2004 PLP 1964 (PTD)

It was also pleaded that the container shipped in the name of the Embassy of Republic of Yemen, Islamabad besides four other containers imported in the name of Consulate General of Kazakhstan, Embassy or Jordan, Islamabad, Embassy of DPR Korea, Karachi/Islamabad and Embassy of Iraq were detained for inspection, on the basis of secret information that the said containers do not contain the goods as per declaration but‑ in fact contain contraband goods i.e. Alcoholic Beverages, Liquor. Art. Silk Cloth, Ball Bearing etc., which were not covered under the exemption certificates issued to the above foreign missions and import of which into Pakistan is prohibited under the Trade and Procedure Order, as well as under sections 2(s), 16 and 32 of the Customs Act. The consignment shipped in the name of Embassy of Republic of Yemen, by the appellant vide IGM No. 307 of 2002, dated 18‑2‑2002 was declared as assorted foodstuff by Messrs Orient Shipping Services in completion of the Customs formalities for the clearance of the subject consignment under Bill of Entry free No. 459 of 2002. However, before being out of charge of the consignment, the delivery was stopped by the respondent No.1 for examination/investigation. The Ministry of Foreign Affairs, (Camp Office) Karachi and Clearing Agent through letter C. No. Appg‑14/DCI of 2002, dated 4‑3‑2002 were informed regarding import of contraband goods which were not covered under the exemption certificate with request to get examined the container on 11‑3‑2002. However there was a request for re‑export of the consignment by the appellant, after two months of its shipment on the plea that goods were shipped mistakenly as the same was meant for Zimbabwe, without details of the goods stuffed mistakenly in the container. The Embassy of Republic of Yemen had already disassociated with the container vide their letter, dated 2‑10‑2002. It was pleaded that the consignment shipped by the appellant did not qualify the status of frustrated cargo containing prohibited goods shipped knowingly, with wilful knowledge under the cover of Diplomatic consignment. When the investigation was initiated by the respondent No.1 the appellant finding no way and to give legal cover to their own mistake with active connivance of culprits involved in the offence, pleaded a case of frustrated cargo which can never be treated as frustrated cargo. The action taken by them for inspection was in accordance with the law. They also pleaded the initiation of criminal proceeding and adjudication proceeding and further maintained that the Embassy has disowned any liability or responsibility in connection with the container. During the hearing of the application on 20‑12‑2002, by consent order, the inspection of the subject consignment was conducted by appointment of Nazir of this Court as Commissioner to inventorize the contents of the container. In compliance of the order, Nazir de‑sealed the container on 21‑12‑2002 and prepared the inventory. The inspection reveals the presence of cartons of Scotch Whisky packed, in double cartons. The details thereof are as follows:‑‑ S. No Contents Quantity Brand

30. Scotch Whisky 112.5 cl Ballantines

31. Scotch Whisky 100 cl Long Jhon

32. Scotch Whisky Old Smuggler

33. Scotch Whisky 1.125 litres Teachers with further details as follows:‑‑ 90 Cartons 1x12x1.125 litres 1080 Bottles 70 Cartons 1x12x1 litres 840 Bottles 70 Cartons 1x12x1 litres 840 Bottles 70 Cartons 1x12x1 litres 840 Bottles Total 3600 Bottles After hearing the learned counsel for the parties, the learned single Judge concluded that the appellant has failed to show any evidence whether indeed the cartons containing the Whisky were meant for Zimbabwe and the reluctance on the part of the appellant to get the goods examined does not show their bona fide. Resultantly, the injunction application was dismissed by impugned order, dated 1‑1‑2003. Hence the present appeal. We have heard Ms. Navin S. Merchant, learned counsel for the appellant, Syed Tariq Ali, learned Federal counsel for respondents No. 1,3 and 4, Miss Masooda Siraj, learned counsel for the respondent No. 2, Ms. Navin Merchant and Syed Tariq Ali, learned counsel for the contesting parties had requested that this appeal may be disposed of finally at Katcha Peshi stage. Miss Masooda Siraj, learned counsel for the respondent No.2 did not object to the above proposition and it was agreed that this appeal would be disposed of finally at Katcha Peshi stage. The question for consideration in the present appeal is whether the learned Single Judge by dismissing the injunction application by the impugned order has exercised the discretion guided by law and the same is not arbitrary, vague and fanciful but legal and regular. The contours with regard to the power exercisable by the Appellate Court in appeal against the interlocutory orders is well‑settled. The Appellate Court will not substitute its own discretion for that of trial Judge except where ;discretion was exercised arbitrarily, perversely, contrary to legal principles and on basis of assumptions not borne out by record. The guideline for the grant of directory injunction is also well settled. The injunction can be granted in the following terms:‑‑ (i) The party has a strong case for trial. That is, it shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction. (ii) It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money. (iii) The balance of convenience is in favour of the one seeking such relief. The appellant's case is based on the concept of frustrated cargo and their entitlement for its re‑shipment. Section 138 of the Customs Act deals with such cargo which provides that where any goods are brought into a customs station by reason of inadvertence, misdirection or untraceability of the consignee, the Collector of Customs may, on application by the person‑in‑charge of the conveyance which brought such goods or of the consignor of such goods and subject to rules, allow export of such goods without payment of duties. The contention of the learned counsel for the appellant was that the `frustrated cargo' has not been defined in the Customs Act but referred the rule 86 of the Chapter VII of Customs Rules, 2001, pertaining to `frustrated cargo', which states that Frustrated Cargo D will be such goods as are brought into a customs‑station by reason of inadvertence or misdirection or where the consignee is untraceable or has dishonoured his commitments and the consignor wishes to have it re‑shipped to him. It is clearly manifest from the combined reading of the section 138 and Rule 86 that `Frustrated Cargo' is a cargo brought into a customs‑station by reason of inadvertence or misdirection or where the consignee is untraceable or has dishonoured his commitment's and the consignor wishes to have it re‑shipped. On above premises, it was contended by the learned counsel for the appellant that the appellant are y the consignor; the part of the consignment was destined for Zimbabwe but by mistake it was stuffed in the container and 'the consignee, namely, Yemen Embassy has also dishonoured its commitments. Therefore, the consignment fulfils the conditions of a frustrated cargo. It was further contended by her that the respondent No.2 has the jurisdiction to permit the re‑shipment of such cargo but the respondent No.1 detained the cargo, though they have no jurisdiction to detain the consignment. The detention of the consignment is beyond their jurisdiction and to re‑enforce her submission, she referred the customs circular, dated 26‑8‑1987, whereby the role of Intelligence Staff in Customs Clearances was specified, whereunder, the Intelligence start acre not required to take over the duties of the Customs officials except in suspected cases of evasion or collusion they had the power to inspect the document and examine the goods and whenever necessary, would intercept, detain and seize the consignment that have not been cleared in accordance with law: On the basis of above circular, it was contended that the respondent No.1 or their staff has no role in side the customs station. Their domain starts after, clearance of the consignment. Conversely, learned Federal counsel's submission was that plea of `frustrated cargo' has been taken by the appellant after the service of notice for inspection. The claim of `frustrated cargo' is neither supported by the circumstances nor by the materials placed on record. His further submission was that the Bill of Entry, with invoice, exemption certificate package list, was filed to get the consignment cleared which contains the prohibited items. His further submission was that inspection of the cargo was avoided by the appellant, ultimately Nazir of this Court under the direction of the Court inspected the cargo and prepared the inventory. Contraband/prohibited items were found in the shape of 3600 Bottles of different Brand of Scotch Whisky, a prohibited item. Case has been registered under the Customs Act for the offence of smuggling, the consignment is also subject to adjudication proceedings. His further submission was that in terms of Circular No. 1 of 1997, dated 16‑2‑1997, the functions of the respondent No. 1, inter alia, are to carry out prevention operation throughout country related to smuggling and to detect and investigate cases cognizable under the prevention of Smuggling Act. He further pointed out that on information received of smuggling under the cover of diplomatic consignment, the container was subject to inspection which was avoided in spite of notice: On these premises, his contention was that for the purpose of the inspection in case of doubtful cargo, the respondent No. 1 under para. 2 of Article 36 of Vienna Convention have the power of inspection of the cargo even inside customs‑station in terms of Circular of 1 of 1997. Learned counsel for the appellant on second leg of her arguments, argued that the learned Single Judge has not followed his own judgment in Suit No.592 of 2002, (Muhammad Kamran v. Collector of Customs (Preventive) and others) wherein by order, dated 1‑1‑2003 during the hearing of the injunction application, the suit was disposed of and the Customs Authorities were directed to release the goods as `frustrated goods' on similar facts. Whereas, the prayer for the release of the appellant's frustrated cargo was declined by impugned order. The contention of Miss Navin Merchant is based on the dictum of the apex Court in Muhammad Muzaffar Khan v. Muhammad Yousuf Khan (PLD 1959 SC 9) that the own previous decision on point of law is binding on the learned Judge. Learned Federal counsel contended that the case referred to above by the learned counsel for the, appellant is distinguishable on the facts as such, the plea that consistency on the point of law has not been following is not available. Mr. Merchant learned counsel for the appellant has taken us through the other provisions of Customs Act, particularly, sections 168 and 171 to contend that the seizure of the cargo was illegal for want of show‑cause notice and non‑compliance of the provision of section

171. Learned Federal counsel met with such plea by maintaining that after inspection under the Court's order and as a result thereof, the prohibited items were found, the respondents have taken all the steps necessary for initiation of the criminal as well as adjudication proceeding with regard to the consignment under the Customs Act. We are of the view that any observation/comments on these points may cause prejudice to the contesting parties at the trial or in adjudication proceedings. It is left to be addressed by such fora for the reason that the pivotal point for the disposal of the present appeal is whether the appellant has established the arrival of the cargo at customs station inadvertently. It is case of the appellant that some of the consignment was destined for Zimbabwe and on that account the plea of the appellant was that it is `frustrated argo' and the appellant is entitled for the re‑shipment thereof. When Ms. Navin Merchant was asked if any material was placed 1, during the hearing with regard to the nature of such cargo, she frankly conceded that there was no material like invoice, packing list or Bill of Lading, or like other documents .to show the nature of the consignment and to show that its destination was, Zimbabwe and the same was inadvertently stuffed in the container destined for Karachi. On inspection, 3600 Bottles of Scotch Whisky of different brands were found in the container, the prohibited items, bringing into Pakistan of such items attracts the provisions of section 2(s) of the Customs Act, an offence of smuggling. It is the case of the respondents that the proceedings have been initiated. We are of the view that in such circumstances, the appellants have failed to demonstrate that the consignment is a `frustrated cargo'. The appellants have also claimed damages to the tune of Rs.100 million. It is now well‑settled when a party can be compensated in terms of money, no injunction can be granted. Under section 54 of Specific Relief Act, an injunction can be granted to the appellants when the, invasion is such that pecuniary compensation would not afford adequate: relief. In case where pecuniary compensation could be granted the general rule is that no injunction should be granted. If any reference to this regard is required, case of Mohammad Ibrahim Khan v. Pateshwari Parshad, Singh (AIR 1960 Allahabad 252) may be referred. In the instant case; the appellants have already quantified damages to the tune of Rs.100 million. We are of the view that appellants have failed to make out a case for injunction. Resultantly, we are of the view that the learned Single Judge has exercised the jurisdiction in accordance with the law and needs no interference, accordingly the appeal is dismissed in limine alongwith listed application. S.A.K./E‑2/K Appeal dismissed.