P L D 1986 Karachi 373 (PLP)
MESSRS SIKANDAR AND BROTHERS‑Petitioner Versus GOVERNMENT OF PAKISTAN THROUGH MEMBER (JUDICIAL) CENTRAL. BOARD OF REVENUE AND ANOTHER‑Respondents
| Citation | P L D 1986 Karachi 373 (PLP) |
| Forum / Court | Ss. 17, 156(2), 168(2), 177, 112, 172 & 186‑Words "detain" and "seizure"‑Meaning.‑Words and phrases. |
| Bench Members | Haider Ali Pirzada and Abdul Qadeer Chaudhry, JJ |
| Parties | MESSRS SIKANDAR AND BROTHERS‑Petitioner Versus GOVERNMENT OF PAKISTAN THROUGH MEMBER (JUDICIAL) CENTRAL. BOARD OF REVENUE AND ANOTHER‑Respondents |
Q1: What are the key laws and sections cited in P L D 1986 Karachi 373 (PLP)?
This judgment primarily cites: statutory provisions as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case P L D 1986 Karachi 373 (PLP)?
The case was heard and decided by the Ss. 17, 156(2), 168(2), 177, 112, 172 & 186‑Words "detain" and "seizure"‑Meaning.‑Words and phrases. bench comprising: Haider Ali Pirzada and Abdul Qadeer Chaudhry, JJ.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: P L D 1986 Karachi 373 (PLP) (MESSRS SIKANDAR AND BROTHERS‑Petitioner Versus GOVERNMENT OF PAKISTAN THROUGH MEMBER (JUDICIAL) CENTRAL. BOARD OF REVENUE AND ANOTHER‑Respondents). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Representation
- J. H. Rahimtoola for Petitioner.
- Liaquat Merchant, Dy. Attorney‑General and Abdul Satrar Pingar for Respondents.
- Date of hearing : 10th March, 1986.
Headnotes / Summary
(a) customs Act (IV of 1969)‑ ‑‑ Ss. 180 & 168‑Scope and application of Ss. 168 & 180‑Seizure of goods and confiscation thereof‑Distinct and different matters Seizure of goods liable to confiscation and penalty‑Show‑cause notice‑Limitation ‑ Simply because show‑cause notice under S. 180(a) was not issued within sixty days or extended period as contemplated by S. 168(2), such notice, held, would not be illegal- Legal position elaborated. The appropriate officer may seize any goods liable to confiscation under the Customs Act, 1969 and where it is not practicable to seize any such goods, he may serve on the owner of the goods or any person holding them in his possession or charge an order that he shall not remove, part with or otherwise deal with the goods except with the previous permission of such officer. The language of subsection (2) of section 168 of the said Act prescribes an initial period of sixty days commencing from the date of seizure of goods for the issuance of notice under section 180 of the said Act. The proviso attached to subsection (2) of section 168, however, provides that the said period of sixty days can be extended by a period not exceeding two months by the Collector of Customs for the reasons to be recorded in writing. Section 168 of the Customs Act enacts provision relating to the seizure of goods, while section 180 makes provision for issue of show‑cause notice for confiscating of goods. Seizure of goods and confiscation of the same are distinct and different matters. Seizure would mean taking possession. The ordinary rule is that no goods or property of any citizen can be seized and he cannot be deprived of its user. In departure of this‑ rule, section 168 of the Customs Act empowers the appropriate officers that when any goods are liable to confiscation to seize the same. When subsection (1) of section 168 has empowered the appropriate officer the special right to seize such goods, its subsection (2) places a corresponding obligation on him that in the event of seizure of goods he ii bound to proceed for adjudication of confiscation of the goods at an early date. In order to see that the appropriate officer should not retain such goods after seizure of the same and deprive the owners of their user, 1 subsection (2) of section 168 requires that a notice, as required under section 180 of the Act, should be given to the person from whom goods had been seized, within a period of two months, and if such notice is not given to him the goods must be returned to him. The word "return" would mean to pass back or to release 'the same from seizure. But it would not tantamount to cessor of the liability of the goods from confisca tion under the provisions of the said Act. Therefore, subsection (2) of section 168, makes provision for curtailment of the period during which seized goods can be retained for issuance of notice under section 180(a). Once the said notice is issued within the period prescribed under section 168(2), the goods seized can be retained till the adjudication of the confiscation proceedings. So, the failure on the part of the Customs Officers to issue notice within the period contemplated by subsection (2) or proviso thereto, of section 168, would certainly clothe the person, from whom the goods have been seized with the right to claim the return of the same but it does not, set at naught the provision of section 180 and will not deprive the Customs Officers to issue notice under section 180, the obvious reason that it (section 180), does not prescribe any time limit for issuance of such notice. All that it provides is that no order under the said Act shall be passed for the confiscation of any goods or for imposition of any penalty on any person unless the owner of the goods, if any, is informed in writing under clause (a) and is given an opportunity of making a representation under clause (b) and is given a reasonable opportunity of hearing under clause (c). There is nothing in the said section from which an inference can possibly be drawn that the said notice contemplated by clause (a) of section 180 is subject to the provision contained in section 168 of the Act. As such, it would not be proper to import the limitation of two months prescribed by subsection (2) of section 168 (which can be extended for a further period not exceeding two months, vide proviso to the said subsection (2) into the provision of section 180 of the said Act. Clearly, section 180 does not prescribe any time limit for issuing the show‑cause notice and it is not permissible to go into the intention of the Legislature for not making provision for such ‑a time limit in it. Therefore, it would not be legitimate to curtail the extent and scope of section 180 of the Act, which, does not contain any time limit for issuance of show‑cause notice by saying that in view of the provisions of subsection (2) of section 168, the said notice must be issued within sixty days of the seizure of the goods or within the duly extended period of not more than sixty days thereafter. In that view of the matter, it cannot be maintained that a notice, as required under clause (a) of section 180 of the said Act is illegal, simply because it had not been issued within sixty days or the extended period contemplated by subsection (2) of section 168 of the said Act. (b) CUSTOMS ACT (IV of 1969)‑ Ss. 17, 156(2), 168(2), 177, 112, 172 & 186‑Words "detain" and "seizure"‑Meaning.‑[Words and phrases]. Yousuf Re‑rolling .'hills v. Collector of Customs 1986 C L C 77 fol. (c) CUSTOMS ACT (IV of 1969) Ss. 32, 79 & 156(9)(14)‑Imports and Exports (Control) Act (XXXIX of 1950), S. 3‑Untrue statement by importer‑Bill of entry as delivered by importer‑Seized goods not figuring in said bill of entry‑Goods seized were prohibited goods importation whereof without a valid licence was prohibited under S. 16 read with S. 3(1) of Imports and Exports (Control) Act, 1950‑Such goods being liable to confiscation under S. 156(9) & (14), Customs Act, 1969 read with S. 3(2) of imports and Exports (Control) Act, 1950, confiscation of goods, imposition of personal penalty and regarding importer to be guilty of deliberate gross mis declaration, held, was justified in circumstances‑Section 32, Customs Act, 1969, was, therefore, applicable with full force to the importer. Eastern Rice Syndicate v. Central Board of Revenue P L D 1959 S C 354 and Pakistan v. Hard Castle Waud (Pak) Ltd. P L D 1967 S C 1 quoted. (d) CUSTOMS ACT (IV or 1969)‑‑ ‑‑‑ Ss. 32 & 156(9) & (14)‑Scope acid application of Ss. 32 dt 156(9) & (14)‑Contravention of S. 32‑Mens rea need not be proved Knowledge of importer entirely irrelevant‑Goods imported in Pakistan without valid licence and seizure thereof was relevant factor to establish contravention of S. 32‑Failure of Legislature to use expression "knowingly or having reason to 'believe" in S. 156(9) & (14), held, was not accidental but deliberate.
Judgment & Decree
In order to appreciate the above contention raised by the learned counsel for the petitioners, it is necessary to reproduce the provisions contained in subsection (It of section 32 of the said Act which read as under "32.‑(1) If any person, in connection with any matter of customs,‑ (a) makes or signs or causes to be made or signed, or delivers or causes to be delivered to an officer of customs any declaration, notice, certificate or other document whatsoever, or makes any statement in answer to any question put to him by an officer of customs which he is required by or under this act to answer." (knowing or having reason to believe that such document or statement is false) in any material particular, he shall be guilty of an offence under this section. Section 79 of the said Act need not be set in extenso as it merely provides that the owner of any imported goods shall deliver to the Customs Officer a Bill of Entry in such form or manner and containing such particulars as the Board may direct. The remaining provisions of the said Act which are relevant to this case, are reproduced below : "Section
156. Whoever commits any offence described in column 1 of the table below shall be liable to punishment mentioned against the offence in column 2 thereof :‑ ______________________________________________________________________________________ 1 2 3 Offences Penalties Section of the said Act. _______________________________________________________________________________________ 9. (1) If any goods, not being Such goods shale be 15 & 16 goods referred to in liable to confisca clause 8, are imported tion ; and any per into or exported from son concerned in Pakistan evading pay‑ the offence shall ment of leviable Cus‑ also be liable to a toms duties or in penalty not exceed violation of any pro‑ ing two times the hibition or restriction value of the goods. on the importation or exportation of such goods imposed by or under this Act or any other law ; or '
14. If any person commits an Such person shall be liable to a penalty offence. under section 32. not exceeding (twenty‑five thousand) rupees or three times the value of the goods in respect of which such offence is committed, whichever be greater ; and such goods shall also be liable to confiscation (and upon conviction by a Magistrate, he shall further be liable to imprisonment for a term not exceeding three years, or to fine, or to both). It may further be noticed that subsection (1) of section 3 of the Imports and Exports .(Control) Act, 1950 provides that the Federal Government may, by order, published in the official gazette, and subject to such conditions and exceptions as may be made by or under the order, prohibit, restrict or otherwise control the impart or export of goods of any specified description. or regulate generally all practices (including trade practices) and procedure connected with the import or export of such goods. Subsection (2) of this section prohibits the import or export of goods, except in accordance with the conditions of a licence to be issued by the Chief Controller, or any other officer authorised it. this behalf by the Federal Government. Subsection (3) enacts that all goods to which any order under subsection (1) applies, shall be deemed to be goods of which the import or export has been prohibited and restricted under section 16 of the Customs Act and all the provisions of that Act shall have effect. It is not denied that sewing machine parts, which had been imported in this case were not covered by a licence and tat they were within the mischief of section 3 of the Imports and Exports Control) Act. The learned counsel for the petitioners has drawn our attention to the case of Eastern Rice Syndicate v. Central Board of Revenue (P L D 1959 S C 364) where the Hon'ble Supreme Court laid the following principles of law while interpreting section 39 of Sea Customs Act, 1.877 which is para materia to section 31 of the Customs Act :‑ "The essence of this penal provision appears to be that the offender has obtained an advantage at the hands of the Customs authorities. or has induced them to take some form of action authorised by the statute, by making a statement which "is untrue in any material particular". There need be no doubt whatsoever that the word "untrue" carries the sense of falsity to the knowledge of the person concerned. Thus. upon a point of mere ‑valuation, if a declaration is made by such a person which on enquiry the Customs authorities find to be too low, that will not be by itself sufficient to prove that the declaration was false to the knowledge of the maker, but it would be necessary also to establish that at the time when he made the declaration he was in possession of facts from which the necessary inference would be that the value declared by him was too low and that the value which be ought to declare was the same as that subsequently ascertained by the Customs authorities through their own process which are of course person concerned. The application of appears to have been made on falsely showing a low invoice value the importer in each cases succeeded in bringing into the country against his allowance of foreign exchange, a much larger quantity of goods than that which he could have brought had be declared the correct value, which in the opinion of the authorities was the value ascertained by them selves." In Pakistan v. Hard Castle Waud (Pak) Ltd. (P L D 1967 S C 1), the Hon'ble Supreme Court laid down the following dictum . "The interpretation, placed on section 39 of the Act in the Eastern Rice Syndicate case by this Court was that in order to attract this penal provision, it must be established that the person who is alleged to have made any statement in a document, submitted to the Customs authorities must be false to the knowledge of the person concerned. It is obvious that such knowledge would depend upon the facts and circumstances of each case. It is not disputed that the statements made in the Customs documents in the instant case regarding the nature and value of the goods imported were in fact false." It was further held :‑ . "It was stranuously contended on behalf of the respondents that even item 37‑B required mens rea to be proved before penal action could be taken against a person concerned. It seems to us that this contention is devoid of substance. The language of section 167 (37‑B) suggests that this is a case of absolute statutory liability. The only condition of the attachment of this liability is that it should have been found as a fact that the goods not declared to the Customs authorities were concealed or mixed with goods so declared. There are no words in this item which could justify placing it on a par with section 39 of the Act which requires that an oral or written statement in a document should be "untrue" and not merely false. It is also significant that apart from the penalty of confiscation, a personal penalty, imposable under item 37‑B, cannot exceed Rs. 1,
000. This contrasts with the penalty imposable under item 9‑B which can be three times the value of goods, if that be in excess of Rs. 1,
000. This fact also supports the inference derivable from the language of item 37‑B that the Legislature intended this to be a case of absolute liability, for which no mental ingredients need be proved. The Collector's order, therefore, imposing the impugned penalties on the importers is not open to any legal exception." In order to test the validity of the argument we need consider certain provisions of the said Act. Section 2(c) defines "bill of entry" as bill of entry delivered under section 79". Section .2(s) defines "Smuggle" means to bring into or take out of Pakistan in breach of any prohibition or restriction for the time being in force, or evading payment of Customs‑duties or taxes leviable thereon,‑ (i) gold bullion, silver bullion, platinum, palladium, radium, precious stones, antiques currency, narcotics and narcotics and psychotoropic substances ; or (ii) manufactures of gold or silver or platinum or palladium or precious stones, and any other goods notified by the Federal Government in the official Gazette which, in each case, exceed five thousand rupees in value , or (iii) any goods by any route other than a route declared under sec tion 9 or 10 or from any place other than a Customs‑station. and includes and attempts abetment or connivance of so bringing in or taking out of such goods ; and alt cognate words and expressions shall be construed accordingly." It is noteworthy that the "entry" for home consumption or warehous ing mentioned in section 79 is in respect of goods only that is to say good brought into Pakistan from a place outside Pakistan. There is no dispute to the instant case that there was a bill of entry delivered by the petitioner but the seized goods ,(sewing machine parts) did not figure in the said bill of entry. There is also no dispute that the goods that were seize were prohibited goods, importation whereof without a valid licence is prohibited under section 16 read with section 3(1) of the Import and Export (Control) Act and that such goods are liable to confiscation under clauses (9) and (14) of section 15! of the Customs Act read with section 3(2) of the Import and Export (Control) Act. In the instant case, before the Customs authorities as well as before this Court, the petitioners have tried to pass on the blame for the wrong statement to the exporters namely Messrs Takka Machinery Corporation Japan. The suggestion is that the exporters committed a mistake in sending cases containing Sewing Machine Parts of higher value than generators. In this context reliance was placed on telexes and letters which the petitioners were able to obtain from the foreign exporters and which they produced before Customs authorities showing that a mistake had been made in dispatching goods, owing to similar marking on the cases. This was a belated attempt to cover up the fraud. The long arm of accidental mistake would be strained to breaking point if it is to be imagined that out of consignment of 24 cases of 26 sets of portable generators gasoline model, the foreign exporters could have sent as many) as 21 cases of sewing machine parts, should have been included by sheer) mistake. All this material was before the respondents and justified their g conclusion implied in the confiscation of the goods and imposition of personal penalty and the respondents regarded the petitioners to be guilty of deliberate gross misdeclaration. Section 32 of the said Act consequently is applicable with full force to the petitioners. We are of the view that in order to establish the contravention of section 32 of the said Act mens rea need not be proved, the knowledge of the petitioners was in the context of section 32, being entirely irrelevant. What was relevant, according to us, was that the goods seized were imported into Pakistan without valid licence. The scheme of section 156 supports the contention of the Deputy Attorney‑General that if section 32 is read alongwith section 156(9) and (14) it would be clear that the Legislature intends, by necessary implication, the exclusion of mens rea, in dealing with the contravention of, section
32. Section 156(9) provides that if any goods, not being goods referred to in clause (8), are imported into or exported from Pakistan evading payment of leviable Customs duties or in violation of any prohibition or restriction on the importation or exportation of such goods imposed by or under this Act or any other law such goods shall be liable to confiscation ; and any person concerned in the offence shall also be liable to a penalty not exceeding two times the value of the goods. Section 156(14) provide that if any person commits an offence under section 32, such person shall be liable to a penalty not exceeding twenty‑five thousand rupees or. three times the value of the goods in respect of which such offence is committed, whenever be greater ; and such goods shall also be liable to confiscation and upon conviction by a Magistrate, he shall further be liable to imprison ment for a term not exceeding three years, or to fine, or to both. It would be noticed that in column 1, section 156(9) and (14) reproduces the) material words of section 16 and section 32 and does not add words! "knowingly or having reason to believe". It is significant that the words "knowingly" is used in several other provisions contained in section
156. Thus, where the Legislature wanting to introduce the knowledge or having reason to believe or intention actuated the commission of the offence as an essential element of the offence, it has used appropriate words to indicate that intention. The failure to use similar words in section 156(9) and (14) cannot, therefore, be regarded as accidental but must be held to be deliberate, there is some force in this argument as well. We are unable to bold that the Customs authorities in the instant case had not proved or established that the declarations trade in this case were false to the knowledge of the petitioners or that there was no evidence before the Customs authorities that the petitioners were in league with the foreign exporters. In the result, constitution petition stands dismissed There will be no order as to costs. M. B. A. Petition dismissed.