P L D 1990 Karachi 338 (PLP)

(e) Words and phrases‑‑‑ Word "knowledge"‑‑‑Meaning and scope. Abdul Sattar Silat for Petitioner. S. Mehmoodul Hassan for Respondents. Date of hearing: 7th August, 1989. WAJIHUDDIN AHMED, J.‑‑‑Through a short order passed in Court today we dismissed the above petition. Reasons for such dismissal. are recorded herein.

2. Brief facts of this case are that the petitioners imported a consignment, purported to be Chemicals, under Serial No.107 of the Free List of the Import Policy Order, 1981. Imported goods were described as Non‑gas Spray. The ship, carrying the goods, arrived at Karachi on 11‑3‑1982 and the Bill of Entry was manifested on 13‑3‑1982. The Customs Special Task Cell, on receiving credible information that the consignment did not, entirely, consist of the goods as declared, issued a Detention Memo on 17‑3‑1982, in consequence whereof, examination of the goods was initiated on 18‑3‑1982, resulting in discovery that whereas 38 cases in the consignment contained insecticides, the other 34 comprised of Polyester Buttons and 1, out of that number, Rotating Hooks (Sewing Machines Parts). Show‑cause notice dated 22‑6‑1982 was addressed to the petitioners to which reply was submitted on 25‑11‑1982. The Collector of Customs (Appraisement), per order dated 31‑1‑1983, came to conclusion that the party, deliberately, contrived to import goods not covered by the licence, as also of a much higher value, in the guise of Insecticides, an item free of Duty but subject to 10% Sales Tax. It was further found that the Marks and Numbers were the same on all packages and, therefore, no question of wrong shipment, as alleged, was conceivable. Likely evasion of Customs Duty of Rs.8,78,854 and Sales Tax of Rs.1,78,377 on goods, valued at Rs.9,74,948 was said to be involved. Petitioners were found guilty of an offence under section 32 of the Customs Act, 1969 and confiscation of the goods under clause (14) of Section 156(1) of the Customs Act was effected, with an option of redemption on payment of Rs.8,00,000, as fine, and a penalty of Rs.4,00,000 was also added thereto. An appeal against the Order‑in‑Original failed, as reflected in order dated 27‑7‑1983. This petition was filed on 25‑8‑1983. Subsequently, on or after 31‑8‑1983, a Revision under Section 196 of the Customs Act, 1969, was taken which also was dismissed per order dated 17‑11‑1985.

3. In the first instance, an application under Order 6 Rule 17 read with section 151, C.P.C. (Misc. 2177 of 1989), submitted on 3‑8‑1989, which has been placed for orders today may be taken up. It is far too belated, an application, submitted nearly after 4 years of the order in Revision, dated 17‑11‑1985, and can be dismissed on the score of delay alone. Besides, Revision under Section 196 of the Customs Act, 1969, is a discretionary remedy and the decision, if in confirmation of the order in Appeal, need not, necessarily, come up for closer examination in a petition, directed against the order in appeal. The only ground on which the order of the Revisional Authority is questioned and is sought to be impugned in this petition is that the Chairman Central Board of Revenue/ Secretary to the Government of Pakistan, Ministry of Finance, did not accord a hearing to the petitioners at Karachi and fixed and disposed of the case at Islamabad, in spite of protestations on the part of the petitioners. Even so, we 1 find that while the petitioners remained absent the Revisional Authority duly applied its mind to the controversy and confirmed the order‑in‑original and in Appeal. While, with a view to avoid delay, we did not allow Miscellaneous 2177 of 1989, for amendment of the petition, the learned counsel for petitioners was, in the interest of justice, allowed to argue the whole case, involving all the orders. As such, the findings herein recorded, would apply to all the three orders referred in these proceedings.

4. Coming to the merits of the case, Mr. Abdus Sattar Silat, appearing for the petitioners, has pointed out that, as early as on 18‑3‑1982, petitioners' suppliers, from OSAKA addressed a Telex to them intimating that they had just then received a complaint from their Indonesian buyers that such buyers had received the petitioners' goods instead of their own, consisting of Buttons/Hooks and such result could have been brought about as the packing house was the same which may have got mixed up due to the month‑end rush. Such goods were sought to be re‑shipped. This, according to the petitioners, was confirmed through letter of even date. Reliance is placed on a Bill of Lading dated February 7, 1982 in respect of 100 cases of Buttons and Machine Hooks, purported to have been despatched to Singapore, but no such Bill of Lading was attached with the letter dated 18‑3‑1982 and was said to have been forwarded through a letter dated 14‑7‑1982 addressed by the suppliers directly. to the Collector of Customs. However, letter dated 5‑8‑1982 from the Collector to the suppliers would show that it was not even attached with the letter dated 14‑7‑1982 and was in fact forwarded through letter dated 15‑12‑1982, as reflected therein. Such document, if any, should have been made available at the earliest opportunity. That this did not transpire exposes it to serious doubt.

5. Now, it would appear that the Customs House, Karachi, in their referred letter dated 5‑8‑1982 had required relevant details and documents from the suppliers in OSAKA, Japan, in relation to which suppliers' reply dated 15‑12‑1982 was occasioned. In the reply last mentioned it was revealed that the contravening goods, alleged to have been mis‑shipped to the petitioners, were sold to buyers in Singapore, who, in turn, sold the same to a party in Indonesia. Allegedly, cash payment was received and the wrong shipment was detected by the buyers in their warehouse and not at the Customs and, therefore, the suppliers were unable to give/provide any certificate either "from Singapore or Indonesian Customs".

6. Upon the foregoing facts learned counsel for the petitioners urged that the petitioners had no knowledge whatsoever of the mix up of the goods and that they did not contravene any of the provisions of Section 32 of the Customs Act, 1969, which involve knowledge, as a necessary ingredient of the offence. What the learned counsel says may not be more than partly correct. Section 32 ibid. contemplates either knowledge or "reason to believe" as regards any of the offending acts. While the Customs Authorities, at all levels, have fully applied their minds to the controversy involved, rendering speaking orders, even when the petitioners were not present, as was the case in Revision, and the matter can be C disposed of on the short point of involving an enquiry into disputed facts which, at best, is discretionary, in Constitutional jurisdiction under Article 199 of the Constitution, to or not to go into, in any detail, we have, still, heard the learned counsel at length.

7. Petitioners have failed to explain. as to how the goods,. despatched to them, came to bear the same Marks and Numbers even though the consignment to Singapore or Jakarta; as the case may be, should have borne different Numbers. There is no reason or justification to upset the findings of the Tribunals below on such question. Besides, it is not insignificant that the goods, allegedly, D erroneously shipped to Singapore were detected not at the Customs but ‑at the buyers' Warehouse. It is not even indicated‑as to which buyers are being referred to, those in Singapore or in Indonesia, or even both. Learned counsel was, also, pointedly asked in Court as to what action, if any, was initiated by the petitioners against the suppliers as the suppliers, in their correspondence, are reported to be apprehending some. The answer was in the negative. All these circumstances would tend to fix the petitioners with requisite knowledge, as contemplated in Section 32 of the Customs Act.

8. On a proper interpretation of Section 32 of the Customs Act, 1969 we are, also, of the view that, generally, through direct evidential material, it would be difficult to establish "knowledge", which not unlike "intention" is related to a state of mind, in the context of wrongful acts, of commission or omission, referred to in that Section and that, on principle, many a case, falling under such provision, shall have to be decided on circumstantial evidence and on the basis of likelihood of the offender having "reason to believe" that what he does or omits to do, is a violation, falling within the purview of the Section. In the circumstances of this case, it is clear that the Tribunals under the Customs Act, 1969, did not fall into any error in coming to the conclusion that the petitioners misdescribed the detained consignment and, thereby, contravened the requirements of section 32 ibid. It is for these reasons that the above petition stands dismissed. Misc. 2177 of 1989, also, stands disposed of, as above indicated. AA./F‑128/K Petition dismissed.