1. ' G. SAFDAR SHAH, J.-- The background of the case in which the petitioner has come up to this Court praying for leave to appeal against the judgment of the Peshawar High Court, dated 27th November, 1978, is as follows :-- ' On 1st May, 1977, the petitioner purchased from one Muhammad Ashraf of Gujranwala a Mercedes Benz Car of 1969 Model for Rs, 1,00,000. Muhammad Ashraf, when giving the delivery of the car to the petitioner, also gave him a receipt for the said amount, as well as all the relevant documents such as the Registration Book, etc. On 22nd October, 1977, however, an Inspector of Police of the Crimes Branch, Peshawar, stopped the car of the petitioner in front of the Government Secretariat, Peshawar, and took the car into possession, as the petitioner could not satisfy him that the same had been lawfully imported into the country. The case of the petitioner is that from 22nd October, 1977 to 1st December, 1977, the car was used by the said Inspector for his private purpose, and it was only on 1st December, 1977 when he made a formal report of its seizure at a local police station at Peshawar under section 156 (89) of the Customs Act, 1969. On 21st November, 1977, the petitioner was served with a show-cause notice by the Deputy Collector, Land Customs, Peshawar, under section 156 (90) of the Customs Act asking him to explain within 20 days as to why action may not be taken against him under section 156 (9) and (90) of the Customs Act, as also his car was not confiscated under the said sections. On 5th December, 1977, the petitioner replied to the said show- cause notice in writing and on 8th February, 1978, the Deputy Collector took up the case for hearing, in which the petitioner fully participated and by his order of the same date confiscated the car as well as imposed on the petitioner a fine of Rs, 50,000 under section 156 (90) of the Customs Act.
2. ' Being aggrieved of the said order, the petitioner went in appeal before the Collector, Central Excise and Land Customs, Peshawar. Who vide his order dated 12th April, 1978, partially allowed the same with the following observations :- "The petitioner purchased the car for a valid consideration of Rs, 1,00,000 which presented the fair price of the vehicle. The statement purported to have been made by the appellant has not been signed by him and has been instead totally disowned. In fact the prosecution has not brought on record any tangible and substantial piece of evidence to establish the personal involvement of the petitioner. As such I give the appellant the benefit of doubt and order that the confiscated car be released to the owner against a redemption fine of Rs, 50,000 (Fifty thousand) and payment of taxes. The personal penalty imposed on the petitioner is also waived. The appeal is accepted to this extent only."
3. ' In pursuance of the said order of the Collector, the petitioner was asked to pay Rs, 1,40,000 by way of duty on the import of the car. But of this demand the petitioner felt aggrieved, and consequently challenged the said order of the Collector through a Writ Petition in the High Court, amongst others, on the following two grounds :-
(1) That the very seizure of the car from the petitioner by the Inspector of Police of the Crimes Branch, Peshawar, was ab initio illegal, as he had contravened the requirement of section 171 of the Customs Act by not informing The petitioner in writing of the grounds on-the basis of which he had taken the said action ; and
(2) That the appellate judgment of the Collector of Customs was without lawful authority inasmuch as he had given no reasons in it in support of the imposition on the petitioner the redemption fine of Rs, 5,000 as also that he must pay all taxes due to the Government.
4. ' While dealing with the first contention, the High Court referred to notification No, S. R.
0. 1029 (1)/74, dated 29th July, 1974 by which all officers not below the rank of Assistant Sub- Inspectors of Police were empowered within their respective jurisdiction to exercise the power to search, arrest and seize all things liable to confiscation under sections 158, 160 (1) and (2), 164, 168
(1) and (3), 172 (1) and 174, respectively. In this view of the matter, the High Court disagreed with the said contention and rejected the same.
5. ' As to the second contention, the High Court took the view that just because a decision of the functionary of the Government is found to be incorrect, owing to the wrong interpretation of some provision of law, that by itself would not be a ground for the High Court to issue a writ of certiorari on the petition filed by an aggrieved person. Having observed this, however, the High Court thoroughly enquired into the facts of the case and agreed with the view taken by the Deputy Collector, Customs, that "the petitioner was found in possession of a non-duty paid car and also bogus registration and thus he had incurred the liability under the Act as well as under the ordinary criminal law. The onus regarding payment of duty and legal import or lawful possession was on the petitioner. In terms of sections 156 (90), 187 of the Act. The petitioner also failed to shift the liability to Muhammad Ashraf, the alleged owner of the car in question, who was not traceable in spite of best efforts of the police officers, respondents 3 and 4, and it was found that car Registration No, GA-9934 was previously registered under RIA-5387 and on further probe it was found from the records of the Excise and Taxation Authority Rawalpindi and Gujranwala that the suspected car was never registered or allocated the registration number, which was found in the Registration Book by the Police Officers."
6. ' Qazi Muhammad Jamil, the learned counsel for the petitioner has reiterated before us the same two contentions which he had urged in the High Court. He argued that once the Collector of Customs found that there was no "tangible and substantial piece of evidence to establish the personal involvement of the petitioner" he should have desisted from proceeding with the matter further, as after recording the said finding he must be deemed to have become functus officio.
7. ' In order to see the force of this contention reference may first be made to the cause notice served on the petitioner by the Deputy Collector, Customs, Peshawar (which appears at page 38 of the Paper Book) in which he was called upon to show cause as to why (I) penal action should not be taken against him under section 156 (9) and (90) of the Customs Act, 1969 ; and (2) the Motor Car recovered from his possession not confiscated to the Government, as there were reasons to believe that the car had been brought into Pakistan in contravention of section 3 (1) of the Import and Export Control Act, 1950, and further that no duty had been paid on the said car. It may he mentioned that the copies of the said notice were sent to the petitioner as well as Muhammad Ashraf, from whom the petitioner had purchased the car, but Muhammad Ashraf did not appear in the proceedings, as it was reported back to the Deputy Collector of Customs that the address of Muhammad Ashraf, given in the Registration Book of the car, was a bogus address. {{TABLE}} Section 156 (9) and (90) of the Customs Act, 1969, under which the case was dealt with respectively read as under :- Section of this Act to which Offences Penalties offence has reference 1 2 3 {{TABLE}}
9. (i) If any goods not being goods referred to in clause 8, are imported into or exported from Pakistan evading payment of leviable custom-duties or in violation of any Such goods shall be liable to confiscation ; and any person concerned in the offence shall also be liable to a penalty not exceeding two times the value of the goods. prohibition or restriction on the importation or exportation of such goods imposed by or under this Act or any other law ; or
90. If any person without lawful excuse, the proof of which shall be on such person, acquires possession of, or is in any way concerned in carrying, removing, depositing, harbouring keeping or concealing or in any manner dealing with any goods, not being goods referred to in clause 89, which have been unlawfully removed from a warehouse, or which are chargeable with a duty which has not been paid, or with respect to the importation or exportation of which there is a reasonable suspicion that any prohibition or restriction for the time being in force under or by virtue of this Act has been contravened, or if any person is in relation to any such goods in any way, without lawful excuse, the proof of which shall be on such person, concerned in any fraudulent evasion or attempt at evasion of any duty chargeable thereon, or of any such prohibition or restriction as aforesaid or of any provision as aforesaid or any provision of this Act applicable to ..Hose goods.
8. ' Such goods shall be liable to confiscation ; and person concerned shall also be liable to a penalty not exceeding ten times the value of the goods. {{TABLE}} Now the object of both these provisions is to deal with goods of every description except smuggled goods for which special provision has been made in clauses (8) and (89) of section 156 of the Customs Act, 1969. It would thus be clear that the Collectorate_ of Customs, Peshawar, had dealt with the car recovered from the petitioner not as a smuggled item, but as an item which was imported into the country in violation of section 3 (I) of the Import and Export Control Act, 1950. The fact that this was so would be evident from the langnage used in clause (9) of section 156 of the Customs Act to the effect that "If any goods not being goods referred to in clause (8), are imported into or exported from Pakistan evading payment of leviable custom-duties or in violation of any prohibition of restriction on the importation of such goods imposed by or, under this Act or any other law"., Now the words "any other law", m1 the context, evidently refer to section 3 (1) of the Import and Export Control Act, 1950, under which a notification bearing No, 1264(k)/1968, dated 24th July,. 1968, was issued and in the Schedule I1 to the said notification cars were prohibited to be imported into the country, except under an import licence or an import permit issued by the Chief'
9. Controller or any Controller or Deputy Controller or Assistant Controller of Imports and Exports.
10. Furthermore, by virtue of subsection (3) of the said section all goods the import or export of which is prohibited under the said notification are "deemed to be goods of which import and export has been prohibited or restricted under section 16 of the Customs Act of 1969". Now the said notification was replaced by another notification bearing No, SRO-920 (1)/3, dated 25th June, 1973. But in it also the same restriction in regard to the import of cars into the country has been maintained. And from all this it should, therefore, be clear that since the petitioner could not prove to the satisfaction of the Collectorate of Customs, Peshawar, that the car seized from him and had been lawfully imported into the country or that the due amount of taxes and duty had been paid thereon, the action taken against him by the Collector of Customs would seem to be unexceptionable. In fact, the Collector of Customs seems to have dealt with the case of the petitioner in a rather judicious manner inasmuch as he absolved him of any penal liability, and consequently directed that the oar be released to him subject to his paying a fine of Rs, 5,000 as well as the payment of taxes.'
11. ' The learned counsel for the petitioner, however, tried to make much ' capital out of what he called the bona fide purchase of the car by the petitioner from Muhammad Ashraf. But the finding in that behalf recorded by the Deputy Collector, Customs, goes against him. The record would show that a copy of the show cause notice served on the petitioner was sent to Muhammad Ashraf but it was reported back to the Deputy Collector that his address given in the Registration BOOK of the car was bogus. Furthermore, the Deputy Collector, on the basis of evidence, found that the car in question was first registered as No, GA-9934 and subsequently as number RIA-5387. But both these registration numbers were found to be bogus. In these circumstances, and quite apart from the fact that according to clause 90 of section 156 of the Customs Act, it was the burden of the petitioner to prove that duty had been paid on th car seized from him, section 187 of the Customs Act would be attracted to the case which is to the following effect..
12. "187. Burden of proof as to lawful authority, etc. - When any person is alleged to have committed an offence under this Act and any question whether he did any act or was in possession of anything with lawful authority or under a permit, licence or other document prescribed by or under any law for the time being in force, the burden of proving that he had such authority, permit, licence or other document shall lie on him."
13. As to the other contention urged by the learned counsel for the petitioner, the same also has no force in it. In this behalf reference may be made to the order of the Collector in which he has recorded the following finding:- ' the requirements of section 171 are met by furnishing a copy of the recovery memo. Which always mentions the grounds of seizure, to the owner or from whose possession the goods are recovered.
14. As reported by the seizing agency the person from whose possession the car was seized refused to receive a copy of recovery memo. But the petitioner, if he had so desired, could always ask later on for the recovery memo or grounds of seizure. There is nothing on record to show that such a request made by the petitioner was not accepted to. In view of these facts I do not find such substance in the legal points raised by the authorised agent."
15. ' In view of this finding, which was evidently recorded on the basis of the documentary evidence available to the learned Collector of Customs, the contention urged by the learned counsel must fail.
16. ' The learned counsel, however, relied on two judgments from the Sind High Court ; Begum Zarina Ijaz v. M. A. Rehman and 13 others (1) and S. Shabbir Ahmad Shah v. Pakistan and 3 others (2) in support of his contention that the notice taken by the Collector of Customs, as endorsed by the High Court was illegal. By going through the judgments, however, what we have noticed is that on the concession made by the learned Deputy Attorney-General to the effect that there existed no law or notification prohibiting the import of the cars into the country, the learned Judges allowed the writ petitions filed before them against the seizure of the cars by the Customs Authorities.
17. However, when one of the said judgments was challenged by way of petition in this behalf (see Director-General, Pakistan Coast Guards, etc. v. Abramjee, etc. (3) the learned standing counsel appearing for the Federal Government was able to produce the above two notifications, issued under section 3 (1) of the Import and Export Control Act, 1950, in whic?i the import of the cars into the country was declared to be prohibited without an import permit issued in that behalf by the Controller, or other authorised functionaries of his Department. In this view of the matter, the judgments relied upon by the learned counsel are entirely distinguishable.
18. This petition, therefore, fails and is dismissed.
(1) PLD 1975 Kar. 482 (2) PLD 1979 Kar. 68
(3) 1980 SCM R 154