1980 P Cr (PLP)

Petitioner Rana Tufail Mohammad has challenged the decision of the Customs Authorities to confiscate his Mercedez Car 200-D Model 1974, bearing Pakistan, Registration Plate Na. ST-5478 The car had been first registered on 11-8- 1 975 at Sialkot in the name of one Zafar Iqbal from whom the petitioner had purchased .it on 15-8-1975 and got it formally transferred in his name by the Registering Authority on 5-11-1975. The car was, however, seized by the Customs Authorities on 25-11-1975, whereafter the petitioner, his son Raza Mahmood and the said Zafar Iqbal were issued notice dated 22-1-1976 by the Deputy Collector stating that the car had beer, registered on forged documents and that it had been imported into Pakistan by a foreigner who had disposed of it here clandestinely without payment of duty and calling upon the petitioner and the others to produce gall evidences documentary or otherwise in support of their defence" and to show cause why they should not be penalised and the car confiscated under section 151(1) clauses (11) and (90) of the Customs Act,

190. The petitioner and his son submitted an explanation stating therein that the petitioner was an innocent buyer of the car from Zafar Iqbal for adequate consideration and against a receipt dated 15-8-2975, and that the department Lad no reasonable basis to believe that duty had not been paid on the car and praying that the-notice be withdrawn and the car be restored. Zafar Iqbal did not appear before the Deputy Collector who heard the matter. On behalf of the petitioner no effort was made to establish that duty had been paid on the car and instead the plea had been taken that as the car had been already registered,- the petitioner was under the bona fide impression that the duty etc. payable thereon had been paid by the person who actually got it registered in Pakistan. The Deputy Collector recorded a finding that no duty had been paid on the car and that it had been retained anal registered in Pakistan in violation of sections 16 and 156(1). clause 90 of the Customs Act read with section 3(1) of the Imports and Exports (Control) Act, 1950, punish able under section 156(1) clauses 9 and 90 of the Customs Act. . He, therefore, by his order dated 24-4-1976 confiscated the car "without any option to redeem it". The petitioner's appeal before the Collector of customs- was dismissed on 6-7-1975. The revision filed by him likewise failed on I1-2-1977. Hence this writ petition.

2. Mr. Zaheer Ahmad Khan. learned counsel for the petitioner has urged before me that as the car had already been registered in Pakistan, the petitioner had no reason to suspect any evasion of the payment of duty, that he was not involved in the importation of the car itself or the non-payment of the duty, that he was an innocent purchaser and that the absolute confiscation of the car was illegal. He stressed that the liability to pay the duty, if any, was on the previous owners and not the petitioner. A declaration was, therefore, sought to the effect that the orders of the Customs Authorities impugned in that writ petition are of no legal authority and that they be directed to restore the car to the petitioner.

3. Sh. Maqbool Ahmad-II, learned counsel appearing for the depart ment stated that the departmental investigation had revealed that the car had been brought into the country by a tourist Mrs. Morgratte Nuding Gab Hospas, holder of Passport No. D 7628419-Germany" through Torkham Land Customs, Station, on 18-7-1975, on "Special permission for temporary stay to foreigners". The date of final export, allowed by the Customs Authorities, at the time of the entry, hail been 31-7-1975. He stated that no permission had been granted for disposal of the car inside Pakistan. He further pointed out that an attempt had been made to trace out Zafar Iqbal but he was not found at the given address and instead the person residing at that address had informed that no person named Zafar Iqbal had stayed -there since 1947. He added that according to the finding of the Deputy Collector, Customs, the documents on the basis of which the car had been registered in Pakistan were take and urged that in the circumstance the petitioner was neither an innocent purchaser nor immune from the liability under the law.

4. Section 16 of the Customs Act, 1969, vests the Federal Govern ment with the powers to prohibit or restrict importation of any goods of specified description. Section 3(t) of the Imports and Exports (Control) Act, 1950 empowers the Federal Government to "prohibit, restrict or otherwise control the import or export of goods of any specified descrip tion, or regulate generally all practices. (including. trade practices) and procedure connected with the import or export of such goods ... It is nobody's case that the import of Mercedes car is not as item controlled by the Federal Government. Under clause 9 of Section 156(1) of the Custom Act goods not being smuggled goods, imported into Pakistan evading payment of leviable customs duties or to violation of 'any prohibition or restriction on such importation shall be liable to confiscation and additionally the person concerned in the offence shall be liable to a penalty not exceeding two times the value of the goods. Clause (90) of the same section, lays down that if a person who, without lawful excuse, the proof of which shall be on such person, acquires possession of, or is in any way concerned in keeping or dealing with any goods, not being smuggled goods, which are chargeable with a duty which has -not been paid, or with respect to the importation of. which there is a reasonable suspicion that any prohibition or restriction for the time being in force under or by virtue of that Act has been contravened, then such goods shall be liable to confiscation besides the person concerned being liable to a penalty not exceeding ten times the value of the goods. Clause (901, therefore, puts the onus of proof both as regards proper importation of the goods and payment of duty, on the person who has acquired posses sion of the goods "without lawful excuse". Obviously no evidence was produced by the petitioner to prove that the car had been regularly imported or the duty on it had been paid. The argument is that his possession was not "without lawful excuse". In this context the conten tion that the petitioner was an innocent purchaser is pressed. The conten tion would have had some force if the petitioner had succeeded in demons trating that he had exercised such vigilance and care in the alleged purchase as a prudentman ought to have done. A Mercedez car is not an ordinary item and no person acquiring possession of such car can urge with success that his purchase was innocent merely because the car had been earlier registered The seller of the car was not produced by the peti tioner. He had not explained before the Customs Authorities as to what reasonable care had been exercised by him to ensure that it was a car pro perly imported into the country. The close proximity of his purchase with the registration of the car in the name of the said Zafar Iqbal stands against his plea. The law had placed the onus on him which he had not discharged. On these facts he could neither be held to be an innocent purchaser nor a person acquiring possession of the car with lawful excuse.

5. Learned counsel for the petitioner referred to sections 18, 32(3) and 83 to urge that the liability to pay the duty was invariably of the original owner and if the duty had not been paid, the authorities could proceed only against that owner. I am afraid clause 90 is not amenable to such, interpretation. The law is attracted as soon as it is shown that the goods had been imported contrary to the prohibition or restriction and the confiscation of the goods is not based on the fact that they are necessarily found with the person concerned with the importation or the evasion of the duty I also find no force in the contention that the authorities could not confiscate the vehicle and that, they could at most, collect the evaded duty. The law is quite clear and provides the penalty of confiscation of the vehicle which is subject-matter of the case. The authority in Haji Abdul Razzak v. Pakistan through Secretary, Ministry of Finance, Islamabad and another (P L D 1974 S C) relied upon is not applicable. There the subject-matter of the case had not been the vehicle but certain goods carried in the vehicle and that the involvement of the owner of the vehicle had not been established.

6. The petition is, therefore, dismissed. I, however, snake no order as to costs. Petition dismissed.