2018 Y L R 75
[Balochistan]
Before Mrs. Syeda Tahira Safdar and Zaheer ud Din Kakar, JJ
JUMA GUL ---Petitioner
Versus
GOVERNMENT OF PAKISTAN MODEL CUSTOMS COLLECTORATE through
Collector and 2 others ---Respondents
C.P. No.132 of 2017, decided on 9th October, 2017.
Customs Act (IV of 1969) ---
----S. 156(1)(89)(8) ---Imports and Exports (Control) Act (XXXIX of 1950), S. 3---Constitution
of Pakistan, Art. 199--- Constitutional petition ---Availability of alternate remedy ---Effect ---
Petitioner had assailed confiscation of fertilizer of foreign origin which was seized by customs
authorities when it was being smuggled out of Pakistan ---Validity ---Petitioner, instead of
availing proper remedy of challenging order -in-original before the Collector (Appeals) under
S. 193 of Customs Act, 1969 had invoked Constitutional jurisdiction of High Court ---
Petitioner, in presence of alternate remedy, could not be allowed to ventilate his grievance through Constitutional petition bypassing the competent forum ---Assertions of petitioner
revolved around factual dispute, truthfulness or otherwise of which could not be determined without inquiry and recording of evidence ---High Court, in circumstances, dismissed the
constitutional petition.
Muhammad Younas Khan and 12 others v. G overnment of N. -W.F.P through Secretary
Forest and Agriculture, Peshawar and others 1993 SCMR 618; Indus Trading and Constructing Company v. Collector of Customs (Preventive) Karachi and others 2016 SCMR 842; Dr. Sher Afghan Khan Niazi v. Ali S. Habib and others 2011 SCMR 1813; Muhammad Abbasi v. SHO Barakahu and 7 others PLD 2010 SC 969 and Secretary to the Government of Punjab v. Ghulam Nabi PLD 2001 SC 415 rel.
Zakria Khan Nasar for Petitioner.
Syed Ikhlaq Shah Assistant Attorney General for the State.
Date of hearing: 13th September, 2017.
JUDGMENT
ZAHEER -UD-DIN KAKAR, J. ---The petitioner filed the instant petition with the
following prayer: --
"that confiscation/seizure and proceedings by the respondents may kindly be declared
as unlawful, subsequent ly, all proceedings by the respondents along with auction of DP
fertilizers may kindly be quashed and respondents be directed to refund the auction amount of the fertilizers amount 18,80,000 be ordered to be paid/refunded to the petitioner."
2. Precisely s tated facts of the case are that in pursuance of credible information received
by the Collector Customs which was communicated to the Deputy Collector (Preventive), Quetta, that foreign origin Fertilizer would be smuggled to Afghanistan. Accordingly, on 13.12.2016 at about 0900 hours, the Customs staff along with FC personnel seized 1820 bags of DAP Fertilizer of Australia origin from the area of Killa Saifullah/Muslim Bagh. The Customs Mobile Squad, Quetta took possession of the said goods and seized the s ame for
violation of sections 2(s) and 16 of the Customs Act, 1969 read with subsection (1) of section 3 of Imports and Exports (Control) Act, 1950. Notice under section 171 of the Customs Act, 1969 was issued to the petitioner and a copy thereof was displ ayed on the Notice Board. A
seizure case bearing No 713 -Cus/ Seize/MS/2016 dated 13.12.2016 was registered, which was
adjudicated by the adjudicating authority, vide Order -in-Original No.330/2017 dated 24.2.2017
by confiscating the Fertilizer. The counsel for the petitioner appeared before the adjudicating authority for the seized goods. Relevant para of the Order -in-Original is reproduced herein
below: --
"I have gone through the record of the case. The Advocate failed to produce any bona
fide excuse/legal import document and receipt of application for release of goods against payment of duty/taxes clearly establishes smuggled status of the goods. The case of the seizing agency thus stands established. Consequently, the goods seized in this case are confiscated outright in terms of clauses (8) and (89) of section 156(1) the Customs Act, 1969 for violation of Section 2(s) read with S.R.O. 566(I)/2005 dated 6.6.2005 and 16 of the Customs Act, 1969. Further read with subsection (1) of section 3 of Imports and Ex ports (Control) Act, 1950.
3. On 23.8.2017, it was observed that the matter pertains to seizing of goods by the
Customs Authorities. Learned counsel for the petitioner was directed to address the maintainability of the instant petition as the remedy provid ed in the relevant law i.e. The
Customs Act, 1969 has not been availed.
4. Learned counsel for the petitioner has mostly relied upon the grounds mentioned in the
petition.
5. We have heard learned counsel for the petitioner and have gone through the availa ble
record. Before proceeding further to the question of maintainability of the petition, it is necessary to mention here that the jurisdiction conferred on this Court by Article 199 of the Constitution is an extraordinary jurisdiction, which can be invoke d only to meet extraordinary
situations. This jurisdiction is never meant to be treated as an additional or as "another" remedy provided by law. It was essentially for this reason that Article 199 of the Constitution specifically provide it that this Court shall have jurisdiction under the said provision of the
Constitution only when the law from which a matter emanated did not provide any other adequate remedy to cater for the problem in issue. Therefore, the prime question in every case
of Article 199 of the Constitution as also in the present case is whether an aggrieved person, who resorts to the Constitutional jurisdiction of this Court, has or has not any other adequate remedy available to him under the law. Where it was open to an aggrieved person to move another forum or Tribunal for his remedy in the manner prescribed in a statute, a High Court avoid to assume jurisdiction under Article 199 of the Constitution and permit the machinery provided in a statute to be bypassed. The jurisdiction available under the Article is discretionary in nature, thus, to be exercised in exceptional circumstances, when that order questioned without authority, without jurisdiction or the functionary acted with mala fide or in unjust manner.
6. Now coming to the instant ca se, the prayer of the petitioner is that to direct the
respondent to refund him the auctioned amount of Rs.18,80,000/ - of Fertilizers. As mentioned
above, after seizure of 1820 bags of DAP Fertilizer of Australian origin, a seizure case bearing No.713/Cus/ Seize/ MS/2016 dated 13.12.2016 was registered. Thereafter, Show -cause Notice
dated 7.2.2017 was issued to the petitioner and the matter was adjudicated by the adjudicating authority vide Order -in-Original No.330 of 2017 dated 24.2.2017. But the petitioner instead of
availing proper remedy as per Customs Act, 1969 did not challenge the Order -in-Original
before the Collector (Appeals) under section 193 of the Customs Act, 1969, filed instant petition. In view of availability of the alternate remedy, the petitioner cannot be allowed to ventilate his grievances through constitutional petition by passing the competent forum as per Customs Act. Further, assertions of the petitioner revolve around factual dispute, truthfulness or otherwise of which cannot be deter mined without inquiry and record of evidence and this
court is not permissible in Constitutional jurisdiction to hear the cases where actual controversies are involved, in view of the law laid down by the Hon'ble Supreme Court in the case of Muhammad Youna s Khan and 12 others v. Government of N.W.F.P through Secretary
Forest and Agriculture, Peshawar and others (1993 SCMR 618). Furthermore, while dealing with the question of maintainability of a petition before this Court in the wake of an alternate efficacious remedy available to a litigant, the Hon'ble Supreme Court of Pakistan in judgments reported as Indus Trading and Constructing Company v. Collector of Customs (Preventive) Karachi and others (2016 SCMR 842), Dr. Sher Afghan Khan Niazi v. Ali S. Habib a nd others
(2011 SCMR 1813), Muhammad Abbasi v. SHO Barakahu and 7 others (PLD 2010 SC 969) and Secretary to the Government of Punjab v. Ghulam Nabi (PLD 2001 SC 415) held that in the wake of availability of an alternate efficacious remedy, jurisdiction of this court under Article 199 of the Constitution cannot be invoked.
7. In view of above, this petition being not maintainable is dismissed.
MH/153/Bal Petition 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.