2004 P Cr (PLP)

5. In response to the order of this Court, respondents Nos.1 to 4/Customs authorities and respondent No.5 have furnished their report and parawise comments which have been perused.

6. The arguments of learned counsel for the parties have been heard at preliminary stage on all issues, involved in these writ petitions, therefore, I have decided to dispose of these matters as notice case.

7. Learned counsel for the petitioners argued that the petitioners are owners of the vehicles in dispute which they had purchased from Al -Madina Engineering Works Karachi and got the said vehicles registered with the Motor Registering Authority Shikarpur in their names, where, the separate registration numbers have been allocated to the said vehicles; that in parawise comments the respondent No.5 had admitted the registration of said vehicles in the office of Motor Registering Authority Shikarpur. Further contended that the seizer of the things liable to confiscation, can only be made under section 168 of Customs Act, 1969 by the Customs authorities and it has not been determined as yet that the vehicles in question are liable to confiscation. He relied on case of Collector of Customs and another v. S.M. Yusuf 1973 SCMR

411. Further argued that a notice was to be served upon the owners of the goods or any person holding them and where any goods are seized, the respondents had not served any such notice to the petitioners which is the requirement of law as provided in section 171 of the Customs Act. Further submitted that there is no evidence with respondents Nos. 1 to 4 for seizure of vehicles, except the letter issued by respondent No.5, intimating respondents Nos. 1 to 4 that at that time the record was not traceable but thereafter the same was traced out and respondent No.5 issued certificate to the effect that said vehicles are registered by Motor Registering Authority/respondent No.5. Further added that the respondents have issued notices under section 180 of the Act to the attorney of the petitioners who was neither the owner nor occupant of these vehicles. Further submitted that then was no justification for the customs authorities to seize, the Buses manufactured by a well-known manufacturing concern merely on the ground that chassis numbers of the Buses were fake. Learned counsel further, contended that only evidence collected by the respondents against the petitioners is the report of Forensic Science Laboratory Islamabad, which had been obtained by the respondents in absence of the petitioners. Learned counsel for the petitioners lastly argued that the action of the respondents done illegally cannot be a defence against the petitioners and such action is liable to be declared illegal and without lawful authority. In this respect, he relied on case of S.M. Yusuf v. Collector of Customs and others PLD 1968 Karachi 599.

8. On the other hand, learned standing counsel appearing on behalf of Customs authorities has vehemently, opposed the arguments addressed by the learned counsel for the petitioners, contending that the vehicles had been seized, by the Customs authorities under section 168 of the Customs Act. Further submitted that there is alternate remedy of appeal and revision provided in the Customs Act but the petitioners without exhausting the same have knocked the Constitutional jurisdiction of this Court. Further added that the matter has been referred to the competent authority for adjudication, therefore, writ is liable to be dismissed. Further argued that onus lies on the petitioners to establish that seized vehicles were locally made. He placed reliance on cases of Abdur Rauf Khan v. Collector Central Excise arid Land Customs, Peshawar and 3 others 1980 SCMR 114, Collector Customs Lahore v. Azeem Ahmad 2003 PTD 960, Collector of Customs, Multan v. Muhammad Tasleem 2002 MLD 296 and Muhammad Yaqoob v. Pakistan through Secretary, Ministry of Finance Islamabad and 3 others, 2002 PTD 2885. Further argued that factual controversies are also involved in the matter, therefore, writ petition is not maintainable. Relied on cases of Mst. Kaniz Fatima through legal heirs v. Muhammad Salim 2001 'SCMR1493, Khalid Mahmood v. Collector of Customs House, Lahore 1999 SCMR 1881 and Shah Wali v. Ferozuddin 2000 SCMR 718.

9. I, have heard the learned counsel for the parties at length and perused the record.

16. Section 168(1) of the Customs Act envisaged asunder:

"The appropriate officer may seize any goods liable to confiscation under this Act, and where it is not practicable to seize any such goods, he may serve on the owner of the goods or any person holding them in his possession or charge an order that he shall not remove, part with, or otherwise deal with the goods except with the previous permission of such Officer." Subsection (2) further provides that:

"Where any goods are seized under subsection (1) and no show cause notice in respect thereof is given under section 180 within two months of the seizure; of the goods, the goods shall be returned to the person from whose possession they were seized. " and section 171 of the Act enshrines that:

"When seizure or arrest is made, reason in writing to be given. When anything is seized, or any person is arrested under this Act, the officer or other person making, such seizure or arrest shall, as soon as may be, inform in writing the person so arrested or the person from whose possession the things are seized on the grounds of such seizure or arrest."

11. From the bare reading of the above referred provisions of law, it is manifestly clear that the goods which are liable to confiscation can be seized and a notice in writing is to be issued to the person from whose possession the goods have taken into possession/seized. The goods could be seized/taken into possession by the Customs authorities provided these are being played or possessed in contravention of the provisions of Customs Act, 1969.

12. The question of seizure of goods liable to confiscation has been dealt with by the Honourable Supreme Court of in case .of Collector of Customs v. S.M. Yusuf 1973 SCMR

411. The relevant portion of the judgment is reproduced as under for further guidance:

"It was contended by the learned counsel that since it has been ascertained by the Customs Officers during the pendency of the writ petitions that the goods seized from the premises of the respondents were liable to confiscation they could be seized under section 178 and the provisions of section 172-A ceased to have application in regard to their seizure. In effect the orders of the High Court declaring the action taken by the Customs Officers to be unlawful and directing them to hand over to the respondents the good, seized from their premises were stultified by the action taken by them under section

178. If the construction placed by the Department on the section is accepted the safeguards provided by the Legislature in sections 172 and 172-A would be rendered completely nugatory. It, therefore, follows that goods in relation to which it has not yet beer; determined to proper proceedings whether any of the provisions of Sea Customs Act have been contravened or that they are liable to confiscation are not liable to seizure under section

178. The opening clause in the section. "Anything liable to confiscation under this Act" makes it clear that the liability of confiscation is already determined or is no longer in dispute. In the instant cases the respondents disputed that any of the provisions of the Sea Customs Act has been contravened in respect of the foreign cloth seized from their premises and unless a determination is inappropriate proceedings reached to the contrary it cannot be postulated that the same goods are liable to confiscation. There are in the Sea Customs Act also provisions for appeal and revision from the decision of the Customs Officer on this point. In this view the seizure of the goods, belonging to the respondents, by the Customs Officers under section 178 was equally without lawful authority and since it was intended to nullify the effect of the writs issued by the. High Court we highly disapprove of their action." In the above referred judgment of apex Court, the seizure of goods by the Customs authority without determining its liability to confiscation was disapproved and the writ issued by the Sindh High Court, declaring by the action of respondents/Customs Officers, seizing of goods without determining liable to confiscation was upheld. The same controversy has also been dealt with by a Division Bench of Quetta High Court in case of Salooka Steels Ltd. of Director-General. Coast Guards of Pakistan PLD 1981 Quetta

1. The relevant portion of this judgment is reproduced as under:

"On the same analogy it can be held that in the absence of a determination, that goods being seized are liable to confiscation, through proper proceedings, the seizer of ship under' section 168 of the Customs Act is without lawful authority. In the present case, the allegation is that the import of the ship is illegal. The fact of such illegal import has to be established through proper proceedings before such seizure can take place. The seizure, though notional in nature, is therefore, without lawful authority."

13. Section 171 of the Customs Act provided issuance of written notice to the person from whom the goods have been seized. The non-compliance of the provisions of section 171 of the--Customs Act is not, curable. The provisions of section 171 of the Customs Act, 1969 are mandatory and were designed to protect persons from being arrested on goods from being seized on unjustifiable grounds which could be, subsequently examined by the Court or the relevant authority on the objection of aggrieved person. The non-compliance of section 171 of the Customs Act is not a lacuna which can be cured under section 537, Cr.P.C. but it is an illegality. It has been held in case of Noorul Hassan v. The State 1989 PCr.LJ 631 that where a provision of lain requires execution of a matter in a specified manner the will of Legislature should be carried into affect.

14. The assertion of the petitioners is that they have purchased the vehicles in dispute from Messrs Al-Madina Engineering Works Karachi who had earlier purchased the same from S. R.T.C. The question that the disputed vehicles were smuggled goods is yet to be determined by the Adjudicating Authority and after the adjudication these shall be liable to confiscation. The respondents have based their case on one letter of respondent No.5 that files of the buses were not traceable in the office and on the basis of the report of Forensic Science Laboratory that chassis numbers were tampered, which is not sufficient to believe that the goods/vehicles were smuggled or imported into Pakistan without payment of customs/excise duty or other, charges chargeable from the importers of the Buses.

15. It is admitted position, that notice under section 180 had been issued by the Adjudicating Authority in the name of one Lala Sher, Nawaz Baloch son of Allah Ditta Kibria who was neither owner of the Buses nor the same were seized from his possession as is evident from the notice, dated 15-12-2003 issued by the Customs House Multan, wherein, it is mentioned that these vehicles have been seized from the possession of Muhammad Umar Khan son of Sultan Mahmud, Mohallah Pir Bukhari, BCG Chowk Multan while the petitioners have categorically asserted in their petitions that they are owners of the vehicles and their stand is supported by the comments submitted by respondent No.5/Motor registering Authority Shikarpur, who admitted the registration of said vehicles in their names and the same is further strengthened by the Certificate issued by respondent No.5 in this respect. The copies of Registration Books are also available on the files of this Court and the said record has not been controverted by the said respondent in their parawise comments. The notice issued to Lala Sher Nawaz Baloch by the respondent has no legal consequences. The requirement of Customs Act. for seizing of the goods liable to confiscation have not been complies with. No such record has been produced by the respondents to establish that any intimation or notice under the relevant provisions of law has ever been issued to the petitioners.

16. Where notice under section 171 of the Customs Act showing seizure of smuggled goods not served which was a mandatory provision' and in absence of such notice the proceedings under the Act cannot sustain as laid down in case of Muhammad Saleem v. The State 1988 PCr.LJ 1188 and Mian Iftikhar v. The State 1988 PCr.LJ 1445.

17. As stated above, the petitioners have placed on record the certificate issued by the Motor Registering Authority Shikarpur, claiming to be the owners of the vehicles in dispute and this factum has not been controverted by the respondents by any evidence and it has not been established that these vehicles were smuggled goods. The letter of respondent No.5, dated 11-10-2003 in response to the letter issued by the respondent/Customs House, Multan to the effect that files are no t traceable as well as report of Forensic Science Laboratory are not sufficient to believe the importation of the vehicles without payment of customs dues.

18. Moreover, the Customs Authorities have also not been able show as to from which country these vehicles were imported by the petitioners. There was hardly any evidence to prove that the petitioners have smuggled these vehicles and these were found as smuggled items. This argument is supported by the case-law laid down in cases of Noorul Hassan v. State 1989 PCr.LJ 631 and Aurangzeb Abbasi reported as 2001 MLD 797.

19. As it is admitted position that no proceedings under the Customs Act have been initiated against the petitioners who claim to be the owners of these vehicles/buses. The matter has been referred to for adjudication against Sher Nawaz Khan Baloch who is neither the owner of the Buses nor the same have been taken/seized fr9m his possession, therefore, these proceedings have no bearing on the petitioners.

20. As to the argument of learned counsel for the respondents that alternate remedy of an appeal and revision is available to the petitioners but they without exhausting the same have approached this Court. It is suffice to say that where the actions of the public functionaries, causing mental and financial loss have been taken malafidely, illegally and without lawful authority, the Constitutional jurisdiction of this Court would be invoked. Reliance in this respect can be made to the cases of Chairman Central Board of Revenue Islamabad v. Messrs Pak Saudi Fertilizer Ltd. 2000 PTD 3748, Ghazi Fabrics International Ltd. Gulberg-III, Lahore through Chief Executive v. WAPDA PLD 2000 Lahore 349 and Gatron (Industries) Limited v. Government of Pakistan and others 1999 SCMR 1072.

21. After taking in to possession by the Customs Intelligence ands Investigation Wing .the prayer of the petitioners for the release of vehicles has been declined. The only strong evidence, inferring the vehicles to be smuggled items is the report of Forensic Science Laboratory' that, too, was ex parte and obtained in absence of the petitioners and on the basis of this sole criteria the Court could not leave the peaceful/innocent 'citizen at the mercy of Customs Department and open licence cannot be given to any Government functionaries to harass and cause mental agony to the citizens of the country and in such-a, situation, the citizens are to be afforded full protection by the Courts. Reference in this respect can be made to the case of Amjad Atta Muhammad v. Deputy Director Customs 1994 CLC 1797.

22. For future, guidance, in such-like dispute, the Forensic Science Laboratory will submit report after examining the vehicle in the presences of the concerned person/party, and ex parte report would not be accepted. At least notice, would have been issued by the Seizing Authority to the owner or the person to whose possession the vehicle would be taken into possession by the Customs/Police functionary, to the effect that on such and such date, the vehicle will be examined in the Laboratory.

23. For the foregoing reasons, the entire action of respondents Nos. 1 to 4/Customs authorities, seizing the vehicle/buses of the petitioners without determining the same liable to confiscation, is hereby declared illegal, without lawful authority and of no legal effect, and as a result whereof, these writ petitions are accepted with costs. S.A.K./M-367/L Petition accepted.