1. Javed Iqbal J.--This petition for leave to appeal is directed against the judgment dated 12.12.2005 whereby the Constitutional petition preferred on behalf of petitioner has been dismissed.
2. 2.Precisely stated the facts of the case as enumerated in the judgment impugned are to the effect that the petitioners claim to have been in possession of assorted watches, which were taken into custody by Customs Mobile Squad, Quetta vide seizure Case No. 179-Cus/Seiz/MS-II, dated 1 1 th December, 2004, allegedly being carried in a bus, intercepted in the way from Quetta to Taftan at 7.00 p.m. near Hazar Ganji Park; on thorough checking, wrist watches were recovered from the specially designed cavities, valuing Rs. 10,22,000/-. It was stated that no body had claimed the ownership of the recovered goods at the relevant time, and thus; seizure was prepared and reference was made to the Assistant Collector (Adjudication), who issued show-cause notice on 4th January, 2005, whereupon, one Rehmatullah and Allah Nazar claimed ownership of the watches etc. and were duly represented by their counsel. The learned Assistant Collector, vide order dated 5th April, 2005 has directed release of wrist watches. However, subject to payment of redemption fine of 30% of the CIF value of cells of seized goods, which comes to Rs. 33,600/-, has been imposed. It is stated that said amount was deposited and application for release of the said watches was submitted, whereupon; it was informed that the said watches have already been released to CSD shop for sale against amount of Rs. 1,64,500/-Rs. 98,000/- and Rs. 35,000/-, total of which comes to Rs. 2,97,000/-. The Customs authorities informed the petitioner to take the amount as received by him." Being aggrieved the petitioner preferred a writ petition which has been dismissed vide judgment impugned, hence this petition.
3. 3.Sheikh Ghulam Muhammad, learned ASC entered appearance on behalf of petitioners and contended that the legal and factual aspects of the controversy have not been appreciated in its true perspective and besides that the provisions as contained in Section 201 of the Customs Act, 1969 have been misconstrued and misinterpreted. It is next contended that the judgment impugned is not in consonance with the dictum as laid down in case titled Obedullah v. Inspector- General, Frontier Corps (1997 SCM R 1833) and on this score alone is liable to be set aside. It is argued that the mandatory formalities as contemplated in Section 201 of the Customs Act, 1969 read with CGO No. 5 dated 19.4.1992 escaped the notice of learned High Court which resulted in serious miscarriage of justice. It is also pointed out that the Customs Auction Rules, 1996 have been violated while disposing of the confiscated goods by the Assistant Collector Customs, Quetta which culminated into huge loss suffered by the petitioners. It is urged with vehemence that the market value of the confiscated goods were assessed by the Customs Authorities in the tune of Rs.
4. 20,44,000/- whereas the confiscated goods were handed over to CSI) for Rs 2,97,000/- by causing a grave loss to the petitioners.
5. 4.Ch. Mumtaz Yousaf, learned Standing Counsel appeared for the respondents and supported the judgment impugned for the reasons enumerated therein with the further submission that the formalities as contemplated in Section 201 of the Customs Act, 1969 have been completed and further more that the assessm ent made at the time of recovery of goods in question was tentative in nature and no assessm ent was ever made by the concerned appraisal officer and therefore, the tentative assessm ent qua the value of the goods cannot be taken into consideration. It is also pointed out that the order passed by learned adjudicating authority was never in their knowledge and the goods in question were disposed f on 10.3.2005 whereas the order passed by the adjudicating authority was received after 4.4.2005. hence no mala fide can be attributed to the Customs Authorities as pressed time and again by the learned ASC on behalf of petitioners.
6. 4.We have carefully examined the respective contentions as agitated on behalf of the petitioners in the light of relevant provisions of law and record of the case. We have also examined the judgment impugned with care and caution. It is an admitted feature of the case that during the pendency of Constitutional petition the goods in question had been auctioned by the Customs Authorities and proceed thereafter deposited in the Government treasury and therefore, it was not possible for the learned High Court to restore the original goods to the petitioners There is no denying to the fact that the said goods were recovered from concealed cavities of the vehicle which was on its way from Quetta to Taftan and at the time of recovery none had claimed the ownership of the goods in question No doubt that subsequently an application was moved by the petitioners claiming ownership and the learned Assistant Collector Customs. after confiscation of goods gave an option pursuant to the provisions as contained in Section 181 of the Customs Act, 1969 to the owners of the goods for redemption against payment of fine of 30% of the CIF value of the seized goods by means of order dated 4.4.2005 but admittedly the goods had been disposed of on 10.3.20b5 being unclaimed goods. Had the order passed by the adjudicating authority been passed earlier the question of disposal of the seized goods would have not arisen. It reveals from the scrutiny of .record that necessary formalities as envisaged under Section 201 of the Customs Act. 1969 were completed by taking the following steps as informed by the learned Collector Customs who remained present pursuant to the notice issued by his Court:-- "Serving a proper. Notice under Section 201 of the Customs Act. 1969 by the Assistant Collector S.W.H. Quetta, but no reply received from any concerned.
7. The watches have got appraised by the Principal Appraiser who proposed Rs. 35/- per watch after conducting the market survey.
8. Watches were sold/released to M/S CSD Quetta Cantt vide Release Memo No. 7/05 dated 10.3.05.
9. The sale proceed was transferred accordingly into the account of Collector of Customs vide Challan No. 4 dated 16.4.05."
10. 6.The steps taken by the respondents for the completion of necessary formalities as envisaged under Section 201 of the Customs Act, 1969 were not refuted. It has also come on record that after receiving the copy of order dated 4.4.2005 the petitioners were informed that since the case was registered against unknown persons therefore, after affixation of notice pursuant to the provisions as contained in Section 201 of the Customs Act, 1969 and in absence of any claim the goods in question were disposed in favour of CSD Quetta Cantt. by means of release memo. No. 7/05 dated 10.3.2005 and further showed its willingness to refund the sale proceed to the petitioners.
11. 7.We have also adverted to the question of the price of the goods in question which initially was 'determined tentatively by the seizing officer which cannot be considered as final. Even otherwise the question of fixation of price being a question of fact cannot be determined by the High Court in exercise of its Constitutional Jurisdiction. The customs authorities who are vested with the powers to assess the actual value of the goods for the purpose of customs duty and in absence of any evidence contrary to the determination of such value by the customs authorities it is to be accepted. The Collector Customs had informed that the value of the goods in question was assessed on the basis of invoices and bill of entry which could not be rebutted by the petitioners.
12. The dictum as laid down in Obedullah's case (supra) cannot be made applicable to this case in view of its chequered history. It, however, needs hardly any elaboration that the Customs Authorities are required to adopt adequate measures for obtaining better results qua caution of seized goods so that consequential legal rights or benefit accruing from such auction proceedings to either party are not jeopardized. We have also examined the dictum laid down in case Raw Muhammad vs. Inspector General, Frontier Corps (1999' MLD 3414) which being distinguishable hardly renders any assistance to the case of petitioners.
13. 8.Be as it may, the sale proceed be handed over to the petitioners who would be at liberty to approach the Civil Court for the redressal of their grievances subject to all legal exceptions. The petition is disposed of in above terms.