2021 P T D 1823
[Balochistan High Court]
Before Jamal Khan Mandokhail, CJ and Abdullah Baloch, J
The COLLECTOR OF CUSTOMS, through Additional Collector of Customs and
others
Versus
AKHTAR HUSSAIN and others
Special Custom Reference Applications Nos.41, 42, 43, 44, 45 and 46 of 2019, decided on
16th December, 2019.
Customs Act (IV of 1969) ---
----Ss.2(s), 16, 156(1), 157(2) & 196---Imports and Exports (Control) Act (XXXIX of 1950), S.3(1) ---Smuggling ---Release of truck ---Owner of truc k, knowledge of ---Proof ---Trucks in
question were confiscated as the same were being used to smuggle diesel from foreign country, whereas drivers managed to escape from the scene ---Customs Appellate Tribunal
imposed penalty upon owners and released the trucks ---Validity ---Prosecution failed to
establish charge against owners to prove that they in any manner were involved in smuggling of foreign diesel ---Prosecution failed to bring any evidence that the owners were aware or in
knowledge of act which were done by drivers or cleaners ---High Court declined to interfere
in the judgment passed by Customs Appellate Tribunal as the Appellate authority had rightly appreciated such facts in its true sense and perspective through judgment in question and the same was n ot suffering from any legal defect ---Customs Authorities failed to point out any
illegality or irregularity in the judgment passed by Customs Appellate Tribunal--- Reference
was dismissed, in circumstances.
Syed Ikhlaq Shah and Sumera Abid for Appellant.
Hussain Ahmed for Respondents.
Date of hearing: 2nd December, 2019.
JUDGMENT
ABDULLAH BALOCH, J. ----The above Custom References Nos. 41, 42, 43, 44, 45
and 46 of 2019 filed by the Collector of Customs under Section 196 of Customs Act, 1969 (hereinafter r eferred as, "the Customs Act"), against the common judgement dated 18th July,
2019 ("impugned common judgement") passed by Customs Appellate Tribunal Bench- II
Karachi ("Appellate Tribunal"), whereby the Customs Appeals Nos.G -691 to G -695 of 2019
and G -1554 of 2019 filed by the respondents (owners of trucks) were allowed and the trucks
bearing Registration No.TAM -222, TAM -333, TAM -555, JAM -494, TAJ -596, LEZ -7771,
TKD- 067, P -2118 and TKS -870 were directed to be released on payment of 20% redemption
fine on the Customs value of vehicles, while the personal penalty imposed upon the owners
of the vehicle in Customs Appeals Nos.G -691 to 695/2019 was reduced from Rs.50,000/ - to
Rs.20,000/ -. Since, identical facts and issues of law are involved in all the matters, t hus these
are being decided through this common judgement.
2. Facts of the case as reported by MCC Gwadar (in Custom References Nos.41, 42, 44
to 46 of 2019) are that in the evening of 13th March 2019, the Custom officials of M.S Khurkhera and Awarm Militi a 61-Wing Zero Point Uthal carried out joint operation and eyed
four vehicles, which were signaled to stop, but instead the drivers accelerated the speed of vehicles and made an attempt to run away, but they were chased by the officials and the drivers whi lst perceiving the danger abandoned the vehicles and made their escape good. The
trucks bearing Registration Nos.TAM -333, TAM -555, CH -135066 and TAJ -596 were
reportedly carrying smuggled Iranian diesel were being brought to Custom House, Gaddani, but due t o some technical faults or tracking system two vehicles bearing registration
Nos.TAM -333 and TAM -555 were stopped. It is further averred that at about 04.00 a.m. in
the morning of 14th March 2019, about 10/12 armed persons came there in four cars with
automatic weapons and opened firing on the staff of M.S Khurkhera, out of whom two
culprits were identified as Manzoor Zehri and Muhammad Saleem. The said persons also
brought empty Hino Trucks bearing Registration No.222 with them and tried to tow -chain
the v ehicle bearing Registration No.TAM -333, but during exchange of cross firing the tyres
of both vehicles were burst and the culprits on seeing the failure of their scheme decamped from the place of occurrence, while the vehicles after necessary repairing wer e brought to
Custom House Gaddani. The search of the vehicles were resulted into recovery of 35,000
liters each from trucks bearing registration No.TAM -333 and TAJ -596, whereas 27000 liters
diesel from vehicle bearing Registration No.TAM -555 and 26000, lit ers were recovered from
vehicle bearing registration No.CH -135066 total 123000 liters of smuggled Iranian diesel.
The recovered diesel along with five Trucks (including an empty truck) have been seized under relevant provisions of Customs Act, 1969. First Information Report No.06/2019 was lodged for offence under Section 3(1) of Imports and Exports (Control) Act, 1950. Sections 2(s) and 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
Sections 156(1) and 157(2) of the Customs Act, 1969.
3. The facts of Custom Reference No.43 of 2019 are that on 3rd March 2018 at
Khurkhera Post, the truck bearing registration No.LEZ -7771 was signaled to stop, but the
driver accelerated the speed and on chasing by the Customs Staff, the said vehicle was found abandoned along with the road side near Winder City and the driver of the vehicle was succeeded in making his escape good. After thorough checking the Cha ssis number of the
truck was found tampered, thus the same was taken into possession through recovery memo. and thereafter the Chemical Examination of Truck was carried out, which confirmed that the Chassis of the vehicle was punched.
4. Record transpires that the Adjudicating Officer vide impugned Order -in-Original
No.165/2019 dated 28th May 2019 held that the charges levelled by the Customs are
established, thus the recovered 123,000 Liters of Iranian Diesel as well as the above referred
six vehicles were confiscated in favour of State and penalty of Rs.50,000/ - has also been
imposed on each of the registered owner/claimant of the vehicle. Whereafter, the respondents/owners of trucks filed appeals under section 196 of the Act before the appellate Tribunal Bench -II Karachi, which were allowed and directed for release of vehicles and the
personal penalty of Rs.50,000/ - was reduced to Rs.20,000/ -, vide common judgment dated
18th July, 2019. Whereas, the Collector of Customs, being aggrieved from the judgement of
appellate authority has preferred the instant custom references before this Court.
5. Heard the learned counsel for parties and perused the available record with their
valuable assistance. According to the case of prosecution, the Customs Authorities intercepted four trucks bearing Registration Nos.TAM -333, TAM -555, CH -135066 and TAJ -
596 owned by the respondents and the search of the same were resulted into recovery of 123,000 Liters of Iranian smuggled Diesel. All the trucks were being brought to Custom s
House Gaddani, but in the way two trucks bearing registration No.TAM -333 and TAM -555
were run out of order and on the following day in the early morning the armed persons brought an empty trucks bearing Registration No.TAM -222 to carry the truck No.TAM -333
and TAM -222, but during the course whereof the exchange of firing took place between the
customs authorities and the culprits, resultantly the tyres of both truck were burst and the culprits escaped from the place of occurrence. However, the vehicle bea ring registration
No.LEX -7771 was seized on the allegations of having tampered chassis number. The
Adjudication Officer directed for confiscation of Iranian smuggled Diesel along with the above six trucks. The said order was assailed before the appellate A uthority, which allowed
the appeals and the trucks were ordered to be released in favour of owners.
6. So far as the smuggling of Iranian Diesel through vehicles bearing Registration
Nos.TAM -333, TAM -555, CH -135066 and TAJ -596, are concerned, suffice to ob served here
that nothing material has come on record that the owners of the said vehicles at the time of intercepting the truck were present or driving the vehicles or in any manner they were aware about using of their vehicles for the said crime or were i n league with the business of
smuggling. It has also come on record that the said trucks were being plied by the respondents through Drivers and cleaners to earn their everyday livelihoods, thus in absence of any cogent or reasonable evidence, the outright confiscation of trucks are unjustified
unless the prosecution succeeds in establishing any league of the owners with the said business of smuggling. Even otherwise, it has been remained the consistent view of superior courts that the confiscation of common carrier on the charge of transporting smuggled goods is not tenable unless a direct role of transporter is alleged and proved. There is no iota of evidence available on record proving the allegations attributed by the prosecution against the truck owners . Thus, being sole source of income of the respondents the trucks cannot be
confiscated in favour of the stated and the learned Appellate Tribunal has rightly directed for release of vehicles in favour of the respondents.
7. So far as the confiscation of T ruck bearing registration No.TAM -222 is concerned,
suffice to state that no any smuggled Iranian Diesel was recovered from the said vehicle. According to the case of prosecution, the vehicle was brought for tow -chain to another truck
bearing registration N o.TAM -333. The owner of the truck also concedes that his truck was
brought for tow -chaining the same on the ground asserted by them that a person came to him
for tow chain of his truck near Khurkhera Check Post on the ground that the engine of his
truck ha s been seized and is not in a running condition. It has been observed that the plea so
taken by the owner of the truck seems to be true as the instant truck was hired on normal hire charges coupled with the fact that as per own admission of the prosecution the said truck has
not been used in the smuggling of the Iranian Diesel, thus there is no plausible reasons to
disbelieve the contention of the respondent as the stance so taken by the truck owner carries
weight, but the same was not considered by the Adj udicating Officer and confiscated the
same in favour of state, while the learned Appellate Authority has rightly appreciated the facts and circumstances of the case and has come to a right conclusion by directing for release of the truck in its owner as th e said truck was not used in the smuggling of Iranian
Diesel.
8. In view of above discussion, it has become crystal clear that the prosecution has failed
to establish the charge against the respondents/owners that they in any manner are involved in the smuggling of Irani Diesel. The prosecution has failed to bring any slightest iota of evidence that 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 common judgement, which in our view is not suffering from any legal defect. The learned counsel for appellants have failed to point out any illegality or irregularity in the impugned common judgement, requiri ng interference of this
Court.
For the above reasons, the custom reference being devoid of merits are hereby
dismissed.
MH/19/Bal. Reference dismissed.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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