P L D 1962 (W (PLP)

WAHIDUDDIN AHMED, J.‑Petitioner Akber Adil, who is an Assistant Economic Adviser, Ministry of Economic Affairs, Government of Pakistan, on the 15th of January 1956, arrived by B. O. A. C. aircraft at 10 a.m. from Baghdad. On arrival, his baggage was searched and it is alleged that be had 60 U. S. dollars, .21 sterling and Rs. 500 Pakistani, which he failed to declare to the Customs Authorities. According to the latter, this was in contravention of the notification issued by the Ministry of Finance dated the 1st of July 1948, under section 8 of the Foreign Exchange Regulations Act, VII of 1947. On the 17th of January 1956, the Collector of Customs, opponent No. 2, issued a show‑cause notice to the petitioner under section 167 (8) of the Sea Customs Act. The show‑cause notice only called upon the petitioner to submit his written explanation within seven days from the receipt of the notice. In reply, the petitioner forwarded a copy of the letter dated the 16th of January 1956, addressed to Mr. Safdar Raza, Collector of Customs, Karachi, and repudiated all the allegations made against him. According to him he had declared all the currency in his possession and the currency alleged to have been recovered from his baggage was planted on him on account of bad relations between his Department and the Finance Department. The petitioner alleged mala fides against the Customs Authorities of the Karachi Airport. The Collector of Customs by an order dated the 31st of January 1956, found that the petitioner had committed an offence under section 167 (8) of the Sea Customs Act. Accordingly he confiscated the currency and gave the option to the petitioner under section 183 of the Sea Customs Act to pay in lieu of confiscation a ‑fine of Rs. 1,

040. He further imposed a penalty `of Rs. 3,000 on the petitioner under section 167(8) of the Sea Customs Act. The petitioner challenged this order in appeal before the Central Board of Revenue, but it was dismissed on the 13th of April, 1956, on the ground that it was not accompanied with the amount of penalty imposed upon him. The petitioner then came to this High Court in Writ Petition No. 534 of 1956, and challenged the order of the Customs Authorities, amongst others, on the ground that the Central Board of Revenue was not justified to dismiss his appeal for the non‑deposit of the penalty imposed, upon him. This writ petition was accepted by a Bench of this Court by an order dated the 28th of December 1957. The Bench, of which one of us was a party, left the question open for the decision of the Central Board of Revenue in respect of the allegation of the petitioner that the impugned articles were neither found in his baggage nor were recovered from his person and were planted on him by the Customs Officers. The petitioner's contention that the Central Board of Revenue was not competent to dismiss his appeal because he failed to deposit the penalty imposed upon him was accepted. A writ of mandamus was issued to the Central Board of Revenue to hear the appeal of the‑petitioner on merits after giving notice to the parties. The Central Board of Revenue disposed of the appeal filed by the petitioner by an order dated the 10th of December 1959. The contention of the petitioner, both on questions of fact and legal objections, was repelled. Thereupon the petitioner filed this writ petition on the 16th of May 1960. In this writ petition the petitioner attacked the order of the Custom Authorities Inter alia on the grounds (1) that the Sea Customs Act does not apply to his case ; (2) even if it applies, what was alleged to have been recovered from the baggage of the petitioner being money is not covered by the word "goods"; (3) if at all any offence is committed, it would be one of false declaration punishable under the Foreign Exchange Regulations Act and not under the Sea Customs Act ; and (4) that the opponents' action is mala fide. These contentions were heard by a Bench of this Court consisting of one of us and Bashir Ahmed, J. on the 30th of November 1961. On hearing the counsel for the parties, the Bench was of the opinion that the question whether section 19 of the Sea Customs Act applied to travellers by air has been finally decided in the case of Lt. Col. Syed Naiyer Raza v. Pakistan (P L D 1958 Kar. 137), and by a decision of their Lordships of the Supreme Court in Fakir Muhammad Punjabi v. The Federation of Pakistan and 2 others (P L D 1958 S C (Pak.) 118). As regards the other objections of the petitioner, Mr. Sharifuddin's contention that what is alleged to have been recovered from the baggage of the petitioner being money, was not covered by the word "goods" was also prima facie not found to be a good contention. In support of his contention Mr. Sharifuddln cited the cases of Regina v. John Radley (169 E R 322) and Miller v. Race (97 E R 398). These cases were found to be distinguish able and the Bench expressed quite clearly to the petitioner's counsel that the contention raised by him under ground No. 2 was not well‑founded. The next contention of the petitioner's counsel that the offence, if at all, was committed under the Foreign Exchange Regulations Act prima facie was also not found to be correct. At this stage of the hearing of the writ petition Mr. Sharifuddin asked the Bench hearing the case at that time, to allow him to amend the petition in order to attack the order of the Collector of Customs dated the 31st of January 1956, on the ground that it was in violation of the principles of natural justice. After hearing the learned counsel for the parties, the petitioner was allowed to amend the petition to take this ground. Mr. Sharifuddin, the learned counsel: for the petitioner, has not pressed before us the other grounds urged by him at the earlier stage of the hearing of this writ petition. He, however, reserved his right to urge these points if necessary before the Supreme Court. Now, the only question for consideration in this writ petition is whether the impugned order of the Collector of Customs suffers from or infringes the principles of natural justice. It will be noticed that under the show‑cause notice dated the 17th of January 1956, the petitioner was only called upon to send his written explanation to the allegations made against him. At no stage the petitioner was afforded any personal hearing in the matter. Mr. Sharifuddin's contention the Collector of Customs based the impugned order on certain departmental reports and on consideration of the writ n statement filed on behalf of the petitioner, is fully supported by the document produced on the record. Mr. Sharifuddin's main grievance is that the petitioner was at no stage informed about the reports made against him. He referred us to para. 3 of the counter‑affidavit of Mr. Sadiq Hussain Mirza filed on behalf of the opponents. Its material portion is reproduced below:‑ "The allegations contained in para. 2 of the petition do not correctly disclose the facts. On his declaration form, the petitioner had declared Rs. 20 Pak. Currency and 3 stg. Bank of England Notes. His baggage was searched by Mr. Siddique and he found 30 U. S. Dollars and 4 stg. kept in an envelope in his brief case. This was in addition to what he had declared on the Declaration Form. The petitioner could not explain this illegality and the Searching Officer reported the matter to the Deputy Collector of Customs on telephone who ordered that a personal search of the petitioner be taken. The petitioner was taken to a room and I. P. S. Macquire was also present with the Searching Officer to witness the search. On a joint request by the said two officers, the petitioner first refused to produce anything voluntarily, but later produced Pa k. Rs. 500 and the U. S. Dollars 30 and .17 stg. in Bank of England Notes. The requests of the petitioner for an indulgence were rejected by the Officers who did not permit him to enter the seized currency on the Declaration Form. Later the petitioner was subjected to a personal search and nothing more was recovered from him. He was requested to make a statement, but he refused to make any. He even refused to accept the detention slip." The learned counsel urged that the facts disclosed in the affidavit were at no stage communicated to the petitioner and in the show‑cause notice he was only asked to meet the case that "subsequent search of his person, however, revealed that he had 60$ (U. S.), 21 sterling and Rs. 500 (Pakistani) which had not been declared to the Customs" and therefore the petitioner has been condemned on allegations which did not form part of the show‑cause notice. Mr. Sharifuddin further contended that in the face of such serious allegations, the Collector of Customs should have not only furnished full particulars to the petitioner of these allegations but afforded him a personal hearing and opportunity to cross‑examine those witnesses who submitted reports against him too. According to the learned counsel in the present case the impugned order of the Collector of Customs is based only on certain departmental instructions and an initial explanation of the petitioner and is liable to be quashed on the following observations of Rahman, J. in the case of the Federation of Pakistan and another v. Sardar All and others (P L D 1959 S C (Pak.) 25 at p. 30). "We feel not a little disturbed that prejudicial action could be taken by the Customs Officers in a matter touching valuable rights to property as well as the personal liberty of the subject, on the basis of a private enquiry in which the person concerned was not allowed to participate. It does not appear from the documents on record, although the allegation finds a place in the affidavit of one of the officers of the Department, that the Collector either conceded a right of audience or the right to establish their defence by evidence to the respondents. The Collector's order, on the contrary, appears to have been based on certain departmental reports and consideration of the initial written statement submitted on behalf of the respondents. In our opinion, the failure of the Collector to follow the correct procedure envisaged by the amended law, vitiated his order." There is not the slightest doubt in our mind that the impugned order offends the principles of natural justice. In the case before the Collector of Customs serious allegations were made against the petitioner and it was his duty to give him not only an opportunity of personal hearing but also to furnish him with the report of the officers made against him in order to provide an opportunity to cross‑examine them. Therefore the impugned order ordinarily was liable to be quashed. But Mr. Muzaffar Hassan, the learned counsel for the opponents, has urged before us that the petitioner has taken the objection of the illegality of the order on the ground that it infringes the principles of natural justice at a very late stage. Mr. Muzaffar Hassan took us through the case set up by the petitioner before the Central Board of Revenue in the appeal before them ‑and in Writ Petition No. 534 of 1956, to show that in none of these matters the petitioner attacked the impugned order on this ground. The learned counsel for the Department has urged before us that the discretion vested in this Court under its writ jurisdiction should not be exercised in favour of the petitioner on the following grounds: (1) that the principles of res judicata apply In this case and (2) that the objection under consideration suffers from laches. The objection of the learned counsel has received our anxious consideration. So far as his first submission that the general principles of res judicata come in the way of granting any relief to the petitioner, the learned counsel has relied on the case of Shamsul Hague Dastgirali v. The Assistant Custodian of Evacuee Property, Bhilsa (A I R 1958 Madhaya Pradesh 82) and Radha Shyam Datta and others v. Patna Municipal Corporation, Patna (A I R 1956 Pat. 182 at p. 186), but these cases are distinguish able. The general principles of res judicata can only apply it such cases where a party comes to the Court and his claim is not accepted but dismissed by a Court of law. If in such a case he e has failed to raise an important objection, there is not the slightest doubt that such a party will not be allowed to raise In any subsequent proceedings such objection. But in the present case the position is entirely different. Writ Petition No. 534 of 1956 was not dismissed but was accepted only on a legal ground and the objection on merits was left open for the determination of the appropriate authorities. Thus the matter was not decided in any proceedings by this Court on merits. In none of the cases relied upon by the opponents' counsel any general principle of resjudicata was applied because the objection about the illegality of the order on a particular ground was not raised before the departmental appellate authorities. In our opinion if the very structure on which the Appellate Tribunal's order is based is found to be vitiated, it is open to challenge in a Court of law. In matters in which principles of natural justice are involved, if the Court of law is satisfied that this grievance was sufficiently rectified before the Appellate Tribunal, it will not attach much importance to such objection. This, however, is not the position in the present case. In any case the general principles of resjudicata do not apply to departmental proceedings and the objection must fail. The second objection of the opponents' counsel that the ground under consideration suffers from laches has also not impressed us. It is quite correct that a writ of certiorari is not a writ of right but is a discretionary one. Ordinarily it is invoked in those cases where a quasi judicial authority has either acted in excess of jurisdiction or failed to observe the principles of law or the principle of natural justice. In the present case the petitioner cannot be held to be guilty of any negligence or laches. From the very beginning he is knocking the doors of Court of law for the redress of his grievances. His only default is that he did not attack the impugned order on the ground that it offends the principle of natural justice at an early stage of this writ petition. In our opinion the real objection involved is not that of laches but whether the petitioner should have been allowed to raise this new ground. Mr. Muzaffar Hassan has not been able to satisfy us that the permission to raise this new ground has in any way prejudiced the department or is likely to affect any valuable right that had accrued to them. The acceptance of the writ petition on this ground will only result in holding further enquiry in the matter and not cause any prejudice to them. On the other hand the whole of the service career of the petitioner is at stake. Mr. Sharifuddin has referred us to a notice issued by the Ministry of Economic Affairs dated 20th January 1956. which shows that departmental disciplinary proceedings are still pending against the petitioner. It is thus quite clear that the petitioner is likely to suffer irreparable lose if the ground urged by him is not entertained. In law a Court is empowered to allow a party to raise at any stage of the proceedings new grounds in support of his case to administer justice between the parties. In our opinion this is not one of those cases in which we should decline to exercise our discretion on this objection. On the view we have taken of the matter the impugned order clearly offends the principle of natural justice and is vitiated in law. Accordingly the impugned order is quashed. It will be open to the department to pass an appropriate order after notice to the petitioner and on affording him reasonable opportunity to cross‑examine the prosecution witnesses and to defend himself. In the result the petition is accepted but the parties are left to bear their own costs. K. B. A. Petition accepted.