PLJ 2023 Quetta 19 (DB)
Present : MUHAMMAD EJAZ SWATI AND ABDULLAH BALOCH , JJ.
COLLECTOR, COLLECTORATE OF CUSTOMS, CUSTOM HOUSE, GAWADAR and
others --Appellants
versus
WALI MUHAMMAD and others --Respondents
S.C.R. Appln. No. 32, 33, 34, 35, 37, 38 & 41, 43 of 2022,
decided on 25.5.2022.
Customs Act, 1969 (IV of 1969) --
----Ss. 2(S), 16, 156(1), Clauses (8) (89), 157(2) & 196-- Imports and Exports Control Act,
(XXXIX of 1950), S. 3(1) --Smuggling of Iranian Diesel --Seizetion of diesel and vehicle --
Confiscation order --Vehicles were ordered to released subject to payment of redemption fine --
Appeals --Allowed --Imposing of different penalties --No evidence on record to connect
respondents in league with drivers for smuggling of diesel oil --Challenge to --Only those
questions can be raised before High Court, which are questions of law and arising from order of
Tribunal, on which no findings given by Tribunal --All such questions of law have been
deliberated in detail under prevailing law with regard to confiscation and release of vehicles --
Cases rightly been decided by forums below as seizing agency has failed to bring on record any iota of evidence --No evidence came on record to connect owners of vehicles in question with act
of drivers or owners were in league with drivers for transportation of smuggled goods --
Confiscation of common carrier on charge of transporting smuggled goods is not tenable unless a
direct role of transporter is alleged and proved--Applicant has failed to establish that respondents
in any manner involved in smuggling of goods and owners were aware or in knowledge of acts
being done by Drivers or Cleaners --Custom references dismissed. [P. 26] A, B, C, D, E & F
Mr. Nusratullah Baloch, Advocates for Appellants.
Mr. Hussain Ahmed, Advocate for Respondents.
Date of hearing: 18.5.2022.
J
UDGMENT
Abdullah Baloch, J. --Since common question of law is involved in the Custom Reference Nos.
32 to 35 & 37 to 38, 41 & 43 of 2022, thus the same are being decided through this common
judgment and the facts of the references are as under:
2. Brief facts of the Customs Reference No. 32 of 2022 are that on 14th April 2020 in pursuance
to the credible information with regard to smuggling Iranian diesel, the joint raiding team of
Customs Preventive Staff, Panjgoor associated with the staff of FC Panjgoor Rifles, Panjgoor at
about 11:30 p.m. intercepted a Hino Truck bearing Registration No. TKX -738 coming from
Turbat side towards Panjgoor, the search whereof was resulted into recovery of 28,000 litters Iranian Diesel. The driver of the vehicle in question was escaped from the scene. The recovered smuggled Iranian diesel alongwith vehicle in question have been seized under Section 168 of the
Customs Act, 1969 in violation of Section 3(1) of Imports and Exports (Control) Act, 1950,
Section 2(s) & 16 of the Customs Act, 1969, read with SRO 499(I)/2009 dated 16th June 2009
and SRO. 566(I)2005 dated 6th June 2005, punishable under clauses (8) & (89) of Section 156(1) and 157(2) of the Customs Act, 1969. Subsequently, the Additional Collector of Customs, Customs House, Gaddani, vide order dated 12th August 2020 confiscated outright the recovered smuggled Iranian Diesel i.e. 28,000/ -litters, while Hino Truck bearing Registration No. TKX -738
was ordered to be released on payment of 20% redemption on the Customs value of vehicle and penalty of Rs. 350,000/ - was also imposed upon the vehicle owner. Being aggrieved, the
appellant/Customs Authorities filed appeal before the learned Appellate Tribunal; whereby the appeal was dismissed and the order dated 12th August 2020 passed by Additional Collector was upheld and the Hino Truck bearing Registration No. TKX -738 was directed to be released
subject payment of 20% redemption fine on the Customs value of vehicle, vide impugned
judgment dated 5th October 2021. Whereafter, the instant Custom Reference has been filed.
(i) While facts of the Customs Reference No. 33 of 2022 are that on 16th October 2020 at about 10:00 p.m. the Troops of Frontier Corps 132- Wing Kalat Scouts Wadh recovered smuggled
Iranian Diesel 17000 litters from the additional Tanks in Mazda Truck bearing Registration No. TKK- 901. The recovered Iranian Diesel along with vehicle in question was handed over to MS -
Khurkhera, MCC, Gwadar, Customs House, Gaddani. The recovered smuggled Iranian diesel alongwith vehicle in question have been seized under Section 3(1) of Imports and Exports
(Control) Act, 1950, Section 2(s) & 16 of the Customs Act, 1969, read with SRO. 566(1)2005 dated 6th June 2005 and SRO. 499(I)/2009 dated 13th September 2009, punishable under clauses (8) & (89) of Section 156(1) and 157(2) of the Customs Act, 1969. Subsequently, the Additional Collector of Customs, Customs House, Gaddani, vide order dated 22 December 2020 confiscated outright the smuggled Iranian Diesel 17000/ - litters, while Mazda Truck bearing Registration No.
TKK- 901 was ordered to be released on payment of 20% redemption fine on the Customs value
of vehicle and penalty of Rs. 100,000/ - was also imposed upon the vehicle owner. Bing
aggrieved, the appellant/Customs authorities filed appeal before the learned appellant Tribunal; whereby the appeal was dismissed and the order dated 22nd December 2020 passed by Additional Collector was upheld and the Mazda Truck bearing Registration No. TKK -901 was
directed to be released on payment of 20% redemption fine on the Customs value of vehicle, vide impugned judgment dated 4th October 2021. Whereafter, the instant Custom Reference has been filed
(ii) Whereas facts of the Customs Reference No. 34 of 2022 are that in pursuance to the credible information with regard to smuggling Iranian diesel, the joint raiding team of Customs Staff associated with the staff of FC Awaran Militia, Hoshab on 1st December 2020 at about 05:30 a.m. intercepted a Hino Truck bearing Registration No. TUB -089 coming from Turbat side
towards Awaran, the search whereof was resulted into recovery of 34,040 litters Iranian Diesel. The driver of the vehicle in question was escaped from the scene. The recovered smuggled Iranian diesel alongwith vehicle in question have been seized under Section 168 of the Customs
Act, 1969 in violation of Section 3(1) of Imports and Exports (Control) Act, 1950, Section 2(s)
& 16 of the Customs Act, 1969, read with SRO. 499(I)/2009 dated 16th June 2009 and SRO. 566(I)2005 dated 6th June 2005, punishable under clauses (8) & (89) of Section 156(1) and 157(2) of the Customs Act, 1969. Subsequently, the Additional Collector of Customs, Customs House, Gaddani, vide order dated 09th March 2021 confiscated outright the recovered smuggled
Iranian Diesel i.e . 34,040/ - litters, while Hino Truck bearing Registration No. TUB -089 was
ordered to be released on payment of 20% redemption on the Customs value of vehicle and
penalty of Rs. 125,000/ - was also imposed upon the vehicle owner. Being aggrieved, the
appellant/Customs Authorities filed appeal before the learned Appellate Tribunal; whereby the appeal was dismissed and the order dated 09th March 2021 passed by Additional Collector was upheld and the Hino Truck bearing Registration No. TUB -089 was directed to be released
subject payment of 20% redemption fine on the Customs value of vehicle, vide impugned
judgment dated 5th October 2021. Whereafter, the instant Custom Reference has been filed.
(iii) Facts of the Customs Reference No. 35 of 2022 are that on 14th December 2020 with reference to a believable information with regard to transporting smuggled Iranian diesel to Pakistan from Pak -Iran border through unauthorized route, the wing commander 108 wing
Basima the team of Customs and the FC troops Basima at about 22:00 hours intercepted a Hino
Oil Tanker bearing Registration No. TLQ -271 at Basima, on seeing the raiding party, the driver
of the said Hino Tanker escaped from the place of occurrence. While, the search whereof was
resulted into recovery of 58,000 litters Iranian Diesel. The recovered smuggled Iranian diesel alongwith vehicle in question have been seized under Section 168 of the Customs Act, 1969 in violation of Section 3(1) of Imports and Exports (Control) Act, 1950, Section 2(s) & 16 of the Customs Act, 1969, read with SRO. 499(I)/2009 dated 16th June 2009 and SRO. 566(I)2005 dated 6th June 2005, punishable under clauses (8) & (89) of Section 156(1) and 157(2) of the
Customs Act, 1969. Subsequently, the Additional Collector of Customs, Customs House, Gaddani, vide order dated 2nd March 2021 confiscated outright the recovered smuggled Iranian Diesel i.e . 58,000/ - litters, while Hino Oil Tanker bearing Registration No. TLQ -271 was ordered
to be released on payment of 20% redemption fine on the Customs value of vehicle and penalty of Rs. 100,000/ - was also imposed upon the vehicle owner. Being aggrieved, the
appellant/Customs Authorities filed appeal before the learned Appellate Tribunal; whereby the appeal was dismissed and the order dated 2nd March 2021 passed by Additional Collector was upheld and the Hino Oil Tanker bearing Registration No. TLQ -271 was directed to be released
subject payment of 20% redemption fine on the Customs value of vehicle, vide impugned
judgment dated 27th September 2021. Whereafter, the instant Custom Reference has been filed.
(iv) Relevant facts of the Customs Reference No. 37 of 2022 are that in pursuance to the credible information with regard to smuggling Iranian diesel to Pakistan from Pak- Iran border through
unauthorized route, the Wing commander 108 Wing Basima the team of Customs and the FC troops Basima on 27th November 2020 at about 12:30 a.m. intercepted a Hino Oil Tanker bearing Registration No. TLF -560 at Basima coming from Patk side, on seeing the raiding party,
the driver of the said Hino Tanker escaped from the pl ace of occurrence. While, the search
whereof was resulted into recovery of 35,000 litters Iranian Diesel. The recovered smuggled Iranian diesel alongwith vehicle in question have been seized under Section 168 of the Customs Act, 1969 in violation of Section 3(1) of Imports and Exports (Control) Act, 1950, Section 2(s) & 16 of the Customs Act, 1969, read with SRO. 499(I)/2009 dated 16th June 2009 and SRO
566(I)2005 dated 6th June 2005, punishable under clauses (8) & (89) of Section 156(1) and
157(2) of the Customs Act, 1969. Subsequently, the Additional Collector of Customs, Customs
House, Gaddani, vide order dated 2nd March 2021 confiscated outright the recovered smuggled
Iranian Diesel i.e . 35,000/ - litters as well as Hino Oil Tanker bearing Registration No. TLF -560.
Being aggrieved, the respondent filed appeal before the learned Appellate Tribunal; whereby the
appeal was allowed and the order dated 2nd March 2021 passed by Additional Collector was set
aside and the Hino Oil Tanker bearing Registration No. TLF -271 was directed to be released
subject payment of 20% redemption fine on the Customs value of vehicle, vide impugned
judgment dated 18th November 2021. Whereafter, the instant Custom Reference has been filed.
(v) Facts narrated in the Customs Reference No. 38 of 2022 are that on 10th December 2020 with reference to a believable information with regard to transporting smuggled Iranian diesel to
Pakistan through unauthorized route, on the basis of such information the Wing commander 108 Wing Basima, the team of Customs and the FC troops Basima at about 23:00 hours intercepted a Hino Truck bearing Registration No. TAJ -448 coming from Basima side, on seeing the raiding
party, the driver of the said Hino Truck escaped from the place of occurrence. While, the search whereof was resulted into recovery of 23,000 litters Iranian Diesel. The recovered smuggled Iranian diesel alongwith vehicle in question have been seized under Section 168 of the Customs
Act, 1969 in violation of Section 3(1) of Imports and Exports (Control) Act, 1950, Section 2(s)
& 16 of the Customs Act, 1969, read with SRO. 499(I)/2009 dated 16th June 2009 and SRO. 566(I)2005 dated 6th June 2005, punishable under clauses (8) & (89) of Section 156(1) and 157(2) of the Customs Act, 1969. Subsequently, the Additional Collector of Customs, Customs House, Gaddani, vide order dated 2nd March 2021 confiscated outright the recovered smuggled Iranian Diesel i.e . 23,000/ - litters, while Hino Truck bearing Registration No. TAJ -448 was
ordered to be released on payment of 20% redemption fine on the Customs value of vehicle and penalty of Rs. 100,000/ - was also imposed upon the vehicle owner. Being aggrieved, the
appellant/Customs Authorities filed appeal before the learned Appellate Tribunal; whereby the appeal was dismissed and the order dated 2
nd March 2021 passed by Additional Collector was
upheld and the Hino Truck bearing Registration No. TAJ -448 was directed to be released subject
payment of 20% redemption fine on the Customs value of vehicle, vide impugned judgment dated 28th September 2021. Whereafter, the instant Custom Reference has been filed.
(vi) While facts of the Customs Reference N9o.41 of 2022 are that on 23rd November 2020 at about 09:00 p.m. the Troops of Frontier Corps 132- Wing Kalat Scouts Wadh recovered
smuggled Iranian Diesel 4,000 litters from Al -Zaib Coach bearing Registration No. LZJ -7543.
The recovered Iranian Diesel along with Coach in question was handed over to MS -Khurkhera,
MCC, Gwadar, Customs House, Gaddani. The recovered smuggled Iranian diesel alongwith vehicle in question have been seized under Section 3(1) of Imports and Exports (Control) Act,
1950, Section 2(s) & 16 of the Customs Act, 1969, read with SRO. 566(I)2005 dated 6th June 2005 and SRO. 499(I)/2009 dated 13th September 2009, punishable under clauses (8) & (89) of Section 156(1) and 157(2) of the Customs Act, 1969. Subsequently, the Additional Collector of Customs, Customs House, Gaddani, vide order dated 5th January 2021 confiscated outright the
smuggled Iranian Diesel 4,000/ - litters, while Al- Zaib Coach bearing Registration No. LZJ -7543
was ordered to be releas ed on payment of 20% redemption fine on the Customs value of vehicle
and penalty of Rs. 100,000/ - was also imposed upon the vehicle owner. Being aggrieved, the
appellant/Customs Authorities filed appeal before the learned Appellate Tribunal; whereby the
appeal was dismissed and the order dated 5th January 2021 passed by Additional Collector was
upheld and the Al -Zaib Coach bearing Registration No. LZJ -7543 was directed to be released on
payment of 20% redemption fine on the Customs value of vehicle, vide impugned judgment dated 6th October 2021. Whereafter, the instant Custom Reference has been filed.
(vii) Facts narrated in the Customs Reference No. 43 of 2022 are that on 16th December 2020
with reference to a credible information with regard to transporting smuggled Iranian diesel to Pakistan through unauthorized route, on the basis of such information the Wing commander 108 Wing Basima, the team of Customs and the FC troops Basima intercepted a Hino Truck bearing Registration No. TKZ -173 at about 22:00 hours coming from Basima side, on seeing the raiding
party, the driver of the said Hino Truck escaped from the place of occurrence. While, the search whereof was resulted into recovery of 25,000 litters Iranian Diesel. The recovered smuggled Iranian diesel alongwith vehicle in question have been seized under Section 168 of the Customs Act, 1969 in violation of Section 3(1) of Imports and Exports (Control) Act, 1950, Section 2(s) & 16 of the Customs Act, 1969, read with SRO. 499(I)/2009 dated 16th June 2009 and SRO. 566(I)2005 dated 6th June 2005, punishable under clauses (8) & (89) of Section 156(1) and 157(2) of the Customs Act, 1969. Subsequently, the Additional Collector of Customs, Customs House, Gaddani, vide order dated 16th February 2021 confiscated outright the recovered
smuggled Iranian Diesel i.e. 25,000/ - litters, while Hino Truck bearing Registration No. TKZ -
173 was ordered to be released on payment of 20% redemption fine on the Customs value of
vehicle and penalty of Rs. 100,000/ - was also imposed upon the vehicle owner. Being aggrieved,
the appellant/Customs Authorities filed appeal before the learned Appellate Tribunal; whereby the appeal was dismissed and the order dated 16th February 2021 passed by Additional Collector was upheld and the Hino Truck bearing Registration No. TKZ -173 was directed to be released
subject payment of 20% redemption fine on the Customs value of vehicle, vide impugned
judgment dated 04th October 2021. Whereafter, the instant Custom Reference has been filed.
3. We have heard the learned counsel for the parties and perused the record minutely, which reveals that in all above customs references the order in original passed by the Additional Collector (adjudication) of Customs and the learned Appellate Tribunal are pertaining to the release of vehicles on payment of 20% redemption fine of the customs value of vehicles and also imposed different penalties. It is settled law that only those questions can be raised before the High Court, which are questions of law and arising from the order of Tribunal, on which no findings given by the Tribunal, but in the cases in hand its appeared that from the perusal of judgments/orders passed by the Additional Collector (adjudication) Customs and the learned Appellate Tribunal all such questions of law have been deliberated in detail under the prevailing law with regard to confiscation and release of vehicles under clause (8) & (89) of Section 156(1) of the Customs Act, 1969 read with Section 157(2) of ibid read with SRO. 499(I)/2009 dated 13th June 2009 and SRO. 566(I)2005 dated 6th June 2005.
4. After thorough discussion of record and appreciation of law, the cases have rightly been
decided by the forums below as the seizing agency has failed to bring on record any iota of evidence to the effect that vehicles are hit by the class (b) of the preamble of SRO. 499(I)2009 dated 13
th June 2009.
5. Besides, we have observed that whatsoever been committed by the drivers of the vehicles no
evidence came on record to connect the owners of the vehicles in question with the act of drivers or the owners were in league with drivers for transportation of smuggled goods. While it has been remained consistent view of the apex Courts that the confiscation of common carrier on the charge of transporting the smuggled goods is not tenable unless a direct role of transporter is
alleged and proved. While in the customs references in hand there is no iota of evidence proving
allegations attributed by the prosecution against the vehicle owners. Thus, being sole source of
income of the respondents, the vehicles cannot be confiscated in favour of State outright and the learned forums below have rightly directed for release of vehicles in favour of the respondents in accordance with law by imposing payment of 20% redemption and different penalties. Even otherwise, the cases of prosecution do not fall within the purview of class (b) of the preamble of SRO. 499(I)/2009 dated 13th June 2009.
6. In view of the above discussion, it has become crystal clear that the applicant has failed to
establish that the respondents/owners in any manner involved in the smuggling of goods and the
owners were aware or in the knowledge of acts being done by the Drivers or Cleaners, hence the
appellate authority has rightly appreciated such facts in its true sense and perspective through
impugned judgments and orders, which in our view are not suffering from any legal defect. The
learned counsel for petitioners has failed to point out any illegality or irregularity in the impugned judgments & orders to warrant interference by this Court.
For the above reasons, the custom references being devoid of merits are hereby dismissed. The
copy of this judgment be sent to the learned Appellate Tribunal pursuant to Section 196(5) of the Customs Act, 1969.
(Y.A.) Custom references dismissedThis judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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