1980 PLP 610 (SCMR)

This petition for leave to appeal is directed against the judgement of the Lahore Court passed on 29th October, 1974 in writ petition No. 512 of 1974 whereby the writ petition filed by respondent Haji Khadim Hussain was accepted and the orders of the Central Excise and Land Customs Department were quashed. The facts form the background are that a report about the clandestine removal of tobacco from the warehouse of Haji Khadim Hussain, the respondent herein, was received by the Inspector, Central Excise and Land Customs, Talagang on 27th January, 1969. The said Inspector visited the licensed premises of the respondent on 29th January, 1969 and allegedly got the entire tobacco stock in the warehouse weighed on 30th January, 1969. A shortage of 26 maunds 6 seers 10 chhattanks of various description of tobacco was detected. It is further alleged that the respondent had also consumed 32 bags of white leaf tobacco weighing 49 maunds 3 seers which had been put by him into process, vide Entry No. 3 dated 7th October, 1968 without payment of duty leviable thereon. Consequently, a notice was issued by the Deputy Collector, Excise (petitioner No. 3 herein) to respondent on 2nd December, 1969 to show cause as to why action should not be taken against him under Rules 151 (d), 160 and 226 read with rule 210 of the Central Excise Rules, 1944. In response, the respondent Haji Khadim Hussain filed his explanation asserting that the Tobacco was never weighed by the said Inspector and there was no shortage according to his book balance. As regards 32 bags of white leaf tobacco, he stated that the same was available to his warehouse. According to him the Excise Inspector was inimical to him and forced him to record statement as dictated by him. The statement was according to the respondent, recorded under the pressure of the police force, which was brought by the said Inspector with him at the time of raid. The respondent herein, in this respect, relied mainly on the report of the Deputy Superintendent., Excise and Customs, Hassan Abdal, who conducted an inquiry against the said Inspector a few days before the raid Find also weighed his tobacco. The Deputy Collector, Excise and Customs, Rawalpindi, after hearing the respondent herein found that the shortage of tobacco was proved and that an offence under Rules 151 (c), 160 and 226 of the Central Excise Rules 1944 was fully established against the respondent. He was accord ingly required by his order dated 20th April, 1970 to pay duty on 75 maunds 9 seers 10 chhattanks of Tobacco found short in his warehouse and also to pay penalty of Rs. 3,000 under Rule 151 (d) of the Central Excise Rules. 1944. Aggrieved by the above order, the respondent herein filed an appeal before the Collector, Central Excise and Customs, Lahore (petitioner No. 2 herein) who called upon him to deposit the amount of penalty first before his appeal could be heard. Since the penalty in question was, not deposited the appeal of the respondent was dismissed under section 35(1‑A) of the Central Excise and Salt Act, 1944 on 4th February, 1971. Dissatisfied with the said order, the respondent challenged it by filing a revision petition before the Central Board of Revenue, Ministry of Finance, Government of Pakistan, Islamabad, which too, after hearing hint was dismissed on 24th November, 1972. The respondent, therefore, filed a writ petition (W. P. No. 512/73) before the Lahore High Court which was heard by a learned single Judge who accepted the same holding that the alleged tainted evidence could not solely have been made the ground for imposition of penalty especially when the department did not lead any evidence to show that the admission of shortage of tobacco made by the respondent was of his free will and not under coercion and compul sion. 'This petition for leave to appeal is directed against the aforesaid order of the High Court passed on 29th December, 1974. Syed Iftikhar Ahmad, Deputy Attorney‑General, argued before us that in the order of the Deputy Collector, Excise and Customs, Rawalpindi, the entire evidence led by both the parties was thoroughly discussed and it was wrong that the claim of the respondent that he had not made the admission of his free will and under duress had not been considered. In fact, a finding of fact had been recorded against the respondent after considering the entire evidence. In .any case, the High Court could not go into the matter of sufficiency of evidence in writ proceeding. He, therefore, submitted that the order of the learned Judge in the High Court merited reversal. We have not been pursuaded to agree. The order of the Deputy Collector clearly shows that he has not given any finding on the plea with regard to the mala fides of the Inspector, which is apparent from the following observation made by him in his order, namely "There may or may not be enmity between the Inspector and the Tobacco dealer Haji Khadim Hussain but the fact remains ............ The main defence of the respondent was that the entire case had been manufactured against him on account of the inimical relations that existed between him and the Inspector and unless a clear finding was recorded on this aspect of the matter after considering the entire evidence pertinent thereto the order could not be considered to be proper in law. The failure to do so resulted in the entire order passed by the learned Deputy Collec tor becoming untenable. The learned Judge in the High Court therefore rightly quashed it. The learned Judge in this connection noted that no evidence was led by department to show that the admission made by the respondent about the shortage was not made of his free will and there was no rebuttal of his allegation that the said admission was obtained by the Inspector through duress and coercion. In these circumstances, it cannot be held that the High Court wrongly exercised its jurisdiction in writ proceedings in declaring the order of the departmental authorities to be without lawful authority and to be of no legal effect improperly. We, therefore, find no ground for interference with the order of the High Court. This petition is accordingly dismissed. Petition dismissed.