P L D 1957 (W (PLP)

MUHAMMAD BAKHSH, J. _(30th October 1956),-This order will dispose of this and twenty-one other writ petitions, viz : Nos. 107, 109-124, 162, 202-204 of 1956. The points of law raised in this petition are the same as were advanced in Writ Petition No. 38 of 1956, (P L D 1957 Kar. 576) and for my decision on the law points reference may be made to my order in Writ Petition No. 38 of 1956 (P L D 1957 Kar. 576). They may not be repeated in this order. The facts of the present twenty-two writ petitions are different from the facts of Writ Petition No. 38 of 1956 and hence a separate order for disposing of these twenty-two matters becomes necessary. The petitioner is alleged to have consigned 435 tolas of Gold to Dacca, East Pakistan, by an aircraft of the Pakistan International Airlines, Karachi. The procedure for con signment of gold to Dacca is as follows :- (a) The consignee in Dacca obtains from the District Magistrate of Dacca a certificate addressed to the Deputy Controller, Exchange Control Department, State Bank of Pakistan, Karachi, to the effect that the consignee is a genuine dealer in Gold. (b) The Exchange Control Department, State Bank of Pakistan, then issue a certificate addressed to the Collector of Customs, Karachi authorising the consignee to take out specified weight of gold from West Pakistan to East Pakistan. (c) On the basis of the above-mentioned two certificates, the consignor takes the gold into parcels to the Customs authorities, who after inspecting the same, affix their seals on the parcels and then these parcels are delivered to the airline for consignment to Dacca. The petitioner alleges that after complying with all these formalities he delivered 435 tolas of gold to the Pakistan International Airlines at Karachi for consignment to Dacca. On 30th June 1955, the Anti-Smuggling Police seized this gold from the office of the P. I. A. After completing their investigation they handed over the gold to the Collector of Customs to deal with it under the Sea Customs Act. On 10th January 1956, i,e., more than six months after seizure, the Collector of Customs served a notice on the petitioner to produce documentary evidence to prove that the gold in question had been lawfully imported into the country and that duty and sale-tax had been paid thereon. No evidence was produced in that behalf and therefore the Collector of Customs in the exercise of his authority under section 167 read with Articles 8 and 81 of the Sea Customs Act confis cated the gold and imposed a personal penalty in the amount of Rs. 30,000 on the petitioner. The petitioner had a right of filing an appeal under section 188 of the Sea Customs Act, but in paragraph 12 he alleges that he cannot file an appeal because he is required to deposit in the first instance the amount of penalty which he is unable to find. He has therefore filed this petition for a Writ of certiorari challenging the order of the Collector of Customs oil several law points which have already been discussed in my order in Writ Petition No. 38 of 1956 (P L D 1957 Kar. 576). I have repelled in the said order all the legal contentions raised on behalf of the petitioner and I need not say anything more on that question. The only point of importance in this case was that the parcels of gold were first of all produced for inspection of the Customs before delivery to the Airline, and the Customs authorities after duly, inspecting the same put their seals thereon, and when the police seized this gold the Customs seals were found intact. This point however, has been satisfactorily met by the respondents who allege in their affidavit that the Customs authorities at that stage had only to weigh the gold in question and they were not then concerned with the question whether it was smuggled gold or otherwise. I accept this contention. We have been shown the original files of the Customs Department and in them we find a letter by the Anti-Smuggling Police which says in this connection as follows :- "Likewise the fact of getting sealed by the Customs authorities the alleged contraband gold parcels does not exonerate the accused persons since Customs' sealing of the tin parcels under dispute was in testimony of the exact weight of the gold declared and contained therein and not testimony of the gold being of smuggled nature or other wise". I find from the record of the Customs Collector that there has been a full investigation into this case. In the first place the petitioner's allegations was that he had purchased this gold from different persons at different times and then melted and re fined the same and made it into bars. He had produced certain bills to show that he had purchased gold from different people but the record shows that most of those people who had issued the bills in favour of the petitioner had stated not only to the police but before a Magistrate under section 164 that these bills were all bogus and had been given to the petitioner in return for a consideration of a few annas per tola. The gold in question was sent to the Government Mint at Lahore and the Chief Assayer tested this gold and found it to be of a high fineness which could not be achieved in Pakistan. The investigation was very thorough and careful in this case. I repeat that this is not a Court of Appeal and we F cannot go into the facts to find out whether the evidence, was sufficient or otherwise. It was open to the petitioner to file a regular appeal as provided by section 188 of the Sea Customs Act and he could raise all these points there. Article 170 of the. Constitution is not intended to by-pass the existing law. I do not find any cause for interference in the writ jurisdiction and I would accordingly dismiss the same and would further direct that the petitioner do bear the costs of the respondents. MUNSHI, J. (30th October 1956).-In my opinion, all these petitions will have to be dealt with by the learned judge who will deal with petition No. 38 of 1956 (1) in which we have given differing judgments as the main points involved are practically those which we have differed. CONSTANTINE, J.

These Writ Petitions, come before me under Clause 26 of the Letters Patent of the Lahore High Court, now applicable to the High Court of West Pakistan, my learned brethren Muhammad Bakhsh and Munshi having differed. The points of difference have not been stated by them, but are to be ascertained from a compari son of their main judgments delivered in Writ Petition No. 38 of 1956 (P L D 1957 Kar, 576). In these petitions the main facts are materially the same briefly that the petitioner delivered gold to the Pakistan International Airlines, Karachi for consignment to Dacca after obtaining the necessary certificates from the State Bank of Pakistan for the transfer of the gold from Karachi to Dacca. On or about the 30th June 1955, the gold was seized at the Karachi Airport by the staff of the Anti- Smuggling Police of the Government of Pakistan. On or about the 10th January 1956, the Collector of Customs issued the following "show-cause notice" :- "On 30th June 1955, 310 tolas of gold consigned to Dacca by Pakistan International Airlines aircraft was seized by the Anti-Smuggling Police at the Karachi Airport. (2) As the import of gold into the country is restricted, vide Government of Pakistan, Ministry of Finance's Notification No. 1 (2) ECS/48, dated 1st July 1948, issued under section 8 of the Foreign Exchange Regulation Act read with section 19 of the Sea Customs Act, Mr. Qasim Ali son of Rahmat Ali the consignor of the seized gold, is called upon under section 177-A of the Sea Customs Act to produce documentary evidence to show that the gold in question had been lawfully imported into the country and that Duty and Sales Tax had been paid thereon. The explanation must be submitted within 7 days from the receipt of this Notice, failing which action under section 167 (81) of the Sea Customs Act shall be taken against him without any further reference". To this, on January the 20th a reply was sent stating that the "show-cause notice" had been framed by the Collector under a misconception as to the real scope and purpose of section 177-A. The reply stated, "there should be some evidence adduced by the Department that the gold in question has been imported before my clients could rebut the pre sumption and establish that it has been lawfully imported. Section 177-A does not empower the Customs authorities to seize every and any property in Pakistan, and then call upon the party to establish that that property has been lawfully imported. To put that construction would be to reduce the whole procedure to absurdity. It is only where there is a prima facie evidence in appropriate proceedings that goods have been imported or unloaded from any vessel that the person in whose custody these goods are found, is charged with the duty of explaining the lawful character of the import". Various other matters were raised, but are not material. Thereupon an order was passed by the Collector of Customs as follows :- "IN THE OFFICE OF THE COLLECTOR OF CUSTOMS, CUSTOMS HOUSE, KARACHI Order No. SIB.1/56(N) dated 2nd March 1956, Des patched on 7th March 1956. Passed by S. S. Raza Esquire. Order (Original) N. B.-(1) This copy is granted free of charge for the private use of the person to whom it is issued. (2) An appeal against this order lies to the Central Board of Revenue, Karachi, within 3 months from the date of its despatch shown above. Any appeal should bear a Court-fee stamp of Rs

25. If it is an appeal presented to the Central Board of Revenue, it must be accompanied by- (a) a copy of this order or another copy of the order bearing the Court-fee stamp of Annas 8 prescribed under Schedule 1, item 6, of the Court-Fees Act 1870, and (b) a copy of the appeal. Subject.-Gold : Illicit import of-Confiscation, fine and penalty. Read.-The investigating Officer's report Show Cause Notice issued to Mr. Qasim Ali, and his reply thereto also the connected records of the case : On 30th June 1955, gold weighing 310 tolas consigned to Dacca by Mr. Qasim Ali "Per an aircraft of the Pakistan International Airlines, Karachi, was seized by the Anti Smuggling Police at the Karachi Airport. The import of gold into Pakistan is restricted except under a licence vide Notification No. 1 (2) ECS/48, dated 1st July 1948, issued by the Government of Pakistan, Ministry of Finance, under section 8 (1) of the Foreign Exchange Regulation Act read with section 19 of the Sea Customs Act.

2. As Mr. Qasim Ali, the consignor of the seized gold has failed to prove under section 177-A of the Sea Customs Act that the gold in question was lawfully imported into the country, the offence' committed by him attracted the provisions of sections 167 (8) and (81) of the Sea Customs Act under which the gold is liable to confiscation. 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. 21,700 (Rupees Twenty one thousand and seven hundred only). This option shall lapse if not exercised within four months of the despatch of this order.

3. I am satisfied that Mr. Qasim Ali has by his action of possessing and dealing with the smuggled gold facilitated smuggling of gold into the country. I, therefore also impose under section 167 (81) of the Sea Customs Act a personal penalty of Rs. 22,000 (Rupees Twenty two thousand only) on Mr. Qasim Ali". The provisions of law applicable at the time were enacted by Ordinance No. III of 1954, called the Customs Act (Amendment) Ordinance, 1954. This Ordinance added Entry 81 to section 167 of the Sea Customs Act, 1878, and added section 1%7-A to the same Act. Entry (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 expor tation 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, oil conviction before a Court to imprisonment for any term of less than three years, or to fine, or to both". Section 177-A reads as follows- "177-A. 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". This Ordinance has since been repealed by an Act of the Legislature. Under section 188 of the Sea Customs Act any person deeming himself aggrieved by any decision or order passed by an Officer of the Customs under this Act may appeal to the Chief Customs Authority, and the same section provides that an order passed in appeal shall, subject to the power of revision conferred by section 191 be final. Section 191 provides that the Central Government may reverse or modify a decision or order from which no appeal lies on application by the person aggrieved. The Writ Petition was brought on the ground that an error of law apparent on the face of the record vitiated the order of the Customs Collector: The main points of law were dealt with in a judgment deli vered in Writ Petition 38 of 1956 (P L D 1957 Kar. 576), Muhammad Bakhsh, J. said the main question pertained to interpretation of Articles 8 and 81 of section 167 and section 177-A of the Sea Customs Act. He held that the burden on the Customs lay only to prove that the person concerned was in possession of goods the import whereof was prohibited. Gold bullion, he said, is described in the Notification dated 1st July 1948 and when the Police or the Customs secured this bullion from the possession of the petitioners, it was clear that the petitioners were found in possession of goods, the import whereof was prohibited. Immediately there arose a pro ceeding 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. Munshi, J. on this point held that the ingredients of the offence to be established under Entry 81 of section 167 were: (1) that the person proceeded against was found in possession of the goods, the importation whereof was restricted ; (2) that the goods had been imported ; (4) that they had been imported contrary to the restric tion imposed under Chapter IV of the Act, The Entry thus makes punishable the possession of goods imported after the Notification of July 1948, without a licence issued by the State Bank of Pakistan. He held that it was the duty of the Customs Authority to prove that it was imported after 1948 when the ban was imposed. He held that the meaning of the phrase "any goods, the importation whereof is for the time being prohibited or restricted" is, "if any person is found in possession of gold which has been imported after the ban of 1948". The Customs had therefore to prove that the gold had been imported after the ban o 1948, and it is only in case of their failure to do so that the burden would shift on to the petitioner to prove that it had been lawfully imported. It is thus apparent that my learned brethren differed regarding the construction of Entry 81 of section 167 and of 177-A, In my opinion Munshi, J. in effect held that the interpretation of the phrase "any goods the importation whereof is for the time being prohibited" means goods to which a prohibition for the time being applies whereas Muhammad Bakhsh, J, interpreted it as meaning goods of a class to which a prohibition for the time being applies. I respectfully agree in this respect with Munshi, J. One cannot impute to the Legislature the intention to create an offence which is repugnant to all normal considerations. If the meaning which Muhammad Bakhsh, J. has attached to the phrase is the correct meaning, then it is an offence to possess any goods of a class to which the prohibition applies, even though the particular goods may have been imported before the ban, or may never have been imported at all. Moreover there is no question of proving that the goods have been lawfully imported : mere possession of any goods of this class constitutes the offence. The learned Attorney General relied upon section 461 of the corresponding Act in the United Kingdom. It is not correct to interpret the language of one Act by different f language in another Act. The material words of that section are, "If goods of the class or description chargeable with duty on importation from the Republic are found in the possession of any person in the prescribed area (In Northern Ireland), an officer may require that person to prove that the goods had not been imported from the Republic, and if such proof is not furnished to the satisfaction of the Commissioners such goods shall be deemed to have been imported unlawfully unless the contrary is proved." This wording, as I have said is different from Entry 91: Moreover this section, unlike Entry 81, contains 'in itself provision for proving lawful import. I consider that the ingredients necessary to constitute an offence under Entry 81 are as follows:- (1) that goods have been found in possession of a person ; (2) that the goods have been imported ; (3) that the goods when imported were imported in contravention of some lawful prohibition or restriction. The general burden of proof in these matters rests upon the Customs or (if a case is taken to Court) on the prosecution. But section 177-A casts the burden of the particular issue whether the goods have been lawfully imported upon the person. The question whether the goods have been lawfully imported does not cover the preliminary question whether the goods have been imported at all, and therefore this ingredient rests upon the Customs or the prosecution in accordance with the general burden of proof. In the present case the "show-cause notice" and the order do not reveal that this question of import had been considered by the Collector though it had been raised by the reply of the 20th January to the "show-cause notice". Further more the counter affidavit dated 30th September 1956, filed in support of the Collector's order stated that according to information the gold was imported and was of a fineness impossible of achievement in Pakistan. This counter affidavit then stated that as the importation of all gold was at the time in question prohibited, the possession of the gold by the petitioner clearly fell within the language of Article 81 : the Collector of Customs acted entirely within his authority when he called upon the petitioner to explain the possession and show whether the gold had been lawfully imported into the country and whether the duties chargeable thereon had been duly paid ; the averments made in the petition that item 81 could only take effect or be applicable where the goods in question before the item was applied were clearly shown to be imported goods is untenable. The counter affidavit thus discloses that the Collector took an erroneous view of the law ; it is to be noted that it does not state that the Collector applied his mind to the questions whether he had sufficient material to warrant a finding that the gold was imported. The record of the Customs case so far as it has been brought on to the record by my learned brethren does not disclose that the Collector applied his mind to the point which had been raised by the petitioners in their reply to the show-cause notice ; this is an error apparent on the face of the record, and we know that this error was due to the Collector's erroneous view of the extent of the burden of proof cast by section 177-A upon the petitioner. I do not go as far as Munshi J. who held that the Customs authority was bound to prove that the goods had been imported after the ban. In my opinion if the Customs Authority prove that the goods are imported then according to section 177-A the question immediately arises whether the goods have been lawfully imported or not. Two ways of proving lawful would arise : firstly that the goods had been imported before the prohibition came into force and secondly that if imported after the prohibition or restriction came into force, that the necessary permission had been secured. But even according to the view which I hold, as I have shown above, there is an error apparent on the face of the record. It was argued that my learned brethren had differed on the point whether the writ petition should be dismissed on the ground that another remedy was open to the petitioner. While Munshi, J. was of opinion that once it is found that the impugned order is vitiated by an error of law apparent on the face of the record, or is vitiated by disregard of the principles of natural justice, it must be quashed ex debito justitiae. Alternatively he held that in this case the remedy by way of appeal was not as convenient as the remedy by way of writ, in that a party filing an appeal under the Sea Customs Act must deposit the amount of fine, Muhammad Bakhsh, J., refused to accept the argument that the remedy by way of appeal was not as convenient as the remedy by way of writ in that an appellant must deposit the amount of penalty at the time of filing of appeal. But he continued, "we have to see if the petitioners have succeeded in showing that any ground for the exercise of this extraordinary jurisdiction exists". He then held that there was no error apparent on the face of the record. Finally, when he summed up, he said "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 clearly of the opinion that the proper remedy for the petitioners was to prosecute their appeal or go further in revision if necessary. "I am thus left in doubt whether Muhammad Bakhsh, J. intended to hold that even if an error of law was apparent on the face of the record, nevertheless the writ petition should be necessarily dismissed, as the petitioner's proper remedy was to prosecute an appeal judging, however, from the language earlier used in which he has stated that it was necessary to see whether there were any grounds for the exercise of the extraordinary jurisdiction. I think that meant to say that the Court had jurisdiction to entertain a petition for certiorari despite the existence of another remedy. There was therefore, in my opinion, no difference on this point material to the disposal of the petition. Upon the third point whether the principles of natural justice were violated there has been no discussion because my learned brethren were content to refer to their judgment in Writ Petition No. 38 regarding the law points. The facts are however different from those in Writ Petition No. 38 as regards this issue. In the first place the petitioners in these writs, unlike those in Writ Petition No. 38 raised the point that it lay upon the Collector to prove import, and secondly in their petition they relied on this proposition of law which was contested by the c6unter.affidavit. In this same counter affidavit (dated 30th July 1956) it was stated that the Customs Authorities had information that the gold was foreign gold unlawfully imported and it was stated that at the time when it was seized it was found to be marked with an incorrect marking regarding its fineness which was clearly done with the object of concealing the actual fineness of the gold which was really that of gold imported from foreign countries. In reply (dated 1st August 1956) the petitioner denied that the Customs had information that the gold was imported, that the gold had any markings, that gold could not be so refined in Pakistan as to achieve the fineness of the gold in question, and affirmed that the Collector had no material and made no inquiry whether the gold was imported. In rejoinder dated 22nd August 1956, upon the question of fineness reliance was placed on the report of the Pakistan Mint. In further reply dated 27th September 1956, inter alia it was stated that the petitioners never had notice or information of the report of the Pakistan Mint or of the other evidence which is alleged to be on the record of the Customs. To this there was no reply. On the other hand it is evident that the petitioners in these writs knew that the fineness of the gold was in question ; for in their affidavits of 1st August 1956, it was alleged that they had offered to prove by demonstration that the fineness of the gold in question could be locally achieved. This offer was denied by the reply dated 22nd August 1956 and again affirmed in the petitioner's affidavit dated 29th September 1956. So far then as the record in the case goes though the petitioners on their own showing that the fineness of the gold was considered by the Customs authorities to be material justifying a conclusion that the gold was not locally refined and was therefore imported, yet their allegation that the report of the Mint was never disclosed to them stands unrebutted. Secondly the stand taken by the opponent upon the law was that it was not necessary for him to consider whether he had material before him showing that the gold was imported. In these circumstances I consider that the conclusion to be drawn is that the petitioners were not given a fair opportunity for contradicting a relevant, indeed a most important, statement prejudicial to their case, namely the report of the Mint. I would therefore quash the order of the Collector in agreement with Munshi, J. and order the respondent to pay the costs of the petitioners. A. H. Order quashed.