2003 PLP 2103 (YLR)

AKHTAR ZAMAN MALGHANI, J.

This appeal is directed against the order of the Government of Pakistan, Customs, Excise and Sales Tax Appellate Tribunal, (Karachi Bench) dated 17-6-1998 passed in Appeal No.K-260 of 1997, whereby the appeal filed by the appellants against the order of Collector (Appeals) dated 9-7-1997 was dismissed.

2. Briefly stated, facts of the case are that on 15-4-1997 the Local Executive Authorities of Loralai District seized a Truck No.III-5495 loaded with 6726 kilograms of Black Pepper and 3234 Kilograms of big Cardamom believing that the goods loaded in the truck are smuggled one. Later on the truck and seized goods were handed over to the Customs Authorities i.e. Customs Squad-II, Quetta for proceeding under the Customs Act.

3. The Customs Authorities after receipt of the goods and truck initiated seizure case on the ground that the proof of the lawful import/possession of the goods has not forth come nor any proof of lawful import and legal possession was produced by any person as required under section 187 of the Customs Act. A show-cause notice dated 6-5 1997 was accordingly issued, in response whereof appellants appeared before the Adjudicating Officer (Additional Collector) and filed written reply to show-cause notice wherein it was claimed that the 'goods seized i.e. Black Pepper and big Cardamom were legally imported items and were purchased by the appellants Nos. 1 and 2 after satisfying themselves about the legal import of the same. The appellants in order to prove the legal import of the seized goods relied upon Bills of Entry and Release Memo. issued by Collector Customs, Quetta.

4. The Adjudicating Officer did not agree with the contentions of the appellants and ordered for confiscation of seized goods as well as the truck vide order dated 26-6-1997. However, the appellants were given option as required under section 181 of the Customs Act to redeem the seized goods on the payment of 100% fine and truck in lieu of payment of fine of Rs.100,000.

5. The appellants preferred an appeal against the said order before Collector (Appeals) which was also dismissed on 6-10-1997. However, the fine was reduced to that of 50% in respect of seized goods and truck.

6. The appellants still not satisfied with the orders, filed appeal before the Appellate Tribunal, which was, too, dismissed on 17-6-1998.

7. The appellants initially challenged the above orders by invoking Constitutional jurisdiction of this Court by filing petition under Article 199 of the Constitution of the Islamic Republic of Pakistan. During the pendency of the petition a request was made on behalf of the appellants for converting the Constitution petition into appeal under section 196, Customs Act, 1969. The said request was allowed vide order dated 20-10-1999 and the petition was converted into appeal.

8. We have heard the learned counsel for the appellants and learned Deputy Attorney-General. It is mainly contended by the learned counsel for the appellants that according to record the goods and truck were seized by S.D.M., Loralai who has no authority under the Customs Act, 1969, as such the seizure and the proceedings initiated on the basis of such illegal seizure were coram non judice and liable to be set aside. It is further contended that goods seized were on free list which are commonly imported in the country and are easily available in the market and these goods cannot be termed as smuggled goods within the meaning of section 16 of the Customs Act, 1969. The learned counsel further contended that the appellants produced bills of entry before both the lower forum to prove that the goods were lawfully imported in Pakistan and duties and other taxes were duly paid upon these goods. Similarly release order dated 5-3-1997 issued by Custom Collector, Quetta in respect of black pepper was also not taken into consideration while disposing of the matter which could easily prove the fact that the goods seized were lawfully imported and tax paid items, as such; neither these goods could have been legally seized nor adjudicated upon. The imposition of redemption tine and custom duty over the goods were illegal. On the other hand the learned Deputy Attorney-General contends that the contentions raised by the learned counsel for the appellants touches merits of the case which is not permissible under section 196 of the Customs Act, 1969 and as no point of law is involved in the present appeal, as such; same is liable to be dismissed. The learned Deputy Attorney-General vehemently refuted the claim of the learned counsel that the seized goods were on free list and stated that these goods could be imported into Pakistan through lawful sources and the appellants failed to prove the lawful import of the seized goods into Pakistan, as such; they were rightly held responsible for contravening the provisions of section 16 of the Customs Act punishable under sections 156(1), 89 and 90 and no exception could be taken to the impugned orders.

9. We have anxiously considered the respective contentions put forth by both the learned counsel in the light of available record and the impugned orders. Here we may mention at the cost of repetition that initially the impugned orders were challenged by way of invoking of Constitutional jurisdiction and Assistant Commissioner/S.D.M., Loralai was made party to it. In response to notice parawise comments were tiled by S.D. M./Assistant Commissioner, Loralai supported by certain documents. The careful scrutiny of these documents reveals that on 15-4-1997 the Truck No.1IT-5495 was intercepted by the Jamadar Levies near Killi Lahore while proceeding towards Punjab, carrying the seized goods i.e. 118 bags black pepper and 66 bags large cardamom and brought the same to police line. The documents also show that a case under F.I.R. No.27 of 1997 was registered in the Levies Station Bori against the unknown person because the truck driver and owner of the goods were not traceable. The goods were taken into possession through a proper recovery memo. and were handed over to the Customs Authorities by the Naib- Tehsildar/Investigating Officer through a memo. dated 16-4-1997. However; afterwards on the request of the learned counsel for the appellants, Constitutional petition was converted into appeal under section 196 of the Customs Act, 1969 vide order dated 20-10-1999.

10. Coming to the first contention of the learned counsel that the S.D.M/Assistant Commissioner has no authority under the Customs Act to seize goods, we may observe that conferment of powers on Custom Authorities under the Customs Act does not mean ouster of the powers of other agencies empowered by law to arrest and seize the goods involved in commission of cognizable case. Under Schedule II of Criminal Procedure Code, any offence punishable with sentence of three years and upwards is cognizable offence under S.156(89), Customs Act, 1969 being punishable with sentence of more than three years is as such cognizable and can be legally investigated by the police or other officers having been vested with the power of investigation under the Code of Criminal Procedure. As already mentioned a case under F.I.R. No.27/97 was registered under section 156(89), Customs Act suspecting the goods seized were smuggled goods, therefore any seizure by Levies Authorities during investigation of the said case was neither illegal nor could be termed as such. It would be relevant to mention here that the- Levies Authorities have been authorized with the power of investigation and the levies stations were declared as police station within the meaning of section 4 of Cr.P.C. by Provincial Government vide Notification No. SO (Judl.) 4(5)/94/Vol- V/456-93, dated 21-1-1997, which is reproduced herein-below:-- Government of Balochistan, Home and Tribal Affairs Department Quetta, the 9th January, 1997. No. SO (Judl.) 4(5)/94/Vol-V/456-93.

In exercise of the powers conferred by clause (s) of subsection (1) of section 4 of the Code of Criminal Procedure, 1898 (Act V of 1898), the Government of Balochistan is pleased to declare all Levies Thanas headquartered at Tehsil/Sub-Tehsil to be police stations for their respective areas of jurisdiction and for the purposes of registration and investigation of cases.

2. The Officers Incharge of the said police stations will exercise all the powers vested in the Officer Incharge of a police station as provided in the Cr.P.C. and under any other law, for the time being in force.

3. The Tehsildar/Naib-Tehsildar or any other person so appointed will act as the Officer Incharge of such police stations within the limits of their territorial jurisdictions. They will continue to perform such other duties as may be assigned to them under any other law; provided that such officers will not have authority/jurisdiction to sit in trial of cases which they have inquired into, or investigated. By order of Governor of Balochistan.

11. Our this conclusion also finds support by the provisions of section 185-A which provides that the Special Judge can take cognizance of the offence, not only on the report in writing made by an officer of Customs but also on the report made by Officer Incharge of police station. We are also fortified in this regard by the observation made in case reported in 1987 PCr.LJ 1789. Code of Criminal Procedure. Act (V of 1898). Section 4(f)

"Cognizable Offence "Cognizable Case". Though the Police Constable is not entrusted with powers under the Customs Act, yet without express bar, in cognizable offences under the Customs Act, he can arrest under the Criminal Procedure Code. Section 529.

An illegality committed in the course of investigation with regard to arrest, search and seizure would not vitiate the trial provided the cognizance is validly taken. Similarly the Hon'ble Supreme Court of Pakistan in a case reported in PLD 1969 SC 461 observed as under: "Person, found in possession of smuggled Indian bidi leaves, arrested and F. I. R. recorded wherein mentioned that offences falling within S.167 (81), Sea Customs Act, 1878 and S.3, Imports and Exports (Control) Act, 1950 committed

Case, however, registered and formal charge, sheet recorded under S.167 (81), Sea Customs Act only

Held, S.6 of Imports and Exports (Control) Act in circumstances, not at all attracted

No written complaint by Customs Officer in such case necessary." Additionally under section 192 of Customs Act, 1969, any person who comes to know about commission of any offence under this Act or an attempt or likely attempt to commit any such offence, is under legal obligation to give information in writing to Officer-in-Charge of near police station, if there is no Custom House, who will further pass on said information to the nearest Customs House or Customs Station. In the present case, as already observed Jamadar Levies who seized the goods and truck on the suspicion of same being smuggled one informed the Assistant Commissioner/S.D.M., Loralai because at the time of seizer the owner of the goods was unknown and Assistant Commissioner/S.D.M. informed the Customs Department as required by section 192 of the Customs Act. Therefore, in our considered view, for the foregoing reasons there was no illegality in the seizer of goods and truck and the objection raised by the learned counsel in this behalf is unfounded.

12. Coming to the next contention of the learned counsel that the goods were on free list and commonly imported in the country, as such; easily available in the open market, no contravention within the meaning of section 16 have been committed. It may be mentioned here that in response to the above referred contention, the learned D.A.-G. placed on record Notification No.13(88)/IMP.I, dated 24th April, 1988 whereby the goods seized have been included in the list items importable from India but these items are importable on the payment of 30% duty and 18% Sales Tax. This fact is also supported by the documents relied by the appellants in their defence and annexed with the appeal i.e. Bills of Entry and Release Memo. It is evident from the contents of these documents that the black pepper and large Cardamom can only be imported into the country after payment of duty and sales tax, therefore, any attempt to evade the payment of such duty and tax would be an offence within the meaning of Customs Act, 1969 and Imports and Exports (Control) Act, 1950. Once a reasonable suspicion arises about the possession of any goods by a person that the same have not been lawfully imported in the country or any tax or duty leviable upon such goods have not been paid, the burden under sections 187 and 156(2) of the Customs Act shifts to person who is in possession of such goods. In the present case the appellants were found in possession of large quantity of black pepper and Cardamom in a small town i.e. Loralai which surely did not have capacity of the consumption of such large quantity, a reasonable suspicion does occur as to how these goods were brought in the town. According to the appellants these goods were lawfully imported in the country and they had purchased these goods through lawful means. In order to substantiate their claim and discharge burden, the appellants have relied upon the Bills of Entry and Release Memo. The perusal of impugned 3rder shows that the appellants were asked to produce the original of these documents, which they failed to produce. The photocopy being not admissible in evidence, were rightly discarded by the forums below. The learned Appellate Tribunal also did not rely upon the documents placed by the appellants in support of their claim because according to learned Tribunal the appellants failed to prove lawful import of the subject goods into the country through valid and convincing evidence. We may add here that besides the documents produced by the appellants inadmissible in evidence being photocopies, these documents do not prove that the goods seized from the possession of the appellants were, in fact, the goods imported under the documents relied by the appellants because according to the appellants they had purchased these goods i.e. black pepper and Cardamom from open market but failed to produce any purchase receipt in their name. Neither the Release Memo. nor the Bills of Entry are in the name of the appellants. The recovered goods are not in small quantity but in thousands kilograms, therefore, it cannot be said that at the time of purchase, the appellants failed to obtain purchase receipt. The appellants having failed to discharge the burden, which has shifted to them under section 187 read with section 156(2), Customs Act, 1969, were rightly found guilty for the contravention of the provisions of Customs Act read with Imports and Exports (Control) Act, 1950 by the forums below and we find no illegality in the impugned orders.

13. So far confiscation of truck in which offending goods were found, and redemption of the same in lieu of fine is concerned, it would be suffice to observe that after coming to conclusion that the seized goods were rightly made subject to adjudication impugned orders passed in respect of truck are unexceptionable and we find no wrong in the same. For the foregoing reasons, the instant appeal being without any merit is dismissed accordingly. S.A.K./167/Q Appeal dismissed.