1999 PLP 939 (CLC)

(c) Customs Act (IV of 1969)‑‑‑ ‑‑‑‑Ss. 2(s) & 180‑‑‑Smuggling of emeralds/precious stones and foreign/local currency‑‑‑Accused who was found carrying emeralds, foreign and ‑ local currency was held up at the Airport and Customs Authorities confiscated goods and imposed fine on accused‑‑‑Export of emeralds on relevant date was riot barred but was only subject to clearance from State Bank as a mere formality, provisions of S.2(5) of Customs Act, 1969 were not attracted in the matter‑‑ Ends of justice could not be defeated on grounds of mere technical or procedural formalities‑‑‑Order with regard to confiscation of emeralds was set aside and Authorities were directed to return same to accused and to remit penalty imposed upon ,accused in that respect, but as restriction was imposed on export of foreign and local currency at relevant date, order confiscating said currency‑ and imposing penalty thereon was upheld. Zamiruddin Ahmad for Petitioner. S. Tariq Ali, Standing Counsel for Respondents. Date of hearing: 21st August, 1998. SARMAD JALAL OSMANY, J.‑‑‑ This petition impugns the orders passed by respondents Nos.2, 3 and 4 whereby some packets of emeralds and foreign/local currency being carried by the petitioner while at the Departure Lounge at Karachi Airport on 1‑5‑1975 were confiscated by the Customs Authorities and a fine of Rs.7,50,000 imposed on him. The orders passed by respondent No.4 i.e. Deputy Collector of Customs, dated 18‑5‑1977 whereby the precious stones and currency carried by the petitioner were confiscated and a personal penalty was imposed upon him in the sum of Rs.15,00,000 were the result of the first enquiry in the matter by said respondent whereafter an appeal was preferred by the petitioner before respondent No.3 who is the Collector of Customs (Appeals) without success as vide the order, dated 8‑10‑1986, the said appeal was dismissed as being barred by time. The appellant then filed a revision application before the respondent No.2 i.e. Member (Judicial) Central Board of Revenue which was allowed vide order, dated 7‑6‑1989 and the matter remanded back to the respondent No.3 for decision according to merits who vide the second impugned order, dated 30‑6‑1991 reduced the penalty imposed on the petitioner by one‑half but maintained the order of confiscation. Finally the petitioner preferred another revision application before respondent No.2 who vide the third impugned order, dated 26‑11‑1991 declined to interfere in the matter and hence the petition. In the meanwhile the petitioner was acquitted in the criminal proceedings filed against him by the Customs Authorities vide order, dated 20‑3‑1991 passed by the learned Special Judge (Customs and Taxation). On the above facts, Mr. Zaheeruddin Ahmad, learned counsel for the petitioner has vehemently contended that all the three impugned orders suffer from grave defects and illegalities on various grounds which are discussed in seriatum below:‑‑

1. It has been stressed that as the petitioner was not given any opportunity to make a declaration as required under section 139 of the Customs Act, 1969 (hereinafter the "Act"), at the time of seizure of the goods and his arrest, consequently, all the proceedings before the Customs Authorities stood vitiated thereby rendering the impugned orders a nullity in the eye of the law. In this regard it would be seen that section 139 of the Act enjoins, inter alia, a passenger or a member of the crew to declare the contents of his/her baggage to the Customs Authorities for the purpose of clearance. Accordingly it is the petitioner's case that unless such opportunity to make such declaration was given, it 'could not be said that he was guilty of an offence to smuggle the emeralds/currency confiscated by the Customs Authorities. Learned counsel has relied upon Abdul Salam v. The State 1984 PCr.LJ 1133 in support of his contention. In that case the facts were that the appellants' baggage upon examination at the Customs point yeilded some quantity of silver which was seized and confiscated and subsequently he was convicted by the Special Judge (Customs) of the offence of an attempt to smuggle within the meaning of section 2(s) of the Act. On appeal, the Lahore High Court held that merely by bringing a banned item up to the Customs Point by a passenger would not come within the mischief of section 2(s) in the absence of evidence as to a false declaration by said passenger or refusal to do so or secretly hiding of the goods in a manner so as to avoid detection. The facts of the present case are, however, different inasmuch as the petitioner was apprehended in the Departure Lounge of Karachi Airport after clearance from Immigration Authorities and in possession of his Boarding Card which is much beyond the Customs Counter. In our view this amounts to an attempt to smuggle as had the petitioner not been apprehended, he would have definitively been able to take the confiscated items out of the A country. We are fortified in this opinion upon the. interpretation of the word "attempt" as appearing in section 2(s) of the Act given in the cited case as some overt act on the part of the offender which if not frustrated would lead to the commission of an offence. Consequently, we conclude that in the circumstances of the case the impugned orders cannot be termed as defective within the meaning of section 139 of the Act. '

2. Learned counsel has most vehemently pressed before us that as the statutory notice under section 171 of the Act was not given to the petitioner, the entire edifice of the adjudication proceedings before the Customs Authorities rest 8 on an infirm legal footing and thus, liable to be set aside including the impugned order. It is contended that the criminal proceedings against the petitioner were dismissed by the learned Customs Judge due to his findings (which were based on the admission of the Customs witnesses) that no such notice was served upon the petitioner and which accordingly resulted in his acquittal. Learned counsel has relied upon Abdul Rauf v. The State 1983 PCr.LJ 19, Ghufran Ahmad and another v. The State 1983 PCr.LJ 620, Shaukat Hussain v. Zulfiqar Ahmad and 2 others 1983 PCr.LJ 676, Azizullah v. The State PLD 1981 Kar.

250. In this respect it would be beneficial to reproduce the contents of section 171 of the Act which read "When anything is seized or any person is arrested under this Act, the Officer or other person making such seizure or arrest, shall as soon as may be, inform in writing the person so arrested or the person from whose possession the things are seized of the grounds of such seizure or arrest." It would be, thus, seen that section 171 is meant to inform the persons who are arrested or their property seized on the grounds thereof so that the said persons could do 'whatever they deem necessary in order to defend themselves. However, there is nothing in the section itself nor in any other provision of the Act specifying any consequences for non‑compliance thereof, whereas in contra‑distinction, section 168(2) provides that where the show‑cause notice under section 180 is not issued within two months of the date of the seizure (of goods), the same would have to be returned to the owner thereof. It would, thus, appear that section 171 being procedural in nature, strict compliance thereof would not be necessary if it can be established that its purpose was served through other means i.e. the grounds of seizure or arrest were conveyed by way of any other document. Accordingly in Abdul Rauf Khan v. Collector Central Excise and Land Customs 1980 SCMR 114 it was held that where the recovery memo. mentioned the grounds of seizure and was furnished to the person from whose possession the goods were recovered, the requirements of section 171 were satisfied. This case was followed by the Honourable Supreme Court in State v. Banda Gul 1993 SCMR

211. In fact in that case the Honourable Supreme Court went as far as to observe that the preparation of the recovery memo. and tendering of the same in evidence satisfied the provisions of section 171 and constituted sufficient notice within the meaning of said section. It would, thus, be seen that upon a strict reading of the said case, it is not necessary that the accused person be served with an actual notice under section 171 and entitled as such, immediately upon his arrest and/or seizure of his goods. It would be sufficient if at his trial he was posted with such knowledge which is almost invariably the case. In the present proceedings too, the recovery memo was prepared on the date of the seizure i.e.1‑5‑1975 and was produced in evidence before the learned Special Judge as Exh.3/A and is filed as Annexure P.23 to the petition. So also an inventory of the seized goods was prepared on the same date which also bears the signature of the petitioner and has been filed as Annexure "P.24" to the petition. It would also be seen that the F.I.R. was lodged in the Special Court on the same date i.e. 1‑5‑1975 and is filed as Annexure "P.2" to the petition which describes the nature and grounds of the arrest/seizure which were further detailed in the charge‑sheet, dated 15‑5‑1975 filed before the Special Court and is reproduced as Annexure "P.11 " to the petition. In the result, we are of the opinion that the petitioner was sufficiently made aware of the nature and grounds for his arrest and the seizure of his goods on the date thereof i.e. 1‑5‑1975 and certainly before his trial proceeded before the Customs Court within the meaning of section 171 of the Act and hence, cannot agree with learned counsel that there was total failure on the part of the Customs Authorities to comply with the said section so as to result in a vitiation of the entire adjudication proceedings.

3. Next, learned counsel for the petitioner contended that as the petitioner stood acquitted from the charge of smuggling vide order, dated 20‑3‑1991 passed by the learned Special Judge, the confiscated goods should be returned to him and to that extent the impugned orders were open to interference by this Court. In support of this contention learned counsel has relied upon Muhammad Shahid v. Khalid Muhammad Tabassum and 4 others PTCL 1994 CL

112. In this regard it may be observed that the petitioner was not acquitted by the learned Special Judge on merits vide his order, dated 20‑3‑1991 but the proceedings were quashed under section 265‑K, Cr.P.C. upon an application moved by the petitioner/accused on the basis that no notice was served upon him as per section 171 of the Customs Act. Although the words used in the operative part of the order are accordingly I allow the application moved on behalf of the accused under section 265‑K, Cr.P.C. and acquit him..", we are unable to agree with the learned counsel that said order amounts to an acquittal on merits, as evidently the learned Special Judge came to the conclusion after recording evidence that the notice was not served and hence no conviction can be awarded in the absence thereof and hence the case is bound to fail. Secondly, although the issue framed by the learned Special Judge as regards the disposal of the petitioner's application under section 265‑K, Cr.P.C. reads, "whether on the aforesaid date, time, and place, the accused attempted to smuggle the said emeralds and currencies from Pakistan to Dubai?", the same cannot be deemed to be answered by the conclusions arrived at by the learned Special Judge vide his order, dated 20‑3‑1991, which, as adverted to above, was a quashment of the criminal proceedings against the petitioner/accused based upon failure to issue a notice under section 171 of the Act. In our view, therefore, it cannot be said that the petitioner was acquitted of the charge of smuggling vide the said order. In fact the case‑law cited by learned counsel i.e. Muhammad Shahid v. Khalid Mahmood Tabassum and 4 others PTCL 1994 CL 112 supports the conclusion reached above inasmuch as the confiscated property was only ordered to be returned to the petitioner in that case when it was found that he was acquitted by the Special Judge of the charge of an attempt to smuggle under section 2(s) of the Act. Although in that case too the acquittal was the outcome of an application under section 265‑K, Cr.P.C. filed by the petitioner, it was found by the Customs Judge that he was only a transit passenger enroute to Delhi, and thus, acquitted. The facts of the present case, whereby the proceedings were quashed on a technical ground are, therefore, entirely different from the case cited by learned counsel. In fact in that case too which was delivered by a Division Bench of this Court, the learned Judge after reviewing a fair number of decisions came to the conclusion that only where the acquittal of the accused is on merits can the confiscated property be returned to him. It was finally contended by Mr. Zaheeruddin that property carried by the petitioner i.e. emeralds and local currency were not restricted under any law and, therefore, his arrest as well as the seizure and confiscation of the property were wholly unwarranted. Although this ground was not specifically pleaded in the petition, learned counsel has stressed it during arguments and also contended that it was a part of the petitioner's defence before the Customs Authorities at all stages. Learned counsel has submitted that contrary to the chart levelled in the show‑cause notice served upon the petitioner under section 180 of the Act, export of the case property was not prohibited, under the Foreign Exchange Regulation Act not under any law. In this context learned counsel has referred to Annexure "P.9" to the petition which is a certificate from the State Bank to the effect that there was no ban, prohibition or restriction on the export of emeralds out of Pakistan up to September, 1975 provided a clearance certificate was obtained from the Bank which was a mere procedural formality and given to all the exporters in the ordinary course of business. This document was considered in the impugned orders and it was held that as no clearance certificate from the State Bank was produced the emeralds could not be taken out of the country lawfully and the petitioner's attempt to do so came within the definition of smuggling as provided in section 2(s) of the Act. It is interesting to note that whereas respondent No.4 vide his impugned order, dated 18‑5‑1987 has categorically concluded that the offence of attempt to smuggle the emeralds was squarely established, respondent No.3 as per his impugned order, dated 30‑6‑1991 gives the petitioner some byway in holding that he may be guilty of said offence deliberately or due to ignorance which could not be established at that stage. It was further held by the said respondent that had the petitioner applied to the State Bank of Pakistan perhaps he would have obtained the requisite permission. However, respondent No.2 vide his impugned order, dated 26‑11‑1991 was convinced that without the permission of the State Bank the offence of an attempt to smuggle was completed and hence no concession could be given to the petitioner. In this regard it may be observed that the relevant portion of section 2(s) of the Act reads as follows:‑‑ "'Smuggle ' means to bring into or take out of Pakistan, in breach of any prohibition or restriction for the time being in force, or evading payment of customs duties or taxes leviable thereon...' It would, thus, be seen that in order to attract the provisions of section 2(s), the accused person must be guilty of bringing into or taking out of Pakistan, items which are prohibited or restricted or trying to evade customs duties on the said items. As per the State Bank's certificate it has been categorically stated that there was no ban, prohibition or restriction on the export of emeralds out of Pakistan up to September, 1975, except that the same required a clearance certificate from the Bank which being a mere procedural formality was given in ordinary course to all exporters without exception. In our view, therefore, since there was no ban on the export of the emeralds on the relevant date but the same was only subject to clearance from the State Bank as a mere formality, it cannot be said that the provisions of section 2(s) were attracted in the matter. The ends of justice cannot be defeated on the grounds of mere technical or procedural formalities. We accordingly set aside the impugned order as far as the emeralds are concerned and direct the Customs Authorities to return the same to the petitioner. So also that much of the penalty imposed upon the petitioner relating to the value of the emeralds is also remitted. As regards the foreign and local currency confiscated by the Customs Authorities, it would appear that there was a restriction on the relevant date as to their export. We, accordingly uphold the impugned orders as to confiscation of the same as well as that part of the penalty relating to such currencies. In the result we remand the matter back to the respondent No.2 for the limited purpose of calculating the value of confiscated foreign currency at the rate of exchange prevailing on the date of the seizure for the purpose of imposing penalty on the petitioner as per law. Such exercise to be carried out with prior notice to the petitioner. Order accordingly. MRS. MAJIDA RAZVI, J.‑‑‑ I agree. H.B.T./M‑404/K Order accordingly.