PLJ 2023 Quetta 35 (DB)
Present : MUHAMMAD EJAZ SWATI AND ABDULLAH BALOCH , JJ.
COLLECTOR, COLLECTORATE OF CUSTOMS, CUSTOM HOUSE, GAWADAR --
Applicant
versus
HABIB -UR-REHMAN--Respondent
S.C.R. Appln. No. 36 of 2022, decided on 30.5.2022.
Customs Act, 1969 (IV of 1969) --
----Ss. 2(8), 16, 156(8)(189), 156(1), 157(2), 171 & 196-- Imports and Exports (Control) Act,
(XXXIX of 1950), S. 3(1) --Smuggling of foreign goods --Seizetion of goods --Confiscation
orders --Vehicle were ordered to released subject to payment of redemption fine--Appeal --
Dismissed --No secret cavity in vehicle --No involvement of vehicle in previously smuggling--
Challenge to --Carriage being local, appellant had no reason to suspect status of goods --Staff of
Customs intercepted vehicle and took goods along with vehicle into custody and nothing
assigning reason for seizure was given to anyone present at spot --There is no secret cavity in
vehicle and nothing on record to show that vehicle in question had ever remained involved in
smuggling previously and it is only source of income of respondent --Applicant has failed to
point out any illegality or irregularity or point out any question of law in impugned judgment for
interference of this Court --Custom reference dismissed.
[Pp. 37 & 38] A, B, C & D
Mr. Nusratullah Baloch, Advocate for Applicant.
Mr. Hussain Ahmed, Advocate for Respondent.
Date of hearing: 18.5.2022.
JUDGMENT
Abdullah Baloch, J. --This judgment disposes of the Custom Reference Application No. 36 of
2022 filed by the Collector of Customs, Collectorate of Custom, Gawadar under Section 196 of
the Customs Act, 1969 against the judgment dated 21st October 2021 ( “the impugned
judgment” ) passed by the learned Member (Judicial) Customs Appellate Tribunal, Quetta
Bench, Camp Office at Karachi ( “the Appellate Tribunal” ) whereby by the appeal filed by the
respondent was allowed.
2. Facts of the instant Customs Reference are that on 24th August 2020 at about 1920 hours FC -
61 Wing handed over the contraband goods alongwith Toyota XLI Car & arrested person. The
inventory of the goods was prepared on the said date and copy of the same was handed over to
FC, while the arrested person namely Anwar Zada son of Mukhtar Khan, CNIC No. 424019-217253- 9, R/o. H. No. B -73, Moh Pathan Colony MPR, Karachi West Pakistan was apprehended
in raid with Toyota XLI Car having fake Registration No. GP -0896 loaded with illegal foreign
origin good in a godown at Sakran Road Mari Chowk, Hub by the troops of FC -61 wing.
Meanwhile, the Customs staff Khurkhera took into the possession of the said vehicle. The search
of vehicle in question was resulted into recovery of Hilite Cigarette F/o 50 Dandas, L&M
Cigarette F/o 156 Dandas, Elgance Cigarette F/o 99 Dandas, Pine Cigarette F/o 50 Dandas, Betal Nuts (Crushed) F/o 460 Kgs & Jam Safina Gutka 15 Bags. During the course of checking of the vehicle in quescion another number plate having Registration No. BEJ -858 was found inside.
The driver of the vehicle was arrested and FIR bearing No. 10 of 2020 was lodged against him. The recovered goods 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), (85) & (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 20th October 2020 confiscated outright the recovered smuggled goods as well as the vehicle in question. Being aggrieved, the respondent filed appeal before the learned Appellate Tribunal, which was allowed and the order -in-original dated 20th October 2020 was set aside
and Toyota XLI Car bearing Registration No. BEJ -858 was directed to be released on payment
of 20% redemption fine on the Customs value of vehicle, vide judgment dated 21st October 2021.
3. We have heard the learned counsel for the parties and perused the record minutely, which
reveals that the vehicle in question was took into possession by Customs authorities through FC
during the raid at Sakran Road Hub by troops of FC -61 Wing. On checking of the vehicle the
Customs staff of Khurkhera took into possession the said vehicle and brought the same at Customs House, Gaddani. On examination, recovered smuggled items. Thereafter, the vehicle in question was seized along with goods by the Customs authorities and during adjudication the same was outright confiscated by the Additional Collector, vide order -in-original dated 20th
October 2020.
4. Being aggrieved, the owner of vehicle/Respondent No. 1 filed appeal before learned Appellate Tribunal on sole ground that he is lawful owner of the Toyota XLI Car bearing original Registration No. BEJ -858 and the appellant carried come passengers alongwith their luggage from Sakran
Road Marri Chowk Hub. The carriage being local, the appellant had no reason to suspect the status of the goods. While on the way from sakran to nearby area, however, the staff of Customs intercepted the vehicle and took the goods along with the vehicle into custody and nothing assigning reason for seizure was given to anyone present at the spot. Thus the order in original is liable to be set aside. Even otherwise, nothing in writing assigning reasons for seizure as required under Section 171 of Customs Act, 1969 was given to the driver which is evident from the SCN acknowledging notice under Section 171 was pasted on the office notice board. There is no secret cavity in the vehicle and nothing on record to show that the vehicle in question had ever remained involved in smuggling previously and it is only source of income of the respondent.
5. The learned appellate tribunal after hearing the parties, while accepting the appeal has
observed as under:
“It is also the duty of the Court to analyze the facts and to follow the legal obligations whatever attributed in the controversy and proposition made thereon. Under the circumstances, the seizing agency hopelessly failed to establish the evidence of mens -rea
against the owner of the vehicle. Being a public carrier, the subject vehicle is normally used on contract basis for transportation of passengers and luggage of passengers from one place to another within the country. There is no iota of evidence available on record which could prove the alleged offence as attributed in show cause notice, as such, the stance taken by the appellant/department carries no weight. Consequently, adjudicating office passed the order for confiscation of vehicle. It is a legal lacuna which cannot be cured at all in view of the pronouncement made by the august Supreme Court of Pakistan in the case of Haji Abdullah Jan & others (1994 SCMR 749). It is well settled principle
of law that if the law had prescribed method for doing a thing in a particular manner such provision of law is to be followed in its letter and spirit and achieving or attaining the
objectives performing or doing of a thing in a manner other than provided by law would
not be permitted same view also decided in the land mark judgment of Director,
Directorate General of Intelligence and Investigation & others vs. M/s. Al -Faiz
Industries (Pvt.) Ltd. & others reported as PTCL 2008 CL 37. In the instant case order
passed for outright confiscation of seized impugned goods and same has not been
challenged before any competent forum/Court for any subsequent relief, as such, the subject order attained the finality under the prescribed law, such confiscation and reliance made there under by the seizing agency has no ground to correspond the plea about the confiscation of the impugned vehicle and not required to be equated with the present case
when there is no iota of evidence available on record against the present owner of vehicle, his legal rights are required to be secured by the Courts and not to thwart with.
7. Apart from the above discussion and reference made thereon, I also prefer to place my observations so Section 157(2) of the Customs Act, 1969, that the phrase “shall also be liable to confiscation” does not empower to the confiscating authority to deprive a person of his property, then it follows that this discretion must be exercised upon the principles of natural justice; that is to say, the persons sought to be deprive of the property given notice to show cause and they must provide adequate opportuni ty of putting forward their
point of view and the same must receive due consideration. In the instant matter, no show cause notice was issued to the owner of the vehicle and he was not given any opportunity to explain his point of view. As per dictum of law no one should be condemned unheard. Furthermore, according to one of principles now well -accepted, no person should be
deprived of his property by way of penalty unless it is clear that he is in some measure responsible for assisting of furthering the commission of the offence committed and no innocent person should be unjustly punished or deprived of his property. Indeed, there was no indication that the owner of the vehicle was also involved in the act of smuggling. If that be so, it is difficult to appreciate on what basis reasonable suspicion could arise as
to the complicity of the appellant. There is nothing on record which shows any collusion between the owner of the vehicle and the owner of the smuggled goods. In the absence of any proof on the reco rd, it is not in accordance with law to hold such vehicle as part of
the act which is prohibited by the law. Therefore, it is established that the said vehicle is
not deliberately part of the act which is forbidden by law. It is imperative to place on record that equity is the soul of the law in dispensation of justice, the Honourable Supreme Court of Pakistan in a hallmark judgment namely Imtiaz vs. Ghulam Ali
reported as PLD 1963 SC 382 laid down the rule that
proper place of procedure in any system of administration of justice is to help and not to
thwart right of the people.”
The learned counsel for the applicant while confronted with the observations so made by the learned appellate tribunal, he has failed to point out any illegality or irregularity or point out any question of law in the impugned judgment for interference of this Court. Thus, the impugned judgment passed by the learned appellate tribunal is well reasoning and does not suffer from any material illegality or irregularity to warrant interference by this Court.
For the reasons discussed hereinabove, the Customs reference being devoid of merits is dismissed.
(Y.A.) Custom reference 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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