HIKMATULLAH VS The MAJOR, ANTI-SMUGGLING OFFICER, PESHAWAR
2019 P T D (Trib.) 116
[Customs Appellate Tribunal]
Before Syed Sardar Hussain Shah, Member (Judicial)
HIKMATULLAH
Versus
The MAJOR, ANTI-SMUGGLING OFFICER, PESHAWAR and 3 others
Appeal No. Cus. 117/PB of 2017, decided on 30/07/2018.
Customs Act (IV of 1969)---
----Ss.2(s), 16, 156(1)(8), 156(1)(89), 168 & 179---Imports and Exports (Control) Act (XXXIX of 1950), S.3---Notification FE.4/92-SB, dated 28.11.1992---Smuggling---Seizure and confiscation---Scope---Law enforcing Force recovered Pakistan currency, allegedly being smuggled out of Pakistan---Deputy Collector of Customs (Adjudication) vide order-in-original confiscated the recovered currency---Collector of Customs (Appeals) upheld the order-in-original and dismissed the appeal---Validity---Appellant was citizen of Pakistan as he produced his Computerized National Identity Card; two business cards showing him the Managing Director of companies; another card of All Pakistan Commercial Exporters showing him an Associate member and a certificate issued by Political Agent in respect of residence and business of appellant---No offense was committed by appellant when there was no evidence to suggest that he was making an attempt to smuggle the currency out of Pakistan---Law Enforcing Force was not authorizedto seize goods at the Border, which was a Customs station---Orderspassed by adjudicating authorities were set aside by the Tribunal.
Ishtiaq Ahmed for Appellant.
Muhammad Zahid, Superintendent/D.R. for Respondents.
Date of hearing: 30th July, 2018.
JUDGMENT
SYED SARDAR HUSSAIN SHAH, MEMBER (JUDICIAL).---This appeal is filed by Hikmat Ullah son of Abdul Matin (herein after called appellant) against the Order-in-Appeal No.32 of 2017, dated 25.01.2017 passed by the Collector of Customs (Appeals), Islamabad, Camp Office, Jamrud Road, Custom House, Peshawar, whereby he dismissed the appeal of the appellant against the Order-in-Original Nos.288-291 of 2016, dated 26.04.2017 of the Deputy Collector of Customs (Adjudication), Islamabad, Camp Office, Custom House, Jamrud Road, Peshawar.
2.Briefly stated the facts of the case are that on 09.10.2015, during the course of routine Anti-Smuggling duties at Torkham Check Post, F.C. staff of Khyber Rifles recovered Pakistani currency amounting to Rs.340,000/- (details as per Recovery Memo. No.26/2016, dated 18.01.2016). The seized Pakistani currency was being smuggled from Pakistan to Afghanistan without valid documents. On demand, the appellant failed to produce any legal documents in respect of the said currency. Therefore, the same was seized under the provisions of Section 168 of the Customs Act, 1969 for violation of Sections 2(s) and 16 of the Customs Act, 1969 read with State Bank of Pakistan (SBP) Notification FE.4/92-SB, dated 28.11.1992 and further read with Section 3(1) of the Imports and Exports (Control) Act, 1950 punishable under Section 156(1) Clauses (8) and (89) of the Customs Act, 1969 read with Section 3(3) of the Imports and Exports (Control) Act, 1950. The case papers were submitted for adjudication in terms of Section 179 of the Customs Act, 1969.
3.Subsequently, a Show-Cause Notice was issued to the appellant on 08.02.2016. The learned Deputy Collector of Customs (Adjudication), Islamabad, Camp Office, Customs House, Peshawar vide Order-in-Original Nos.288-291 of 2016, dated 26.04.2016, mutatis mutandis applied the same order to the case of the appellant (then respondent), and outrightly confiscated the recovered amount.
4.The appellant being aggrieved, filed an appeal before the Collector of Customs (Appeals), Islamabad, Camp Office, Custom House,JamrudRoad,PeshawaragainsttheOrder-in-OriginalNos.288-291 of 2016, dated 26.04.2016, the learned Collector of Customs (Appeals), vide Order-in-Appeal No.32 of 2017, dated 25.01.2017, dismissed the appeal of the appellant, and uphold the impugned ONO dated 26.04.2016. Hence the instant appeal to this Tribunal.
4(sic). I have heard Mr. Ishtiaq Ahmed, learned Advocate for the appellant as well as Mr. Muhammad Zahid, Superintendent/D.R, for the respondent and gone through the record of the case.
5.The Recovery Memo. prepared on 18.01.2016 by the Major, Anti-Smuggling Officer Frontier Corps (FC), Headquarter, Peshawar on 18.01.2016 shows that Pakistani Currency Rs.3,40,000/- has been seized from one Hikmat Ullah son of Abdul Mateen resident of Afghanistan, while crossing the Custom office area. The Show-Cause Notice issued by the Deputy Collector (Adjudication) shows that the same Pakistani Currency was seized at Torkham Check Post being smuggled from Pakistan to Afghanistan without valid documents.
6.The available record i.e. CNIC No.17301-2893564-7 disclosed that Hikmat Ullah son of Abdul Mateen is resident of Bakhmel Shah, Baba Zai, P/o Yousaf Khel, Tehsil Upper Mohmand Agency, which was issued on 05.06.2010 and valid upto 05.06.2022, so it is cleared that the appellant is a Pakistani citizen and not an Afghani, there is some other documents on file out of which two business cards one showing Hikmat Ullah is Managing Director of Hikmatullah and Company, export import of precious and semi precious stones, office Namak Mandi, Peshawar Pakistan and the other one shows Hikmat Ullah is Managing Director of Nooristan Gems Company Limited, deals in precious and semi precious stones, office at Surivangse Road, Bangrak, 10500 Bangkok Thailand, another card of all Pakistani Commercial Exporters Association, shown Hikmat Ullah as proprietor, office at Namak Mandi, Peshawar Pakistan, another document shows that he is an Associate Membership certificate from all Pakistan Commercial Exporters Association, another certificate issued by Political Agent Upper Mohmands, Ghallanai in respect of the permanent resident of the appellant and his Gems Stone firm in District Peshawar. The above all documents showing that the appellant is a citizen of Pakistan and has the business of Precious Stones.
7.As per averments of the appeal the case of the prosecution is based on mala fide intention, the currency was not seized on border and it was snatched from the appellant around 30 to 35 Kilometers away from the border and that the appellant is doing business of Precious and Semi Precious Stones, and such amount in his possession is requirements of his business.
8."Smuggling" has been defined in Section 2(s) of the Customs Act, 1969 as under:-
The attempt, abetment or connivance to commit an offence smuggling would include in the expression "smuggle", but the attempt to smuggle has not been specifically defined in the Customs Act, 1969. The intention, preparation, attempt and completion of an act are the essential components of an offence, but an attempt to offence in the criminal administration of justice, is a distinct offence, which is completed if in consequence to the preparation, an overt act is taken to commit the crime, this mix question of law and fact always depends upon the circumstances of each case without the completion of three essential ingredients, firstly the intention, secondly, the preparation and the thirdly the taking of a deliberate overt act.
9.No offence is said to be committed in the present case, except the presence of the appellant at Torkham with Pakistani Currency, there was no evidence to suggest that he was making an attempt to smuggle the Currency out of Pakistan and therefore, it can safely be presumed that appellant could not be charged for an act of smuggling under the Customs Act, 1969. There is no prohibition of keeping the Pakistani Currency of any value in possession within the territorial boundaries of Pakistan under the law, the mere fact that the appellant was found in possession of Pakistani Currency at Torkham could not be an offence and suspicion that he would be committing an act of smuggling. The Currency would not be substituted with proof in absence of evidence of smuggling. A person found in possession of smuggled goods is responsible to explain the lawful possession of the goods, but if a person found in possession of goods is legal and it is not at all required to be explained. The appellant having a Pakistani Currency at Torkham, how and in what circumstances it be presumed that he intended to smuggle it out of Pakistan. More particularly, the Customs authorities have not taken into possession the passport or any travelling intenary which confirmed that the appellant intention was going out of Pakistan.
10.The seizure of Pakistani Currency had been illegal and without jurisdiction, and the order of the confiscation in this respect passed by adjudicating authority being a void order. The facts on the basis of which the order was passed, could not make out a case for exercise of jurisdiction under the Customs Act, 1969. Similarly the Order-in-Appeal is not in accordance with law and facts in view of Notification/S.R.O. 1090(I)/2010, dated 01.12.2010. The stance of the appellant seems more plausible as the officer of the Frontier Corps (Hq), Peshawar is not authorized to seize any goods at Torkham border, which is a Customs station. There are Markets and the commercial activity/business is in abundance. The appellants stance that he would dealing his business of purchases of Precious Stones etc, do carries a reasonable justification for holding the Currency of land. The prosecution is totally failed to have shown that the possessors intended to export the Currency to Afghanistan.
6.In view of the above discussion, I allow this appeal, set aside Order-in-Appeal dated 25.01.2017 of the Collector of Customs (Appeals) and Order-in-Original dated 26.04.2016 of the Deputy Collector of Customs (Adjudication), and direct the respondents to release the amount, so seized by them to the appellant within 15 days from the date of receipt of this judgment.
SA/77/Tax(Trib.)Appeal accepted.