1989 PLP 1991 (MLD)

Godown No.7, Near Hanifa Manzil, Gali No.1, Memon Society, Anwar Ghulam Hussain Road, Karachi. Subject: Detention of consignment of Skimmed Milk Powder 5,000 bags approximately lying in the abovementioned Godown. The above mentioned quantity of skimmed milk powder arrived as per I.G.M. No. Nil Index No. Nil as per "SS Ocean Sincerity" are hereby detained for investigation.

2. You are hereby directed not to remove the above mentioned goods until prior permission is taken from the Directorate, of Vigilance, Karachi. Sd/- Illegible 28-12-1988 (Ishrat Ali) Inspector Tele: 419477." In reply to the above notice of respondent No.1 the petitioner on 6-2-1989 made a representation contending that the skimmed milk imported by them is fit for human consumption and should be released. It was pleaded that action taken against the petitioner by respondent No.1 was mala fide and was based on ulterior motive. This was followed by another letter dated 22-2-1989 alongwith a copy of the F.A.O. Report of Expert consultant in support of the contention of petitioner that the milk imported by the petitioner did not contain "Bq" over and above internationally recognised percentage which is considered safe for human consumption. It appears that on the above representation of the petitioner. No action was taken by respondent No.1 and as the goods were of perishable nature, the petitioner filed the present petition in this Court on 2-3-1989 challenging the action of respondent No.1 and also impleaded other functionaries of Customs department as respondents. Respondent No.1 alone on being served with the notice of petition filed a counter-affidavit on 15-3-1989 in which it is contended that according to the report of Pakistan Atomic Energy Commission, skimmed milk imported by the petitioner is not lit for human consumption as the same is contaminated by radiation viz. CS-137 Cesuem per Kg at 125 Bq contrary to the prescribed National standard of 100 Bq per Kilogram adopted in Pakistan in line with the Food and Agricultural Organization of U.N.O. It is accordingly contended that the petitioner had obtained clearance of the goods by making a false declaration in the Bill of Entry that the skimmed milk imported by them was fit for human consumption. Alongwith the counter-affidavit respondent No.1 has produced several documents including the report of Atomic Energy Commission of Pakistan certifying that the milk imported by the petitioner is not fit for human consumption as it contained radiation material in excess of the limit considered safe by the Commissioner. The petitioner on the other hand had filed several documents including test report of sample of imported milk and the Council Regulation adopted for the European Communities, prescribing the internationally recognized limit of percentage of `Bq in milk which is considered safe for human consumption and it is contended that even if the report of Pakistan Atomic Energy Commission is accepted as correct, even then the presence of radiation material in the milk in `Bq' is less than the internationally cognised limit. We would, how refrain from expressing any opinion on the merits of the above controversy as alongwith the counter-affidavit of respondent No.1 a copy of the Show-Cause Notice dated 8-3-1989 issued to the petitioner by. respondent No.2, has been filed in which the petitioner has been called upon to show cause why fiction should not be taken against them for alleged violation of Section 16 of the Customs Act read with Section 3 of the Imports and Exports (Control) Act, 1950 and Section 156(14) of the Customs Act, 1969. In the above notice which is filed as Annexure "A-I" to the counter-affidavit of respondent No.1 'it is alleged that the milk imported by the petitioner contained radioactive material in excess of the prescribed National standard limit in Pakistan. We have "been informed by the learned counsel for respondents that the hearing of this case is fixed before the Collector of Customs (Appraisement) on 16-4-1989. We will, therefore, here confine our consideration only in respect of the action taken by respondent No.l. It is an admitted position in the case that 95% of the goods were released from customs against the Bill of Entry submitted-by the petitioner and a part of the released consignment has- also been sold by the petitioner. Respondent No.l on 28-12-1988 issued the impugned notice which we have already reproduced earlier in this order. A reading of the above notice will show that it was for all practical purposes a seizure under Section 171 of the Customs Act. In the case-of Him Khan v. Government of Pakistan 1983 CLC 786 a Division Bench of this Court of which one of us was a member, had the occasion of examining an order of this kind passed. by the Customs Authorities and it was held that a restraint order of the nature as is passed in the case before us, was violative pf both sections 168(2) and 171 of the Customs Act, 1969. The learned counsel for respondents 1 and 2 is unable to point out any provision of Customs Act under which the impugned order could be passed validly by respondent No.l. As the letter dated 28-12-1988 issued by respondent No.l did not fulfil the requirements of Section 171 of the Customs Act, we declare the same as without lawful authority and of no legal effect. However, with regard to other prayer of petitioner, in the petition we are of the view that the same cannot be considered at this stage as respondent No.2 has already issued notice for adjudication proceedings which is neither challenged in this petition nor in our opinion it could .properly form subject of this petition in which the petitioner had merely questioned the legality of the action of respondent No.l. Mr. Naseem. Ahmad Farooqui, the learned counsel for the petitioner contends that the issuance of show-cause notice dated 8-3-1989 is founded on the initial action of respondent No.l taken on 28-12-1988, and is merely designed to defeat the present proceedings. In view of our above order we do not feel necessary to decide this contention of petitioner. Mr. Farooqui also expressed the apprehension that in view of the declaration granted by this Court holding the action of respondent No.l as without lawful authority, the respondent No.l and Customs Authorities may harass the petitioner and delay the decision in the case so that the quality of the goods which is. perishable may deteriorate making it impossible for the petitioner either to sell it in the local market or re-export the same. We are confident that respondent No.2 will decide the proceedings initiated by him by issuing the notice dated 8-3-1989 in a fair and impartial manner without being impressed in any way by the action taken by respondent No.l so far in the matter. There will be no order as to costs. H.B.T./M-817/K Notice quashed.