1999 PLP 855 (YLR)

SABIHUDDIN AHMED, J.‑‑‑The petitioner who is an Iranian national has called in question order of Deputy Collector Customs, Karachi, Airport confiscating an amount of US $ 28,200 recovered from her possession at the airport at the time of her departure to Iran on 18‑3‑1986. According to the petitioner she had arrived in Karachi on 25.2.1986 upon valid travel documents for the purpose of visiting her aunt and seeking her assistance in obtaining an immigration Visa to U.S. She had brought with her an amount of U.S. $ 30,000 in cash, but at ft. time of her arrival she was not required to file any document with respect the foreign currency available with her. After a stay of about 3 weeks, she decided to return to Iran and was carrying unspent balance of U.S. $ 28,700 in form of currency notes and travellers cheques. She was intercepted at the airport and the aforesaid was recovered from her. She was asked to produce a currency declaration form evidencing importation of the aforesaid amount at the time of her arrival and upon her inability to do so only U. S. $ 500 were delivered to her and the remaining amount was retained by the concerned Customs official. Thereafter, a show cause notice was issued to her by the respondent No. 1, dated 17‑4‑1986 to which she submitted her reply on 19‑4‑1986 Subsequently, she sought the assistance of a counsel who submitted an additional reply to the notice on her behalf on 21‑4‑1986 Nevertheless adjudication proceedings were commenced and by an order, dated 28‑8‑1986 the respondent No. l directed confiscation of the amount. An appeal against the aforesaid order was dismissed by the respondent No.2 on 27‑7‑1987, whereupon she filed this petition assailing the aforesaid orders.

2. Parawise comments were filed on behalf of respondent No.3, State Bank of Pakistan. It was admitted that she was not restraint on bringing any amount of foreign currency into Pakistan by foreigners. It was however, contended that in case a foreign visitor did not file a foreign currency declaration he could only be allowed to take out foreign currency upto the value of U.S. $ 500 per family or equivalent thereto. Reliance was placed on para. 8 of the Exchange Control Manual as amended vide State Bank Circular No.54/85, dated 11th May, 1985, the relevant provision whereof reads as under:‑‑ . "Foreign nationals are permitted to take out with them within six months from the date of their arrival in Pakistan the unspent balance of foreign exchange that was brought in ‑by them at the time of their entry into Pakistan, without the approval of the State Bank. Where currency declaration form is not produced by a foreign national at the time of his departure, he can take out foreign currency notes upto the value of U.S. $ 500 per person subject to a maximum of U.S. $ 2,000 per family or equivalent thereof in other currencies. "

3. Mr. K.M. Nadeem, learned counsel for the petitioner pointed out that in terms of Notification NO.F.E.1/78‑SB, dated 11‑5‑1978, filed by the respondents, the State Bank of Pakistan itself had stipulated that any person could bring any amount of foreign currency provided that, if so required by the customs authorities at the time of his arrival made a declaration in the prescribed form of the total amount of notes brought in. In other words even the passenger did not have a option to file the requisite declaration and on the custom authorities had the discretion to require such passenger to file or not to file the aforesaid declaration. He also referred to Customs General Order No.8 of 1973 which reads as follows:‑‑ "Passengers will no more be asked to make declaration of currency on F.M. Unless there are tangible reasons for suspicion. In such cases the appropriate officer of custom shall obtain such declaration. These orders will have immediate effect."

4. Learned counsel argued that against this background penalising a person on the ground that of not filing a declaration of foreign currency at the time of arrival and confiscation the money belonging to her was manifestly unreasonable and liable to be struck down, particularly when the contents of the circular were not even published in the official gazette.

5. We have carefully considered the contention of the learned counsel. Prima facie there appears rationale for stipulation that when no evidence is available with the customs authorities to indicate the amount of foreign currency brought in by a passenger, such passenger should not be allowed to export an unlimited amount of currency when the law only allows exportation of unspent currency during the passenger visit to Pakistan and not foreign currency acquiring during the visit. Nevertheless keeping in view the aforesaid background there is force in the contention that person who is not apprised of the fact that in the absence of repatriation the foreign exchange brought in by him and does not even have the option of filing a declaration should be deprived of his valuable property.

6. In any event it is nobody's case that the circular in question was ever published in the Official Gazette. Though, the respondent No.3 i.e. Director Exchange Control Department, State Bank of Pakistan has categorically stated that all amendments made in the Foreign Exchange Regulation Act and Notifications issued thereunder are published in the Gazette of Pakistan and instructions issued by the State Bank are summarized in the Exchange Control Manual. He has furtherv stated that it is not obligatory on the respondent to publish the instructions and that such instructions were circulated amongst authorized dealers, trades, bodies etc. Indeed there is no specific provision in the Foreign Exchange Regulation Act requiring State Bank circulars to be published in the Official Gazette. Nevertheless in our opinion the provisions of sections 8(1) and 8(2) of the Act placing restriction on import and export currency ought to be read together. These provisions read as under:‑‑ "8(1) The Foreign Government may, by notification in the official Gazette, order that, subject to such exemptions, if any, as may be contained in the notification, no person shall, except with the general or special permission of the State Bank and on payment of the fee, if any, prescribed bring or send into Pakistan any gold or sliver or any currency notes or bank notes or coins whether Pakistani or foreign. (2) No person shall, except with the general or special permission of the State Bank or the written permission of a person authorized in this behalf by the State Bank take or send out of Pakistan any gold, jewellery or precious stones, or Pakistani currency notes, bank notes or coin or foreign exchange...?"

7. Evidently under subsection (1) the Federal Government is empowered to lay down through a, Notification in the Official Gazette a restriction or ban on import or export of Pakistani or foreign currency. Under subsection (2) a similar power has been conferred upon the State Bank of Pakistan and admittedly the instructions of the State Bank have the force of law as held by this Court in Jafar Ibrahim & Company v. Deputy Director Exchange Control. Department, State Bank of Pakistan PLD 1971 Karachi 10, but it would be highly anomalous, if one may say so, with all respects that whereas a resolution imposed by the Government is required to be notified in the Official Gazette, similar restriction placed by the State Bank may be imposed without such publication. Wide publicity of legal instruments, particularly when they tend to deprive peoples valuable property rights is essential. Admittedly a person in the position of the petitioner would not be required to come across an authorized dealer in foreign exchange at the time of her arrival at the Airport who could apprise her of the consequence of not filing a currency declaration. We are, therefore, inclined to take the view that unless the circular in question was duly notified, the petitioner cannot be made liable to confiscation of foreign currency in her possession on the ground that she failed to file a declaration at the time of her arrival. In view of the above this petition I is allowed and the respondents are directed to refund the confiscated amount to the petitioner. Petition allowed. Q.M.H./M.A.K./A‑297/K