exceeding fourteen years and to fine not exceeding ten times the value of such goods, and, that, in the case of such goods as may be notified by the Federal Government in the official gazette, the sentence of imprisonment shall not be less than five years, the whole or any part of his property shall also be liable to confiscation in accordance with the provisions of the Prevention of Smuggling Act, 1977."

From the above it is clear that action under the provisions of the Act is warranted only when prohibited goods are smuggled into or outside Pakistan.

8.Since the seized DAP fertilizer was lawfully imported and was seized by the respondents in the interior of the country and not at the Pak-Afghan border, hence no provision of Act has so far been violated by the petitioner No.2. Had the said trucks loaded with DAP fertilizer been seized near Pak-Afghan border, the situation would have altogether been different.

Mere presumption of the respondents that the seized trucks loaded with imported DAP fertilizer were going to be smuggled to Afghanistan through unauthorized route cannot be made a basis to seize the same or to initiate proceedings against petitioner No.2 under the provisions of the Act, particularly when the same were under transportation in the interior of the country and not at the Pak-Afghan border. In the case of Ghulam Murtaza v. State 1987 MLD 1948 it has been held as follows:--

"The sole question for determination would be whether it can be said that they were going to smuggle the articles to India, because they had not yet reached Sialkot whereas the Indian border was beyond Sialkot. Since the appellants were far away from the border, it cannot be said that they were going to smuggle the Charas to India."

In the case of 'Anwar Khatak' referred by the learned counsel for the petitioners, it was held as follows:--

"Most of the goods mentioned in sub-clause (i) of clause (s) of section 2 may be possessed, transported, manufactured, processed, bottled, sold or even imported and exported from one province to another without committing any offence or incurring any penalty. It is only at the border of Pakistan that taking out or bringing in would be an offence and that too if there is a notification laying down a prohibition or restriction".

9.The case of 'Collector of Customs' relied upon by learned Standing counsel is distinguishable and is not attracted in the facts and circumstances of the instant case as in that case, the imported goods were intercepted by Customs Intelligence and were consequently seized on the ground of mis-declaration and controversial questions of facts had arisen which could have not been resolved in exercise of constitutional jurisdiction, whereas in the instant case, on the basis of mere presumption, proceedings have been initiated against the petitioner No.2 under the provisions of the Act which is unwarranted and uncalled for.

The facts and circumstances of the common judgment dated 14th July 2015 passed by this Court in C.Ps. Nos.622 and 623 of 2015 relied upon by learned standing counsel are distinguishable as in the referred judgment, contraband goods of foreign origin were smuggled into Pakistan and subsequently the same were confiscated and instead of availing remedy of filing appeal under section 196 of the Act, the petitioner had filed constitutional petition which was dismissed.

10.For the above reasons the constitution petition is accepted with no order as to cost, the interception of truck No.TKV-421, truck No.TKV-516 and truck No.TKE-810 each loaded with 650 bags of imported DAP fertilizer of the petitioner No.2 at Batezai levies check post by Pishin levies, handing over the same to FC Killa Saifullah Scouts, subsequent seizure of the same by respondents Nos.1 and 2 and issuance of notices to petitioner No.2 under section 171 of the Customs Act, 1969 are declared without lawful authority and of no legal effect.

Consequently, the proceedings initiated by the respondents/notices issued to the petitioner No.2 under section 171 of the Customs Act, 1969 are quashed and the respondents are directed to release/return forthwith the above three trucks each loaded with 650 bags of imported DAP fertilizer to petitioner No.2.

MH/7/BalPetition allowed.