P L D 1957 (W (PLP)

MUHAMMAD BAKHSH, J.

(20th November 1956).-The two petitioners, who are brothers, are carrying on business in partnership as manufacturing jewellers at Karachi. Their shop is known as Gem jewellers " and is situated on Elphinstone Street. The Customs Authorities received credible information that there was a lot of smuggled goods in this shop. They placed this information before a Magistrate, who after due inquiry, issued a search warrant under section 172, Sea Customs Act on 13th September 1955. Accordingly, on the same day this shop was raided and searched and the following articles were found from there: (a) 350 diamonds (of which 9 were broken pieces) worth about Rs. 20,000. (b) 19 colas of alloyed gold. (c) 20 tolas of pure gold. (d) 31 gold sovereigns. (e) Real pearls worth about Rs. 17,914. (f) Cultured pearls worth about Rs. 3,700. (g) Precious and semi-precious stones worth about R s. 53,000. (h) Imitation pearls worth about Rs.

50. The import of all these articles except gold and gold sovereigns was banned by a Government Notification dated 11th June 1951. The import of gold and gold sovereigns was restricted by another notification dated 1st July 1948. At the time these goods were seized, two statements of petitioner No. 2 were recorded by the authorities. With regard to the diamonds, the petitioner stated that he would produce the documents about their purchase. With regard to the gold sovereigns, his statement was that they were purchasing the same from various persons who visited their shop. For some portion of the gold he said it has been locally purchased and then refined for the purpose of their business. All these articles were then taken in a suit case to the Customs House. On 16th September 1955 a show-cause notice was issued by the Customs Authorities requiring the "Gem Jewellers" to produce evidence under section 177-A of the Sea Customs Act to show that the seized goods had been lawfully imported into Pakistan. The petitioners submitted their written statements and made representations in connection thereof from time to time. It was alleged by the petitioners that the diamonds belonged to one industrialist of Karachi. Mr. Abdul Latif Bawany who had taken out these diamonds from his old ornaments and given them to the petitioners for fixing them up in new ornaments. Accordingly, on 30th September 1955, a notice was issued to Mr. Bawany to prove his ownership of these diamonds. Mr. Bawany wrote a letter dated 4th October 1955, claiming to be the owner of the diamonds. He alleged that these diamonds were neither new nor were imported from abroad but belonged to his family prior to the inception of Pakistan. It may be mentioned here that Mr. Bawany did not personally go to the Customs Authorities. He sent further letters also to the Customs on 10th October 1955, and 19th January 1956. The Customs Collector on being satisfied that most of these articles were smuggled, passed an order on 23rd December 1955; whereby he held that the alloyed gold worth Rs. 1,330, 31 gold sovereigns and imitation pearls worth Rs. 50 were in the bona fide possession of the petitioners and, therefore, he released these goods and directed that they should be returned to the petitioners. He confiscated all the other articles. With regard to pure gold he gave an option to the petitioners to pay a fine of Rs. 1,450 under section 183 of the Sea Customs Act. The petitioners being aggrieved by this order, filed this petition for writs of certiorari and prohibition or other appropriate writ or order. After filing this writ petition they hasten to file an appeal under section 188 of the Sea Customs Act. This they did in order that the appeal should be in time. The whole record and proceedings of the case are here with us and hence the appeal cannot be heard. The petitioners have also asked the Board of Revenue to hold up their hands till this writ petition was decided by this Court. The grounds on which the action of the Customs Collector is challenged are mostly legal. They pertain to the interpreta tion of section 167 (8) and (81) and section 177-A of the Sea Customs Act. All these legal objections have been fully discussed by me in S. A. Haroon v. Collector of Customs Karachi (P L D 1957 Kar. 576) (Writ Petition No. 38 of 1956). I and my learned brother have differed in our judgments in that writ petition and that is to be heard by a third judge. I need not therefore repeat all those arguments here in this case. Looking to the facts of this particular case, it has been urged that the Collector of Customs did not allow the petitioners to be represented by an advocate for which request was made, and it is, therefore, alleged that there has been a violation of the principles of natural justice. I do not think the respondent was bound to allow an advocate to appear because the respondent is not a judicial tribunal. I have already held in Writ Petition No. 38 of 1956, that the Collector of Customs is an administrative or an executive authority. On the particular point of hearing the advocate, I am supported by a Division Bench ruling of this Court repor ted in Dr. Yar Muhammad v. Rehabilitation Commissioner (P L D 1955 Sind 15), wherein it has been clearly held that though the hearing of advocate may be a matter of right in Courts of law, it cannot be said that an administrative tribunal even acting judicially must adopt the practice of the Courts or that failure to hear the counsel vitiates an inquiry. It will be interesting to consider the facts with regard to the claim laid by Mr. Bawany to the diamonds in question. These diamonds were worth at least Rs. 20,000 and the conduct of Mr. Bawany himself would clearly show that his claim was not an honest one and that it has been sponsored or manipulated by the petitioners. However rich a man may be, if he see p. 4 that his property worth Rs. 20,000 is going away for a song, he would not rest content with merely sending a brief note and one or two reminders thereafter. The Customs House is situated in the City of Karachi and Mr. Bawany could easily go to the Customs House and prove to the authorities effectively that the diamonds belonged to him. Mr. Bawany knew that his claim was not a true one and therefore, being a big man he did not consider it necessary to take any more trouble on behalf of the petitioners. Apart from that, there are no entries in the account book of the petitioners t6 show that these diamonds were received by them from Mr. Bawany. On the other hand, Mr. Bawany also got no receipt for these diamonds. It was for the first time on 17th September that the petitioners alleged that the diamonds belonged to Mr. Bawany. On 13th September when the diamonds were seized, petitioner No. 2 clearly gave a statement in writing to the officer concerned that he would produce documents of purchase with regard to these diamonds. Those documents being non-existent naturally the petitioners had to change their ground and they started a new theory that the diamonds belonged to Mr. Bawany. Under the Sea Customs Act, the Customs Collector had full jurisdiction to deal with this case and in the exercise of his power he could decide things rightly as well as wrongly. This is not a Court of appeal to go into the facts and to find out whether the decision of the Customs Collector was correct on the merits. For that the appropriate remedy lies under section 188 of the Sea Customs Act in appeal which has actually been filed by the petitioners after the filing of this writ petition. It is idle to argue that the principles of natural justice have been violated. If the Customs Collector had not issued a show-cause notice to the petitioners or to Mr. Bawany, it could be said that they were not given a hearing. The learned advocate for the petitioners has referred to some rulings to show that an ex-par to decision is no valid decision at all. True, but this is no ex-parte decision as the petitioners and Mr. Bawany were given proper notice as required by law and it was up to them to discharge the burden that had been thrown upon them, by section 167 (81) arid section 177-A of the Sea Customs Act which had been newly introduced by Ordinance III of 1954. In view of these reasons, I have no manner of doubt that the petitioners have failed to establish their case for a writ and I accordingly dismiss the petition and further direct the petitioners to bear the costs of the respondents. MUNSHI, J.

(20th November 1956).-I regret my inability to agree with the order proposed by my brother. The points raised in this petition are more or less the same as were urged in the S. A. Haroon v. Collector of Customs, Karachi (P L D 1957 Kar. 576) (Writ Petition No. 38 of 1956), which, owing to our difference of opinion, will now be heard by a third Judge. In that matter I have held that the interpreta tion put upon the new sections 167 (81) and 177-A of the Sea Customs Act by the Customs Collector is grossly erroneous. The ingredients constituting the offence under section 167 (81) are : (1) that the goods found in possession of the person proceeded against have been imported (2) that they have been imported after the ban, (3) that they have not been law fully imported. Before the introduction of these two sections in the Sea Customs Act, burden lay entirely on the Customs authorities to prove all the ingredients of the offence, but now, the position to a certain extent, has changed, as the person found in possession of the goods, has now to prove that they have been imported in a lawful manner, and that his failure to do so will give rise to a presumption that the goods have been unlawfully imported. True, but that does not mean that the Customs Authorities have to prove nothing or that whatever the burden lies on them stands discharged by mere seizure of goods. The language of section 167 (81) makes it quite clear that the burden of proving that the goods have been imported- after the ban is on the Customs authorities, and it is only after that is done, that the person found in possession will have to prove as provided by section 177-A, that what has been imported after the ban, has been imported lawfully. It must be remembered that it is no offence to import goods even after the ban, and thus when the Customs authorities are asked to establish the first two ingredients, they are not asked to prove the offence. The latter would be complete only when there is failure on the part of the person found in possession to prove that the goods although imported after the ban, have been imported in a lawful manner. Here, as the order of the Customs Collector would show, the respondent has been held guilty because of his failure to prove that the goods had not been imported after the ban. If this interpretation on the new sections is accepted, then it must also be accepted that now the Customs authorities have to prove nothing and that the fact-that the goods have been seized, is a sufficient proof of their importation after the ban. In my opinion this interpretation will lead to absurd results, for in that case anyone wearing even a diamond ring will expose himself to prosecution under the Sea Customs Act without any chance of escaping conviction. Surely such absurdity cannot possibly be ascribed to the legislature which introduced the above two sections. Thus the order of the Customs Collector which is based on the failure of the petitioner to establish that the goods have not been imported or if imported, they have not been imported after the ban, and that they have been lawfully imported, is vitiated by an error which is apparent on the face of the record. The order therefore must be quashed on this ground alone. It is also a grievance of the petitioners that the principles of natural justice have been violated in that they have not been given opportunity to prove from their documents that they had in possession, that the facts mentioned in their earlier statement were true. Their case is that not only no opportunity to prove their case was offered to them but that it was refused even when it was sought. That such an opportunity was sought is clear from para. 2 of annexure D. and the last but one para of annexure G. The Assistant Collector to whom these requests were made, has himself filed no counter-affidavit to refute these allegations. The counter affidavit that has been filed, has been filed by one Amjad Hussain who is an Intelligence Officer of the Customs Department. Obviously he is not expected to know whether or not the Customs Collector granted the request of the petitioners to produce the documentary evidence in support of their statement which they had earlier made or whether they had been given any opportunity to explain what had been alleged against them. The affidavit filed by Muhammad Sadik manager of the petitioners in reply to the counter affidavit of Amjad Hussain shows that neither of the petitioners had been given opportunity even to see the respondent, and that when he himself requested the respondent to permit him to bring the evidence, he was told that that would be done when needed. He has further stated that he himself could not have made submissions to the respondent as to the allegations, as he does not know English. To this rejoinder there is no reply. It is true that there is no provision in the Act entitling a party to be represented by an advocate, and consequently if a party is not allowed to be represented by an advocate, no illegality has been committed. But it is a different matter if a party who has a great stake in the matter, is not given opportunity even if he has sought one to prove what he has earlier stated in his explanation. Thus the order has been passed practically ex-parte. This, in my opinion, is in disregard of the principles of natural justice, and that on this ground also the order deserves to be quashed. I would, for the reasons stated above and those stated in S. A Haroon v. Collector of Customs, Karachi (P L D 1957 Kar. 576) (Writ Petition No. 38 of 1956), therefore, allow the petitioner and direct the respondent to bear the costs of the petitioner. CONSTANTINE, J.

(25th April 1957).-This petition comes before me upon a difference of opinion between my learned brethren Muhammad Bakhsh and Munshi, JJ. As to the difference of interpretation of Entry 81 to section 167 of the Sea Customs Act and section 177-A of that Act, I have given reasons in detail in Muhammad Hassan v. Collector of Customs, Karachi (P L D 1957 Kar. 600) (Writ Petition No. 107 of 1956). It is sufficient for the purpose of this Writ petition to say that whereas Muhammad Bakhsh, J., gave an interpreta tion to Entry 81 as if the Collector of Customs was absolved from proving import, Munshi, J., held that the Collector was obliged not merely to prove import, but import after the date of any prohibition. My own view is that the Collector was bound to prove import, and if import at any date (whether before or after prohibition is immaterial) was proved it then rested with the person from whose possession the goods were found to prove that the goods had been lawfully imported, i.e., either before the prohibition or restriction or else in accordance with some exemption or permission. In the present case it is apparent that both the Collector and the petitioners were under a misapprehension as to the true view of the law as to burden of proof. In paragraph 9 of the affidavit of the Intelligence Office of the Customs, dated 25th February 1956, it was stated :- "Prima facie the goods seized were of the category, the import of which, was restricted under the aforesaid notifications and under section 19-A of the Sea Customs Act the Customs Authorities were authorised to confiscate as these fell under section 19 of the said Act. No further evidence apart from this is necessary. The burden of proof is under section 177-A of the said Act, on the petitioners to show that these goods were lawfully imported. The burden has not been wrongly cast on the petitioners. The petitioners were sufficiently informed by the show-cause notice that the import of these goods was prohibited and this was sufficient in the circumstances of the case. No further evidence was required as alleged." The petitioner, on the other hand, had stated that the burden of proof under section 177-A was wrongly cast upon the petitioners in the absence of evidence prima facie establishing that the seized goods had been imported unlawfully. It is true that in reply to the show-cause notice the petitioners had stated that "the pearls, precious stones and other miscellaneous stores were brought from Bombay after partition as our assets as we used to deal in the same business there too." But it continued : " Further your honour might be aware that we are the leading jewellers of Karachi and we purchase old ornaments worth lacs of rupees. It is obvious and we are bound to have plenty of precious stones and gold taken out of the old ornaments we purchase". As regards diamonds they stated that they had been deposited with them by a leading industrialist, Abdul Latif Bawahy. There was therefore only a limited admission as to the import of the precious stones and this limited admission was repeated in a representation of the petitioners to the Assistant Collector of Customs dated 31st October 1955. There it said "the stones seized were brought into Pakistan soon after the partition and were purchased from Hindu Jewellers and gained from old ornaments, all prior to the prohibition to import precious or semi-precious stones'", and then in their representation of the 14th November 1955, they stated that they had purchased stone worth over three lacs inclusive of those brought from Bombay. They had sold stones worth about two lacs and thirty thousand. As regards the fine gold they said that they had purchased it and that the bars bore no resemblance to Arabi bagadi bars. There was therefore on record no admission on the part of the petitioners that the goods had been imported except as regards some unknown quantity of the stones. So far as the record goes; it appears that the Collector proceeded on the assumption that since the goods were of the category, the import of which was restricted, 'therefore, the burden of proving lawful import fell upon the petitioners. This, however, was an error caused by the Collector's erroneous interpretation of Entry 81 and section 177-A of the Sea Customs Act. It is in my opinion an error apparent on the face of the record. As regards the difference of opinion whether principles of natural justice were violated in this case my learned brother. Munshi, J. considered that the opportunity which the petitioners sought by their representation of the 14th November 1955. of being heard and producing their books of account and evidence had not been granted by the Assistant Collector ; he thought that the affidavit of the Intelligence Officer denying the affidavit of the petitioner that he had sought the opportunity but had not been allowed the opportunity could not be relied upon, since he was only an-Intelligence Officer and could not be expected to know whether the Customs Collector had or had not granted the request of the petitioners. I think however, that he has fallen into an error in stating that the affidavit filed by the Manager of the petitioners rested uncontradicted. This affidavit was dated 5th March 1956 and there is on record a further affidavit in rejoinder dated 28th July 1956, in which he denies the allegations, made in the affidavit of the petitioners, made in paragraphs' 43, 3, 4 and

5. This obviously refers to the affidavit of the Manager. On this point I think that even if the opportunity of making oral representations was not given and even if the Collector said that he would send for the books of account if needed and, did not send for them, yet it cannot be said that the rules of natural justice had not been observed. The petitioners had sent in several representations and had had a full opportunity of stating their case. The Collector may well have considered that their books of accounts could not advance their case further. As, however, both the Collector and the petitioners were proceeding upon an erroneous interpretation of the law, the point of natural justice hardly arises. The petitioner as is evident from their representations and from the writ petition itself would not be seeking to prove that the goods had not been imported, but merely that if they had been unlawfully imported that they were not responsible for that unlawful import. The offence however is complete whether the person in possession of unlawfully imported goods was or was not responsible for the import. Holding as I do, that there is an error apparent on the face of the record, namely that the Collector misdirected himself as to the burden of proving that the goods had been imported, I quash the order of the Collector in agreement with my learned brother Munshi, J., and direct the respondents to bear the costs of the petitioners of this petition. It remains to be said that various points of law were advanced at one stage by Mr. Vellani, Mr. Brohi and the Attorney-General, which I refused to entertain in this and the companion writ matters, since they were not pertinent to the points on which my learned brethren had differed. For instance both my brethren held that no illegality was 1 committed if a party is not allowed to be represented by an advocate in proceedings before the Collector, and I refused to allow Mr. Vellani to develop this point. A.H. Order quashed.