P L D 1957 (W (PLP)

MUHAMMAD BAKHSH, J. (13th October 1956)-This is a petition for Writs of certiorari and mandamus against the orders passed by the Collector of Customs in respect of thirty three bars of gold, each bar weighing 100 tolas. The allegations in the petition can be stated as follows: By an agreement confirmed an 15th January 1955 petitioner No. 2 Muhammad Sharif, who is a partner of petitioner No. 1, acting on behalf of the partnership contracted to advance money to the tune of Rs. 3,00,000 to Messrs. Islam Commercial Corporation for the purchase of gold from Karachi Bullion Exchange. The advance was to be made to the extent of 70% against the delivery of gold and Islam Commercial Corporation were to pay to petitioner No. 1 annas eight per tola for the use of their money for a period of fifteen days. This gold was to be kept by petitioner No. 1 either with themselves or in their bank for safe custody. Petitioner No. 2, in accordance with this agreement, advanced a sum of Rs. 2,40,000 to Islam Commercial Corporation. The latter purchased gold weighing about 3300 tolas, being 33 bars, through the Karachi Bullion Exchange. It is alleged that these bars bore the seal of the Karachi Bullion Exchange: This gold was purchased under a forward contract and the delivery was due to be made on 17th January 1955. Before taking actual delivery, as a matter of precaution, the purchasers sent telegrams to the following five authorities on 15th January 1955 requesting them to inspect and satisfy them selves with regard to the nature of the transaction. These authorities were :- (1) The Collector of Customs. (2) The Assistant Collector of Customs (Preventive Section.) (3) The Inspector-General, Special Police. (4) The Central Board of Revenue. (5) The Anti-Smuggling Police, Karachi. The authorities not questioning the legality or propriety of this transaction, the delivery of gold was taken on 17th January 1955. On 1st February 1955, the Officer in Charge, Napier Police Station. Karachi seized five bars of gold out of thirty-three from petitioner No.

2. He directed the freezing of twenty-seven bars that were lying in deposit with the Eastern Bank Limited on the account of petitioner No.

1. The Police Officer also seized one gold bar on the same day from petitioner No. 3, who is a partner of Messrs. Islam Com mercial Corporation. It is alleged that petitioner No. 3 had taken this bar of gold from the Eastern Bank for delivery to a buyer in accordance with the usual course of trade. The crime was registered by the Police and investigation was carried on. The gold was sent to the Government Mint at Lahore for analysis, and the report of the Chief Assayer of the Mint says that the seized gold was of the highest fineness which it was impossible to achieve in Pakistan. In connection with this investigation the police arrested two people, namely, Dawood Mithai and Afzal Ameen and produced them in the Court of Special Judge. After obtaining some adjournments the police ultimately decided not to challan the case and they handed over the gold to the Customs Authorities for dealing with it in accordance with law. The Collector of Customs then proceeded further in the matter. He collected evidence and called upon the petitioner to produce documentary evidence to the effect that the gold was lawfully imported and ultimately he passed three orders where by he confiscated all the thirty three bars of gold. Further, he imposed a penalty of Rs. 50,000 on petitioner No. 1 and a personal penalty of rupees one lakh on petitioner No.

2. He imposed a penalty of Rs. 7,000 on petitioner No. 3, and in connection with the five bars of gold which were secured from petitioner No. 2, he imposed a personal penalty of Rs, 30,000 on him. Then the petitioners went in appeal but as they did not deposit the penalty as required by law, their appeals were dismissed. Thereafter they filed this petition challenging the action of the Collector of Customs on various grounds which I shall discuss hereafter. On behalf of the respondents a counter-affidavit of the Intelligence Officer, Pakistan Customs, has been filed wherein it has been alleged that the action-of the Collector of Customs is perfectly in accordance with law and justice, that the Writ Petition does not lie and this Court has no jurisdiction. I would now take up the question of jurisdiction which was argued first by the learned Advocate for the petitioner. In this connection it is necessary to reproduce sections 188 and 191 of the Sea Customs Act. Section 188 reads as follows :- "Any person deeming himself aggrieved by any decision or order passed by an officer of Customs under this Act may, within three months from the date of such decision or order, appeal therefrom to the Chief Customs-authority, or, in such cases as the Central Government directs, to any officer of Customs not inferior in rank to a Customs -Collector and empowered in that behalf by name or in virtue of his office by the Central Government. Such authority or officer may thereupon make such further inquiry and pass such order as he thinks fit, con firming, altering or' annulling the decision or order appealed against ; Provided that no such order in appeal shall have the effect of subjecting any person to any greater confiscation, penalty or rate of duty than has been adjudged against him in the original decision or order. Every order passed in appeal under this section shall, subject to the power of revision conferred by section 191. be final. Section 191 reads as follows :- "The Central Government may, on the application of any person aggrieved by any decision or order passed under this Act by any officer of Customs or Chief Customs-authority and from which no appeal lies, reverse or modify such decision or order." Mr. Brohi has referred to several rulings to show that although there is a provision for appeal and revision from the orders of the Collector of Customs as provided under the Sea Customs Act, still as there s an error of law as apparent on the face of the record this Court will have jurisdiction to interfere under Article 170 of the Constitution. The error of law is said to be the wrong interpretation by the Collector of Customs of Article 81 of section 167 read with section 177A of the Sea Customs Act. That I shall discuss in some detail hereafter. Several authorities have also been quoted by the learned Attorney-General to show that when there is a provision for appeal and revision provided by the Sea Customs Act itself, the petitioner cannot challenge this order by way of a Writ Petition. Mr. Brohi laid considerable reliance on the ruling in Astt. Collector of Customs v. Soorajmul (A I R 1952 Cal. 656) which was a judgment in appeal from the order of a single Judge reported in the same volume at p. 103, but the facts of that case were entirely differ ent as I will show later on and besides this was over-ruled in the case of W. Saldanna, the Collector of Central Excise, Delhi v. S. Amarjit Singh (A I R 1954 Pb. 73), which was a case also under the Sea Customs Act, where it was held that a person aggrieved by an order of confiscation passed under the Sea Customs Act read with the Import and Export (Control) Act has to follow the specific and efficacious remedy provided by the Sea Customs Act, viz., the remedy of appeal and revision provided under sections 188 to 191 of that Act and the High Court will not interfere by way of a writ of certiorari if the petitioner has not resorted to those remedies. It was also held that an appeal under the Sea Customs Act which has been laid down by the statute itself should not be by-passed merely on the ground that it is an appeal from one administrative tribunal to another, because that is the policy of the law and an appli cation for a writ is no substitute for these appeals and cannot be made a ground for by-passing them. If the law has laid down a particular procedure for redress of grievances, another remedy would not be available. In this ruling several cases of various Courts have been referred to and discussed fully. It cannot be denied that the Customs Collector had full jurisdiction to deal with this matter in exercise of the powers conferred upon him by the Sea Customs Act. Since he has the jurisdiction he could decide rightly as well as wrongly. This Court is not a Court of appeal. In an important case in New Goal Cloth Market Union Lyallpur v. Municipal Committee Lyallpur (P L D 1955 Lah. 149: P L R (1955) Lah.166) their Lordships clearly laid down a dictum that where there is a specific legal remedy equally convenient and efficacious, writ does not lie unless there is absence or excess of jurisdiction or contravention of some statute or the principles of common law. Writ does not lie to correct the course, practice or procedure of an inferior tribunal or a wrong decision on the merits of the case. It is said that the petitioner has to deposit the amount of penalty at the time of filing the appeal and therefore the remedy is not as convenient as the writ petition. If this argument were accepted, then all the Income Tax and Sales Tax matters will be agitated under the writ jurisdiction and no appeals will be filed under these Acts. The fallacy of this argument is too clear. There are several other rulings also to the effect that the provisions of appeal and revision in the Sea Customs Act cannot be by-passed by a writ petition. Some of those cases are Walchandnagar Industries Ltd. v. State of Bombay (A I R 1953 Bom. 195) ; Veerappa v. Raman and Raman Ltd. (A I R 1954 All. 753); Muhammad Karar Ali v. State of U. P. (A I R 1952 S C 192) and so on. Applying the test laid down in all these cases to the present matter, there can be no doubt that Article 170 of the Constitution was not intended to supplant all the existing laws. I find under section 188, Sea Customs Act, the appellate authority can order further inquiry and can pass such order as it thinks fit, confirming, altering or annulling a decision. Under section 191 again, there is the power of revision. The petitioners actually filed an appeal but their appeal was dismissed on the ground that the condition prece dent to the filing of the appeal viz., the deposit of penalty was not complied with. Now the petitioners want to have all the rights of appeal before us without depositing the penalty. This, in my opinion, is clearly by-passing the provisions of -the existing law. We have to see if the petitioners have succeeded in showing that any ground for the exercise of this extraordinary jurisdiction exists. For that we shall have to see the facts and circumstances as described hereafter. The petitioners have made a great grievance of the fact that although they sent telegrams in advance to the various authorities concerned, yet they did not take any action on those telegrams and subsequently after the delivery was taken the gold was seized in a very high-handed manner. When, however, we look into the facts as they are we find the dishonesty of the petitioners quite obvious. These telegrams, of which so much is being made, are very significant, and they were sent with a deliberate design. The name of the sender of the telegram is kept in the dark. It is all an anonymous affair. This telegram reads as follows :- "We buyers of forward Bullion hereby inform you that we wish to take delivery of gold against our forward purchase delivery due 17th instant and please note we will take from Bullion Ex-Members delivery of gold tested and passed by Karachi Bullion Exchange and we intend re-sale same gold and deliver against future sales. Please inspect and satisfy yourselves regarding origin or other matter of genuinely avoiding any unnecessary future difficulty to ourselves in our release and delivery. Buyer of Gold." Apart from the fact that the name of the sender was kept anonymous there are several other suspicious circumstances. This was not an express telegram ; it was an ordinary one. It was sent out on the 15th of January 1955, which was a Saturday, at 6 p.m. after the office hours. Next day being Sunday the office remained closed and the telegram was received by the authorities on 17th January 1955, after the delivery had actually taken place. The Inspector-General of Anti-Smuggling Police actually noted on the telegram as follows :- "Received too late. However inquire." When the police went to the Bullion Exchange the delivery had already been taken and the names of the parties could not be ascertained. The manner in which these tele grams were sent clearly shows that the petitioners' hands are absolutely unclean. Since they have not come to the Court with clean hands, they are not entitled to any writ. It was stated in the petition and also it was argued by Mr. Brohi that the gold bars bore the seal of the Karachi Bullion Exchange which was a body recognised by the Government. The Karachi Bullion Exchange, however, is an ordinary limited liability Company and is being controlled by private people who, as I gather from the circumstances of this case, are helping a lot in the smuggling of gold. The report of the Assayer of the' Lahore Mint clearly proves that the Karachi Bullion Exchange had obliged the petitioners by putting their seals on them. The Lahore Mint came to the conclusion that the seized gold was of the highest fineness which could not be achieved in Pakistan. It was clearly foreign gold. Generally gold bullion from foreign countries is received here in bars of ten tolas ; they never get it in bars of hundred tolas. We were actually shown a bar of ten tolas of foreign gold. The fineness of the gold as certified by the seals of the Karachi Bullion Exchange was found by the Mint to be wrong. But the main question here is, as to who is to determine the quality and character of this gold. Is it the Customs authority or this Court ? I think the answer is plain and there can be no doubt that it is the Customs Collector alone who can decide that question of fact. This is not a Court of appeal and all these points which are being argued here could have easily been argued in appeal under section 188 of the Sea Customs Act. The main question however, in this case pertains to the interpretation of Articles 8 and 81 of section 167 and section 177A of the Sea Customs Act. On 18th December 1954 Ordinance III of 1954 was promulgated by the Governor-General and by this Ordinance new Article 81 was added to section 167 and section 177A was also newly inserted. It is necessary to reproduce Article 81 and section 177A here. Article 81 reads as follows :- "

81. If any person is found in possession of or carrying, removing depositing, harbouring keeping, concealing or in any other manner dealing with, any goods chargeable with a duty which has not been paid or the importation or exportation whereof is for the time being prohibited or restricted by or under Chap ter IV of this Act. Such goods shall be liable to confiscation ; and the person concerned in any such offence shall be liable to a penalty not exceeding five times the value of the goods, or on conviction before a Court to imprisonment for any term of less than three years, or to fine, or to both." Section 177A reads as follows :- "177A. Where in any proceedings under the provisions of this Act any question arises in respect of any goods as to whether, (a) duty has been paid or secured in respect of any goods ; (b) any goods have been lawfully imported or lawfully unloaded from any vessel ; (c) any'goods have been lawfully loaded into any vessel or lawfully exported or lawfully water borne ; (d) any goods were lawfully brought into any place for the purpose of being loaded into any vessel or exported ; then the burden of proof shall lie upon the person in whose possession the goods were found or from whose premises the goods were recovered or the person claiming the ownership of the goods." It is also necessary to reproduce Article 8 of the Sea Customs Act which was originally there before the passing of the Ordinance of 1954. It reads as follows :- Offences Section of the Act Penalties to which offence has reference

8. If any goods, the importation, or exportation of which is for the time being prohibited or restricted by or under Chapter IV of this Act, be imported into or exported from the Provinces and the Capital of the Federation contrary to such prohibition or restriction ; or 18 and

19. Such goods shall be liable to confiscation ; and any person concern ed in any such offence shall be liable to a penal ty not exceeding five times the value of the goods or, on conviction before a Court, to imprisonment for any term not exceeding seven years, or to fine, or to both." Now under section 8 (1) and (3) of the Foreign Exchange Regulation Act, 1947 the Central Government have from time to time been prohibiting the import of gold into this country without a licence. First of all the Government issued a notification in this behalf on 14th September 1939. A second notification was issued on 1st March 1941, superseding the first notification and improving upon' it. A third noti fication amending the last one was published on 14th August 1943. There was still a fourth notification dated 25th March 1947. The last one was issued on 1st January 1948 and it is with that, that we are concerned now. This notification reads as follows :- "GOVERNMENT OF PAKISTAN MINISTRY OF FINANCE, NOTIFICATION Karachi, the 1st July 1948. No. 1(2)-ECS/48,-In exercise of the powers conferred by subsection (1) of section 8 of the Foreign Exchange Regulation Act (VII of 1947) and in supersession of the notification of Government of India in the Finance Depart ment No: 12 (II)-FI/47, dated the 25th March 1947, the Central Government is pleased to direct that except with the general or special permission of the State Bank of Pakistan, no person shall bring or send into the Provinces of Pakistan from any place outside Pakistan. (a) any gold coin, gold bullion, gold sheets or gold ingot whether refined or not ; (b) any silver, bullion, any silver sheets or plates which have undergone no process of manufacture subsequent to rolling, of any uncurrent silver coin." Now let us see what the position of law actually is with regard to these bars of gold that have been secured from the possession of the petitioners. Let us first take it for granted that these bars of gold were found from the possession of the petitioners in the year 1953 when sections 167 (81) and 177A were not on the statute book. Then the case was covered only by section 167 (8). Under Article 8 the petitioners were undoubtedly in possession of gold bullion the import of which was prohibited after 1st July 1948, but the burden lay on the Customs to prove that this gold bullion had been im ported contrary to the prohibition. Now let us see what the position of law is after the promulgation of Ordinance III of 1954. The position has clearly changed completely. Now let us see what the effect of this Ordinance is at the time when these gold bars were secured from the possession of petitioners in 1955. Article 81 says that if any person is found in possession of goods the import whereof is prohibited, he is to get the punishment provided thereunder. The burden on the Customs lies only to prove that the person concerned was in possession of goods the import whereof was prohibited. The Customs had not to prove, as they had to do under Article 8, that this Bullion was imported after the ban. It must be remembered that the gold bars which were found from the possession of the petitioners have no stamp whatsoever on them to indicate either their origin or the date when they come into this country. These thirty three bars of gold are gold bullion as described in the notification dated 1st January 1948. When the Police or the Customs secured these bars from the posses sion of the petitioners it was clear that the petitioners were found in possession of goods the import whereof was prohibi ted. Immediately there arose a proceeding in which the question was whether this gold bullion was lawfully imported into the country. Under section 177-A the burden of; proof lay on the petitioners to prove the lawful import of this gold. A bare look at Articles 8 and 81 shows a clear difference between the two. Ordinance III of 1954 was apparently promulgated by the Governor-General because under section 167 (8) it had become difficult for the Customs authorities to produce direct evidence on the point that the seized goods had been imported contrary to the ban. In an illustration under section 106, Evidence Act, it has been said that if a person is found travelling on a railway without a ticket, the burden lies on him to prove that he had the ticket. That was a fact within the special knowledge of the person. This section was introduced in the Evidence Act apparently because it will be extremely difficult if not impossible for the railway to prove that the man had not purchased a ticket. The fact that he had no ticket with himself was considered enough to throw the burden on him to prove that he was travelling lawfully. This difficulty under section 167 (8) gave rise to smuggling on a very large scale and that affected the economy of the State detrimentally. The Governor-General therefore considered it necessary to promulgate Ordinance III of 1954, with a view to remove that difficulty and to put down smuggling. The provisions of this Ordinance may be harsh but that relates to the policy of law for which the parties have to approach the Legislature. Subsequently, after the promulgation of this Ordinance, when smuggling was put down these provisions were amended to a great extent, but with that aspect of the case we are not concerned here because our present case is covered by the Ordinance. It was argued that if this view of law were taken then no body would be safe in this country. The Customs could lay their hands on anybody having gold in his possession and applying this test of law could confiscate it etc. I do not think there need be entertained any apprehension on that score. Jewellery or ornaments have not been prohibited. It is the gold coin, the bullion, the sheets and ingots which have been prohibited and every man does not ordinarily possess these things. If, however, anybody secured these things be had to take good care about himself and had to make sure that it was not smuggled gold. References were made to several authorities with regard to the burden of proof, but I think Article 81 read with section 177-A leaves no manner of doubt with regard to the interpretation thereof. If this interpretation were not adopted and if the arguments were accepted that in spite of section 167 (81) read with section 177A the burden lies on the Customs to prove that the gold bars which were seized from the petitioners were imported after the ban, it would be tantamount to ignoring the Ordinance III of 1954 altogether, which is not permissible. The Collector of Customs instead of contravening this provision of law has, in my opinion, fully complied with it. The question, in my opinion, is a very simple one and need no further comment. If the error of law had been apparent on the face of the record, it would not have been necessary for the learned advocates to take the trouble of arguing the point for "a number of days. Having disposed of this objection; there really remains nothing more to say. A grievance was made by the learned Advocate for the petitioners that by the show-cause notice the petitioners were asked to produce only documentary evidence to indicate that the seized gold had been lawfully imported into the country. I think, however, the objection is a superfluous one. There was nothing to bar these people from producing any oral evidence though in a case of this kind it is clear that the best evidence would be documentary evidence relating to the general or special permit of the State Bank of Pakistan. Apart from this, the petitioners could urge this matter in appeal. It was also argued that the report of the Chief Assayer of the Lahore Mint was not disclosed to the petitioners. When the learned Attorney General produced the record of the Customs before us we found there was a long order of the Customs Collector giving all the facts and discussing the whole case thread-bare. Mr. Brohi complained that this was also a surprise to him. It was contended that the principles of natural justice had thereby been violated. Reliance was placed by the learned Advocate Mr. Brohi on the rulings Soorajmull v. Assistant Collector of Customs (A I R 1952 Cal. 103). and Assistant Collector of Customs v. Surrajmal (A I R 1952 Cal. 656) It was held that the Collector of Customs was acting in a quasi-judicial capacity and must therefore observe the rules of natural justice and should give the party proceeded against a fair opportunity of being heard. The facts of this case are entirely different from the present case. . In that case the test report said one thing and the Customs Collector said the reverse of it. In that case the petitioner had been repeatedly asking for a copy of the test report and it was not given to him. The conduct of the Customs Authority in that case was grossly unjust. There fore what was said in that case cannot apply to our present case although this ruling has been over-ruled in Maqbool Hussain v. State of Bombay (A I R 1953 S C 325) and also in W. Saldanna the Collector of Customs, Delhi v. Amarjit Singh (A I R 1954 Pb. 73). The Supreme Court have clearly held that the Sea Customs Authorities are not a judicial tribunal and the adjudging of confiscation, in creased rate of duty or penalty under the provisions of the Sea Customs Act do not constitute a judgment or order of a Court. The following passage appearing in the judgment at page 330 will be found instructive :- "There is no procedure prescribed to be followed by the Customs Officer in the matter of such adjudication and the proceedings before the Customs Officers are not assimilated in any manner whatever to proceedings in Courts of Law according to the provisions of the Civil or the Criminal Pro cedure Code. The Customs Officers are not required to act judicially on legal evidence tendered on oath and they are not authorised to administer oath to any witness. The appeals if any, lie before the Chief Customs Authority which is the Central Board of Revenue and the power of revision is given to the Central Government which certainly is not a judicial authority . . . The process of recovery can be issued only by the Magistrate and not by the Customs authority, All these provisions go to show that far from being authorities bound by any rules of evidence or procedure established by law and invested with power to enforce their own judgments or orders the, Sea Customs Authorities are merely constituted administrative machinery for the purpose of adjudging confiscation, increased rates of duty and penalty prescribed in the Act . . . . We are of the opinion that the Sea Customs Authorities are not a judicial tribunal and the adjudging of confiscation increased rate of duty or penalty under the provisions of the Sea Customs Act do not constitute a judgment or order of a Court or judicial tribunal necessary for the purpose of supporting a plea of double jeopardy." In A I R (1954) Pb. 73, the same view was taken. This is a very important ruling. In Arlidge's case (1915AC120), it was laid down that if the judiciary presumes to impose its own methods on administrative or executive officers, it is a usurpation. In the case of Board of Education v. Rice (1911 AC179), Lord Loreburn L. C. made important observations in this con nection and these observations have been reproduced in several cases decided thereafter. Relevant passage from his address is cited below :- "In the present instance, as in many others, what comes for determination is sometimes a matter to be settled by discretion, involving no law. It will, I suppose, usually be of an administrative kind ; but sometimes it will involve matter of law as well matter of fact, or even depend upon matter of law alone. In such cases the Board of Education will have to ascertain the law and also to ascertain the facts. I need not add that in doing either they must act in good faith and fairly listen to both sides, for that is a duty lying upon every one who decides anything. But 3 do not think they are bound to treat such a question as though it were a trial. They have no power to administer an oath, and need not examine witnesses. They can obtain infor mation in any way they think best, always giving a fair opportunity to those who are parties in the controversy for correcting or contradicting any relevant statement prejudicial to their view. Provided this is done, there is no appeal from the determination of the Board under section 7, subsection 3m of this Act. The Board have, of course, no jurisdiction to decide abstract questions of law, but only to determine actual concrete differences that may arise, and as they arise, between the managers and the local education authority. The Board is in the nature of the arbitral tribunal; and a Court` of law has no jurisdiction to hear appeals from the determination either upon law or upon fact. But if the Court is satisfied either that the Board have not acted judicially in the way I have described, or have not determined the question which they are required by the Act to determine, then there is a remedy by mandamus and certiorari. The complaint that the principles of natural justice have been violated in this case is, in my opinion, clearly frivolous. The conduct of the petitioners themselves speaks most eloquently against them. They were sending anonymous telegrams in a very dubious manner but they did not take the trouble of personally approaching the Customs Authority or the Police requesting them to come and see the gold. After all, the deal involved a huge amount of Rs. 3,30,000 and the petitioners could easily go to the Collector of Customs or the Police and request them for the services of some officer for the purpose of inspecting the gold and satisfying themselves. They did not do that but on the contrary they completed the deal long before the Police could reach the place. "Natural justice" has been clearly defined in the English ruling in Metriot v. Minister of Health((1936) 154 L T 47). It says "nothing should be done which could offend against that instinct which every citizen possesses, to offend against which is said to be doing something which is contrary to natural justice". In this case the police first of all carried on the investigation ; they did everything in their power to arrive at the truth ; the gold was sent to the Lahore Mint and the opinion of the Assayer was obtained. It is impossible for me to believe that the petitioners never knew anything about the gold being sent to the Mint. Apart from that, there is no provision in the Sea Customs Act requiring the Customs authorities to disclose all their docu ments to the petitioners. It was an administrative or an executive body and they were not to be guided by the Code of K Civil Procedure. The conduct of the Customs Collector in this case was clearly in accordance with the principles of justice and I do not find any case for interference. Lastly, the learned Advocate for the petitioners laid much stress on section 182 of the Sea Customs Act and he argued to show that this section read with the punishments prescribed under Articles 8 and 81 of section 167 does not give the jurisdiction to the Collector of Customs to deal with this case. I cannot accept this contention. The Customs Authority had full jurisdiction in the matter and if the argument of the learned Advocate were accepted ix will again be argued before the Magistrate that the Court had no jurisdiction. In view of all these reasons, I do not find any absence of jurisdiction, any excess of it, any contravention of statutory provisions or principles of natural justice and I am also unable to see any error of law apparent on the face of the record. I am clearly of the opinion that the proper remedy for the petitioners was to prosecute their appeal or go further in revision if necessary. No case being made out for interference in our writ jurisdiction, I would dismiss this petition and direct the petitioners to bear the costs of the respondents. MUNSHI, J.

(30th October, 1954)-I regret to find myself unable to agree with the order proposed by my brother. The main points for determination in this petition are (1) Whether there is an error of law apparent on the face of the record which vitiates the order of the Customs Collector. (2) Whether principles of natural justice have been violated. The impugned order reads as under: "On 31st March 1955, 27 bars of gold weighing approxi mately 2700 tolas and valued -at about Rs. 1,89.000 were seized by the Anti-Smuggling Police from Messrs. Eastern Bank Ltd., on account of Messrs. S. A. Haroon, Karachi. The import of gold into the country is restricted except under a licence issued by the State Bank of Pakistan. No such licence was produced. (2) Messrs. S. A. Haroon Karachi have failed to prove under section 177 (A) of the Sea Customs Act that the gold in question was lawfully imported into the country in contravention of the Government of Pakistan, Ministry of Finance's Notification No. 1(2)ECS/48 dated 1st July 1948 issued under section 8 (1) of the Foreign Exchange Regulation Act, read with section 19 of the Sea Customs Act, and also with the object to defraud the Govern ment of Customs Duty and Sales-tax leviable thereon. (3) The offence committed by Messrs. S. A. Haroon attracts the provisions of sections '(67 (8) (81) of the Sea Customs Act under which the gold is liable to con fiscation. It is therefore confiscated. The owner is, however, given an option under section 183 ibid to pay in lieu of confiscation a fine of Rs. 1,89,

000. This option shall lapse if not exercised within four months from the date of despatch of this order. If the fine is paid within the time limit specified the gold may be released on payment of Customs Duty. Sales Tax and other charges if any. (4) Since I am satisfied that Mr. S. A. Haroon in association with Mr. Muhammad Sharif have by their action of possessing and dealing in smuggled gold facilitated the smuggling of gold into the country. I also impose under section 167 (8) (81) of the Sea Customs Act a personal penalty of Rs. 50 000 on Mr. S. A. Haroon and a personal penalty of Rs. 1,00,000 on Mr. Muhammad Sharif. (Sd.) S. S. Raza., Collector of Customs It will be clear from the perusal of the order that it is entirely based on the petitioners' failure to establish that the gold in question was lawfully imported. For this, reliance has been placed on section 177A of the Sea Customs Act. This section as well as section 167 (81) were introduced into the Act by Ordinance III of 1954 promulgated on 18th December 1954. Prior to the introduction of section 177-A, burden lay on the Customs authorities to prove that the gold was unlawfully imported. But now, they seem to think that they have been relieved of the entire burden and that all that they have now to do is to seize goods, and then call upon the person found in possession of the goods, to establish that they had not been imported after the ban imposed upon it by the Government, or if imported the importation was done under a licence issued by the State Bank of Pakistan. If we accept this view we will have to hold that Customs authorities have not to establish any ingredient of the offence under section 167 (81) of the Sea Customs Act, which, in my opinion, is not the case. The construction put upon section 177-A by the Customs authorities, is obviously grossly erroneous. They seem to read something in the new sections, which is not there. The relevant part of the new section 167 (81) reads as under :- "If any person is found in possession of, or carrying, removing, depositing, harbouring, keeping, concealing or in any other manner dealing with any goods chargeable with a duty which has not been paid or the importation or exportation whereof is for the time being prohibited or restricted by or under Chapter IV of this Act. Such goods shall be liable to confiscation and the person concerned in any such offence shall be liable to a penalty not exceeding five times the value of the goods, or on conviction before a Court, to imprison ment for any term of less than three years, or to fine, or to both." The ingredient of the offence to be established under section 167 (81), according to me, are (1) That the persons proceeded against was found in possession of goods charge able with duty and (2) That the duty has not been paid, or (1) that the person proceeded against was found-in possession of goods the importation of which good was restricted, (2) that the goods have been imported, (3) that they have been imported contrary to the restriction imposed under Chapter IV of the Act. The restriction, relied upon by the Customs authorities, was imposed by a notification, issued by the Government in July 1948, by which, import or export of gold was restricted except under a licence issued by the State Bank of Pakistan section 167 (81) thus punishes two kinds of possession (1) possession of goods chargeable with duty when the latter has not been paid (2) possession of goods imported after the notification of July 1948, without a licence issued by the State Bank of Pakistan. The learned Attorney General at first based his case upon both kinds of possession, but when his attention was drawn to the order impugned, where there is no mention of failure to pay duty, he gave up his stand on the first kind of possession, and based his case entirely on the second, which he remarked was good for his case. Therefore confining ourselves to the latter part of the section which deals with the second kind of possession, it means no more and no less than that before calling upon the person in possession of the gold in question, to prove that it had been lawfully imported, it will be the duty of the Customs authorities to prove that it was imported after 1948 when the ban was imposed. Bereft of the expressions which are not relevant for the purpose of this case, the left hand side of section 167 (81) would read as under: 'If any person is found in possession of any goods the importation whereof is for the time being prohibited or restricted by or under Chapter IV of this Act.' Read as it is, it does not say that every person who is found in possession of any gold imported at any time, whether before or after the restriction of 1948, will be punishable. The plain meaning of this part of the section is that if any person is found in possession of gold which has been imported after the ban of 1948, he will be awarded punishment mentioned in the section. Obviously the man would not be liable for possessing gold which had been imported before the ban. It is therefore clear that it was the Customs department which had to prove that the gold that was found in possession of the petitioner had been imported after the ban of 1948. It is only after this is proved, the burden will shift on to the petitioner to prove that it had been lawfully imported, and in case of their failure to do so, they would be liable to the prescribed punishment. Here, what the Customs Collector- has done is to call upon the petitioner to prove that the importation of gold has been lawful, without there being any evidence to show that it had been imported after the ban. When asked, whether the Customs authorities have established that the gold has been imported after the ban, the learned Attorney General replied that it would be difficult for the Customs authorities to establish that the gold was imported after the ban. When told that difficulty of procuring evidence does not obviate the necessity of it, he turned round and said the question of difficulty did not arise, as according to him, section 167 (81) refers to gold in general and not the gold in question. I confess, I find it impossible to subscribe to this view. The petitioners cannot possibly be held responsible for all the gold that is available in Karachi. The argument that it would not be possible for the Customs authorities to prove that the gold in question had been imported after 1948, does not in any way improve the case of the Customs authorities. It it is not possible for them, with all the paraphernalia, the other side can legitimately say, how would it be possible for them to do so, particularly when their case is that the gold represents local transaction. At one stage of the hearing, it was argued that in view of the large quantity of gold, inference should be drawn against the petitioners, namely that they have unlawfully imported it, and that in that case the question of burden of proof would not arise. In my opinion there is no warrant for such a course. In the first place, by doing so, we will be converting ourselves into a Court of appeal, and in the second place it will lead to absurd results, for, if quantity would be the criterion, persons smuggling on a small scale will get off, while persons who possess a substantial quantity of gold will' get into trouble although it was not unlawfully imported. It was next contended by the learned Attorney General that the Customs department having discharged the burden of proof by establishing through the Assayer's report that the gold in question was foreign gold, it was for the petitioners to 'establish that it was lawfully imported. I will shortly deal with the desirability or otherwise of referring to the Assayer's report, when I take up the second point. For the purpose of this point it is sufficient to say that even if the Assayer's report is acted upon, all that it proves is that the gold has been imported. The crucial point namely that the gold was imported after 1948, is not established by this report. In fact the stamps of the Karachi- Bullion Exchange on bullion in question, would go counter to the Assayer's report. To say that this stamp was put on the bullion as a result of a conspiracy between the petitioner and the managemant of the Karachi Bullion Exchange will be deciding the matter on facts which this Court has no jurisdiction to do. The other side can as well say that they themselves have been misled by the stamp. All this will amount to deciding a point on no evidence. Prior to the introduction of section 177-A, the burden of proof of all the ingredients was on the Customs authorities, but now, as the section reads, they have been relieved of the same to some extent. The extent to which they have been relieved is, that now the burden of proof that the goods proved to have been imported after the Notification of July 1948, have been lawfully imported, has been shifted on to the person in whose possession the goods are found. It seems to me that this is the only change in the burden of proof which section 177-A has effected. The other ingredients of the offence have still to be established by the Customs authorities, viz., that the goods were found in his possession, that they have been imported after 1948, and that the importation of these goods was restricted. This is what section 177-A says: "Where in any proceedings under the provisions of this Act any question arises in respect of any goods as to whether- (a) duty has been paid or secured in respect of any goods ; (b) any goods have been lawfully imported or lawfully unloaded from any vessel ; (c) any goods have been lawfully loaded into any vessel or lawfully exported or lawfully waterborne ; (d) any goods were lawfully brought into any place for the purpose of being loaded into any vessel or exported ; , Then the burden of proof shall lie upon the person in whose possession the goods were found or from whose premises the goods were recovered or the person claiming the ownership of the goods." The Customs Collector, as his order shows, has completely misconstrued the section. He has thrown the burden on the petitioners of proving that the gold found in their possession did not suffer from the restriction imposed upon its importation under Notification No. 1(2) ECS/48, dated the 1st July 1948, issued under section 8 (1) of the Foreign Exchange Regulation Act read with section 19 of the Sea Customs Act. Under this Notification, import of gold was restricted except under a licence issued by the State Bank of Pakistan. This restriction was imposed as the notification shows, in July 1948. The question will be what about the gold imported prior to July 1948. It cannot be denied that gold was in circulation before the date of the Notification. Thus a line has to be drawn between the gold imported before 1948 and that imported after 1948. Now, who has to prove that the gold found in possession of the petitioners was imported after 1948. There can be, in my opinion, only one answer and that is that it will be the Customs authorities who have to prove it. The words of section 167 (81) are so clear and unambiguous that they need too interpretation. The word 'whereof' used in the latter part of section 167 (81) makes the position clear if any clarification was necessary. Section 177-A nowhere absolves that Customs authorities of their duty to prove that the gold in question has been imported in spite of the ban of the Notification of 1948. Thus the Collector has saddled the petitioner with burden of proving a point, which according to law, his department had to prove. He has thus committed an error of law. The apparency of the error is patent on the face of the order which speaks for itself, and needs no investigation for its discovery. That the error is material can admit of no doubt. The entire order is based on this erroneous construction which has been put on section 177-A. The petitioners have been penalised for their failure to prove what the law did not require' them to prove. It is said that in view of the prevelance of smuggling on a large scale in the country, the legislature when introducing section 177-A, intended that the person ,found in 'possession ,of restricted goods, must establish that they had not been imported after the ban. I have already said that I find it impossible to subscribe to this view. Rules of interpretation do not permit Courts to go into the question of intention of the legislature when the enactment itself is clear and unambiguous and leaves no scope for interpretation. It must also be remembered that this Ordinance No. III of 1954 which introduced section 177-A into the Sea Customs Act, was repealed within about a year of its promulgation, and a new Act was passed in April 1956. According to me, the repeal of the Ordinance became necessary not because the situation had eased, as the learned Attorney General put it, but because of the erroneous construction that was being put upon the two sections. The learned Attorney General referred to no document or any other evidence to indicate that the smugglers have in any - way relaxed their activities. In fact there appears no sign of relaxation what soever. To me, it therefore appears clear that the order of the Customs Collector is vitiated by an error of law which is apparent on the face of the record, and hence, it must be quashed. There is ample authority for the proposition that' when there is an error of law apparent on the face of the record, writ of certiorari should issue. R. v. Northumberland Compensation Appeal Tribunal Exparte Shaw (1952 1 A E R 122), Mohsin Siddiqui v. Chief Judge, Karachi Small Causes Court (P L D 1956 Kar. 203), Hari Vishnu v. Ahmad Ishaque (A I R 1955 S C 233 : P L D 1956 S C (Ind.) I) are some of the leading authorities on this point. I will now take up the second point, namely that the principles of natural justice have been violated in that the Customs Collector has placed reliance of the Assayer's report for holding that the gold had been imported. The grievance of Mr. Brohi is that at no time during the pendency of the case before the Customs Collector, were his clients informed of the existence of this report much less of its contents and that it was for the first time in this Court that they came to know of it, when its mention was made in the counter-affidavit. His case therefore is that principles of natural justice have been violated in that vital decision has been taken against his clients on the basis of a document of which no notice was given to them in my opinion there is considerable force in this contention. It would appear that even the show-cause notice which, although was issued long after the seizure, and presumably after the investigation was over, made no reference whatsoever to this document, which, as I could see from the way it was being referred to by the learned Attorney General during the course of arguments was a trump card in the hands of the Customs authorities. Even the order of the Customs Collector communicated to the petitioners, snakes no reference to this report. The learned Advocate General stated that apart froth the order communicated to the petitioners, there was another order on the file before him which contained detailed reasons for the conclusion arrived at by the Customs Collector, and that there is a reference to the Assayer's report in that order. This was another surprise for Mr. Brohi, for till then he was only aware of the order that was communicated to him, and against which he has filed this petition. This order against which the petition is filed, contains the nature of the allegation, the conclusion arrived at by the Customs Collector, the reasons for the conclusion, and finally the punishment for the offence. So, for all practical purposes, the order, though laconic is a complete order. To my mind, to decide a case and the evidence of which no notice is given to the persons proceed ed against, would amount to doing an act in disregard of the principles of natural justice as the person has been denied his natural right to explain and controvert what is said against him, and what is treated as a proof of his guilt. It is true that the Assayer's report cannot be said to have done serious damage to the case of the petitioners, for, as said above, all that the report proves is that the gold has been imported and no more. It is not claimed that this report proves that the gold was imported after 1948. But, if the interpretation put upon the new sections by my brother, holds good, the damage would no doubt be serious. It however, seems to me clear that a writ of certiorari would lie in a case where documents have been withheld from a party to a proceeding and it makes no difference whether damage, serious or otherwise, is or is not caused. Violation or disregard of principles of natural justice in itself is sufficient to quash the order. The decision reported in Soorajmull v. Assistant Collector of Customs (A I R 1952 Cal. 103) is almost on all fours with this case. There the Customs authorities referred to a test report which was withheld from the party, and the learned Judges held that this was in violation of the principles of natural justice. They say that the Customs authorities are undoubtedly under a duty to act according to the principles of natural justice. For this view the learned judges have relied upon the case reported in Rex v. Wandswar Justices Read, ex-parte ((1942) I K B 281.). In the same volume of 1952 C, there is another case reported as Assistant Collector of Customs v. Soorajmull (A I R 1952 Cal. 656) which also supports the above view. In that case the Customs Officers based their decision on the report of the Analyst to whom the cloth seized was sent, and this report was withheld from the party proceeded against. It was held that before a citizen can be fined any sum of money in respect of an offence, he should be given a full opportunity of meeting the charge and of dealing with the evidence upon which the charge was based and that should certainly be the case when a citizen can be fined an unlimited sum. Similarly in the case reported in R. v. Architects' Registration Tribunal, Exparte Jagger (1945 2 A E R 131) it was held that it was improper for the tribunal which acted in a quasi-judicial capacity, to consider and give weight to evidence contained in documents the contents and source of which were not divulged to the applicant. They further held that since the applicant was not given a real and effective opportunity of meeting relevant allegations made against him, the motion to quash the decision of the tribunal must succeed. I would therefore hold that on this ground also the order of the Customs Collector should be quashed. I will now deal with the argument that when there is an alternative remedy, the Courts should not entertain petitions for certiorari. On this point we were taken through a good number of authorities by the learned counsel for the petitioners and the learned Attorney General. My view on the point is that once it is found that the impugned order is vitiated by an error of law, the apparency of which is patent on the order itself, or it is vitiated by the disregard of the principles of natural justice, it must be quashed and that the writ of certiorari should not be refused merely on the ground that there is an alternative remedy by way o appeal or revision. The alternative remedy contemplated bylaw is that which is equally convenient, beneficial and effective. The learned Attorney General has not been able to show that High Courts are precluded from issuing writs of certiorari when there is some other remedy. But even if the contention of the Attorney General is accepted the alternative remedy, in order to serve as a bar to the exercise of writ jurisdiction, should be equally convenient. Under the Sea Customs Act, the party filing appeal has to deposit the amount of fine before the appeal can be heard (section 189). In this case the fine imposed runs into lacs. Can it be reasonably argued that this remedy is convenient ? I am not taking into account the inordinate delay which is a usual feature of such appeals. There is ample authority for the proposition that when the alternative remedy is less convenient, the petition for writs should be entertained. It is no use compelling a party which has succeeded in establishing its case before the High Courts after protracted hearing to pursue the other remedy when the latter is less convenient. Some Courts have held that even existence of an alternative remedy equally convenient does not present an insuperable bar to the issuing of the writ. Khadim Mohy-ud-Din v. D. R. C. Lyallpur (P L D 1956 Lah. 479), New Goal Cloth Market Union Lyallpur v. Municipal Committee Lyallpur (P L D 1955 Lah. 149), Soorajmull v. Assistant Collector of Custom (A I R 1952 Cal. 656), Assistant Collector of Customs -v. Soraimull (A I R 1952 Cal. 103) and Kanglu Baula v. Chief Executive Officer (A I R 1955 Nag. 49 (F B)) are some of the authorities for the above proposition. In England writs are issued in cases when although there is an alternative remedy, yet such mode of redress is less convenient, beneficial or effectual-Halsbury's Laws of England, Hailsham Edition, Vol. IX para 1269. I therefore hold that in this case, the existence of the alternative remedy by way of appeal or revision under the Sea Customs Act, is no bar to the exercise of the power of this Court under Article 170 of the Constitution. I would therefore allow this petition and quash the orders of Customs Collector and direct the respondents to bear ,f costs of the petitioners. CONSTANTINE, J.

(25th April 1957). The facts in this case have been stated in the Judgment of Muhammad Bakhsh, J. On the interpretation of Entry 81 in section 167 and of section 177-A of the Sea Customs Act as to which my learned brethren have differed, I have given my opinion in my judgment in Muhammad Hussain v. Collector Customs Karachi (P L D 1957 Kar. 600) (Writ Petition No. 107 of 1956). The Customs authority had to prove that the gold was secured from the possession of the person and that it had been imported, whereupon the persons found in possession incurred the duty of proving that the gold had been lawfully imported. The possession in the present case was duly proved. In his reply dated 24th November 1955, the petitioner Muhammad Sharif stated at p. 53 of the record: I may mention here that large quantity of gold was and is still in circulation in the Pakistan Market and seems to have been so before the imposition of import restriction mentioned by your goodself. This gold can very well be said to be a part of such gold in circumlation." No defence was raised that the gold was not imported gold and it appears to me that by stating that 'large quantity of gold was in circulation before the imposition of the import restriction' the petitioner impliedly admitted that this gold was imported, since otherwise it was idle to mention the date of circulation as being before the imposition of import restriction. The question, therefore whether the petitioners had notice and a fair chance of meeting the Assayer's report did not arise. But since this point was not taken by either of my learned brethren, and since my jurisdiction in this Letters Patent appeal is confined to the point upon which my learned brethren differed, it is necessary for me to consider whether the principles of natural justice were or were not violated. Muhammad Bakhsh, J., quoted Lord Loreborn in Board of Education v. Rice (1911 A C 179), but that quotation does not support, in fact it contradicts what my learned brother says in this passage of his judgment, "Apart from that there is no provision in the Sea Customs Act requiring the Customs authorities to disclose all their documents to the petitioners. It was an. administrative or an executive body and they were not to be guided by the Code of Civil Procedure." If this means that an administrative authority charged with the duty of acting quasi-judicially may condemn a person upon material, the substance of which has not been disclosed M to the person then I am unable to agree. The Attorney General himself accepted the principle that a tribunal must let a person know the case against him before adjudicating against him. As Lord Loreborn said (1-c.) : "They can obtain information in any way they think .best, always giving a fair opportunity to those who are parties in the controversy for correcting or contradicting any relevant statement pre judicial to their view." In the present case, however, the counter-affidavit of the Intelligence Officer, Pakistan Customs stated that the gold was foreign gold, since analysis in the Pakistan Mint had revealed that the gold was not what the Karachi Bullion Exchange- Stamps indicated but was of a very high fineness which cannot be achieved in Pakistan by local private refineries. The reply to this affidavit denied that the fineness of gold could not be achieved in Pakistani by private refineries. It did not, however, raise the question that this report was unknown to the petitioners. When, therefore, the matter came before me. I insisted that further affidavits should be filed upon this subject. The further affidavit now filed on (behalf of) Haroon Seth son of Muhammad Sharif, a partner of the petitioning firm states that in the counter affidavit of the Intelligence Officer there was no clear statement to the effect that the Assayer's report had been before the Customs Collector during the adjudication proceedings. It was during the course of arguments that the Attorney General for the first time took up the position that the Assayer's report was before the Customs Collector who considered it, and hence in the reply to the counter affidavit no mention had been made that the petitioners had no knowledge of the report. The deponent went on to say that at no point of time had any of the petitioners any knowledge that such an Assayer's report existed or that it was considered by the Customs Collector or that they had any information as to the purposes for which the report was being relied upon against them. He continued that when the case was investigated by the Special Police, none of the present petitioners was arrested or made a party to the proceedings before the Court of Mr. Ghaznavi Identical affidavits were sworn by Muhammad Anwar and Muhammad Sharif. In reply Mr. Kokhar deposed by affidavit that Muhammad Sharif and Muhammad Anwar had come to the Customs Office many times and used to see the deponent in connection with this case. On one occasion Muhammad Sharif went to see the Assayer's report and the deponent told his assistant to explain the report to Muhammad Sharif and Muhammad Sharif saw the report and understood its contents by discussing it with his assistant. Later Muhammad Anwar was shown the report. There is also a counter affidavit of the Deputy Superin tendent of the Anti-Smuggling Branch of the Pakistan Special Police, Mr. Sifarat Hussain, who stated that he and other police officers gave samples of the gold seized to the Chief Assayer at Lahore. The accused Muhammad Sharif, made an application to the Special Judge (Mr. Ghaznavi) that his gold be released. The deponent informed the Court that the gold could not be returned as he had sent samples to the Pakistan Mint for opinion. Mr. Muhammad Sharif-and his counsel were present in Court. By 3rd September 1955 the deponent informed the accused persons about the fineness of the gold seized. On the 6th September, he recorded the statement of Muhammad Islam, a partner of Maulabux and Muhammad Anwar and communicated to him the contents of the said report. On 9th September he called Muhammad Sharif and confronted him with the report and fineness of the gold in question and recorded his statement. At his suggestion he took two bangles of gold from Ibrahim & Co. and got the samples refined at Karachi and sent the refined gold to the Lahore Mint. The Assayer reported that the gold was not of the same high fineness as the gold in the case. From these affidavits it is clear that the petitioners knew that a report of the Assayer had been obtained as to the fineness of the gold and that this was material before the Collector. I therefore consider that the principles of natural justice were not contravened. As to whether there is an error apparent on the face of the record, since the petitioners so far from raising the defence that the gold was not imported, had impliedly admitted the import of the gold, the fact that the Collector in his order did not deal with this question does not constitute an error apparent on the face of the record, and secondly the affidavits have extended the scope of the record brought on to the record of this case by my learned brethren and show that the petitioners knew of the highly important report of the Mint and that it was considered by the Customs. In agreement, therefore, with Muhammad Bakhsh, J., I would dismiss the petition with costs. A. H. Petition dismissed.