1988 P Cr (PLP)

Jawahar A. Naqvi for Petitioner. Qadeer Ahmad Saddiqui for Respondents. Date of hearing: 9th March, 1988. This is a constitutional petition filed by Muhammad Siddique, petitioner, challenging the order of the Additional Secretary, Ministry of Finance, Central Board of Revenue, Karachi, dated 15‑3‑1986.

2. The brief facts of the case are that truck No.BU‑4767 was apprehended at G.T. Road crossing near Rawat (Rawalpindi Division) by the Assistant Collector (Preventive), Rawalpindi. The truck contained 24 bags of betelnuts weighing 2000 kgs. Muhammad Khan, driver, Muhammad Ilyas, cleaner, Nazar Ahmad and Javed Ahmad were occupants of the truck, when the same was seized. On interrogation, they informed that Muhammad Siddique, petitioner, was the owner of the goods and Hasham Khan was the owner of the truck and accordingly adjudication proceedings were initiated against Muhammad Siddique, petitioner, Nazar Muhammad, driver, Muhammad Ilyas, cleaner, Nazar Ahmad, Javed Ahmad and Hasham Khan. The Deputy Collector, Customs, by his order dated 10‑10‑1984 confiscated the betelnuts weighing 2,000 kgs. alongwith truck No.BU‑4767. He then gave an option to Hasham Khan to redeem the truck, in lieu of fine of Rupees three thousand (Rs.3,000). Being aggrieved by the said order, the petitioner preferred an appeal before the Collector of Central Excise and Land Customs (Appeals), Lahore, which was rejected on 19‑10‑1985. Being aggrieved by the said order, the petitioner preferred a revision before the Additional Secretary, Ministry of Finance, Central Board of Revenue, Karachi, which was also rejected on 15‑3‑1986. Being aggrieved by the said order, the petitioner filed a writ petition in this High Court, which is now before me for disposal.

3. During proceedings before the Deputy Collector, Customs, Rawalpindi, the petitioner took up the plea that the betelnuts seized were a part of Lot No.43, which had been auctioned by the Customs Department at Peshawar on 20‑2‑1984 in favour of Shah Jehan and Gulrase, that on 6‑3‑1984 5,500 kgs. of betelnuts auctioned under the said Lot No.43 were delivered by the Customs at Peshawar to the auction purchasers, namely, Shah Jehan and Gulrase, that on 6‑3‑1984 the Customs Department at Peshawar had issued delivery order in favour of the petitioner for transportation of betelnuts comprising part of Lot No.43 from Peshawar to Rawalpindi and that the betelnuts seized from him were a part of that lot. The petitioner produced necessary documents in support of his claim before the Deputy Collector, Customs, Rawalpindi, who sent the said documents to Peshawar Collectorate for verification, who verified the same and found them to be in order. However, the Deputy Collector did not treat the betelnuts recovered on 20‑3‑1984 from the petitioner as part of the said Lot No.43 on the ground that the betelnuts which were auctioned by the Customs at Peshawar happened to be in bags weighing 96 kgs. whereas those seized from the petitioner were in bags weighing 77, 79 and 87 kgs. In support of his case, the Deputy Collector also took into consideration the fact that the petitioner was a habitual smuggler involved in betelnuts and in the past had been involved in various smuggling cases lodged at various Police Stations in Lahore and Rawalpindi.

4. The mere fact that the betelnuts in the instant case were found in bags weighing 77, 79 and 87 kgs. and not in bags weighing 96 kgs. does not unequivocally show that the betelnuts recovered from the petitioner were not of the same lot, which were auctioned originally in favour of Shah Jehan and Gulrase and of which part was brought by the petitioner from Peshawar to Rawalpindi on 6‑3‑1984. The mere fact that the petitioner was a habitual smuggler does not add any second string to the bow. The orders of the various officers of Customs appear to be conjectural and not passed on proper evidence. From the documents produced by the petitioner a reasonable inference can be drawn that the 2000 kgs of betelnuts he was transporting from Rawalpindi to Lahore were a part of Lot No.43 auctioned by the Peshawar Customs in favour of Shah Jehan and Gulrase and which) the petitioner had brought from Peshawar to Rawalpindi. The orders passed by the various officers of the Customs Department appear to be based on conjectures and appear to have been passed without lawful authority.

5. For the foregoing reasons, this petition is accepted with costs and the order of the Additional Secretary, Minsitry of Finance, Central Board of Revenue, dated 15‑3‑1986 is declared to have been passed without lawful authority and is set aside. The petitioner shall be entitled to Rupees three thousand (Rs.3,000) as counsel's fee. A.A./M‑703/L Petition accepted.