2015 P T D 116
[Balochistan High Court]
Before Qazi Faez Isa, C.J. and Muhammad Ejaz Swati, J
MUHAMMAD AKBAR through Attorney
Versus
GOVERNMENT OF PAKISTAN and 2 others
Constitutions Petition No.506 of 2010, decided on 26th August, 2014.
(a) Customs Act (IV of 1969) ---
----Ss. 156, 179, 181, 193 & 196 ---Constitution of Pakistan, Art. 199---Constitutional petition ---
Maintainability --- Alternate remedy ---Laches, principle of ---Confiscated goods, return of ---
Scope --- Petitioner was searched by the customs authorities and foreign origin gold was
recovered from him but he was acquitted from the charge ---Contention of petitioner was that
customs authorities were bound to return the seized gold subject to payment of customs duty ---
Validity ---Gol d was seized by the customs authorities on 20- 1-1994 but present constitutional
petition had been filed after the lapse of more than 16 years which was hit by principle of laches -
--Petitioner had not approached the customs authorities which was an adjudica tion authority for
the matter in dispute ---Appeal and revision had been provided under Ss. 193 & 196 of Customs
Act, 1969 but same had not been availed by the petitioner ---Petitioner had alternate and
efficacious remedy by approaching the concerned forum available in the hierarchy of Customs
Law---Article 199 of the Constitution was not meant to short -circuit the statutory proceedings ---
Constitutional jurisdiction might be exercised where impugned order was without jurisdiction or
apparently contrary to law or was result of miscarriage of justice ---Petitioner had not assailed
any such order of adjudication authority and present constitutional petition was not maintainable -
--Constitutional petition was dismissed in limine.
(b) Customs Act (IV of 1969)---
----Ss. 156, 179 & 181 ---Confiscation of goods, adjudication of ---Trial Court, powers of ---
Scope ---Powers of Trial Court were restricted to the trial of the accused and adjudication of
confiscated goods would exclusively fall within the domain of customs a uthorities for which
Trial Court had no jurisdiction.
Adam v. Collector of Customs, Karachi PLD 1969 SC 446 rel.
Zahoor Ahmed Baloch and Najam -ud-Din Mengal for Petitioners.
Date of hearing: 17th July, 2014.
JUDGMENT
MUHAMMAD EJAZ SAWATI, J.---The petitioner was intercepted by the customs
authorities of Gawadar on 19th January 1994 at Gawadar International Airport on his arrival
from Masqat in flight No.PK -502. He was searched by the custom authorities in baggage hall
and following descript ion of gold were recovered from west belt of the petitioner.
"S.No. DESCRIPTION OF
GOODS Qty. CIFVAL: MARKET VAL:
1. Gold (Swiss) (999) 20 Black each
of 10 total
2. Gold UBSS (999) 10 Black each
10 tola 14,40,000"
Pursuant to above recovery of foreign origin gold, the petitioner was arrested for contravention
of section 25 of the Customs Act, 1969 (hereinafter referred as to "the Act") punishable under
sections 156(1)(8) and (89) of the Act. The recovery memo. was prepared on the spot. Notice
under section 171 of the Act was also served upon the petitioner and in consequent thereof
challan was submitted before the Special Judge Customs Mekhran at Turbat (hereinafter referred
as to "the trial Court").
2. The petitioner was charge sheeted on 26t h October 1994. The trial Court after recording
evidence of the parties acquitted the petitioner of the charge, vide judgment dated 11th
December 1994. The relevant paragraph of the judgment is reproduced hereunder: --
"The accused admits possession of g old and with willing to pay tax as some one at
Pakistan Embassy informed him for carrying gold subject to travelling by P.I.A. and payment of
tax. If he without declaring gold would have crossed the Customs counter then he would have
committed an offence h e was apprehended on F.I.A. counter or near F.I.A. counter. From the
evidence on record the prosecution failed to bring home the charge to the accused beyond all
reasonable doubt, therefore, the accused has not committed any offence, he is acquitted of the
charge"
3. The present petition has been filed by the petitioner seeking following relief:--
"It is accordingly humbly prayed that in the above mentioned circumstances the order
passed by the custom authorities may kindly be set -aside and directions may kindly be passed to
the respondents to issue notices to the petitioner for filing reply and after payment of prescribed
custom duty the said gold may kindly be released, in the interest of justice."
4. The learned counsel for the petitioner contended that the gold was not a contraband item
and it was incumbent upon the custom authorities to return the seized gold to the petitioner
subject to payment of custom duty, however, the custom authorities without providing any
opportunity illegally seized 300 tolas of gold; and that soon after arrival at Gawadar International
Airport the petitioner was willing to declare the gold but prior to that he was apprehended in
baggage hall and opportunity of his intended declaration was also declined. He further stated that
the trial Court was competent to pass orders for release of seized gold, as the trial Court held that
the petitioner had committed no offence, therefore, the custom authorities be directed to release
the seized gold to the petitioner subject to payme nt of customs duty.
5. We have examined the contention as agitated on behalf of the petitioner. The gold was
seized by the custom authorities at Gawadar on 20th January, 1994 and the instant writ petition
has been filed on 30th July 2010 after the lapse of more than 16 years nor did the petitioner
approach the authorities under the Act. There is a specific provision in section 179 of the Act
before adjudication authority and sections 193 and 196 of the Act respectively provide for an
appeal and revision. Section 193 of the Act is reproduced herein below: --
"193 Appeals.--- Any person aggrieved by any decision or order passed by an officer of
customs under this act may, within thirty days of the date of receipt of such decision or order,
appeal therefrom to the Board, or, in such cases as the Federal Government, directs, to any
officer of customs not lower in rank than a Deputy Collector of Customs, and the appellate
authority may thereupon make such further inquiry as it may consider necessary, and, after
giving him an opportunity of being heard if he so desires, pass such order as it thinks fit,
confirming, altering or annulling the decision or order appealed against:
Provided that no order confiscating goods of greater value, or enhancing any fine in lieu
of confiscation, or imposing or enhancing any penalty, or requiring payment of any duty not
levied or short -levied shall be passed unless the person affected thereby has been given an
opportunity of showing cause against it and of being heard in person or through a counsel or
other person duly authorised by him."
6. The petitioner had alternate and efficacious remedy under sections 179, 193, 194- A and
196 of the Act, by approaching the concerned forum available in the hierarchy of Customs Law.
Article 199 of the Constitution of the Islamic Republic of Pakistan is not meant to short -circuit
the statuary proceedings. The Court may exercise such jurisdiction where it is found that the
order impugned was without jurisdiction or apparently contrary to sett led provision of law or was
likely to result in miscarriage of justice. In the present case the petitioner has neither assailed any
order of adjudication authority nor any such order has been accompanied along with petition and
instead of availing the alte rnate and efficacious remedy, filed the present petition which is not
maintainable. The petitioner also offered no explanation for the inordinate delay of filing the
present petition, which is hit by laches
7. The contention of the learned counsel that s ince the trial Court held that action of the
custom authorities of seizing of the gold from petitioner was illegal as he was willing to declare
the gold before the custom authorities, therefore, he is entitled for the release of 300 tolas of gold
is also u ntenable. It is admitted that powers of the trial Court are only restricted to trial of the
accused who has or have been charged for violation of section 2(s) of the Act, punishable under
sections 156(1)(8) and (89) of the Act. However, adjudication of the property subject matter of
seizure exclusively falls within the domain of custom authorities for which the trial Court would
not have jurisdiction as contemplated by sections 179 and 181 of the Act. Reference in this
regard is made to the case of Adam v. Collector of Customs, Karachi (PLD 1969 SC 446).
In view of the above the instant writ petition is dismissed in limine.
AG/70/Bal Petition dismissed in limine.This 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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