Prevention of smuggling

2022 PTD 245 KARACHI-HIGH-COURT-SINDH Judicial Precedent

Ss.162, 163 & 196Prevention of smugglingPower to issue search warrantPower to search and arrest without warrant

Question before High Court was whether Appellate Tribunal was justified in declaring proceedings for search and seizure unlawful on ground that mandatory requirements of S.163 of Customs Act, 1969 were not met

Held, that requirements of S.162 of Customs Act, 1969 could only be dispensed with when exceptional circumstances existed and S.163 of said Act empowered Departmental officer to make search without warrant, if he was satisfied that there was danger of removal of goods (which were to be specified)

Mandatory requirements of S.163 of Customs Act, 1969 meant that there was heavy burden on concerned officer carrying out search without warrant and he / she must prepare statement to include grounds for his / her beliefs , and list the goods or documents or things for which search was being made

Text of such statement in the present case seemed to be fishing expedition before dispensing with procedure of S.162 of Customs Act, 1969 and Departmental officer did not disclose what subject goods were smuggled and what specific documents he apprehended would be removed

Only a genuine ground could have enabled such officer to invoke powers under S.163 of Customs Act, 1969

Nothing in the present case demonstrated any danger such officer apprehended nor there existed any details of goods required to be searched and furthermore a signed copy of such goods was not handed over to the occupier and therefore Appellate Tribunal rightly annulled proceedings initiated under S.163 of Customs Act, 1969 being illegal search and seizure

Reference was answered, accordingly.

2021 PTD 1026 KARACHI-HIGH-COURT-SINDH Judicial Precedent

Ss.181, 168 & 196SRO No.499(I)/2009 dated 13.06.2009Prevention of smugglingConfiscation of smuggled vehicleOption to pay fine in lieu of confiscated goodsScope

Department impugned order of Appellate Tribunal whereby a vehicle confiscated on ground that same was smuggled, non-duty paid, and had tampered chassis number; was allowed to be released to respondent against payment of fine of twenty percent of vehicle's value, as per SRO No.499(I)/2009 dated 13.06.2009

Validity

Forensic report of vehicle demonstrated that chassis number had been tampered with and Appellate Tribunal dealt with such issue in a perfunctory manner, and merely relied on registration of vehicle, which was unsubstantiated by record, and could not absolve subsequent purchaser of such vehicle from liability

SRO No.499(I)/2009 dated 13.06.2009 expressly excluded smuggled items from purview of relief granted therein and impugned order did not give any findings that said vehicle was not smuggled, and therefore benefit of said SRO could not be given to respondent

Impugned order therefore could not be sustained and was set aside

Reference was answered, accordingly.

2021 PTD 764 KARACHI-HIGH-COURT-SINDH Judicial Precedent

Ss.162, 163 & 187Prevention of smugglingPower to issue search warrantPower to search and arrest without warrantDetention of seized goods where search and seizure were legally defectiveScope

Question before High Court was whether power to search and arrest without warrant under S.163 of Customs Act, 1969 was an exception to S.162 of the Act, or was an alternative thereof

Held, that S.163 of Customs Act, 1969 was not an alternative to S.162 of Customs Act, 1969 and S.163 was to be read in conjunction with S.162

Section 162 of Customs Act, 1969 may only be dispensed with in the statutorily stipulated circumstances

While law placed initial evidential and tactical burden on person in possession of goods, however, such person only needed to show evidence to prima facie discharge his burden to demonstrate legality of such goods and thereafter burden shifted to customs authorities

Where search and seizure was defective and improper on account of non-conformity with Ss.163 & 162 of Customs Act, 1969; then same could not be sustained; and in such a case, continued detention of seized goods could not be allowed

Constitutional petition was allowed, accordingly.

2013 PTD 821 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Ss. 179 & 169Criminal Procedure Code (V of 1898), S. 265-KConstitution of Pakistan, Art. 199Constitutional petitionAlternate remedyImport of goodsPrevention of smugglingQuashing of F.I.R.

Consignment of petitioner was seized, show-cause notice was issued, and simultaneously a criminal F.I.R. in relation to smuggling was registered against the petitioner

Order-in-original was passed against the petitioner which was set aside by Customs Appellate Tribunal on the ground that the same was in violation of S. 179(3) of the Customs Act, 1969 and entire proceedings against petitioner were declared void ab inito

Said order having not been assailed by filing of Reference within prescribed period of limitation had attained finality

Petitioner, inter alia, sought quashing of the F.I.R. registered against him whereas the Department contended that petitioner had an alternate remedy available under S. 265-K Cr.P.C., therefore Constitutional petition was not maintainable

Held, that when the show cause notice had lost any relevance and efficacy, it could not be expected that the criminal court, on the same facts and material, could take some other view

Proceedings under S. 265-K of Cr.P.C. could only be pressed if challan was pending and trial had commenced; which had not happened in the present case

Since trial had not commenced there was no occasion with the Trial Court to frame a charge, therefore, it could not be said that remedy under S. 265-K Cr.P.C. was available to the petitioner

Since matter had become redundant, it would be an illusion to send the petitioner to face trial and the case was fit and proper for exercise of Constitutional jurisdiction of High Court

High Court directed that F.I.R. against the petitioner be quashed as there was no possibility of conviction, since the matter had become redundant

Constitutional petition was allowed, in circumstances.

2013 PTD 327 CUSTOMS-APPELLATE-TRIBUNAL-PESHAWAR Judicial Precedent

Ss.157 & 158Prevention of smugglingDetention and seizure

Practice and procedure to be followed, stated.