PLJ 2025 Quetta 42 (DB)
Present: M UHAMMAD HASHIM KHAN KAKAR , SHAUKAT ALI RAKHSHANI JJ.
COLLECTOR OF CUSTOMS (ENFORCEMENT), CUSTOM HOUSE AIRPORT ROAD
QUETTA --Applicant
versus
M/s. ABDUL MANAN and another --Respondents
C.R. Appln. No. 09 of 2023, decided on 12.3.2023.
Customs Act, 1969 (IV of 1969) --
----Ss. 2(s), 8, 15, 16, 89, 156(1), 157(2), 171 & 196-- Import Export Act, (XXXIX of 1950), S.
3(1)--Illegal trafficking of foreign currency --Currency was seized --Show -cause notice issued --
Confiscation of --Appeal allowed --Reference --Dismissed --In view of Section 168 of Act of 1969,
seizure can only be made by an appropriate gazetted officer only, whereas in instant case seizure
officer was an OPF inspector, who was a clerk by designation, but delegated with powers of an inspector, which was impermissible to make seizure by such officer, thus, very recovery of
foreign currency becomes illegal from its very inception--The recovery had been effected far
away from border which squares out case of private respondent from mischief of Section 2 (s) of
Act of 1969-- As far as Section 3(1) of Act of 1950 was concerned, import policy does not put an
embargo on bringing into Pakistan a foreign currency, as such, persecution of private respondent for violating provisions of Act of 1950 was nothing but a malicious act on part of customs
enforcement with ill- intentions best known to them --The impugned judgment rendered by
Appellate Tribunal as well as order -in-original had been critically securitized --Impugned
judgment drawn by Appellate Tribunal was in accordance with law by properly appreciating
facts and adhering to laws so applicable, therefore, impugned judgment of Appellate Tribunal did not require to be meddle with--Reference dismissed.
[P. 45] A, B, C & D
Mr. Abdul Qahir Khan, Advocate for Applicant.
M/s. Mazhar Ali Khan, Muhammad Qaseem and Saddam Hussain, Advocates for Respondents.
Date of hearing: 20.3.2023
J
UDGMENT
Shaukat Ali Rakhshani, J. --This judgment shall dispose of the above Reference brought by the
Collector of Customs (Enforcement), Quetta, seeking annulment of the judgment dated
24.11.2022 rendered in Customs Appeal No. Q -572/2022, by the Customs Appellate Tribunal,
Quetta Bench, Karachi (“Appellate Tribunal”), whereby, the order -in-original and show cause
notice were overturned and the foreign currency along with vehicle were ordered to be released
within seven days to the respondent Abdul Manan.
2. Laconically, the facts relevant for disposal of instant Reference are that the staff of Field
Enforcement Unit Yaro, while acting on a tip- off, intercepted a vehicle on 16.06.2022 within the
remits of Yaro, District Pishin, driven by respondent Abdul Manan and from the tool box of the vehicle, US dollars 200,000 and 9,30,000 Saudi Riyals were recovered. The driver of the vehicle
Abdul Manan was arrested for illegal trafficking of the foreign currency and seized the vehicle as
well as foreign currency for violation of provision of Section 2 (s), 15 and 16 of the Customs Act, 1969 (“Act of 1969”), punishable under Clauses 8 & 89 of Section 156(1) and Section 157
(2) of the Act of 1969 read with Section 3(1) of the Imports & Exports (Control) Act, 1950 (“Act
of 1950) and Section 8 of the Foreign Exchange Regulation Act, 1947 (Act of 1947) as well as SRO 566(1)/2005 dated 06.06.2005.
3. Accordingly, a show cause notice under Section 171 of the Act of 1969 was issued and
displayed on the notice board of MCC Preventive Quetta. In response thereto, respondent Abdul
Manan contested the same and pleaded that the currency was received in lieu of sale proceeds of
his ancestral property in Afghanistan, as such, after hearing the parties, the Collector of Customs
(Adjudication), Quetta vide impugned order -in-original No. 157/2022 dated 21.09.2022
confiscated the currency as well as vehicle in terms of Section 157 (2) of the Act of 1969 read with SRO 566(1)/2005 dated 06.06.2005, which order -in-original was assailed before the
Appellate Tribunal, which vide order dated 24.11.2022 set aside the order -in-original and
directed the Customs authority to hand over the foreign currency and release the vehicle to the
respondent Abdul Manan within seven days.
4. Heard. Record perused. Indisputably, this is a case where the private respondent Abdul
Manan was apprehended deep about 100 kms into the territory of Pakistan at Yaro District Pishin
from Pak -Afghan border, with foreign currency of US dollars 200,000 and Saudi Riyal 930,000,
which was recovered from his car. The private respondent denied the violation of any provision of law ibid and came up with the plea that he had sold out an ancestral property in Afghanistan, whereof he received the aforesaid foreign currency as proceeds of sale and that since there was no Counter of Declaration at the Pak- Afghan check- post, therefore, he was proceeding towards
State Bank at Quetta to exchange the foreign currency with Pakistani currency.
5. Admittedly, there is no Counter of Declaration at the Pak Afghan border, which is also
evident from the fact that a Constitution Petition Bearing No. 139/2022 was statedly filed on
behalf of Chamber of Commerce, Balochistan before this Court regarding non- issuance of
Certificate of Deposits CDS”) by the Customs official, whereof the State Bank of Pakistan and Ministry of Commerce have also issued letters for facilitation of the business community, but of no avail.
6. In view of the above, the plea of the private respondent seems plausible. Since, neither
there was any Counter of Declaration and facility of CDS at Pak -Afghan border nor there is any
facility of State Bank of Pakistan for exchange of foreign currency at border, therefore, the
respondent had to proceed with and reach Quetta for the exchange of the seized foreign currency.
7. Be that as it may, the State Bank of Pakistan in terms of Section 8 (2) of the Act of 1947
has also issued a notification Bearing No. F.E.2/2017- SB dated 30.08.2017 allowing any person
to bring into Pakistan any amount of foreign currency. The excerpt of the notification ibid reads
as under,
“In pursuance of Government of Pakistan Notification No. F.1(8) -EF/49 dated the 2nd
May, 1949 and in supersession of the State Bank of Pakistan Notification No. F.E.5/92-SB dated the 28th December, 1992, read with its Notification No. F.E1/ 2012- SB dated
the 16th June, 2012, the State Bank of Pakistan is pleased to permit any person to bring into Pakistan:
(1) From any place outside Pakistan any foreign currency notes or bank notes without limit
except un -issued notes.
(2) Notes legal tender in Pakistan not exceeding Rs. 3.000/ -(Rupees Three Thousand Only)
from India and Rs. 10,000/ -(Rupees Ten Thousand Only) from any place other than India, in
value in all per person at any one time”
[Emphasis Added]
In view of the above notification, there is no embargo to bring any foreign currency notes
without any limit except Indian currency within the stated limits
8. Another material aspect of the matter is that in view of Section 168 of the Act of 1969,
the seizure can only be made by an appropriate gazetted officer only, whereas in the instant case the seizure officer is an OPF inspector, who is a clerk by designation, but delegated with the
powers of an inspector, which is impermissible to make seizure by such officer, thus, the very recovery of the foreign currency becomes illegal from its very inception.
9. Even otherwise, the recovery has been effected far away from the border within the
remits of Tehsil Yaro, District Pishin on a frequent route, which squares out the case of the
private respondent from the mischief of Section 2 (s) of the Act of 1969.
10. As far as Section 3(1) of the Act of 1950 is concerned, the import policy does not put an
embargo on bringing into Pakistan a foreign currency, as such, persecution of the private
respondent for violating the provisions of the Act of 1950 is nothing but a malicious act on the
part of the Customs Enforcement, with ill -intentions best known to them.
11. The impugned judgment rendered by the Appellate Tribunal as well as the order -in-
original passed by the Collector Customs (Adjudication), Quetta has been critically securitized, whereof we are of the considered view that the impugned judgment drawn by the Appellate
Tribunal is in accordance with law by properly appreciating the facts and adhering to the laws so
applicable, therefore, the impugned judgment of the Appellate Tribunal does not require to be meddle with.
For what has been discussed herein above, the Reference in hand is answered in negative for being shorn of merits, therefore, it stands dismissed.
(J.K.) 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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