2024 PLP 747 (PTD)

ABDUL SHAKOOR, J.

The Collector Customs, herein petitioner, has filed the present Customs Reference under section 196 of the Customs Act, 1969 ("Act"), seeking opinion of this Court on the following questions of law:

1. Whether, in terms of Notification No.F.E.2/2017-SB, dated 30.08.2017 of State Bank of Pakistan, taking out Rs.330,0000/- out of Pakistan tantamount to Smuggling as defined in subsection "(s)" of Section 2 of the Customs Act, 1969 and S.R.O No.566(I)/2005, dated 06.06.2005 or not?

2. Whether the learned Adjudicating Authority and learned Tribunal had exercised jurisdiction, vested in them, in accordance with law or not?

3. Whether the seizure was in accordance with provisions of Section 168 of the Customs Act, 1969 or not?

4. Whether, the Passenger/Respondent had discharged his obligations in accordance with subsection (2) of Section 156 of the Customs Act, 1969 or not?

5. Whether, Afghan Visa is mandatory for an Afghan National while travelling from Pakistan to Afghanistan or not?

6. Whether, provisions of Section 103 of Criminal Procedure Code, 1898, is applicable to seizure proceedings under section 168 of the Customs Act, 1969 or not?

7. Whether, in presence of Notice under section 171 of the Act, the requirement to provide opportunity of declaration under section 139 of the Act, to passenger, was mandatory or not?

2. The laconic facts leading to the instant reference are that on the eventful day dated 14.11.2020, Staff of Customs (Enforcement and Compliance)/Seizing Agency overcome a passenger namely Shah Wali resident of Afghanistan, while he was on his way from Pakistan to Afghanistan, at NLC Passenger/Baggage Departure Hall, Customs Station, Torkham, and upon his search Pakistani Currency of Rs.3,300,000/- was recovered from his possession which was concealed in a pillow being carried by him. On query, the respondent-accused failed to produce any documentary evidence or lawful possession of the seized amount/currency. As such that amount was taken into custody under the provisions of Sections 2(s), 16 and 139 of the Customs Act, 1969 read with section 3(1) of Imports and Exports (Control) Act, 1950 and Foreign Exchange Regulation Act, 1947, read with State Bank Notification No.F.E.2/2017-SB, dated 30.08.2017, which was liable to be confiscated under section 156(1), clauses 8, 9, 17, 89 and 90 of the Customs Act, 1969 read with section 3(3) of Imports and Exports Control Act, 1950 and Foreign Exchange Regulation Act, 1947. Subsequently, a show notice was issued to him and case was referred to the Collector Customs (Adjudication), Islamabad, who vide Order-in-Original No.42 of 2020, dated 20.01.2021, released the Pakistani Currency of Rs.3300000/-. Aggrieved from the order-in-original, the Collector Customs (E&C), MCC, Custom House, Peshawar, filed an appeal before the Customs Appellate Tribunal, Peshawar Bench, (the "Tribunal"), who by dismissing the appeal has maintained the order of forum below, hence the instant reference was filed for the determination of the questions of law referred above.

3. Learned counsel appearing on behalf of the applicant argued that admittedly huge amount of Pakistani currency has been recovered from respondent being Afghan national who failed to produce any documentary evidence qua the legal possession of the seized currency which was going to be smuggled to Afghanistan in violation of Sections 2(s), 16 and 139 of the Customs Act, 1969 read with Section 3(1) of Imports and Exports (Control) Act, 1950 and Foreign Exchange Regulation Act, 1947 read with State Bank Notification No.F.3.2/2017-SB, dated 30.08.2017, therefore, it was liable to be confiscated and accordingly the Customs Department has rightly seized the same, but, the forum below has not taken the same into consideration, thus the order of lower forum was liable to be set-aside by the Tribunal and as such not doing so, the questions which have been arisen for determination of this Court are mentioned hereinabove.

4. Conversely, the learned counsel appearing on behalf of the respondent fully supported the order of the learned Tribunal whereby it has maintained the judgment of forum below by submitting that adjudicating officer has rightly ordered to release the seized currency; since, neither currency was intended to be smuggled to Afghanistan, nor presence of any picture of the CCTV Cameras installed in the NLC Baggage Departure Hall, Customs Station Torkham, was brought on the record to suggest that respondent/accused was actually involved in the smuggling of the seized currency; in view of this factual position of the case of respondent, no legal questions listed above are arising out of the judgment and order of the Tribunal for determination of this Court, hence this reference is liable to be rejected.

5. Perusal of the judgment of the learned Tribunal would show that it has upheld the judgment/order of adjudicating officer only keeping in view the factual position of the case that nothing has been brought on the record which could remotely suggest that the respondent has ever entered in the NLC Baggage Hall, Customs Station Torkham, since despite installation of CCTV Cameras therein, no photographs or film was brought on the record which could suggest that he was got therein. It appears the Tribunal, keeping in view the aforesaid factual position of the case of respondent, has maintained the order-in-original of the adjudicating officer. As from the perusal of record it is clear as day of light that Customs Department could not bring on the record a photograph or film of CCTIV Camera installed on NLC Baggage Department Hall showing the presence of respondent therein at the relevant time. Likewise, it could not bring on the record the copy of passport showing that a visa was imposed thereon by the concerned Consulate showing the respondent-accused in fact was proceeding to Afghanistan with huge amount of currency which under the law referred to hereinabove was not permitted to be taken along and amounting to smuggling in terms of provisions of the Customs Act, 1969. The learned counsel appearing on behalf of the Customs Department when confronted with the above situation, he could not wriggle out of it. When such being the case, the aforesaid questions of law have not arisen out of the judgment/order of the Tribunal for determination of this Court.

6. Accordingly, the instant reference stands rejected. Office shall send a copy of this judgment under the seal of this Court to the worthy Customs Appellate Tribunal, Peshawar Bench in terms of Section 196(5) of the Customs Act, 1969. MQ/97/P Reference dismissed.