2024 P T D 1542
[Balochistan High Court]
Before Muhammad Hashim Khan Kakar and Shaukat Ali Rakhshani, JJ
COLLECTOR OF CUSTOMS (ENFORCEMENT), CUSTOM HOUSE AIRPORT
ROAD, QUETTA
Versus
Messrs ABDUL MANAN and another
Customs Reference Application No.09 of 2023, decided on 12th March, 2023.
(a) Customs Act (IV of 1969)---
----Ss. 2(s), 15, 16, 156(1), (8) & (89), 157(2) & 168---Imports and Exports (Control) Act (XXXIX of 1950), S.3(1) ---Foreign Exchange Regulation Act (VII of 1947 ), S. 8---
Notification No. F.E.2/2017- SB dated 30 -08-2017 issued by the State Bank of Pakistan---
Foreign currency, possession of ---Legality ---Department filed Reference Application against
the judgment passed by the Customs Appellate Tribunal whereby the foreign currency, along with vehicle, were ordered to be released to the respondent ---Respondent was apprehended
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 ---Plea of the respondent , denying the violation of any provision of
law, was that he had sold out an ancestral property in Afghanistan, whereof he received the said 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---Validity ---Admittedly, there was no
Counter of Declaration at the Pak - Afghan border, which fact was evident from the record of
a constitutional petition having been previously filed on behalf of a Chamber of Commerce before the Balochistan High Court regarding non- issuance of Certificate of Deposits (CDS)
by the Customs Official and the State Bank of Pakistan and Ministry of Commerce had also issued letters for facilitation of the business community, but to no avail ---Plea of the
respondent seemed plausible since neither there was any Counter of Declaration and Facility of CDS at Pak -Afghan border nor there was any facility of State Bank of Pakistan for the
exchange of foreign currency at border, therefore, the respondent had to proceed with and reach Quetta for the exchange of the seized foreign currency ---State Bank of Pakistan, in
terms of S. 8(2) of the Foreign Exchange Regulation Act, 1947, had also issued a Notification No. F.E.2/2017- SB dated 30 -08-2017 allowing any person to bring into Pakistan
any amount of foreign currency---Thus, in view of the said Notification, there is no embargo to bring any foreign currency notes without any limit except Indian currency within the stated limits ---Even otherwise, the recovery had been affected far away from the border
within the remits of Tehsil Yaro, District Pishin on a frequent route, which squared out the case of the respondent from the mischief of S. 2(s) of the Customs Act, 1969---Appellate Tribunal had rightly overturned the order -in-original passed by the Collector Customs
(Adjudication) ---Question raised by the Department was answered in negative i.e. against the
Department ---Customs Reference Application was dismissed, in circumstances.
(b) Customs Act (IV of 1969)---
----Ss. 168 ,2 (s ), 15, 16, 156(1),(8), (89), 157 (2) & 168---Imports and Exports (Control) Act (XXXIX of 1950), S. 3(1) ---Foreign Exchange Regulation Act (VII of 1947 ), S. 8 ---
Notification No. F.E.2/2017- SB dated 30 -08-2017 issued by the State Bank of Pakistan--
Foreign currency, possession of ---Legality ---Siezing Officer, powers of ---Department filed
Reference Application against the judgment passed by the Customs Appellate Tribunal whereby the foreign currency, along with vehicle, were ordered to be re leased to the
respondent ---Respondent was apprehended 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 ---Held, that in view of S. 168 of
the Customs Act, 1969, the seizure can only be made by an appropriate Gazetted officer,
whereas in the present case, the seizing officer was an OPF inspector, who is a clerk by
designation, but was delegated with the powers of an inspector ---It was not permissible for
said officer to make seizure, thus, the very recovery of the foreign currency became illegal from its inception ---Appellate Tribunal had rightly overturned the order -in-original passed by
the Collector Customs (Adjudication) ---Question raised by the Department was answered in
negative i.e. against the Department ---Customs Reference Application was dismissed, in
circumstances.
(c) Imports and Exports (Control) Act (XXXIX of 1950) ---
----S. 3(1) ---Customs Act (IV of 1969), Ss. 2(s), 15, 16, 156(1), (8), (89), 157 (2) & 168---
Foreign Exchange Regulation Act (VII of 1947), S. 8(2) ---Foreign currency brought into
Pakistan ---Legality ---Department filed Reference Application against the judgment passed
by the Customs Appellate Tribunal , whereby the foreign currency along with vehicle were ordered to be released to the respondent --- Respondent was apprehended 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 --
-Held, that S. 3(1) of the Imports and Exports (Control) Act, 1950, was not applicable in the
present case as the import policy did not put an embargo on bringing into Pakistan foreign currency, as such, persecution of the respondent for violating the provisions of the Imports and Exports (Control) Act, 1950, was nothing but a malicious act on the part of the applicant /Department ---Appellate Tribunal had rightly overturned the order -in-original passed by the
Collector Customs (Adjudication) ---Question raised by the Department was answered in
negative i.e. against the Department ---Customs Reference Application, was dismissed, in
circumstances.
Abdul Qahir Khan for Applicant.
Mazhar Ali Khan, Muhammad Qaseem and Saddam Hussain for Respondents.
Date of hearing: 20th March, 2023.
JUDGMENT
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 Sections 2 (s), 15 and 16 of the Customs Act, 1969 ("Act of 1969"), punishable under clauses (8) and (89) of Section 156(1) and Section 157 (2) of the Act of 1969 read with Section 3(1) of the Imports and 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(I)/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 ter ms of Section 157 (2) of
the Act of 1969 read with SRO 566(I)/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.E.1/2012- 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 unissued 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.
MQ/87/Bal. Application 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,
let us know.