MR. HUMAYUN KHAN SIKANDARI, MEMBER (TECHNICAL).--(1). The Collector of Customs, Model Custom Collectorate, Peshawar (hereinafter called as the appellant) has filed this appeal under Section 194-A of the Customs Act, 1969 (hereinafter referred to as the Act) against Order-in-Appeal No. 24 of 2007, dated 17.01.2007, passed by the Collector of Customs, Sales Tax & Federal Excise (Appeals), Peshawar (hereinafter called as the respondent No. 2).
2. Precisely, the facts of the case are that on 15.08.2006, the Customs staff at Peshawar Airport intercepted a passenger going abroad on Flight PK-283 to Dubai. Search of his accompanied baggage comprising two suit cases revealed the presence of huge quantity of foreign currency (details as per Recovery Memo). The passenger, who was later on identified as Minhaj-ud-Din s/o Hashim Khan, was accordingly asked to produce any documentary proof showing its legal possession and lawful authority for exportation of the same which he failed to do so. Thereupon, the passenger alongwith his accompanied baggage was brought to the office of Superintendent of Customs, Peshawar . Airport, where further thorough search of his baggage was conducted in the presence of the said passenger and witnesses. This resulted in the recovery of foreign currency notes and coins from one of his suitcases, details as per record available, summary of which is given as under:
(a) Saudi Riyal: 1,87,100/-
(b) UAE Dirham: 3,64,800/-
(c) Pounds Sterling: 8,015/-
(d) Euro: 1,00,000/-
(e) Qatar Riyal: 39,992/-
(f) U.S. Dollars: 200/-
(g) Dubai Dirham (Coins): 4,800/-.
3. Accordingly, the foreign currency so recovered alongwith the two suit-cases and other non- offending goods were seized under proper documentation. Mandatory notices under Sections 158/159 and 171 of the Customs Act, 1969 was also served upon the said passenger. He was arrested for the offence of smuggling of foreign currency and FIR No. 24, dated 15.08.2006 was lodged against him with the Investigation and Prosecution Branch, Customs House, Peshawar, under the relevant provisions of law.
4. During the course of interrogation in custody, the. Accused in his statement recorded under Section 165 of the Customs Act, 1969 admitted as under:-
(a) That since long, he besides working as a habitual carrier of currency for others, has also been carrying on his own business of currency without any legal authority as well as smuggling of goods from Dubai to Pakistan.
(b) That on the guarantee of one Adil s/o Haji Abdullah Khan no H. No. 48, Gulbahar No. 2, Peshawar, he was employed by (i) Aamir (ii) Rizwan and (i.e) Ihtisham. Currency business -men, shop situated at Japan Currency Market. Opposite Old Duty Free Shop. Lahore as carrier for smuggling of their currency from Pakistan to Dubai and that later on he was entrusted the task of collecting and custodian of their currency so smuggled to Dubai through different carriers from different countries.
(c) That he with the consent of the above named employees had invested four million Iraqi Dinars out of their money in his own business of currency transport and smuggling of foreign origin goods from Dubai to Pakistan.
(d) That he has been carrying out business alone without any partner but he has to share the profit of business with the above named persons who provided him the money for investment in his business.
(e) That the seized consignment of currency is his property and that the same was being smuggled to Dubai for disposal over there in the open market at profitable price.
5. Accordingly, the case was decided by the Additional Collector of Customs, Peshawar vide his Order-in-Original No. 683 of 2006, dated 13.12.2006, relevant paras whereof are reproduced below in verbatim:- "9. On examination of the case record & listening to the legal counsel of the accused, it has been noted that the plea of the learned legal counsel to the effect that his client himself declared the seized currency before the staff of Anti Narcotics Force (ANF) in Departure Hall, does not carry any weight. The Customs Staff as well as ANF Staff posted at Peshawar Airport are conducing checking of out-going passengers in close proximity in the same area. The contention that the declaration was made to the ANF Staff is totally incorrect. The statement recorded before the Investigating Officer indicates that he is a habitual carrier/smuggler of foreign currency abroad and the recovery of above mentioned foreign currency from one of his suit cases gives rise to the reasonable belief that he wanted to smuggle the seized foreign currency out of the country.
10. The contention of the learned counsel that foreign currency is not an item of Clause(s) of Section 2 of the Customs Act, 1969 read with SRO. 566(I)/2005, dated 06.06.2005 carries no legal base as the word "currency" as mentioned in the aforesaid quoted section covers both local as well as foreign currency.
11. The contention of the learned counsel that the seized currency does not come within the ambit of the Customs Act is also not tenable as currency has been mentioned in the list of items notified under Section 2(s) and violation of the said Section attracts penal action under Sections 156(1), (8) and (89) ibid read with the relevant Sections of Foreign Exchange Regulation Act. 1947 and Imports & Exports (Control) Act. 1950.
12. Consequent upon what has been discussed above, I am led to the conclusion that the accused carrier i.e.. Minhaj-ud-Din has been regularly involved in currency business including illegal transportation of the same out of the country and must have been mindful of the consequences of the offence. His offence could not be viewed leniently as drainage of foreign exchange through such illegal way certainly brings negative impact on the economy of the country. It is. Therefore, ordered that all the seized foreign currency is confiscated out rightly in favour of the State under Section 156(1), (8) and (89) of the Customs Act. 1969 read with Foreign Exchange Regulation Act.
1947 and Imports & Exports (Control) Act. 1950 for violation of Sections 2(s) and 16 of the Customs Act. 1969.
13. As regard the other accused persons, the prosecution could not bring any substantial evidence showing their involvement in the offence and hence, does not warrant any action against them by this forum."
6. Being aggrieved by the above Order-in-Original No. 683 of 2006, the respondent Minhaj-ud-Din filed the first appeal before the Collector of Customs, Sales Tax & Federal Excise (Appeals), Peshawar who vide his Order-in-Appeal No. 24 of 2007, dated 17.01.2007, decided the case; relevant' paras whereof are reproduced in verbatim as herein under:- "10. I have examined the case record and considered the written as well as verbal submissions of both the parties. The request of the departmental representative to adjourn the case on the ground that the seizing officer is on training upto to 28.01.2006 and the case-file is in his custody is found incorrect because in the FIR, the name of Mr. Muhayy-ud-Din, Inspector has clearly been mentioned with other staff which was performing the routine duty and in all the seizure documents, the name of the said Inspector has been shown as a witness which were also found duly signed by him. Seizure case file is an official document and no one could suppose to keep it as his personal documents. Moreover, the departmental representative was found having the letter regarding date of hearing issued by this office, duly enclosed with a copy of appeal memo, sent to the department for submission of-parawise comments. It is worth-mentioning that with the appeal memo, all copies of relevant documents i.e., Bail Application of the Appellant, Bail Order, Inventory Memo, Recovery Memo, Notices under Sections 158/159 and 171, Murasala, FIR, Remand Application, Letter regarding verification & issuance of Certificate, Show Cause Notice and Order-in-Original, so what is left to departmental representative who requested for adjournment on the above mentioned ground and what is the need of seizure file in the presence of the above documents in hand? On perusal of the case record, I have observed as under:-
(I) In the brief facts of the case, it has been reported that Ihs Customs staff at Peshawar Airport had intercepted a passenger going abroad on Flight PK-283 to Dubai. Search of hia accompanied baggage comprising two suit cases revealed the presence of Foreign Currency whereas FIR shows that no pointation and with the help of ANF staff revealed the presence of foreign currency. This fact was concealed and was not incorporated in the show cause notice or Order-in- Original meaning thereby that the contention of the appellant is correct that he first approached the ANF counter and inquired regarding the limit which he could take with him, but, without any justification, the appellant alongwith the currency was handed over to the Custom Staff, which also confirms that before making any declaration bv the appellant, the search was made by the Customs Staff.
(II) It was further reported that the passenger, who was later on identified as Minhaj-ud-Din s/o Hashim Khan no Kenal Road, Garhi Sikandar Khan p/o G.P.O., Peshawar Cantt, was accordingly asked to produce any documentary proof showing its legal possession & lawful authority for exportation of the same which he failed. This also shows that the appellant was not given a chance to declare the currency and directly asked to produce documents regarding the possession of currency. Which is clear-cut violation of Section 139 of the Customs Act. 1969. Section 139 of the Customs Act clearly lavs down as under:- The owner of any baggage whether a passenger or a member of the crew shall, for the purpose of clearing it. Make a verbal or written declaration of its contents in such manner as may be prescribed by rules to the appropriate officer and shall answer such questions as the said officer may put to him with respect of his baggage and any article contained therein or carried with him and shall produce such baggage and any such article for examination: Provided that where the Customs Computerized System is operational, all declarations and communication shall be electronic.] There are many decisions of the Superior Courts on Sections 139, 142, 156(1 )(8) and Section 2(s) of the Customs Act, 1969, some citations are reproduced below:- [(a) 1980 P.Crl. J 663: "Goods of a passenger on a scheduled flight were taken possession of by the Customs Authorities immediately on their being unloaded and the passenger interrogated. Section 142 of the Customs Act makes provision for making true declaration under Section 139 to the appropriate officer and for detention of dutiable articles, at the request of the passenger, until he leaves the country. It is, therefore, clear that if such a declaration is made to the appropriate officer, the mere fact that certain goods are brought to the Airport which are subject to payment of duty will not constitute an offence punishable under Section 156(1), Clause (8) of the Customs Act. It was, therefore, suggested that an opportunity to make such a declaration is to be given to a passenger before he can be said to be clearly connected with the commission of the offence."] [(b) 1984 Crl. J. 1133: "In other words, the fact that passenger brought some banned items in his baggage upto customs point, would not constitute attempt to smuggle in the absence of evidence that he had given a false declaration or refused to make a declaration or had secreted goods in a manner as to avoid detection."] [(c) 1984 Crl. J. 1133 + NLR 1984 Crl. J. 576 (Lah): "The mere presence in the baggage of a passenger of an article, which is dutiable, or the import or export of which is prohibited or restricted, is not an offence as long as a true declaration has been made under Section 139. Therefore, where the Customs Authorities searched the baggage of a passenger and recovered silver from it. Which was a banned item, before he had an opportunity to make a declaration under Section 139. It was held that no offence of smuggling under Section 2(s) was committed. It was further held that the fact that a passenger has brought some banned items in his baggage unto the customs point, will not constitute the offence of attempt to smuggle in the absence of evidence that he had given a false declaration or refused to make a declaration or had secreted the goods in a manner so as to avoid detection."] From the above, it is proved that the seizing agency has failed to give an opportunity to the appellant to declare the currency in terms of Section 139 of the Customs Act, 1969 nor any documentary evidence or compliance of the said Section has been incorporated anywhere in the seizure documents, show cause notice and even in the Order-in-Original. The seizing agency has also failed to prove any concealment of currency/misdeclaration made by the appellant.
(III) The report of the Investigating Officer indicates that the appellant is a habitual carrier/smuggler of foreign currency abroad and the recovery of aforementioned foreign currency from one of his suit cases gives rise to the reasonable belief that he wanted to smuggle the seized foreign currency out of the country and the adjudicating authority also concluded as under:-- [I am led to the conclusion that the accused carrier i.e., Minhaj-ud-Din has been regularly involved in currency business including illegal transportation of the same out of the country and must have been mindful of the consequences of the offence. His offence could not be viewed leniently as drainage of foreign exchange through such illegal way certainly brings negative impact on the economy of the country.] But on perusal, it is observed that the department has failed to produce any documentary evidence against the appellant showing his previous involvement in the act of smuggling in any case.
(IV) The Investigating Officer has further reported that during the course of interrogation in custody, the accused in his statement submitted that he has been carrying out business alone without any partner but he has to share the profit of business with the above named persons i.e., Adil, Aamir, Rizwan and Ihtisham, who provided the money for investment in Ms business whereas an original affidavit of Gulab Gul s/o Malik Ayub Gul father-in-law of the appellant i.e., Minhaj-ud-Din produced by the counsel clearly shows that Gulab Gul had sold out Ms property situated on Ring Road, Peshawar against the payment of rupees two and a half million and the same was given to Ms son-in-law i.e., the appellant for business of motor cars. In the affidavit, it has further been stated that on the day of occurrence, the recovered amount is one which was given to the appellant and that he is ready to record Ms statement in any Court. The statement recorded by the Investigating Officer seems to be fabricated one which strengthen from the conclusion of the adjudicating authority, the relevant portion is reproduced below:- [As regard the other accused persons, the prosecution could not bring any substantial evidence showing their involvement in the offence and hence does not warrant any action against them at this forum.] In the instant case, petition is granted by the Special Judge (Central) Customs, Taxation and Anti Smuggling NWFP, Peshawar announced on 06.09.2006, the relevant portion is reproduced below:- [Before 1988, there was no ban on possessing of foreign currency but during 1998 it was banned.
The ban has later on been relaxed but neither counsel for petitioner nor the counsel representing the Customs deptt., was able to produce the latest law on the point, inspite of giving a chance. This coupled with the contention of the learned counsel for the petitioner that the petitioner was vet to declare his possession needs further inquiry, as there is no allegation contained in the FIR regarding non declaration or misdeclaration of items possessed by the accused-petitioner. In these circumstances, this petition is granted.] (VI) Lastly, the Appellate Tribunal in Appeal No. 52 of 1995 in the case of M/s. Haji Faiz Muhammad vs. Member (Judicial), CBR and Collector of Customs & Central Excise and Sales Tax, Peshawar, held as under:- [10. We have heard the arguments and perused the record. We have given out anxious consideration towards the submission of the learned counsel. It is evident from the record that during the days when the appellant was apprehended at the Peshawar Airport alongwith foreign currency, there were restrictions to take out of Pakistan the foreign currency so it was rightly confiscated bythe learned Collector. But when the learned Collector ordered to release the foreign currency in convertible Pakistan currency after the confiscation of the same and there was no duty or charges payable under the law on the seized currency so the redemption fine imposed by the learned Collector seems to be unreasonable. The up-shot of the above analysis is that we accept this appeal only to the extent of setting aside the imposition of fine which was imposed illegally.
The appeal is accepted with this modification.]
11. Keeping the above discussions, facts, over all circumstances of the case and judgements of the Superior Courts in view, I have come to the conclusion that actually the appellant was not given a chance to declare his baggage in terms of Section 139 of the Customs Act 1969 and the seizing agency also failed to prove that they have obtained any declaration from the appellant but the appellant refused to do so and that the appellant has made any misdeclaration or the same was found secreted to avoid detection. Therefore, the seizure and confiscation of currency is in utter disregard of law, justice and equality and the appellant has been deprived of his own values for the offence, which the appellant has not committed. However, keeping in view the safeguard of foreign exchange of the country and that there is no duty or charges payable under the law on the seized currency as held by the Honourable Appellate Tribunal. I order that the foreign currency be converted into Pakistan currency and after conversion, the equal amount in Pakistan currency should be returned to the appellant if not required in any other case/court of law."
7. Being aggrieved by the above Order-In-Appeal No. 24 of 2007, the Deputy Collector of Customs(Hqrs), Model Customs Collectorate, Peshawar filed the instant appeal on behalf of the Collector of Customs, Peshawar to this Tribunal, inter alia, on the following grounds:-
(a) that the order passed by the Collector(Appeals), Peshawar is against the law and facts of the case hence, liable to be set aside:
(b) that the Collector(Appeals), Peshawar has shown extra ordinary leniency in favour of respondent, which is unjustified and against the law:
(c) that the learned Collector(Appeals) has not appreciated the circumstances of the case properly and his judgement being non-judicious is liable to be set aside;
(d) that the provisions of law have wrongly been interpreted while deciding the case against the appellant. Currency mentioned in the SRO. 566(D/2005. Dated 06.06.2005 covers all sorts of currency and the interpretation adopted by the respondent and accepted by Collector(Appeals) is against the law:
(e) that the person was searched/intercepted in the international departure hall when he was about to leave the country. As such, the attempt by the respondent to take the seized currency out of the country without legal authority comes within the ambit of Section 2(s) of the Customs Act, 1969;
(f) that as per investigation, the respondent has been found dealing in the currency business and well aware of the legal/illegal aspects of the currency business;
(g) that the Collector(Appeals), Peshawar has not taken into consideration the guidelines given in SRO. 574(11/2005. Dated 06.06.2005 wherein it is clearly stated that the goods attracting provisions of Section 2(s) shall be confiscated and not to be released even on redemption fine:
(h) that the contention that the seized currency does not come within the ambit of the Customs Act. 1969 is also not tenable as currency has been mentioned in the list of items notified under Section 2(s) of the Customs Act. 1969 ibid and violation of the said Section attracts penal action under Section 156(11(81 and (89) of the Act ibid read with relevant Sections of the Foreign Exchange Regulation Act, 1947 and Imports & Exports (Control) Act, 1950; and
(i) that the appellant may kindly be allowed to agitate any other grounds at the time of hearing.
8. During the course of hearing on 19.11.2008, Mr. Yousaf Haider Aurakzai, Deputy Collector of Customs, Peshawar (Departmental Representative) of the appellant filed additional grounds of appeal on behalf of the Collector of Customs, Peshawar, which are recapitulated below;
(a) that the learned Collector(Appeals) has erred in taking an impression that the passenger went to the ANF Counter to inquire about the limit of taking out foreign currency. The fact is that instead of presenting his suit-case for checking by Customs, he dashed to ANF Counter to safely smuggle the foreign currency. He made no declaration but only presented his suit-case for examination and currency was detected during search of the suit-case. Both Customs and ANF Staff are stationed at close location facing one another, lt has clearly been mentioned in the show cause notice that the passenger was asked to produce proof and declaration of currency, which he failed to do so:
(b) that the passenger was given an opportunity to declare his baggage. The passenger was required to enquire about the limit of foreign currency to be carried out in his personal baggage before his departure but he failed to do so. During investigation, it was confirmed that the passenger was dealing in "foreign currency" business and was thus, supposed to be aware of the limit of taking foreign currency out of the country. The judgement cited i.e.. 1984 P.Crl. J 663. Has no relevance with the present case because the passenger had an opportunity to declare his baggage but he failed to do so and as such committed an offence which is punishable under Section 156(1), Clause (8) of the Customs Act, 1969. Again judgements cited i.e., 1984 CrlJ 1133, 1984 Crl. J. 1133 and NLR 1984 Crl. J 576 (Lah.) are not relevant to this case because the passenger was given ample opportunity but he refused to declare his baggage under Section 139 of the Customs Act,1969:
(c) that the observation made by the Investigation Officer to the effect that had the accused passenger succeeded in smuggling of foreign currency, he would have caused great damage to the economy of the country is quite relevant;
(d) that according to the statement of the accused passenger to the effect that he was carrying foreign currency illegally to Dubai, made it quite clear that the transaction of foreign currency was made without observing the proper procedure and law applicable thereto;
(e) that both the adjudicating fora are independent and decide the cases on merit independently;
(f) that the cited judgements are irrelevant because the accused passenger made an attempt to smuggle foreign currency from the country which otherwise was not allowed under SRO.
666(IV2006. Dated 28.06.2006:
(g) that SRO. 574(I)/2005 has been mentioned for the purpose that goods falling under Section 2(s) are liable for confiscation and cannot be released on payment of duties/taxes and redemption fine under Section 181 of the Customs Act, 1969. As the passenger attempted to smuggle notified goods which comes in the ambit of Section 2(s) of the Customs Act, 1969 and hence warranted action under SRO. 574(I)/2005, dated 06.06.2005.
The procedure in terms of Section 139 of the Customs Act, 1969 is reproduced as under:-- "Declaration by Passenger or Crew Baggage:-The owner of any baggage whether a passenger or a member of the crew shall, for the purpose of clearing it, make a verbal or written declaration of its contents in such manner as may be prescribed by rules to the appropriate officer and shall answer such questions as the said officer may put to him with respect to his baggage and any article contained therein or carried with him and shall produce such baggage and any such article for examination.";
(h) that the passenger had ample time to declare baggage but he was reluctant as required under Section 139 of Customs Act. 1969. He also failed to produce documentary proof showing lawful possession and legal transfer of the foreign currency out of the country in the personal baggage and hence, the case was instituted for not fulfilling legal requirements;
(i) that the Collector(Appeals), has ignored the preliminary statement recorded by the owner of currency to the effect that he is habitual carrier of currency and the present trip of smuggling of currency was being made without any lawful excuse;
(j) that the owner of the foreign currency failed to make any verbal or written declaration of contents of his baggage to the appropriate officer within the meaning of Section 139 of the Customs Act 1969. Section 139 makes obligatory upon every passenger to make a correct declaration of the contents of his baggage and to answer questions with respect to the baggage as well as its contents including articles carried by him. The failure to do so or the failure to produce the baggage or any such article for examination, is liable to penalties and confiscation;
(k) that the onus is on the owner of the currency who failed to discharge the same in terms of Section 187 of the Customs Act. 1969. It has been observed. Vide (Muhammad Rafiq vs. The State .............. 3182) that the effect of sub-section (21 of Section 156 in the context of Section 139. With the reasonable belief that an act to defraud the government of the duty payable thereon or to evade any prohibition or restriction has been committed or the intent to commit such act is proved, it will be for the offender to show that no such act has been committed or that there was no such intent;
(I) that the permissible limit of USS 10000/- is allowed to passenger provided the foreign currency is purchased from authorized dealer of currency as held by the Honourable Supreme Court of Pakistan vide Judgement dated 27.04.2006. Passed in Criminal Appeals No. 519 to 527 of 20Q5, titled Collector of Customs. Collectorate of Custom PNCA Building. Rawalpindi vs. Khud-e-Noor s/o Mian Noor Khan and others. The relevant portion of the judgement is reproduced as under:- "We have heard the learned counsels for the parties and have also gone through the relevant provisions of the law on the subject. Before examining the case on merits, it is considered appropriate to point out that according to the definition of "economic reforms", incorporated in Section 2(1 )(b) of the Act, 1992, it means "economic policies and programmers, laws and regulations announced, promulgated or implemented by the Government on and after the 7th day of November, 1990 relating to privatization of public sector enterprises, and nationalized banks, promotion of savings and investments, introduction of fiscal incentives for industrialization and deregulation of investment, banking, finance, exchange and payments systems, holding and transfer of currencies." With reference to the instant case, word 'transfer' is most import. It may be noted that vide Foreign Exchange (Temporary Restriction) Act. 1998 therein after referred to as 'the Act- 1998'1. The concept of transfer of 'currency' was not amended. Obviously transfer of the currency out side the country means legal transfer i.e., through authorized dealers, banks, etc., and not through personal baggage or by any other illegal manner. It is to be noted that the Act of 1998 is applicable w.e.f., 28th May, 1998 and in pursuance of its Section 2, the protection of the Act, 1992 was suspended and after promulgation of the same on 21st July, 1998, State Bank of Pakistan issued Notification No. 1017(T)/1998 on even date. According to clause (d) of the said notification, a person was authorized to take out from Pakistan foreign exchange issued to him by an Authorized Dealer in Pakistan and endorsed on his passport to the extent of 10,000 USS or equivalent thereto in any other currency. The word 'transfer' obviously would mean a 'legal transfer' and even if a person claims to be benefited of the Act, 1992, which was amended subsequently by means of Act, 1998, he has to show that he is legally authorized to transfer the money outside the country for any purpose including his business. According to Section 2(a) of the Foreign Exchange Regulation Act, 1949, "authorized dealer" means a person for the time being authorized under Section 3 to deal in foreign exchange". Therefore, it is concluded that in respect of a criminal case, falling under any provision of law, prevailing in the country, if a person claims that he has been authorized to take the currency out of Pakistan, he has to adopt the proper procedure i.e., through Bank, etc., and no one can be allowed to shift currency except to the tune of 10,000 USS as it has been prescribed by the State Bank of Pakistan that if it has been purchased from the authorized dealer."
9. Part arguments in the instant appeal were heard on 19.11.2008. During the course of hearing, this forum put certain queues to the Departmental Representative (hereinafter referred to as D.R.) appearing for the appellant for clarification of certain aspects of case proceedings so as to arrive at a just conclusion of the controversies involved in the present case. However, on the request of the D.R. The hearing was adjourned to 15.12.2008, as he was not fully prepared at that time to respond to the queries so raised. In the meanwhile, the D.R. Was directed to make the concerned detecting, seizing and investigating staff of the case available on the next date of hearing alongwith the original files relating to seizure of the impugned foreign currency and prosecution of the accused passenger/respondent No. 1 in the Trial Court, for examination and verification of some material evidence of the present case.
10. On 15.12.2008, as directed by this Tribunal in the last hearing, the concerned detecting, seizing and investigating staff put up their appearance. The representatives of the rival parties were also present. Original files relating to seizure and prosecution proceedings were produced by the concerned seizing and investigating officers respectively, for examination by this forum. After careful perusal of these original files, the concerned seizing and investigating officers were directed to submit photocopies of these files, duly indexed, which was accordingly done by them and these are attached with the appeal file as record. In the meanwhile, Mr. Rehmat Khan, Assistant Director (Anti-Narcotics Force), then posted at Peshawar International Airport, who is one of the detecting officers shown in the Seizure Report, also put up his appearance to assist this forum by narrating the factual proceedings of the initial detection of the carriage of the impugned foreign currency by the accused passenger/respondent No. 1. He explained that on 15.08.2006 at about 0445, he was performing his duty in the International Departure Hall at Peshawar International Airport, Peshawar alongwith Mr. Rahat Ali Shah, Inspector, ANF and Mr. Muhammad Israr, ANF, both posted at Peshawar International Airport and were randomly examining the baggage of the departing international passengers. Meanwhile, a passenger, who later on identified himself as Minhaj-ud- Din s/o Hashim Khan, presented his baggage for examination at the ANF Counter before boarding the PIA Flight No. PK-283 bound for Dubai. During checking of his baggage at the ANF Counter, huge quantity of foreign currency, skillfully concealed in the zip pockets of one of his two suit-cases carried by him, in a maimer so as to avoid detection, was detected. Since the ANF and Custom Staff are working at close proximity in the same hall, the presence of such huge foreign currency was pointed out to the Customs Staff for initiating legal formalities under the Customs Act, 1969. He categorically stated that the respondent No. 1 neither brought it into the notice of the ANF Staff regarding the presence of impugned foreign currency in his baggage nor he asked the said ANF Staff regarding the limit of foreign currency which he could take with him abroad. He further stated that the ANF Staff were bound under the relevant provisions of the Customs Act, 1969 to assist the Customs Staff on duty in discharge of their official functions as and when required. He categorically denied the accusation by the respondent No. 1 that the impugned foreign currency was seized by the ANF Staff in violation of the mandatory provisions of the Customs Act, 1969. According to him, the ANF Staff, after initial detection of concealment of the impugned foreign currency, referred the respondent No. 1 alongwith his baggage containing foreign currency and other non-offending goods, etc., to the Customs Staff on duty for initiating legal proceedings under the Customs Act, 1969 and they never took the physical possession of the impugned foreign currency as alleged.
11. Thereafter, the concerned seizing and investigating officers were also examined to clarify certain aspects of the seizure and investigation proceedings. In the meanwhile, Barrister Syed Muddassar Ameer appeared before this Tribunal and submitted his Wakalatnama on behalf of the appellant and informed that he had been recently engaged and prayed that some time may be given to him for preparation of the case for detailed arguments. His request was acceded to and by consent, the next date of hearing was fixed for 05.01.2009 and consequently hearings were held on 19.01.2009, 03.02.2009, 04.02.2009 and lastly on 09.02.2009. During the course of hearings of the case, the learned counsel for the respondent No. 1 submitted para-were comments to the Memo of Appeal, which are placed on record; copy whereof was also provided by him to the learned counsel for the appellant, who was then asked by this forum for submission of rejoinder, if any, who consequently filed a rejoinder, which is placed on record, copy whereof was also provided by him to the learned counsel for the respondent No. 1 for his record.
12. On the last date of hearing fixed for 04.02.2009, the learned counsel for the appellant, at the outset, raised preliminary objections to the applicability/relevancy of all the authorities/case laws relied upon by the learned counsel for the respondent No. 1 in the instant case, on the grounds; firstly, because most of them pertain to criminal prosecution cases and not to adjudication cases.
According to him, these are two very different and independent inquiries with very different and independent implications; secondly, because the said case laws are outdated and many amendments and insertions have been incorporated in the Customs Act, 1969 since then, so the law has changed a lot and is not the same which was interpreted by the Superior Courts in those judgements; and thirdly, the most recent pronouncement of the Apex Court on the subject in identical facts and circumstances, i.e., Criminal Appeals No. 519-527 of2005, titled Collector of Customs vs. Khud-e-Noor, etc., has laid all those ambiguities to rest and there is no need to reincarnate those to create further legal complications. Thereafter, the learned counsel for the appellant advanced his arguments and initially he almost reiterated all those factual and legal issues advanced/agitated in the grounds of appeal and in the additional grounds of appeal.
13. The learned counsel for the appellant further argued that it is unequivocally stated in the Seizure Report, FIR and Challan of the case that the respondent No. 1 was intercepted on pointation and with cooperation of ANF officials. He asserted that they were bound to point out the presence of such huge quantity of foreign currency, skillfully concealed in one of his two suit-cases in a manner so as to avoid detection, to the Customs Staff on duty in accordance with the relevant provisions of the Customs Act, 1969, which provide that officials of the law enforcing agencies are required to aid the Custom officials in such like situations. Moreover, notice under Section 158/159 ibid was served upon the respondent No. 1 and he himself waived of his right to be searched before a gazetted officer and despite of the aforesaid fact, he was searched in the presence of the Superintendent of Custom, Peshawar International Airport. Furthermore, notice under Section 171 ibid was also served upon him before his arrest. He further contended that currency is specifically mentioned in the sub-clause (ii) of Section 2(s) of the Customs Act, 1969 and even notified there-under. Moreover, if currency is not defined under the Customs Act, 1969, it would mean all currency whether local or foreign.
14. With regard to making declaration under Section 139, the learned counsel for the appellant forcefully asserted that the same could be made by a passenger only where goods were being cleared. The foreign currency seized in the instant case was of such huge quantity that it could by no stretch of imagination be declared by the accused passenger/respondent No. 1, who is a habitual offender as is evident from his passport. The respondent No. 1 traveled abroad about 30 times between 2003 and 15.08.2006 at the time of his arrest and twice in the same month i.e., 06.0^.2006 and 09.08.2006. So far as Section 139 of the Customs Act, 1969 is concerned, he elaborated that there in no declaration made in writing nor has the accused passenger/respondent No. 1 raised any plea that he had requested for the declaration form. The only plea raised by the respondent No. 1 is that he wanted to declare the same orally. The burden lies upon him to prove that he intended to do so and has not produced any evidence so far to establish his contention. Moreover, in the absence of any document with him regarding lawful possession/legal authority for carnage of such huge quantity of foreign currency, it makes it abundantly clear that he had no intention to declaring the same to the Customs Staff on duty. He further asserted that the judgements i.e., 1980 P.Cr.L.J. 663; 1984 P.Cr.L.J. 1113; and NLR 1984 Cr. 576; repeatedly cited by the learned counsel for the respondent No. 1, as well as relied upon by the learned Collector(Appeals), in the impugned Order-in- Appeal, have no relevance to the instant case as these are clearly distinguishable, as in the instant case, the respondent No. 1 had sufficient time and ample opportunity to declare his baggage and then to produce any legal documentation for the possession and carriage of impugned foreign currency, but he failed to do so, which was though obligatory upon him as provided under Section 139 of Act. The respondent No. 1 is Pakistani National and admittedly deals in currency business. He can be no means of presumption be allowed to plead ignorance of law regarding limit of foreign currency, which he could take abroad or possession and carriage of such huge quantity of foreign currency abroad without proper documents, being a serious crime under the law.
15. While continuing his arguments, the learned counsel for the appellant forcefully contended that it is also whimsical to presume that a person who was caught with such huge amount of foreign currency, skillfully concealed by him in one of his two suit-cases in a manner so as to avoid detection, having a valid ticket, visa and passport at the time of checking and consequently boarding a flight bound for Dubai, was actually trying the declaration mechanism of the Customs department and did not really intend to smuggle the same out of the country, particularly, when Section 187 of the Custom Act mandates a presumption against him and specifically lays the onus upon him. He categorically stated that the pleas and affidavits of his close relative^ regarding handing over such a huge foreign currency to him for business purpose abroad and taking back the excess amount of currency, if not permitted, are also not .Tenable and such affidavits are an after-thought as the same pleas/contentions have not even been taken in the Bail Application by the respondent No. 1 before the Trial Court. Specific pleas/contentions like these must be taken specifically in the Bail Application at the earliest. He stated that the impugned Order-in- Original clearly finds that the respondent No. 1 had been regularly involved in the currency business including illegal transportation of the same out of the country.
16. While arguing further, the learned counsel for the appellant clarified that the word 'attempt' has not been used in the legal sense in the case documents but in course of usual parlance because the respondent No. 1 was intercepted inside the Customs area and he did not succeed in taking such a huge foreign currency abroad. He adverted to the Proviso to the Explanation to Section 156(1) of the Customs Act, 1969 and asserted that the same clearly provides that "in the case of accompanied baggage or any unmanifested goods meant for export, the offence shall be deemed to have been committed when such baggage or goods enter the Customs area". Mere unlawful possession of such huge amount of foreign currency by the respondent No. 1 within the Customs area clearly constitutes an offence of smuggling under the Customs Act, 1969. The unlawful possession of such huge amount of foreign currency and about 30 visits abroad in two years are sufficient to raise a presumption against the respondent No. 1, which he has not rebutted at all. The onus lies upon him to prove otherwise. At that stage, he also adverted to Section 156(2) ibid and asserted that provisions of the said Section of the Act are abundantly clear on the issues involved in the present case.
17- Still gaining momentum in advancing his arguments, the learned counsel for the appellant further contended that the recent judgement of the apex Court in Khud-e-Noor is an apt authority relied in the instant case. The Superior Court in that case has observed that in the Foreign Exchange (Temporary Restriction, Act, 1998, the concept of transfer of currency was not amended The transfer of currency outside the country would, therefore^ mean legal transfer i.e., through authorized dealers, banks, etc and not through personal baggage or by any other illegal means. It was further observed in the said judgement that the State Bank of Pakistan issued a notification to the effect that a person was authorized to take out of Pakistan foreign exchange issued to him by an authorized dealer in Pakistan and endorsed on his passport to the extent of 10,000 US Dollars or equivalent thereto in any other foreign currency. He emphatically emphasized that since the huge amount of foreign currency recovered from the respondent No. 1 was not purchased from any authorized dealer in Pakistan, therefore, respondent No. 1 was not legally authorized to take the same out of the country, which was skillfully concealed by him in one of his two suit-cases, in a manner so as to avoid detection, and such aspect clearly establishes a legal presumption that he willfully, knowingly and deliberately attempted to smuggle the same out of the country. He continued with his assertions and stated that, in fact, the respondent No. 1 had done everything within his power to smuggle such huge amount of foreign currency out of the country and had he not been intercepted, he would have certainly succeeded in causing huge loss to the national exchequer. While finally winding up his arguments, he prayed that the instant appeal may be accepted and the impugned Order-in-Appeal passed by the learned Collector(Appeals), may be set aside being illegal, improper, non-judicious and non-speaking order and the Order-in- Original passed by the adjudicating authority may be restored being proper, fair, just, judicious and speaking order.
18. On the other hand, just prior to initiating his arguments on the merits of the case, the learned counsel for the respondent No. 1 raised a preliminary objection to the maintainability of the instant appeal on the ground that the same had been filed on 05.03.2007 by the Deputy Collector of Customs(Hqrs.), Peshawar, who was not competent under the law to file an appeal on behalf of the Collector of Customs, Peshawar (Appellant). In support of his contention, he cited the judgement in the case reported as PTCL 2008 CL. 337. Thereafter, he raised another preliminary objection relating to the jurisdiction of this Tribunal on the ground that it cannot travel beyond the scope of the subject matter of the instant appeal and the factual and legal issues neither raised in the show cause notice nor agitated at the original stage of adjudication before the competent adjudicating authority nor at the first appeal Stage cannot be considered at the second appeal stage.
19. After having raised the above preliminary objections, the learned counsel for the respondent No. 1 denied the above contentions and arguments advanced by the learned counsel for the appellant and then reiterated almost the same arguments as advanced by him in the para-were comments to the Memo of Appeal, filed by him on behalf of the respondent No. 1. He contended that the respondent No. 1 was not intercepted by the Customs staff, rather on pointation and with the help of ANF Staff, the presence of foreign currency was revealed and the same fact has been clearly shown in the FIR, Seizure Report as well as in the Challan of the case. He asserted that the appellant had concealed the actual facts and suppressed the evidence, which is enough to prove that the instant appeal has not been filed with genuine facts and the learned appellant has not come to this forum with clean hands and the instant appeal is thus, liable to be dismissed as the respondent No. 1 was neither given any chance of making declaration as required under Section 139 ibid nor he was produced before the competent authority for personal search as required under Section 159 ibid and a false and frivolous case of smuggling of foreign currency was registered against him. He emphasized that since seizure is illegal as the same was made by incompetent person, i.e., ANF Staff, therefore, the subsequent proceedings are null and void in the eyes of law. In support of his contention in this behalf, he placed reliance on the case law cited in the cases, reported as PLD 1968 Karachi 599 and PLD 1977 Lahore 1318.
20. He continued his assertions and controverted the contention of the learned appellant to the effect that "the provisions of law had wrongly been interpreted while deciding the case against the appellant, since currency mentioned in SRO. 566(13/2005. Dated 06.06.2005 covers all sort of currency and the interpretation adopted by the respondent No. 1 and accepted bv the Collector (Appeals! i.e., respondent No. 2 is against the law", as, according to him, the same aspect was not taken into consideration by the Collector(Appeals), inspite of the fact that currency has not been defined in the Customs Act, 1969. He emphatically contended that no case of smuggling at all could be established against the respondent No. 1 and thus, Section 2(s) of the Customs Act, 1969 cannot be applied in this case and SRO. 574(I)/2005 cannot be invoked. Similarly, according to him, the charge of attempt of smuggling could not be established in absence of declaration on the part of the respondent No. 1. He argued that from the record available and from the statements recorded by the Trial Court, it is clearly established that the respondent No. 1 was not given any chance to make declaration as provided in Section 139 ibid. Such an assumption is based on the fact that the respondent No. 1 was yet to reach the Customs counter for clearing of his baggage and alleged recovery of the impugned foreign currency took place on ANF Counter. In this behalf, he placed reliance on the case law cited in the case, reported as 1984 P.Cr.L.J. Page 1133.
21. The learned counsel for the respondent No. 1 further asserted that the learned appellant has charged the respondent No. 1 for attempt of smuggling and in such a situation, provisions of Sections 2(s) and 16 read with Section 156(1)(8) and (89) of the Customs Act, 1969 are by no means applicable against the respondent No. 1, because attempt in the instant case in the absence of providing an opportunity of declaration to the respondent No. 1 as required under Section 139 ibid cannot be established. He contended that the mandatory provisions of Section 139 ibid were clearly violated by the staff of the learned appellant as no chance of declaration was given to the respondent No. 1 and ' the same aspect had already been admitted by the seizing officer ; before the Trial Court. He also produced copies of statements of le prosecution witnesses before the Trial Court for placing these record. In support of his contention in this context, he placed on the number of cited judgements.
While winding up his arguments on the other factual and issues involved in this case, the learned counsel for the No. 1 contended that there is nothing on record as evidence to be used against the respondent No. 1 to establish his dealing in currency business because the evidence in shape of investigation report of the prosecution had already been denied in the Order-in-Original.
According to him, a statement recorded before Investigation Officer is of no legal effect and cannot be used against the respondent No. 1, besides the prosecution miserably failed to point out any previous involvement of the respondent No. 1 to establish him as habitual carrier. Moreover, as asserted by him, the burden of proof under Section 152(2) read with Section 187 ibid is on the Custom Authorities to prove that he was in unlawful possession of the impugned foreign currency as no chance was given to the respondent No. 1 for making declaration of his baggage in accordance with Section 139 ibid.
23. At the fag end of his arguments, the learned counsel for the respondent No. 1 asserted that the case law cited by the learned counsel for the appellant as given in the judgement of the Honourable Supreme Court of Pakistan in Appeals No. 519-527 of 2005 in the case of Collector of Customs vs. Khud-e-Noor and others, has been incorrectly quoted and could not be applied in the instant case. At the end, the learned counsel for the respondent No. 1 stated that no irregularity, illegality or impropriety has been pointed out by the learned counsel for the appellant in the impugned Order-in-Appeal No. 24 of 2007, dated 17.01.2007, passed by the learned Collector of Customs, Sales Tax & Federal Excise (Appeals), Peshawar as the same is based on proper law and facts being followed and discussed. According to him, each and every document used as evidence was taken into consideration by the learned Collector (Appeals). Since there was no such evidence available on record to favour the case of prosecution, so how could the learned Collector (Appeals), upheld the impugned Order-in- Original in the absence of any material evidence on record. He prayed that the instant appeal filed by the learned appellant may be dismissed being devoid of material substance and the impugned Order-In-Appeal may be upheld as the same is based on the factual and legal issues involved in the present case.
24. We have carefully perused the available case record and have anxiously considered the written as well as oral submissions made by the learned counsels for the appellant and the respondent No. 1. At the outset, we would like to refer to the case of M/s. Engro Chemical Pakistan Ltd. Vs. Additional Collector of Customs, reported as 2003 PTD 777, wherein the Honourable Court has observed that: "the law is well settled, that fevery judicial order should be a speaking order and particularly in tax matters, where the scope of appeal/ reference before the High Court is very limited. In the absence of speaking orders, the High Court finds it difficult to decide the questions of law, for under Section 36-C of the Central Excises Act, 1944, and under the analogues provisions of Customs Act and Sales Tax Act, 1990, only such questions of law can be raised before the High Court as arise out of the order of the Tribunal. Thus, if the learned Tribunal fails to pass proper judicial order, by considering all the facts and points of law raised before it, amounts to negation of justice. The Tribunal is always required to dilate upon all the questions of acts and law agitated before it, so that, the High Court is not handicapped in deciding the questions of law." Thus, before going into the deeper appreciation of the factual and legal issues involved in this case, we would like to respond first to the preliminary objections raised by both the learned counsels, in the manner as given in the succeeding paras.
25. The learned counsel for the appellant raised a preliminary objection to the applicability/relevancy of all the authorities/case laws either relied upon by the learned counsel for the respondent No. 1 or the learned Collector (Appeals), i.e., respondent No. 2, on the grounds as mentioned in para l2 above. We will discuss the applicability/relevancy or otherwise of the case laws either cited by the learned counsel for the appellant or the respondent No. 1 in the succeeding paras and will determine whether or not the same are distinguishable from the factual and legal issues involved in the present case? And, whether or not they only pertain to the criminal cases?
We, however, agree with the learned counsel for the appellant that criminal proceedings and adjudication proceedings are two different and independent areas, with different and independent implications. We are, undoubtedly, of the considered view that both prosecution and adjudication proceedings are concurrent remedies, each is independent of other and cannot be deemed to be mutually exclusive. In this context, we place our reliance on the case law cited in the case reported as PLD 1986 SC 192. While relying on the case law in the cases, reported as 1987 SCMR 1840 + PTCL 2005 CL 220, we are also of the considered view that conviction in criminal proceedings will have no bearing on adjudication proceedings, which are independent proceedings under the Customs Act, 1969. We are also of the considered view that adjudication of seized/confiscated goods exclusively falls within the domain of customs authorities. In the case, reported as NLR 1993 Cr. 367, the Superior Court has observed that suo moto action of the Special Judge (Customs) ordering release of currency notes to the accused after his acquittal was unwarranted, arbitrary and devoid of jurisdiction. In another case, reported as PTCL 1988 CL 172, a question whether customs authorities conducting adjudication proceedings were bound by judicial Court was agitated. It has been held by the Superior Court that Customs Authorities may initiate adjudication proceedings simultaneously with criminal proceedings or before or after its initiation or conclusion or even in disregard of the fact that the person has been convicted or acquitted. We are confident that the aforesaid deliberations, in the were of case laws cited, Undisputedly settle the preliminary objection raised by the learned counsel for the appellant in this regard. So far as the judgement of the Superior Court in the Criminal Appeals No. 519 to 527 of 2005, titled Collector of Customs vs. Khuda- e-Noor, etc. Is concerned, we agree with the learned counsel for the appellant that it is the most recent judgement on the subject, which has been discussed by us in the succeeding paragraphs to determine its relevancy or otherwise to the present case.
26. Now, we would like to advert to the preliminary objections raised by the learned counsel for the respondent No. 1. The first preliminary objection raised by him relates to the maintainability of the instant appeal on the ground that the saine has been filed on 05.03.2007 by the Deputy Collector of Customs (Hqrs.), Peshawar, who is not competent under the law to file the same on behalf of the Collector of Customs, Peshawar. In support of his contention, he has cited the case law in the case reported as PTCL 2008 CL 337. We find that the factual and legal issues involved in that case are clearly distinguishable from the factual and legal issues involved in this case. His contention in this behalf is not based on factual and legal position for the reasons given hereinunder:
(a) We observe that the instant appeal was filed on 05.03.2007 under Section 194-A of the Customs Act, 1969 by the Deputy Collector of Customs (Hqrs.), Peshawar on behalf of the Collector of Customs, Peshawar (the appellant). According to sub-section (1) of Section 194-A ibid, an officer of customs aggrieved by an order passed by the Collector (Appeals), under Section 193 ibid, may file an appeal to the Appellate Tribunal against such order. The words "or an officer of customs" appearing in sub-section (1) of Section 194-A ibid were inserted by the Finance Ordinance, 2000 (XXI of 2000), reported as PTCL 2000 BS 17. According to Section 2(o), the words "officer of customs" mean an officer appointed under Section 3 of the Customs Act, 1969, which also includes a Deputy Collector of Customs. In fact, Section 3 was substituted by the Finance Act, 1996 (IX of 1996), reported as PTCL 1996 BS. 141.
Consequently, amendments were incorporated in Section 194-A ibid by the Finance Act, 2007, reported as PTCL 2007 St. 1465, for the following reasons:
(i) Sub-section (2) was substituted, reworded to clearly specify that the minimum level of officer for filing appeals under the authorization of Collector will be Assistant Collector of Customs, and (ii)
New sub-section (8) was added to provide legal cover where references or appeals were filed by the officers of lower ranks and were questioned on the point of jurisdiction.
Moreover, under SRO. 371(I)/2002, dated 15th June, 2002, against Section 194, the appropriate officer shown is Assistant Collector of Customs who is the minimum level of the officer for filing an appeal under the authorization of Collector of Customs.
The case law cited by the learned counsel for the respondent No. 1 in the case reported as 2008 PTCL CL. 337, is clearly distinguishable from the present case; firstly, in that case, competency for filing an appeal under Section 196 of the Customs Act, 1969 has been discussed, which requires filing of an appeal by the Collector of Customs; secondly, in that case, the appeal was filed by Director of Customs Intelligence, who was declared to be incompetent person to do so. Thus, we find that the case law cited by the learned counsel for the respondent No. 1 deals with filing of an appeal under Section 196 ibid, which specifies a particular officer to initiate legal proceedings on behalf of the customs department i.e., appeal under Section 196 ibid is required to be filed by the Collector and none else and in case the same is signed/verified by Deputy Collector or Assistant Collector, the same will be deemed not to have been filed in accordance with law.
27. The second preliminary objection raised by the learned counsel for the respondent No. 1 relates to the jurisdiction of this Tribunal on the grounds that it cannot travel beyond the scope of the subject matter of the appeal and the factual and legal issues neither raised in the show cause notice nor agitated at the original stage of adjudication nor at the first appeal stage cannot be considered by the Appellate Tribunal. It is our considered view that the learned counsel for the respondent No. 1 has erred hi raising the aforesaid preliminary objection for the following reasons:
(a) In fact, sub-section (1) of Section 194-B of the Customs Act, 1969 was substituted by the Finance Act, 2007 (IV of 2007), assented on 30th June, 2007, reported as PTCL 2007 BS 274, which reads as under:- "The Appellate Tribunal may after giving the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or annulling the decision or order appealed against. The Appellate Tribunal may record additional evidence and decide the case but shall not remand the case for recording the additional evidence..." (b) We observe that the word "thereon" apparently confines the powers of the Appellate Tribunal to the subject matter of appeal and apparently it cannot travel beyond the scope of the appeal or pass an order or give a direction which would work adversely to the appellant, who has filed an appeal against the decision or order of the lower Court. It is well-settled principle in law that an appellant cannot be put in a worse position than what he was in earlier. However, as clearly evident from the bare reading of the above quoted sub-section, the Appellate Tribunal may record additional evidence and then decide the case on merits.
(c) It is also a well settled principle in law that the proceedings under the Act do not come to an end with the passing of an order. If any of the rival parties files an appeal, the proceedings are kept alive; the appeal being only continuation of the original proceedings. The legal pursuit of a remedy through filing an appeal before the first and the second appellate authorities are really but steps in a series of proceedings all connected by an intrinsic unity, are to be regarded as one legal proceedings. Thus, the appellate proceedings are the continuation of the original proceedings. In support of our aforesaid observation, we place our reliance on the case law cited in the case, reported as PTCL 2005 CL 738.
In fact, on filing of an appeal, the entire matter reopens and becomes sub judice. We also place our reliance in this behalf on the case law cited in the case, reported as PLD 1969 SC 1. Moreover, Appellate Tribunal as the final fact finding authority is obliged to consider the question(s) of fact(s) and that is the reason that Appellate Tribunal has been entrusted with vast powers under sub- section (8) of Section 194-C, so as to bring the factual issues involved in the case to surface which will help in arriving at the proper, legal, just and fair decision of a case.
(e) We notice that in the case of M/s. Gatron (Industries) Ltd. Vs. Government of Pakistan, reported as 1999 PTCL CL. 359, the Honourable Court has observed that a pure question of law can be raised at any stage of the appeal depending upon the facts and circumstances of each case. This view has reaffirmed the earlier view taken by the Supreme Court in the case of Haji Abdullah Khan vs. Nisar Muhammad Khan, reported as PLD 1965 SC 690.
28. Before going into the deeper appreciation of the factual and legal issues involved in this case, we consider it appropriate to deliberate upon certain procedural and technical lapses committed during the seizure and investigation proceedings initiated in this case, so that necessary remedial and corrective measures are taken by the learned appellant to obviate the possibilities of recurrence of such lapses in future. In this behalf, we observe as under:--
(a) On personal search, some non-offending goods including a mobile phone and passport were recovered from the accused passenger/respondent No. 1, which were properly seized by preparing Recovery Memo on the spot, duly signed by the witnesses. However, neither the non-offending goods were shown in the Seizure Report nor properly investigated. The mobile phone so recovered, was required to be decoded with the assistance of the concerned Mobile Company so as to ascertain the links, if any, of the accused passenger/respondent No. 1, with the underground racket of currency smugglers. Moreover, the said accused passenger/respondent No. 1, had made thirty
(30) visits abroad within the span of two years, as clearly evident from his passport so recovered.
Each visit abroad costs a substantial amount and thus, a huge amount must has been incurred by the accused passenger/respondent No. 1, on his thirty (30) visits abroad. This aspect was neither highlighted in the FIR/Challan nor in the Seizure Report nor even properly investigated to unearth the source of meeting such heavy expenses incurred by him on his visits abroad.
(b) The seizure and investigation proceedings conducted in the present case show apathy and lack of diligence on the part of the concerned seizing and investigating staff of the appellant- department, who were required to properly investigate the charges leveled against the accused passenger/respondent No. 1. It is, in particular, worth nothing that provisions of some relevant sections of the Act were also not invoked, which could have been used more effectively or with requisite vigors to gather material evidence/substance at the initial stage of investigations into the charges framed against the accused passenger/respondent No. 1. In fact, none of the leads naturally arising from the statement of the accused passenger/respondent No. 1, recorded under Section 165 of the Act, were properly tapped to gather additional material evidence. Only to illustrate this point, it may be noticed that no serious and diligent efforts appear to have been made to properly investigate the other persons pointed out by the accused passenger/respondent No. 1, during his interrogation. We find it incredible that officers of the Investigation and Prosecution Branch of the appellant-department should find themselves so helpless, and be ignorant of their scope and extent of their remit, inspite of the express and extensive powers of investigations with which they are armed under the Customs Act, 1969. Thus, the demonstration of the lackadaisical nature of investigation proceedings initiated and consequently completed in this case are by no means exhaustive. This forum, in the present proceedings before it, is not inclined to pass directions for conducting further investigations in the case to bring substantial material evidence on record relating to other persons as the trial proceedings in the same case have almost been finalized and such efforts in this behalf at this belated stage would end up in a futile exercise. We, however, observe that the investigations in this case are inadequate on such count and clearly lack the thoroughness required of proper investigation proceedings.
29. Before parting with our above observations relating to the procedural lapses and technicalities committed in seizure and investigation proceedings conducted in this case, we may hasten to add here that this Tribunal would always over-look procedural lapses as we have to consider the entire evidential material on record as a whole and then dispose of the appeal accordingly. Our aforesaid observation also lends credence from the case law cited in the case reported as 1993 SCMR 785.
Moreso, if a respondent succeeds in throwing his burden on the shoulders of the Appellate Tribunal relating to the pointation of procedural lapses and technicalities committed in the furtherance of proceedings in a case, we will then be presumed to record our observations very cautiously and diligently as the same might have direct bearing either on the case of the appellant or the respondent before the Trial Court or in appeal before the Appellate Court against the judgement by the Appellate Tribunal. After having discussed the aforesaid issues, we now intend to go into the deeper appreciation of the factual and legal issues involved in this case, in chronological, systematic and legally convincing manner, as given in the succeeding paras, so as to arrive at the proper, just and fair decision.
30. First Issue:-Whether the word "Currency" .Specifically listed in Section 2(s) of the Customs Act.
1969 and even notified thereunder, also includes foreign currency?
(a) The contention of the learned counsel for the appellant is that if currency is not defined under the Customs Act, 1969 or the General Clauses Act, it would mean all currency, be it local or foreign and no restriction on the same can be placed. On the other hand, the contention of the learned counsel for the respondent No. 1, is that the word "Currency" listed in Section 2(s) of the Customs Act, 1969 and even notified there-under vide SRO. 566(I)/2005 means 'a medium of exchange in the country' and thus, it only means Pakistan currency and not the foreign currency/foreign exchange. According to him, the word 'Currency' has neither been defined in the Customs Act nor in the General Clauses Act, but the same has been clearly defined in Black's Law Dictionary.
Furthermore, according to him, the dictionary meaning of the word 'Currency' implies that its mention in Section 2(s) ibid or under Notification SRO. 566(I)/2005 covers only local currency and not foreign currency and, therefore, the accused passenger/respondent No. 1, cannot be charged for the offence covered by Clause (8) of Section 156(1) of the Act.
(b) We are, obviously, not inclined to agree with the aforesaid contention of the learned counsel for the respondent No. 1, because it does not stand on sound legal footing. Though, after deliberations on the issue, he did not press the aforesaid contention at the bar, however, for proper and legal understanding of such issue involved, we intend to give our finding in this behalf. We are fully aware of the legal interpretation that in the absence of the general or technical definition by the legislature of any word appearing in the Act or the Rules framed there-under, one has to resort to the dictionary meaning of that word. We fully agree with the learned counsel for the respondent No. 1, that the word "Currency" has neither been defined in the Customs Act, 1969 nor in the General Clauses Act, but, probably, he is unaware of the fact that the word "Currency" has been properly defined in subsection (b) of Section 2 of the Foreign Exchange Regulation Act, 1947 as given below: "2(b):--"Currency" Includes all coins, currency notes, bank notes, postal notes, money orders, cheques, drafts, traveler's cheques, letters of credit, bills of exchange and promissory notes." (c)
Likewise, the words 'Foreign Currency', 'Foreign Exchange', and 'Pakistan Currency' have also been properly defined in Section 2 of the aforesaid Act as reproduced herein under:-- "(i) Section 2(c):--"Foreign Currency" means any currency other than Pakistan currency;
(ii) Section 2(d).--'Foreign Exchange" means foreign currency and includes any instrument drawn, accepted, made or issued under clause (8) of Section 17 of the State Bank of Pakistan Act, 1956, all deposits, credits and balance payable in any foreign currency, and any drafts, traveler's cheques, letters of credit and bills and exchange, expressed or drawn in Pakistan currency but payable in any foreign currency;
(iii) Section 2(g):-'"Pakistan Currency" means currency which is expressed or drawn in Pakistan rupees." (d) Thus, we fully agree with the contention of the learned counsel for the appellant, which is legally convincing enough in the were of proper technical definition of the word "Currency" as elaborated above, that the word "Currency", which is listed in Section 2(s) of the Customs Act, 1969 and also properly notified under SRO. 566(I)/2005 covers both Pakistan and Foreign Currency and no adverse implication can be derived therefrom.
31. Second Issue:-Whether the initial detection of the impugned foreign currency was done bv the ANF Staff, while examining the baggage of the accused passenger/respondent No. 1?
(a) The learned counsel for the appellant has stated that it is un-equivocally explained in the FIR, Challan and Seizure Report of the case that the accused passenger/respondent No. 1, was intercepted inside the International Departure Lounge i.e., Customs Area, on pointation and cooperation of the ANF Staff on duty, who were bound to point out the same to the Customs Staff on duty in accordance with the relevant provisions of the Customs Act, 1969, which mandates the ANF officials to aid the customs officials in such like situations. He has forcefully contended that after initial detection of the impugned foreign currency, skillfully concealed in zip pockets of one of the two suit-cases carried by the accused passenger/respondent No. 1, in a manner so as to avoid detection, all other legal formalities under the relevant provisions of the Customs Act, 1969 were carried out by the customs officials on duty. He has also pointed out that the names of concerned ANF officials, who initially detected the presence of the impugned foreign currency, were clearly mentioned in the column of detecting staff alongwith the concerned customs officials as evident from the Seizure Report. He has asserted that nothing has been concealed in this behalf and the learned counsel for the respondent No. 1, has attempted to twist the relevant facts of the case with the intention to mislead the Appellate Tribunal. On the other hand, the learned counsel for the respondent No. 1, has contended that the fact of pointation of the presence of the impugned foreign currency by the ANF officials was neither mentioned in the show cause notice nor in the impugned Order-in-Original. He has further contended that no such recovery was effected from the respondent No. 1 's suit-case but the impugned currency was recovered from the hand-carry bag of the respondent No. 1, who himself disclosed before the customs staff about the presence of foreign currency because respondent No. 1, alongwith the impugned currency was handed-over to the customs staff by the ANF staff as mentioned in the FIR and subsequently, in the Challan and Seizure Report. He has forcefully contended that the case of the accused passenger/respondent No. 1, is a simple case of possession of foreign currency at the airport, which does not constitute an offence of smuggling under the Customs' Act, 1969. In support of his contention, he has relied on the case laws cited in the cases, reported as P.Cr.L.J. 1991 Page-644 and PLD 1986 SC Page 192.
(b) We agree with the learned counsel for the appellant that the pointation of the presence of foreign currency and cooperation by the ANF officials have been clearly mentioned in the FIR, Challan and Seizure Report. We also find that names of the concerned ANF officials have been shown in the list of detecting officers in the relevant column of the Seizure Report. We also support his contention that the ANF officials on duty are empowered and required under Section 7 of the Customs Act, 1969 to assist officers of the customs in the discharge of their functions under the Customs Act, 1969 and penalty for omission to do so is clearly provided in clause (1) of Section 156(1) ibid. We, however, disagree with the learned counsel for the respondent No. 1, that the fact of pointation and cooperation by the ANF officials after initial detection of the impugned foreign currency has neither been mentioned in the show cause notice nor in the impugned Order-in- Original. Careful perusal of the aforesaid documents reveals the fact that reference to FIR and Seizure Report have been clearly given in the beginning therein and the fact of pointation and cooperation by the ANF has been clearly indicated in FIR/Challan and the Seizure Report. We also disagree with the contention of the learned counsel for the respondent No. 1, that the impugned foreign currency was recovered from the hand-carry bag of the respondent No. 1, and not from one of his two suit eases. The Assistant Director of ANF, Peshawar International Airport has narrated the factual proceedings of detection of the impugned foreign currency from respondent No. 1, as discussed in para 10 above. It is an admitted fact, rather a material evidence, that the impugned foreign currency was skillfully concealed in the zip pockets of one of the two suit-cases of the respondent No. 1, in a manner so as to avoid detection, and not from the hand-carry bag of the respondent No. 1 and after initial detection by the ANF Staff, the impugned foreign currency alongwith other non-offending goods of the respondent's baggage were handed-over to the customs officials on duty for initiating legal formalities under the Customs Act, 1969.
(c) It is improper to suggest that the case of the respondent No. 1 is a simple case of possession of foreign currency. We have deliberated upon this issue in depth in the succeeding paras. The case laws cited therein are clearly relevant to this case. The law is very clear in this regard. Proviso to the Explanation to Section 15.6(1) of the Customs Act, 1969 clearly provides that in the case of accompanied baggage, the offence shall be deemed to have been committed when baggage containing prohibited/restricted goods enters the customs area.
Thus, one the baggage containing foreign currency, which was skillfully concealed inside the zip pockets of one of the two suit-cases of the respondent No. 1, in a manner so as to avoid detection, was brought by the respondent No. 1 inside the customs area, which is an admitted fact, rather material evidence, the offence of attempt to smuggle was deemed to have been committed by him. Under Section 156(2) read with Section 187. Ibid, the burden of proving that no such act has been committed or there was no such intent shall be on the respondent No. 1, from whose possession the impugned foreign currency, being a specified and notified item under Section 2(s) ibid, was seized inside the customs area. We also place our reliance in this behalf on the case law cited in the case, reported as 1980P.Cr.L.J318.
32. Third Issue:-Whether the accused passenger/respondent No. 1 was provided ample opportunity for making declaration under Section 139 of the Customs Act. 1969?
(a) This is the most trivial and peripheral issue involved, which also has a direct impact on disposal of the instant appeal. The learned counsel for the appellant has responded that declaration under Section 139 ibid could be made only where goods were capable of being cleared. According to him, the foreign currency seized in the instant case was of such huge quantity that it could by no stretch of imagination be declared by the respondent No. 1, though he had ample opportunity to do so orally before the custom officials on duty. On the other hand, the learned counsel for the respondent No. 1, has denied the aforesaid contention of the learned counsel for the appellant on the ground that the mandatory provisions of Section 139 ibid were not followed and no opportunity was provided to the respondent No. 1 to make declaration, either orally or in writing, of the contents of his baggage. It is, according to him, proved from the available record of the case that no such declaration was obtained from the respondent No. 1 hence no offence of smuggling has been committed by him. In support of his contention, he has provided a copy of the statement of the Seizing Officer/Complainant in this case before the Trial Court, which suggests that no opportunity was provided to the accused passenger/respondent No. 1 for filing declaration of the contents of his baggage. In support of his contention, he has also cited case laws in this behalf and has provided copies thereof, which are placed on record. We have carefully perused the available record of the case to ascertain/verify whether or not any opportunity was provided to/availed of by the respondent No. 1 for making declaration under the provisions of Section 139 ibid? We find that the fact of making declaration has not been mentioned in the documents, except in the letter C.
No. AP/Currency/ 06/1392, dated 19.10.2007, by the Assistant Collector of Customs, Incharge, Peshawar International Airport, addressed to the Deputy Collector, Legal Division, Custom House, Peshawar, which is placed on record, wherein it is clearly mentioned that the said passenger/ respondent No. 1, was given an opportunity to declare his baggage but he failed to do so. He is senior custom officer and is not expected to make an un-true statement before another senior custom officer of the appellant-department and that, too, the Incharge of the Legal Division of the Model Customs Collectorate, Peshawar.
At this stage, we advert to Section 139 ibid, which has already been reproduced in sub-para 8(g) above. Relying on the case law cited in the judgement, reported as 1991 P.Cr.L.J. 644. If we analyse and break up the provisions of Section 139 ibid, it will be clear that structurally, it is divisible into three parts namely:
(i) the owner of any baggage, whether a passenger or member of the crew, shall, for the purpose of clearing it, make a verbal or written declaration of its contents in such manner as may be prescribed by rules, to the appropriate officer:
(ii) the owner of any baggage, whether passenger or member of the crew, shall answer such questions as the said officer may put to him with respect to his baggage and any article contained therein or carried with him; and (iii) the owner of any baggage, whether a passenger or member of the crew, shall produce such baggage and any such article for examination.
(c) Obviously, therefore, the first part provides a basis for the remaining two, and postulates that for the purpose of clearing any baggage, a verbal or written declaration of its contents in such manner as may be prescribed by rules is necessary. There are no prescribed rules under Section 139 ibid, except for the Baggage Rules, 2006, notified vide SRO. 666(I)/2006, dated 28.06.2006, and these Rules are applied to the baggage of passengers arriving into or departing from Pakistan.
Careful perusal of these Rules reveals that the passenger shall file a baggage declaration in the given format in the case of unaccompanied baggage. However, there is no baggage declaration format for accompanied baggage of the passengers arriving into or departing from Pakistan, except that in para 16 of these Rules, there are certain prohibitions under Sections 2(s), 15 and 16 of the Customs Act, 1969 or Imports & Exports (Control) Act, 1950, and such prohibited items shall not be allowed to be imported by the incoming international passengers as personal baggage.
Similarly, in para 11 thereof, all outgoing passengers shall be allowed to export their personal baggage and household goods and any other goods provided their export is not prohibited or restricted under the Customs Act, 1969 and Imports & Exports (Control) Act, 1950 or any other law for the time being in force. In our considered view, an outgoing passenger is only required to make oral declaration to the effect that no prohibited or restricted items under the Customs Act, 1969 read with the Imports & Exports (Control) Act, 1950 and Foreign Exchange Regulation, 1947, etc., are being carried by him in his accompanied baggage, before clearing the same, or on his person.
(d) We also place our reliance in this behalf on the case of Muhammad Tahir vs. The State, reported as NLR 1991 CR 644, wherein the Superior Court has observed that there are no rules for making a verbal declaration. The Passengers (Non-Tourist) Baggage (Import) Rules, 1983 (now 2006), lay down procedure for availing concessions by making declaration in writing. By CGO 9/83, as amended by CGO 28/83, 22/84 & 9/85, procedure to make ' declaration was simplified and Form "A" and currency declaration Form 'F.M.' were merged into one form. The passengers are required to make declaration on the said revised form. However, the practice to make declaration on the said revised form has been discontinued altogether and no written declaration is ordinarily obtained from any incoming or outgoing passenger.
We also place our reliance in this behalf on the case law cited in the case of Muhammad Rafiq vs. The State, reported as 1980 PCrl. U 318, wherein the Court has held that Section 139 creates an obligation upon every passenger or a member of crew to make declaration of his baggage and to answer questions with respect to baggage, failure to do so is liable to penalties and confiscation.
Similarly, in the case of Amjad Parvez vs. The State, reported as 1990 ALD 252(1), the Court has held that accused was apprehended for smuggling 19 slabs of gold into Pakistan from Dubai in his personal baggage. Nothing on record showed that accused was an innocent carrier. Case falls within purview of prohibitory clause of Section 497 Cr.P.C. Yet in another case of Syed Pir Walayat Shah vs. The State, reported as PTCL 1992 CL. 138, the Superior Court has held that every passenger is under an obligation to make a declaration himself of the contents of his baggage and in case of failure to do so, he is liable to penalties.
(f) Now, we advert to Section 142 of the Customs Act, 1969, which further lays down the procedure for temporary detention of baggage in the following manner:- "Temporary detention of baggage:-Where the baggage of a passenger contains any article which is dutiable or the import of which is prohibited or restricted and in respect of which a true declaration has been made under Section 139 and about which the appropriate officer is satisfied that these were not imported with the intention of consumption in Pakistan, he may, at the request of the passenger, detain such articles for the purpose of being returned to him on his leaving Pakistan." (g) Thus, reading Section 139 in conjunction with Section 142 of the Customs Act, 1969, it becomes apparent that possession of any imported article which is dutiable or which is prohibited or restricted is not an offence so long as a true declaration has been made under Section 139 of the Customs Act, 1969. The fact remains that no declaration was made by the respondent No. 1 at all of the contents of his baggage, when he was inside the customs area. We, however, notice that Section 142 only speaks of imported goods, and not exported goods, which are not imported with the intention of consumption in Pakistan. We are, thus, of the considered view that Section 142 is not applicable to the instant case for the aforesaid reasons.
(h) There are abundant authorities on the subject, but the principle laid down in the judgements cited by the learned counsel for the respondent No. 1 and even by the learned Collector (Appeals) in his Order-in-Appeal, do not hold good after insertion of Proviso to Explanation to Section 156(1) of the Customs Act, 1969, which clearly provides that in the case of accompanied baggage or any unmanifested goods meant for export, the offence shall be deemed to have been committed when such baggage or goods enter the customs area or delivered to the carrier or the conveyance. So, by virtue of such amendment incorporated therein, the bringing in or taking out of any prohibited or restricted goods to or from the customs area by any incoming or outgoing passenger will fall within the ambit of attempt to smuggle. The law is thus, very clear on this issue. We are, therefore, inclined to agree with the learned counsel for the appellant that there was neither any declaration made by the accused passenger/respondent No. 1 in writing nor he raised any plea that he had requested for the declaration form as the practice of making declaration in writing has been discontinued altogether since long, as observed by us above, and the only plea raised by him is that he wanted to declare the same orally. The burden thus, lies upon him to prove that he intended to do so. He has not produced any evidence to that extent. Moreover, in the absence of any legal documentation regarding carriage of such huge quantity of foreign currency, skillfully concealed in his baggage in a manner so as to avoid detection, it is abundantly clear that he had no intention of declaring the same.
(i) We also agree with the learned counsel for the appellant that the judgements cited by the learned counsel for the respondent No. 1 are distinguishable as the same pertain to different facts and circumstances and cannot be applied to the instant case in the were of Proviso added to Explanation to Section 156(1) of the Customs Act, 1969. In fact, declaration under Section 139 can be made only where goods are capable of being declared and the impugned foreign currency seized in the instant case was of such huge quantity, which was skillfully concealed in one of the two suit- cases of the accused passenger/respondent No. 1, in a manner so as to avoid detection, that it could by no stretch of imagination be declared by him. Apparently, he is a frequent traveler abroad which is evident from his passport and he is supposed to be fully aware of the prohibitions and restrictions for taking out such a huge quantity of foreign currency without legal authority. It is also whimsical to presume that the person who is caught red handed with such huge amount of foreign currency, having a valid ticket, visa and passport at the time of checking in and then subsequently boarding a flight bound for Dubai did not really intend to smuggle the same out of the country, particularly, when the law i.e., Section 152(2) read with Section 187 of the Act, clearly mandates a presumption against him and specifically lays down the onus upon him.
(j) We find that one of the prosecution witnesses i.e., the Seizing Officer in this case, has conceded before the Trial Court to the effect that the Custom Staff on duty did not provide the accused passenger an opportunity for filing declaration of the contents of his baggage. We observe that filing of declaration means written declaration and not oral declaration. The practice of making written declaration has since long been discontinued altogether as discussed above. He had, however, ample opportunity for making oral declaration, which he failed to do, as required under Section 139 of the Act. We observe that in the instant case, the adjudicating authority outrightly confiscated the impugned foreign currency strictly in accordance with law and as such, the findings of the impugned Order-in- Original could not be disturbed even if the prosecution witnesses conceded at such belated stage before the Trial Court, because these are independent proceedings to each other. In support of our aforesaid observation, we place our reliance on the case law in the case, reported as 2002 PCTLR SC (Pak) 1097, wherein it has been held by the Supreme Court of Pakistan that: "It is an established law that criminal proceedings before Special Judge are judicial proceedings while proceedings conducted before custom authorities relating to adjudication are in the nature of departmental proceedings, though in certain cases they emanate from the same subject- matter, yet they are independent to each other and not necessarily, the findings recorded by Special Judge shall always control the findings recorded by the custom authorities relating to adjudication proceedings. These proceedings go side by side but do hot mingle. Any order of the Customs Judge would not, ipso facto, over-rule the decision delivered by the custom officers in adjudication proceedings, nor the acquittal of the accused would nullify the effect of the adjudication proceedings, unless the said proceedings oh their own strength were contrary to law and against the principles of natural justice." (k) We are also of the considered view that the pleas and affidavits of his close relatives regarding hading-over the impugned currency to him for business abroad and taking back the excess currency, if not allowed to be taken by him to Dubai, ^e apparently an after-thought as the same pleas/contentions had not been taken in the bail application and even during the arguments before the Trial Court at the time of grant of bail to the respondent No. 1. Specifically, pleas/contentions like the ones taken/raised by the respondent No. 1, before this forum and even before the lower forums must also to be taken specifically in bail application or before the Trial Court at the time of grant of bail.
(1) In this behalf, we also gain support from the Appellate Tribunal Islamabad Bench's judgement in Appeal No. 44 of 1995 decided on 17.10.1995 in the case of M/s. Waqar Hussain & Sajid Hussain vs. Collector of Customs, Central Excise and Sales Tax, Peshawar, wherein the then respected Member (Technical) has observed in para 10 therein as under: "10. This fact alone goes to prove that the appellants had, at the most, tried to create a piece of evidence in their favour to prove their defence which seems to be an after thought and maneuver.
Even otherwise an affidavit duly executed according to law is not a substantive piece of evidence to establish a fact in favour of the deponent. This fact has adversely effected the defence version, which does not anneal to reason." (m) We, however, observe that the recent judgement of the apex Court in Khud-e-Noor case is an apt authority in the instant case as discussed in depth by us in the succeeding paragraphs.
33. Fourth Issue:-Whether the personal search of the accused passenger/respondent No. 1 was conducted in accordance with law?
(a) The learned counsel for the appellant has argued that notice under Section 158/159 ibid was duly served upon the respondent No. 1 and he himself waived of the right to be searched before a Gazetted Officer. Despite that, he was searched in presence of the Superintendent of Customs, Incharge Shift, Peshawar International Airport. On the other hand, the learned counsel for the respondent No. 1 has contended that the respondent No. 1 was not provided an option in this behalf.
He has also relied upon some citations of Superior Courts in support of his aforesaid contention. In response, the learned counsel for the appellant has asserted that any mala fide in this behalf is absolutely ill-founded and baseless and the learned counsel for the respondent No. 1 is trying to twist the issues involved in this case with the intention to mislead the Appellate Tribunal. He has also asserted that the judgements relied upon by the learned counsel for the respondent No. 1 in this behalf are inapplicable to the instant case and the principle laid down therein has been misapplied.
(b) We find that proper option was provided to the accused passenger/respondent No. 1 before conducting his personal search, but he himself waived of such option. However, as observed by us in sub-para 26(a) above, the fact remains that upon personal search, proper Recovery Memo thereof was prepared on the spot in presence of the respondent No. 1 and witnesses, but the non offending goods including Nokia Mobile Phone and Passport recovered therefrom, were neither mentioned in the FIR/Challan/Seizure Report nor properly investigated. Regrettably, even the impugned Order-in-Original is silent about the fate of the non-offending goods. In fact, the Nokia Mobile Phone so recovered was not decoded to ascertain, if any, the links of the accused passenger/respondent No. 1, with the underground racket of currency smugglers and thus, the investigations so conducted could not succeed in unearthing such racket. As argued by the learned counsel for the appellant, respondent No. 1 is a habitual offender as is evident from his passport. He has traveled abroad about thirty (30) times in span of two years. This aspect was also not properly investigated. The prevalent law of UAE requires every incoming international passenger to make declaration of currency carried by him. The currency declarations by the respondent No. 1 of all his previous visits to UAE could have been conveniently obtained through diplomatic channels, however, such efforts by the appellant-department regrettably and imprudently remained in-exhaustive.
34. Fifth Issue:--Whether seizure of the impugned foreign currency was affected bv the Customs Staff or ANF Officials?
(a) The contention of the learned counsel for the appellant is that the initial detection of concealment of the impugned foreign currency was made by the ANF Staff and thereafter, the legal formalities for effecting the seizure were undertaken by the Customs Staff under the relevant provisions of the Customs Act, 1969. Whereas the contention of the learned counsel for the respondent No. 1 is that the act of seizure was done by the ANF Staff on duty, who were not entrusted with the powers of Custom Officers under Section 6 of the Customs Act, 1969 and since it was an illegal seizure, therefore, the subsequent proceedings were null and void in the eyes of law and the seized impugned foreign currency was required to be restored to the respondent No. 1. He has also relied on citations, reported as PLD 1968 Karachi Page-599 and PLD 1977 Lahore Page-1318.
(b) We have already deliberated upon this issue in para 10 above. The Assistant Director ANF, while narrating the factual proceedings of the initial detection of the carriage of the impugned foreign currency by the accused passenger/respondent No. 1 he categorically denied the accusation by respondent No. 1 that the impugned foreign currency was seized by the ANF Staff in violation of the mandatory provisions of the Customs Act, 1969. According to him, the ANF Staff, after initial detection of concealment of the impugned foreign currency, referred the respondent No. 1 alongwith his baggage containing foreign currency and other non-offending goods, etc., to the Customs Staff on duty for initiating proceedings under the Customs Act. They never took the physical possession of the impugned foreign currency as alleged by the respondent No. 1. Thus, we agree with the learned counsel for the appellant that the initial detection of concealment of the impugned foreign currency was made by ANF Staff and thereafter, legal formalities for affecting the seizure were undertaken by the Customs Staff under the relevant provisions of the Customs Act, 1969.
(c) Here, we refer to the case of Muhammad Bashir vs. The State, reported as NLR 1992 Cr. 221, wherein the Court has observed that conviction can be based on solitary witness if his evidence is trustworthy. As a rule, witnesses are weighed and not numbered, Court has to go into deeper appreciation of the matter and discover quality of evidence. By placing our reliance on the aforesaid judgement, we observe that the Assistant Director of ANF is a Gazetted Officer and natural witness and therefore, his statement before this forum of narrating the actual proceedings of initial detection of the impugned foreign currency can, undoubtedly, be termed as reliable and trustworthy. We are also in respectful agreement with the rule laid down that witnesses are weighed and not numbered and Court has to go deeper and discover quality of evidence. We feel that the aforesaid Assistant Director, being one of the Detecting Officers of the case is an important and natural witness to the initial proceedings in this case and as such, we examined him properly in order to go into deeper appreciation of the evidence provided by him in this behalf.
35. Sixth issue:-Whether the show cause notice issued in the present case is time barred?
(a) The contention of the learned counsel for the appellant is that the seized foreign currency being a notified item under Section 2(s) of the Act, does not warrant issuance of show cause notice within 60 days as envisaged in the Proviso to Section 168(2) ibid. Whereas, the contention of the learned counsel for the respondent No. 1 is that the show cause notice is badly time barred, as the same was not issued within the prescribed period as mentioned in Section 168(2) ibid and even no reason for such delay was given in the show cause notice inspite the fact that the investigations in the case were finalized within the specified period for issuance of show cause notice. We disagree with the contention of the learned counsel for the respondent No. 1 and find that the contention of the learned counsel for the appellant is based on legal footing for the reasons discussed in the succeeding sub-paras.
(b) The fact remains that Proviso was added to subsection (2) of Section 168 of the Customs Act, 1969 by the Finance Act, 2004 (II of 2004), assented on 30th June, 2004, reported as PTCL 2004 BS.
109, which says that, "provided further that the limitation prescribed under sub-section (2) shall not apply to goods specified under the first proviso to Section 181 of the Customs Act. 1969." The aforesaid Proviso was added by the Finance Act, 1992 (VII of 1992) which provides that the Board may, by an order, specify the goods or class of goods. In this behalf, Notification No. SRO.
487(I)/2007, dated 09.06.2007 was issued by the Board, which clearly refers to smuggle goods falling under Clause(s) of Section (2) of the Customs Act, 1969, as well. Thus, the goods or class of goods either listed or notified under the aforesaid Section of the Act clearly fall within the ambit of smuggled goods, including currency and such goods do not warrant issuance of show cause notice within 60 days as envisaged in the Proviso to Section 168(2) ibid.
(c) We notice that in the case of M/s. Sikandar & Brothers vs. Government of Pakistan, etc., reported as PTCL 1991 CL. 177, it has been observed by the Superior Court that simply because show cause notice was not issued with 60 days or extended period as contemplated by Section 162(2) of the Act, as such notice, held, would not be illegal. Similarly, in the case of M/s. Saima Enterprises vs. Deputy Collector, etc., reported as PU 1996 Kar. 787, it has been observed by the Superior Court that the provisions of Section 168(2) of the Act, do not control provisions of Section 180, therefore, irrespective of the fact that period prescribed under Section 168 has expired, still Customs Officers under Section 180 can issue notice for confiscation of goods and imposition of penalty.
36. Seventh Issue:-Whether the illegal transfer/unlawful possession of such huge amount of foreign currency, skillfully concealed in one of the two suit-cases carried by the accused passenger/respondent No. 1, in a manner so as to avoid detection, which was being taken to Dubai, attracts the mischief of Section 2(s) read with Section 16 of the Customs Act, 1969 and Sections 2 and 8 of the Foreign Exchange Regulation Act. 1947 and Section 3(1) of the Imports and Exports (Control) Act. 1950. Punishable under Section 156(1), (8) and (89) ibid read with Section 8 of the Foreign Exchange Regulation Act. 1947 and Section 3(3) of the Imports and Exports (Control) Act 1950?
(a) The contention of the learned counsel for the appellant is that the abovementioned provisions of the law are fully attracted in the instant case. He has asserted that respondent No. 1 was intercepted inside the customs area and he did not succeed in illegal transfer of such a huge quantity of foreign currency abroad. In support of his assertion, he has adverted to the Proviso to Explanation to Section 156(1) of the Customs Act, to the effect that one the impugned foreign currency was brought by the respondent No. 1 within the customs area, the act of smuggling was accomplished. He has further contended that the unlawful possession of such huge amount of foreign currency and about 30 visits abroad within the span of two years by> the respondent No. 1 are sufficient to raise a presumption against him, which he has not rebutted at all. He has also adverted to Section 156(2) read with Section 187 of the Act by stating that the onus lies upon the respondent No. 1 to prove that he was not in unlawful possession of the impugned foreign currency and he did not attempt to smuggle the same out of the country. He has also cited the recent ' judgement of the Apex Court in Khuda-e-Noor and others, which, according to him, is an apt authority relied upon in the instant case and, therefore, the impugned foreign currency recovered from the respondent No. 1 was not purchased from any authorized dealer in Pakistan and thus, he was not legally authorized to take the same out of the country. Moreover, the said foreign currency was skillfully concealed by him in one of his two suitcases, in a manner so as to avoid detection. On the other hand, the learned counsel for the respondent No. 1 has contended that the respondent No. 1 was not given any chance of making declaration as required under Section 139 of the Act, and no ease of smuggling at all could be established against him and thus Section 2(s) of the Customs Act cannot be applied in this case, as the charge of attempt to smuggle could not be established in the absence of any declaration by him. He has also placed reliance on the number of cited judgements in this behalf and has also asserted that the case law cited by the learned counsel for the appellant in Appeals No. 519-527 of 2005 has been incorrectly quoted and could not be applied in the instant case.
(b) In order to clearly understand the said issue in the legal context, we reproduce herein-under Section 2(s) of the Customs Act, 1969 in verbatim:- "2(s): "smuggle" means to bring into or take out of Pakistan, in breach of any prohibition or restriction for the time being in force, or evading payment of customs-duties or taxes leviable thereon,-
(i) gold bullion, silver bullion, platinum, palladium, radium, precious stones, antiques, currency, narcotics and narcotic and psychotropic substances; or
(ii) manufactures of gold or silver or platinum or palladium or radium or precious stones, and any other goods notified by the Federal Government in the Official Gazette, which, in each case, exceed fifty thousand rupees! In value: or
(iii) any goods by any route other than a route declared under Section 9 or 10 or from any place other than a customs-station; and includes an attempt, abetment or connivance of so brining in or taking out of such goods; and all cognate words and expressions shall be construed accordingly." (c) The latest judgement on correct interpretation of Section 2(s) is in Civil Appeal No. 757 of 2005, wherein the Honourable Supreme Court has observed as under; "Two distinct situations are envisaged under sub-clause (ii) and (i.e) of clause (s) of section (2) whereas under the former, goods notified by the Federal Government in the official gazette worth Rs. 50,000/- and above brought into the country would constitute smuggling. Under the latter clause, the goods brought into the country other than through routes declared as Customs Station under section 9 and 10 of the Customs Act, are to be considered smuggled goods. The use of "or" in between sub-clause (ii) and sub-clause (i.e) indicates that the two clauses are disjunctive and each clause covers a separate and distinct situation Goods not notified under sub-clause (ii) could still be the subject of smuggling if brought into the country on routes other than the Customs Stations as such goods would not be subjected to payment of duties. This distinction is also borne out from the case of Malik Zulfiqar Ahmad vs. The Slate (ibid). The High Court thus, fell into grave error holding that brining into the country of notified goods alone would constitute smuggling within the meanings of section 2(s) of the Custom's Act. If the interpretation placed by the High Court of Section 2(s) is accepted, it would render sub-clause (i.e) thereof redundant. This finding of the High Court can, therefore, not be sustained and reversed." (d) In fact, the first part of clause (s) of Section 2 of the Act qualifies and controls the categories of goods listed in sub-clauses (i) and
(ii) ibid. This means that goods which are brought into Pakistan, or are taken out of it must be either prohibited or restricted or should be so brought in or taken out for the purposes of evading customs duties or taxes leviable thereon. Either of these two conditions must be fulfilled by the categories of goods listed in sub- clauses (i) and (ii) ibid. Sub-clause (i) ibid is related to the goods specifically mentioned therein. Similarly sub-clause (ii) ibid is also related to the goods specifically mentioned therein or notified separately in an official Gazette; whereas sub-clause (i.e) ibid speaks of the goods imported or exported through unspecified routes. Such goods may be prohibited or restricted goods and if any goods are brought through unspecified routes, they become smuggled goods in terms of sub-clause (i.e) ibid and so also if they are brought into through such route to evade duty or taxes. In this behalf, we place our reliance on the case laws cited in the cases reported as PLD 198l Quetta 1 + PLJ 1980 Quetta 102 + PTCL 2003 CL. 627.
(e) Thus, by also placing our reliance on the case law cited in the case reported as PTCL 2003 CL. 627, clause (s) of Section 2 ibid refers only to goods specified therein and other goods notified by the Federal Government thereunder. It does not refer to goods the importation or exportation of which is prohibited elsewhere, which situation is governed by Clause (9) of Section 156(1). Likewise, in the case of Liaquat Ali, etc. Vs. Special Judge (Customs), etc., reported as PTCL 1988 CL. 74, it has been held by the Superior Court that it was not necessary to show that goods were of foreign origin. It was sufficient to show that goods were being smuggled out of or into Pakistan & were one or more of those listed under Section 2(s) or were notified there-under.
(f) Likewise, in the case of the State vs. M. Ashraf, reported as PTCL 1986 CL. 209, it has been held by the Superior Court that act of accused in taking a very large amount of Pakistan currency to departure lounge & offering a suit case containing as a part of his luggage to PIA staff when he was due to board a plane for Dubai, gives rise to reasonable belief that he wanted to smuggle the said currency out of Pakistan. Similarly, in the case of Muhammad Shaft vs: the State, reported as 1981 P.Crl. J. 366, offence of smuggling, held, committed in case of possession of foreign currency exceeding Rs. 1000 in value (now USS 10,000/' or equivalent thereto in any other foreign currency).
(g) Now, by placing our reliance on the case law cited in the case of Asghar Ali vs. The State, reported as PTCL 1991 CL. 311, the scope of smuggling as defined in Section 2(s) is very were encompassing all possible factors which may include attempt, abetment or connivance for bringing in or taking out of country any of specified goods including currency. Yet in the case of Asghar Ali vs. The State, reported as 2003 PLD SC 250, the Supreme Court of Pakistan has observed that attempt, abetment or connivance to commit an offence would include in the expression "smuggle", which being an offence, was punishable, but the attempt to smuggle had not been specifically defined in the Customs Act, 1969. The Honourable Court, therefore, has .Laid down principles in this behalf.
(h) We find that even the bare perusal of definition of 'smuggle' suggests that even attempt, abetment or connivance for taking away currency in breach of any prohibition or restriction, like any other items, specified in the law, constitutes an act of smuggling. We further find that scope of smuggling is very were, encompassing all possible factors which may connote attempt, abetment or connivance for bringing in or taking out of country any of specified goods including currency. In support of our aforesaid observation, we place our reliance on the case law cited in the case, reported as PTCL 1991 CL. 311. Similarly, in the case of Ehsan Elahi Malik vs. The State, reported as 1980 P.Cr.L.J. 186, the Court has observed that accused checked in, given boarding card, baggage tagged and finally while making declaration, suppressing information regarding huge amount of foreign currency & precious stones in his possession. Thus, it has been held that the appellant had done everything in his power to take contraband out of country. Therefore, the case of attempt to smuggle, held, established.
(i) We notice that in the case of Waqar Hussain vs. The State, reported as PTCL 198l P.Crl. J. 958, the Supreme Court has held that the term "smuggling" includes attempt as well as abetment or connivance. Taking out of Pakistan a Bank draft in violation of restriction contained in Foreign Exchange Regulation Act, constitutes an offence of smuggling. Again, we notice that in the case of CBR, etc. Vs. Khan Muhammad, reported as PLD 1986 SC 192 + PTCL 1986 CL. 165, the Supreme Court has held that the actus reus necessary to constitute an attempt is complete if a person does an act which is a step towards commission of the specific crime which is immediately and not remotely connected with commission of it. We also notice that in the case of Tamas Khan vs. The State, reported as NLR 1989 Cr.13, it has been observed therein that the accused purchased ticket for going abroad, given boarding card, baggage tagged and finally asked by the Customs Officer to make declaration, however, the accused suppressed information regarding ban items carried by him in his baggage and, therefore, an attempt to smuggle contraband items out of Pakistan, has been held to be established.
(j) However, we find that the word 'attempt' has not been defined in the Customs Act, 1969. We will now make an effort to discuss its ingredients so as to properly understand the meaning of 'attempt' in the legal context. Attempt as defined by Law of Lexicon Fourth Volume, suggests, intentional act which a person does towards the commission of offence, but which fails in its object through circumstances independent of such violation. It is obviously an effort of the person to accomplish illegal action which otherwise is frustrated by the happening of certain events. We place our reliance in this behalf on the case law cited in the case, reported as PTCL1991 CL. 31J.
(k) However, we notice that in the case of Abdul Salam vs. The State, reported as PTCL 1984 CL. 29, the Honourable Lahore High Court, Lahore has defined attempt to mean: "any overt act" immediately connected with the commission of an offence, and forming part of a series of acts which, if not interrupted or frustrated, would end in the commission of the actual offence, is, if done with a guilty intent, an attempt to commit the offence. A person may be guilty of an attempt to commit an offence though that offence could not in the circumstances, have been committed; but steps on the way to doing something which is in fact done and which when done, does not, amount to a criminal offence, cannot be regarded as an attempt." It has been held therein that "an act, in order to be a criminal attempt, must be immediately, and not remotely, connected with and directly tending to the commission of an offence. Merely to make preparations for the commission of an offence, is distinct from an attempt to commit the offence." It has been further held that "in order to constitute an attempt, there has, therefore, to be some overt act on the part of the offender which if not frustrated, would lead to the commission of the offence." (1) We also notice that in the case of Siraj Din and others vs. Custodian, Evacuee Property, Punjab, Lahore, reported as PLD 1975 Lah 1270, the Superior Court has defined "an overt act" as can be clearly proved to have been done. In the present case, the respondent No. 1 was intercepted within the customs area and found to be in unlawful possession of huge quantity of impugned foreign currency without any legal document for its transfer abroad. Thus, the same was an overt act by him and I the adjudicating authority rightly upheld the charges framed against him. We also refer to the case of Mian Farhan Raud vs. The State, reported as 1997 P.Cr.L.J. 1219, wherein it has been observed by the Superior Court that accused allegedly made attempt to smuggle foreign as well as Pakistan currency out of the country. Accused had not declared the said currency orally or in writing before the customs authorities. No plausible explanation had been given by the accused for taking such huge amount in cash with him. Here, we also advert to the case of Asghar Ali vi'. The State, reported as 2003 PLD 250, wherein the Superior Court has observed that attempt, abetment or connivance to commit an office would include in the expression "smuggle", which being an offence, was punishable, but the attempt to smuggle had not been specifically defined in the Customs Act, 1969.
The Court has, thus, laid down principles thereof in the cited judgement.
(m) After having discussed Section 2(s) ibid and its legal implications in the context of illegal transfer of foreign currency out of the country, we will now advert to Section 16 of the Customs Act, 1969 and examine its applicability to the instant case. For the sake of convenience, Section 16 of the Customs Act, 1969 is reproduced in verbatim as under: "16. Power to prohibit or restrict importation and exportation of goods.-The [Federal Government] may, from time to time, by Notification in the official Gazette, prohibit or restrict the brining into or taking out of Pakistan of any goods of specified description by air, sea or land." (n) Relying on the case law cited in the case, reported as PTCL 1996 CL 534, the conditions for invoking Section 16 to prohibit or restrict the importation or exportation of goods are given below:--
(i) The power under Section 16 is conferred on the Federal Government which cannot be exercised by subordinate authority like Collector of Customs; and (ii) The power is to be exercised by a Notification in the Official Gazette.
(o) We notice that currency is included in the word "goods" as defined in Section 2(1) of the Act.
Therefore, where an attempt is made to export currency in contravention of the Foreign Exchange Regulation Act, 1947, the offender is liable to the penal action under the Foreign Exchange Regulation Act, 1947 as well as under the Customs Act, 1969.
(p) We also notice that the legal implications of violation of Section 16 of the Act, have been provided in Section 17 ibid, which is reproduced below for sake of convenience: "17. Detention, seizure and confiscation of goods imported in violation of Section 15 or Section 16.- Where any goods are imported into, or attempted to be exported out of, Pakistan in violation of the provisions of Section 15 or of a notification under Section 16, such goods shall, without prejudice to any other penalty to which the offender may be liable under this Act or the rules made thereunder or any other law, be liable to detention, or seizure or confiscation subject to approval of an officer not below the rank of an Assistant Collector of Customs, and seizure for confiscation through adjudication, if required." (q) Thus, if a person is found in possession of concealed currency, the confiscation of such contraband currency is authorized (Reliance: AIR I960 Ker. 170). Where it is found that goods not declared were found concealed in, in such a case not only the goods not so declared but also the goods so declared would also be liable to confiscation. (Reliance: PLD 1967 SC 1 + 19 DLR (SC) 157).
(r) Yet, in the case of 'State vs. Anwar Khattak, etc., reported as PLD 1990 FSC 62, it has been held by the Superior Court that: "The offence under Customs Act, 1969, lies in brining into or taking out of Pakistan in breach of any prohibition or restriction of articles or substance. The penalty and punishments for the offence are in Section 156(1 )(8) ibid - Prohibition or restriction is laid down by notification of the Government under Section 16 ibid." (s) Yet in another case, titled M/s. Sikandar and Brothers vs. Government of Pakistan, etc., reported as PTCL 1991 CL 177, it has been observed by the Superior Court that: "Goods prohibited under Section 3 of the Imports & Exports (Control) Act, shall also be deemed prohibited & restricted under Section 16 of the Customs Act and whole Customs Act shall apply." (t)
Likewise, sub-section (3) of Section 8 of the Foreign Exchange Regulation Act, 1947 provides as under:- "(3) The restrictions imposed by sub-section (1) and (2) shall be deemed to have been imposed under Section 16 of the Customs Act, 1969, without prejudice to the provisions of Section 23 of this Act, and all the provisions of that Act shall have effect accordingly." (u) We now refer to Section 139 of the Act, which has already been reproduced in para 8(g) above, and its reproduction here again will be inappropriate. We, however, notice that the provisions of Section 139 ibid are mandatory and not directory and its bare reading clearly specifies that it is obligatory on the owner of any baggage to make a correct declaration of his baggage to the appropriate officer of customs and to answer such questions as may be put to him with respect to his baggage. Failure to do so is made punishable under Section 156(1)(70) of the Act. However, we find that Section 139 ibid has not been invoked in the show cause notice but certainly it has been dilated upon in the findings of the impugned Order-in-Original. We confidently feel that since the accused passenger/respondent No. 1 has been charged in the show cause notice for violation of the provisions of Section 2(s) read with Section 16 Ibid for unlawful possession and attempt to illegally transfer huge quantity of foreign currency out of the country and clearly his act is punishable under Clauses (8) and (89) of Section 156(1) ibid irrespective ef whether in the commission of the offence, his act is also punishable under Section 156(1)(70) ibid. We are thus, of the considered view that non-invoking of Section 139 ibid in the show cause notice will not have any adverse impact on the prosecution case. In support of our aforesaid observation, we also place our reliance in this behalf on the case law cited in the case reported as PTCL 1992 CL 138, wherein the Superior Court has observed that: "Section 139 creates an obligation upon every passenger or a member of crew to make declaration of his baggage and to answer questions with respect to the baggage as well as its contents including articles carried by him. The failure to do so or the failure to produce baggage or any such article for examination is liable to penalties and confiscation as provided by item (70) of Section 156(1). If the passenger commits the offence of smuggling as defined in Section 2(s) of the Act in relation to his. Baggage, clearly his act would be punishable under Clause (8)-, irrespective of whether in the commission of the offence he has also contravened the provisions of item (70)." (v)
We have already deliberated upon the issue of making declaration under Section 139 ibid exhaustively in Para 28(c) above and it will be inappropriate to go for reiteration of the same here again. However, we are mindful of the fact that the learned counsel for the appellant has asserted in his arguments on the issue before us that there is no declaration made in writing nor has the accused passenger/respondent No. 1 raised any plea that he had requested for the declaration form and the only plea he has raised is that he wanted to declare the same orally. The burden lies upon him to prove that he intended to declare the same orally. The respondent No. 1 has not produced any evidence to that effect. Moreover, in the absence of any legal authority with him regarding possession of such huge amount of foreign currency, skillfully concealed in his suit-case in a manner so as to avoid detection, makes it abundantly clear that he had no intention of declaring it to the Customs Staff on duty. He has also asserted that declaration under Section 139 ibid is obligatory upon a passenger for the purpose of clearing his baggage. However, the respondent, No. 1 failed to make oral declaration, though he had ample opportunity to do so, because the goods i.e., foreign currency contained mid skillfully concealed in his baggage was not capable of being cleared. Moreover, the foreign currency seized in the instant case was of such huge quantity that it could by no stretch of imagination be declared by the respondent No. 1. We have already agreed with the aforesaid assertions by the learned counsel for the appellant for the reasons given by us in the above cited Para.
(w) We have already dilated upon the issue; with regard to making declaration under Section 139 and have observed that it is mandatory upon the passenger to make a true declaration and failure whereof is punishable under Section 156(1)(70) ibid. We, however, agree with the contention of the learned counsel for the appellant that there is no Section under the Customs Act, 1969, which makes provision of "opportunity" for making declaration as mandatory upon the Customs Staff and lack of providing "opportunity" to the passenger for making declaration of contents of its baggage cannot be viewed by any adverse implications. It would be, thus, highly misconceived to place such interpretation on the Section, which penalizes the * national exchequer for the failure of an offender. Moreover, the burden of proof in such circumstances lies on the passenger. We also gain strength in this behalf from the case law cited in the case reported as 1980 P.Cr.L.J. 318, wherein the Court has observed that: "The effect of sub-section (2) of Section 156 in the context of Section 139 is that if goods specified in Section 2(s) are seized for violation of Section 139 in the reasonable belief that an act to defraud the Government of the duty payable thereon or to evade any prohibition or restriction has been committed or that there is intent to commit such act, clearly it will be for the offender to show that no such act has been committed or that there was no such intent." (x) We now revert to Section 156(1)(8) of the Act, which is reproduced herein under in verbatim for sake of convenience:- "If any goods be smuggled into or out of Pakistan. Such. Goods shall be liable to confiscation and any person concerned in the offence shall be liable to a penalty not exceeding ten times the value of the goods; and upon conviction by a Special Judge, he shall further be liable to imprisonment for a term not exceeding fourteen years and to fine not exceeding ten times the value of such goods, and, if the Special Judge in his discretion so orders, also to whipping: Provided that, in the case of such goods as may be notified by the Federal Government in the official Gazette, the sentence of imprisonment shall not be less than five years and the person convicted shall also be awarded sentence of whipping, and the whole or any part of his property shall also be liable to confiscation in accordance with the provisions of the Prevention of Smuggling Act, 1977." (y) We find that the word 'goods' has been defined in sub-section (1) of Section 2 of the Act in the manner as given herein under: ~ "Section 2(1).-" goods" means all movable goods and includes:
(i) conveyances, (ii) stores and materials, (iii) baggage, and (iv) . Currency and negotiable instruments." (z) The bare reading of Clause (8) of Section 156(1) ibid clearly reveals that it relates to smuggling of any goods into or out of Pakistan. The word "smuggle" has been clearly defined under Sec t{on 2(s) and as such, the provisions of Clause (8) of Section 156(1) ibid will be attracted to the goods specified therein or duly notified thereunder. Foreign goods smuggled into or taken out of Pakistan - offence, held, brought within the penal provision of Section 156(1)(8). We place our reliance in this behalf on the case law cited in the case, reported as PLD 1985 Pesh.
82. As already discussed above, we notice that the word "goods" has been defined under Section 2(1) which means all moveable goods and also includes baggage, currency and negotiable instruments.
Similarly, exporting of Pakistan currency and foreign currency in illegal manner amounts to smuggling. In fact, currency has been clearly specified for the purpose of Section 2(s) and 156(2) ibid. The same has also been clearly notified under SRO. 566(I)/2005, dated 6th June, 2005, reported as PTCL 2005 St. 1017. In this behalf, we also place our reliance on the case law cited in the case, reported as PTCL 1986 CL. 30. Now export/transfer of foreign currency in a legal way is not prohibited.
(aa) We now refer to Clause (89) of Section 156(1) of the Act, which is reproduced herein under in verbatim for sake of convenience: "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 smuggled goods or any goods with respect to which there may be reasonable suspicion that they are smuggled goods.... " (ab) The bare reading of Clause (89) of Section 156(1) of the Act clearly reveals that this Clause is applicable to goods as covered by the definition of 'smuggle' under Section 2(s) of the Act, In other words, Clause (89) applies to the conscious possession of the smuggled goods, when the process' of importation is complete. Whereas, offence under Clause (8) of Section 156(1) ibid applies to such goods while in the process of importation and exportation. The present Clause (89) is thus, distinguishable from Clause (8) in this respect.
(ac) We, however, observe that the expression 'with lawful excuse' appearing in Clause (89) carries the meaning that it is for that person to prove that he had come by its possession in a lawful manner, that is in a manner which did not involve a breach of any provision of law. Moreover, the expression 'the proof of which shall be on such person' distinctly places the burden of proof of lawful possession on such person. We, however, need to examine as to whether or not the said provisions are attractable in the instant case? In order to constitute the offence as defined in Section 156(1)(89) of the Act, four ingredients of the offence have to be established. Firstly, it is necessary for the prosecution to show that the goods in question were goods which were chargeable with a duty which had not been paid or with respect to the importation of which any prohibition or restriction was for the time being in force; secondly, that the accused was carrying those goods; thirdly, that the accused was doing so knowingly, that is to say, he knew that the goods were chargeable with a -duty which had not been paid or that there was any 'prohibition or restriction with respect to the importation of those goods; and fourthly, that the accused was carrying the goods with the intent to defraud the Government of any duty payable thereon or to evade the prohibition or restriction which was for the time being in force with respect to their importation. We place our reliance in this behalf on the case laws cited in the cases, reported as AIR 1964 Bom. 103 (DB) + AIR 1962 SC 496 + AIR 1965 SC 481. We, however, observe that no direct evidence on the point whether the requirements of Section 156(1)(89) have been fulfilled can be available, but all the facts and circumstances of a particular case are to be gone into. Again, we place our reliance in this behalf on the case laws cited in the cases reported as AIR 1961 Punj. 21 + 1961 (l) Cri.L.Jour.
150. In this particular case, the goods in question were foreign currency, which was in excess of authorized limit of US Dollars 10,000 and it was not being transferred in legal manner as provided under the law. Undoubtedly, the accused passenger/respondent No. 1 was in conscious possession of the impugned foreign currency within the customs area, which was skillfully concealed by him in one of his two suit-cases, in a manner so as to avoid detection. He is a frequent traveler abroad and also deals in currency business, therefore, he was fully aware of prohibition/restriction imposed on transfer of currency abroad and he willfully, deliberately and intentionally attempted to smuggle the same outside the country.
(ad) For clear understanding of the issue involved, we now dilate upon the import of currency in the legal manner. According to Notification No. F.E.5/92-SB, dated 28th December, 1992, issued by the State Bank of Pakistan, any person is permitted to bring into Pakistan from any place outside Pakistan any foreign currency notes or bank notes without limit, except un-issued notes and coins.
However, the aforesaid permission is valid only for bringing in of foreign currency notes or coins without limit only by any passenger, but not for sending them into Pakistan by post or otherwise, which is illegal. Subsection (3) of Section 4 of the Foreign Exchange Regulation Act, 1947 clearly places restriction on any person, other than the authorized dealer, to the effect that he shall without delay sell the foreign exchange so acquired to an authorized dealer. So, the question may arise whether or not a person in possession of any foreign currency acquired by him illegally will be liable to a penal action under Section 156(1)(89) ibid? The answer will be in affirmative. However, proper importation of foreign currency notes or coins into Pakistan by any person without any limit or lawful possession of such foreign currency notes and coins with lawful authority will not be punishable under Section 156(1)(89) ibid. We place our reliance in this behalf on the case law cited in the case, reported as PTCL 1986 CL 165. However, in the instant case, the accused passenger/respondent No. 1 was not in the lawful possession of the impugned foreign currency when he attempted to smuggle it abroad, which clearly attracts the provisions of clause (89) of Section 156(1) ibid. Now, another question may arise whether or not the taking out of the impugned currency by him to Dubai was a legal transfer? The answer to this question has been separately discussed by us in the succeeding paras.
(ae) In the backdrop of our above discussion, we now advert to Explanation to Section 156(1) of the Act, which reads: "For the purposes of any penal -provisions of this Act, the offence of contravening, in respect of any goods, any of the provisions of this Act or the rules or any other law for the time being in force, shall be deemed to have been committed when, in the case of import, any vessel containing such goods arrives within twelve nautical miles of the sea coast of Pakistan (each nautical mile measuring six thousand and eighty feet) or when, in the case of export, such goods have been loaded on any conveyance for transport to any destination outside Pakistan. Or when, in either case, the connected customs documents have been presented to the appropriate officer."
(af) Now, we revert to Proviso to Explanation to Section 156(1) of the Act, which reads as: "Provided that in the case of accompanied baggage or any un-manifested goods meant for export, the offence shall be deemed to have been committed when such baggage or goods enter the customs-area or are delivered to the carrier of the conveyance."
(ag) The above Proviso was added by the Finance Ordinance, 1982. It is our considered opinion that after insertion of the said Proviso to Explanation to Section 156(1) of the Act, the principles pronounced in the judgements before July, 1982 relating to attempt under Section 2(s) of the Act and making declaration under Section 139 ibid do not hold goods thereafter. By virtue of this amendment, bringing of any prohibited or restricted goods into the customs area by any person amounts to attempt to smuggle.
(ah) We now advert to Section 156(2) of the Act, which reads as under:-- "where any goods specified in Clause(s) of Section 2 or in a notification issued thereunder are seized under this Act in the reasonable belief that an act to defraud the Government of any duty payable thereon or to evade any prohibition or restriction for the time being in force by or under this Act has been committed in respect of such goods, or that there is intent to commit such act, the burden of proving that no such act has been committed or there was no such intent shall be on the person from whose possession the goods were seized." (ai) Here, we refer to the case of Muhammad Rafiq Versus The State, reported as 1980 P.Cr.L.J. 318, wherein it has been observed by the Superior Court that when goods specified in Section 2(s) or notified thereunder are seized for violation of Section 139, the burden lies on the offender to show that no such act has been committed by him. It has been held by the Superior Court that customs authorities are justified to prosecute offender for offence of smu ggling. Likewise, in the case of the State Versus Umar Hayat, reported as 1992 PLD SC 393, it has been observed by the Superior Court that the prosecution has to establish only that goods are seized in reasonable belief that they are smuggled. However, the burden lies on the accused to prove that the goods are not of the category specified in Section 2(s) or notified thereunder. Similarly, in the case of Syed Pir Walayat Shah vs. The State, reported as PTCL 1992 CL 138, it has been held by the Superior Court that where the accused admits that the baggage from whom the notified items were recovered in the passenger's presence and he does not even challenge this evidence, the case against him is proved beyond reasonable doubt.
(aj) We also find that in the case of Bakht Jamal vs. The State, reported as 20Q3 P.Cr.L.J. 1123, it has been observed by the Superior Court that no contradiction on material points in the statements of prosecution witnesses had been found-Said witnesses were put to lengthy cross-examination by the defence, but they withstood the test on all material and relevant aspects-Nothing favourable to the accused could be elicited from the mouth of said prosecution witnesses so as to cause dent in prosecution case-Nothing had been brought on record by the accused to substantiate his assertion to the effect that he had been implicated in the case falsely and no suggestion to such assertion was put to the witnesses when they were in the witness box- -.-When a specific plea was advanced by the accused, then burden shifted to him to prove same, but he failed to do so.
(ak) We find that in the instant* case, huge quantity of foreign currency, which was skillfully concealed by the respondent No. 1 in zip pockets of one of his two suit-cases carried by him as accompanied baggage and that too, in a manner so as to avoid detection, and the number of visits made by him in short span of two years are sufficient to raise a presumption against him, which he has not rebutted at all. The burden thus, lies upon him to prove otherwise. As discussed above, Section 156(2) of the Act is abundantly clear on the issue. However, a question may rise as to why Section 156(2) ibid has not been invoked in the show cause notice or dilated upon in the impugned Order-in-Original? We agree with the learned counsel for the appellant that Section 156(2) ibid raises a legal presumption against the offender, in the light whereof cases are to be decided. It does not create a separate or distinct offence so as to be mentioned in the show .. .
Cause notice. On the contrary, it has to be read in every circumstances falling within its ambit. It will be quite whimsical to expect the entire Customs Act, 1969 to be reproduced in the show cause notice or deliberated upon in the Order-in-Original. We also notice that as a departmental practice, only the enabling and penal provisions are invoked in the show cause notice and accordingly deliberated upon in the Order-in-Original so as to arrive at the correct decision of the case.
(al) In view of the above discussions and by also placing our reliance on the case law cited in the case reported as 1991 SCMR 54, we find that foisting of such huge quantity of the impugned foreign currency on the accused passenger/respondent No. 1 is un-imaginable due to the fact that proper identity of accompanied baggage carried by the respondent No. 1 was made and recovery of such huge quantity of foreign currency therefrom, which was skillfully concealed therein in a manner so as to avoid detection, was properly made under the relevant provisions of the Customs Act, 1969 and no enmity existed between the Seizing Staff and the accused passenger/respondent No. 1 at the time of seizure of the impugned foreign currency. We also notice that the seizing and investigating staff have fully implicated the accused passenger/respondent No. 1 in the case for the offence of smuggling and no material contradiction exists in their evidence on case file relating to seizure of the impugned foreign currency, which could shake their credence. Moreover, the defence version has not inspired confidence for carriage and possession of such huge quantity of the impugned foreign currency in the absence of documentation relating to legal transfer/ lawful possession of the same by the respondent No. 1. In these circumstances, presumption would be that the provisions of Section 156(1), (8) and (89) of the Act are clearly attracted in this case. In this behalf we also place our reliance on the case laws cited in the cases reported as PTCL 1988 CL 429 + 1992 MLD 1496.
(am) We now advert to sub-section (1) of Section 157 of the Act, which is reproduced below in verbatim for ease of reference: "Extent of confiscation.-(1) Confiscation of any goods under this Act includes any package in which they are found, and all other contents thereof." (an) By placing our reliance on the case laws cited in the case, reported as AIR 1961 Born. 48, the word "package" has not been defined in the Customs Act, 1969, therefore, it cannot be said that the word "package" has any peculiar or unusual meaning attached by the Legislature. We must therefore, treat the word "package" in its literal and ordinary meaning. Mur ay's Dictionary, Vol. VII, Page 362 defines a "package" as a bundle of things packed up and contained in a receptacle. We have already discussed in the preceding sub-paras that the impugned foreign currency and the other non offending goods including one of the two suit-cases carried by the said respondent wherefrom the -impugned currency was recovered, were properly seized but, regrettably, these were neither mentioned in the Seizure Report/FIR/Challan nor in the impugned Order-in-Original and upon filing application at the later stage, the Trial Court directed that two items of the non-offending goods i.e. Nokia Mobile Phone and NIC may be released to the accused passenger/respondent No. 1 in accordance with law and thus, these were subsequently released by the Seizing Officer as evident from the prosecution file; however, proper procedure as per law was not observed by the appellant-department in this regard.
(ao) Now, we advert to Section 187 of the Act, which has already been reproduced in the impugned Order-in-Appeal and we consider it inappropriate to reproduce the same here again. On a closer scrutiny of the provisions of Section 187 and the case law settled by courts on the subject, it appears that in such a situation, the evidential and tactical burden of proof is cast upon the accused while the legal burden to bring home the allegations remains with the prosecution. By placing our reliance on the case law cited in the case, reported as 1987 MLD 316, huge amount of foreign currency about 11 crore Iranian Riyals was seized and it was observed that the order passed by Customs Authorities was not arbitrary or capricious. Moreover, the petition suffered from laches of 13 months. Accordingly, the petition was dismissed. Yet, in the case of Younus Khan vs. The State, reported as 1986 P. Cr.LJ. 1693, it has been observed by the Superior Court that the accused was found in possession of foreign currency while sitting in International Departure Hall. Moreover, the Preventive Officer who prepared and signed mushirnama fully supported the case of prosecution.
The conviction was, thus, maintained.
(ap) At this stage, we now refer to Section 8 of the Foreign Exchange Regulation Act, 1947.
Subsection (1), (2) and (3) of Section 8 ibid clearly places restrictions on import and export of currency in the manner as given below:- "8(1).-The Federal Government may, by notification in the official Gazette, order that, subject to such exemptions, if any, as may be contained in the notification, no person shall, except with the general or special permission of the State Bank and on payment of the fee, if any prescribed, bring or send into Pakistan any gold or silver or any currency notes or bank notes or coins whether Pakistani or foreign.
8(2). -No person shall, except with the general or special permission of the State Bank or the written permission of a person authorized in this behalf by the State Bank, take or send out of Pakistan any gold, jewelry or precious stones, or Pakistan currency notes, bank notes or coins or foreign exchange.
8(3). -The restrictions imposed by sub-sections (1) and (2) above shall be deemed to have been imposed under Section 16 of the Customs Act. 1969. Without prejudice to the provisions of Section 23 of this Act, and all the provisions of that Act shall have effect accordingly."
(aq) We have already deliberated upon in the preceding sub-paras that the State Bank of Pakistan in its Notification No. F.E.-3/92-SB, dated 10th November, 1992 has authorized any person to bring into Pakistan from any place outside Pakistan any foreign currency notes or bank notes without limit, except un-issued notes and coins. However, such legal possession by any person has been dealt with under sub-section (3) of Section 4 of the Foreign Exchange Regulation Act, 1947. Likewise, according to the State Bank of Pakistan Notification No. F.E. 4/92, dated the 28th December, 1992, any person may take out from Pakistan to any. Country, other than India, currency notes of the Government of Pakistan and State Bank of Pakistan notes not exceeding in all Rs. 3,000/- (Rupees three thousand only) in value at any time. Similarly, according to the State Bank of Pakistan Notification No. F.E. 2/98-SB, dated 21st July, 1998, the State Bank of Pakistan has also permitted: (i)
Authorized Dealers to send out of Pakistan, cheques, drafts or bills of exchange which have been acquired by them in the normal course of their business and within the terms of their authorization.
(ii) Any person maintaining an account expressed in a foreign currency and held under any permission, general or otherwise, granted by the State Bank of Pakistan to take or send out of Pakistan, cheques or drafts drawn on such account.
(iii) Any person, other than a person to whom foreign exchange is issued for traveling purposes only, to send out of Pakistan foreign exchange issued to him by an Authorized Dealer.
(iv) Any person to take out of Pakistan foreign exchange issued to him by an Authorized Dealer in Pakistan and endorsed on his passport.
(v) Any person, not ordinarily resident in Pakistan, to take out of Pakistan the unspent amount of foreign currency brought by him into Pakistan provided the period of his continuous stay in Pakistan does not exceed three months, and
(vi) Any person to take out of Pakistan USS 10.000/- or equivalent thereof in other foreign currencies.
(ar) We have already discussed in detail in the succeeding sub-paras about the limit of foreign exchange/currency, which a (person can take out from Pakistan in his capacity as a traveler.
Besides, we have also elucidated therein regarding the foreign exchange/currency, which any person can take out of Pakistan, issued to him by an authorized dealer for business purposes abroad. We, however, observe that the above provisions of the Foreign Exchange Regulation Act, 1947 are fully attracted in the instant case in the light of recent pronouncement by the apex Court in Criminal Appeals No. 519-527 of 2005, in identical facts and similar circumstances, which is most relevant and applicable to the present case.
(as) We now advert to the provisions of sub-sections (1) . And (3) of Section 3 of the Imports and Exports (Control) Act, 1950, which are reproduced below in verbatim for the sake of convenience: "3. (1) The Government may. By order published in the official Gazette and subject to such conditions and exceptions as may be made by or under the order, prohibit, restrict or otherwise control the import or export of goods of any specified description, or regulate generally all practices (including trade practices) and procedure connected with the import or export of such goods, and such order may provide for applications for licences under this Act, the evidences to be attached to such applications, the grant, use, transfer, sale or cancellation of such licences, and the form and manner in which and the periods within which appeals and applications for review or revision may be preferred and disposed of, and the charging of fees in respect of any such matter as may be provided in such order.
(2) ....................................
(3) ....................................
All goods to which any order under sub-section (13 applies shall be deemed to be goods of which the import or export has been prohibited or restricted under Section 16 of the Customs Act. 1969 (IV of 19691. And all the provisions of that Act shall have effect accordingly."
(at) The bare reading of sub-section (1) above clearly provides that the Government may prohibit or restrict or otherwise control the import or export of goods of any specified description by issuing a notification. The impugned currency stands notified and as such its export is prohibited. Likewise, subsection (3) above clearly provides that provisions of Section 16 of the Act shall apply to, such goods whose import or export is prohibited under subsection (1). Thus, the provisions of Section 3 of the Imports and Exports (Control) Act, 1950 are clearly attractable in this case as noticed' aforesaid.
(au) In the preceding sub-paragraphs, we have fully explained the provisions of Section 2(s) read with Section 16 of the Customs Act, 1969 and further read with Sections 2 and 8 of the Foreign Exchange Regulation Act, 1947 and Section 3(1) of the Imports and Exports (Control) Act, 1950, punishable under Section 156(1), (8) and (89) ibid, read with Section 8 of the Foreign Exchange Regulation Act, 1947 and Section 3(3) of the Imports and Exports (Control) Act, 1950 and have also cited various case laws, which are relevant to the instant case, in support of our observations/ findings thereon. We find that the aforesaid provisions are fully attracted in the instant case.
37. Eighth Issue:-Whether the impugned Order-in-Original is a judicious and speaking order?
(a) The contention of the learned counsel for the appellant is that the impugned Order-in-Original is a judicious order, based on factual and legal issues involved in this case. Whereas, the leaned counsel for the respondent No. 1 contends that the impugned Order-in-Original is not a judicious and speaking order as the adjudicating authority even did not call for comments from the seizing agency on the reply to the show cause notice filed by the respondent No. 1 and he failed to rebut the points raised by the respondent No. 1 and thus, the impugned order by the Adjudicating authority is not a judicious and speaking order.
(b) We find that the contention of the learned counsel for the respondent No. 1 in this behalf is not convincing enough. Careful perusal of the relevant record reveals that the adjudicating authority has given his findings in the were of arguments, written as well as oral, advanced by the learned counsel for the respondent No. 1, who himself appeared before him. We also observe that the adjudication proceedings were conducted by the adjudicating authority by observing the doctrine of natural justice. In adjudication proceedings, the adjudicating authority is not legally bound to call for para-were comments from the seizing agency. However, in the instant case, the department was properly represented by the Deputy Superintendent (Adjudication), who vehemently controverted the contentions of the learned counsel for the respondent No. 1 and argued the case in depth. Full opportunity was provided to the learned counsel for the respondent No. 1 to rebut the material evidence placed on record. He also did not avail the opportunity to cross-examine the witnesses. On the principle of res ipso logitor, the seizing agency discharged its burden on the reasonable plea that the impugned foreign currency was attempted to be smuggled. We, thus, observe that the impugned Order-in-Original is a speaking and judicial order as no illegality, irregularity, impropriety, mis-reading or mis-appreciation is apparently evident on the face of it. The objection thus, raised by the learned counsel for the respondent No. 1 in this behalf has no force.
38. Nineth Issue:-(i) Whether the findings -bf the Collector ('Appeals'), given in the Order-in-Appeal No. 24 of 2007. Dated 17.01.2007. Are perverse, based on no evidence, arbitrary, fanciful, based upon irrelevant and inadmissible evidence? Fil) Whether any wrong inference has been drawn by him from the evidence on record or any violation of rule of law has taken place? And (nil Whether the Appellate Tribunal has the jurisdiction to interfere in arbitrary, fanciful and perverse findings bv the Collector f Appeals') in the instant case?
(a) The learned counsel for the appellant has contended that the Order-in-Appeal passed by the learned Collector (Appeals), Peshawar is against the law and facts of the case and the learned Collector (Appeals) has shown extraordinary leniency in favour of the respondent No. 1, which is unjustified and against the law and he has not appreciated the circumstances of the case properly and thus his judgement as being non-judicious and non-speaking may be set aside. He has further contended that the provisions of law have wrongly been interpreted by the learned Collector (Appeals), while deciding the case against the appellant. He has also contended that the findings of the learned Collector (Appeals) are perverse, arbitrary, fanciful and based upon irrelevant and inadmissible evidence and he has drawn wrong inference from the evidence available on record and thus, the judgement passed by him vide his Order-in-Appeal No. 24 of 2007, dated 17.01.2007 is improper, unfair, unjust, non- judicious and non-speaking order, and the same may graciously be set aside. On the other hand, the learned counsel for the respondent No. 1 has contended that no irregularity, impropriety, illegality, mis-appreciation or mis-reading is available on the face of the Order-in-Appeal as the same is based on law and facts being properly followed and discussed. According to him, each and every document used as evidence has been taken into consideration by the learned Collector (Appeals), and there is no piece of evidence unrecorded to favour the case of prosecution. He has further contended that the judgement of the learned Collector (Appeals), is proper, fair, just, judicious and speaking order and prayed that the same may graciously be upheld in favour of the respondent No. 1 and the instant appeal, filed by the appellant, may graciously be dismissed being without material substance.
(b) We respond to these issues as a whole in systematic manner. It is our considered view that when an appeal is filed to the Appellate Tribunal against the Order-in-Appeal, the Tribunal has to satisfy itself as to the legality or propriety of the Order-in-Appeal passed by the Collector of Customs, Sales Tax & Federal Excise (Appeals), and after giving rival parties an opportunity of being heard, it may pass such orders thereon based on factual and legal footing, confirming, modifying or annulling the order appeal against. The Appellate Tribunal has also been empowered under the Customs, Federal Excise and Sales Tax Appellate Tribunal (Procedure) Rules, 2006, duly notified vide SRO. 897(I)/2006, dated 18th September, 2006 to remand the case to the authority from whose order the appeal has been preferred or if. The appeal is preferred as the second appeal to the original adjudicating authority, then it shall remand the case to the original adjudicating authority for de novo consideration. The Appellate Tribunal may also record additional evidence, as and when required, during the proceedings pending before it. A detailed procedure thereof has been provided in para 25 of the aforesaid SRO. Moreso, Para 15 of the said SRO also provides for the grounds, which may be taken in appeal. (c) We observe that on the date of hearing, Mr. Mohayy-ud-Din, Inspector, appeared on behalf of the appellant-department and requested the learned Collector (Appeals), for adjournment on the plea that the Seizing Officer, who was well conversant with the facts and circumstances of the case, was on training upto 28.01.2006 and the original file was in his custody. However, his plea was not accepted and the hearing was not adjourned, which is clear cut violation of the principle of Audi Alteram Partrum, which contemplates that nobody should be condemned unheard. Quasi judicial proceedings should provide fair hearing and opportunity of defence to the rival parties, which are essential ingredients of the principles of natural justice. Thus, it is clearly implied that on filing of appeal under Section 193 of the Act, rival parties are to be afforded an opportunity of fair hearing with regard to subject matter of the appeal. If the appellate authority fails to give proper and fair opportunity of hearing to the rival parties, the order so passed is in fact no order in the eyes of law in as much as it is made in total disregard of the principles of natural justice. In the instant case, the appellant authority, having denied the respondent (now appellant) an opportunity of being heard and also being dis- allowed to produce or rebut any evidence in the course of proceedings, in fact, acted in haste and exhibited undue expedition, which tantamount to patent illegality in the eyes of law.
(d) We notice that the learned Collector (Appeals), has also not secured attendance of the Detecting, Seizing and Investigating Officers in the instant case to properly examine them in order to bring the actual facts to surface, while deciding the case, which smacks of undue expedition of the case, and such undue haste could have been avoided. There is famous maxim that 'justice hurried is justice buried'. The learned Collector (Appeals) was probably unaware of the same. We also notice that in the instant case, the learned Collector (Appeals) has clearly violated the principle of Audi Alteram Partrem, i.e. No man shall be condemned unheard. The right of hearing inter alia includes personal appearance and hearing besides providing opportunity to defend and rebut the material to be used against the person concerned. As evident from para 10 of the impugned Order-in-Appeal, the learned Collector (Appeals) did not accept the request of the appellant-department for adjournment on the plea that the Seizing Officer, who was well conversant with the facts of the case, was on training and will be available after a week or so and moreover, the appellant-department was required to file parawise comments to the Memo of Appeal as per direction given by the first appellate authority, but such pleas were not entertained by him on unreasonable grounds.
(e) We also observe that in sub-para-10(1) of the Order- in-Appeal, the learned Collector (Appeals), has erred in reaching the conclusion that the contention of the then appellant (now respondent No. 1) was correct to the extent that he first approached the ANF counter and inquired regarding the limit of foreign currency, which he could take with him, however, without any justification, the then appellant (now respondent No. 1) alongwith the foreign currency was handed-over to the Customs Staff; which also confirms that before making any declaration by the then appellant (now respondent No. 1), the search was made by the Customs Staff. We have already deliberated upon this issue in para , 10 above. The Assistant Director, ANF appeared before this Tribunal and vehemently controverted the aforesaid finding by the learned Collector (Appeals). It is our considered view that the finding of the learned Collector (Appeals) to such extent is not based on evidence. It is fanciful, rather he has drawn wrong inference in this behalf from the evidence on record, which is not tenable in the eyes of law.
(f) We also find that the learned Collector (Appeals), in sub-para 10(11) of his Order-in-Appeal has drawn wrong inference to the effect that the then appellant (now respondent No. 1) was not given a chance to declare the foreign currency and directly asked to produce documents regarding lawful possession of the foreign currency, which is clear-cut violation of Section 139 of the Customs Act, 1969. We have deliberated upon this issue exhaustively in the preceding paragraphs and we find it inappropriate to reiterate the same deliberations here again. It is, however, crystal clear from the bare reading of Section 139 of the Act that it creates an obligation upon every passenger or a member of crew to make declaration of his baggage & to answer questions with respect to his baggage. Failure to do so is liable to penalties and confiscation. In the base of Pir Walayat Shah vs. The State, reported as PTCL 1992 CL 138, the Superior Court has observed that: "Section 139 creates an obligation upon every passenger or a member of a crew to make declaration of the contents of his baggage and to answer questions with respect to the baggage as well as its contents including articles carried by him. The failure to do so or the failure to produce baggage or any such article for examination is liable to penalties and confiscation as provided by item (70) of Section 156(1). If the passenger commits the offence of smuggling as defined in Section 2(s) of the Act in relation to his baggage, clearly his Act would be punishable under clause
(8) of Section 156(1) of the Act, irrespective of whether in the commission of the offence he has also contravened the provisions of item (70)." (g) We now attempt to examine the relevancy or otherwise of the judgements cited by the learned Collector (Appeals), in sub-para 10(ii) of his order, in support of his findings. We observe that the cases cited by him under the aforesaid sub- para are distinguishable from the present case for the following reasons:
(i) The facts, circumstances and evidential substance in the cases of the cited judgements are clearly distinguishable from the present case. The precisely stated facts, circumstances and material evidence of the present case are that the accused passenger/respondent No. 1, was departing to Dubai by PIA Flight No. PK-283 and he first approached the ANF counter for checking of his baggage. Upon examination of his baggage by the ANF Officials, the impugned foreign currency was detected, which was skillfully concealed in zip pockets of one of his two suit-cases, in a manner so as to avoid detection. Thereafter, the impugned foreign currency alongwith other non-offending goods was handed-over to customs staff on duty for initiating legal formalities under the Customs Act, 1969. The said passenger/respondent No. 1 had ample opportunity to make oral declaration before the Customs Staff as provided under Section 139 of the Customs Act, 1969, which was obligatory upon him, but he failed to do so. Thereafter, his accompanied baggage was properly examined by the Customs Staff in his presence and witnesses, which resulted in recovery of huge quantity of foreign currency, skillfully concealed in zip pockets of one of his two suit-cases, in a manner so as to avoid detection. Thus, he was accordingly asked to produce any documentary proof, showing lawful possession and legal authority for exportation of such huge quantity of foreign currency, but he miserably failed in this behalf. The impugned foreign currency so recovered alongwith the two suit-cases and other non-offending goods including the ones recovered upon his personal search were seized under proper documentation. Mandatory notices under Sections 158/159 and 171 were properly served upon him and then he was arrested for the offence of smuggling of foreign currency and FIR No. 24, dated 15.08.2006 was lodged against him under the relevant provisions of the Customs Act, 1969.
(ii) The judgements cited by the learned counsel for die respondent No. 1, as all as by the learned Collector of Customs (Appeals), Peshawar in his impugned Order-in-Appeal, pertain to the criminal prosecution and the instant appeal relates to the adjudication proceedings. These are different and independent areas with different and independent implications. The first cited judgement by them i.e., 1980 P.Cr.LJ 663 relates to bail-after-arrest proceedings against rejection of the appellant's bail application by the Trial Court. The applicant was facing criminal trial in the Court of Special Judge (Customs), Karachi under Section 156(1), clause (8). In that case, on completion of the investigations, the customs authority presented a Charge Sheet in the Trial Court on 03.09.1979, however, before the Challan could be submitted, the appellant moved an application for bail- after-arrest, before the Trial Court, but his application was rejected by the Special Judge (Customs), Karachi. Thereafter, he moved the Appellate Court for grant of bail- after-arrest and the Appellate Court in the cited judgement has observed that it required further inquiry to be held in the matter to determine the guilt of applicant and thus granted bail-after- arrest to him. It is our considered opinion that at the bail stage, the Appellate Court is always cautious of its limitation of making tentative assessment only and the deeper appreciation of the case is studiously and discretely avoided. The Appellate Court is always conscious not to transcend the aforesaid parameter as the same will have direct bearing on the case of either prosecution or defense. Whereas, the second cited judgements by them i.e., 1984 Cr.LJ 113 + NLR 1986 Cr.LJ 576 relate to acquittal of the appellant/applicant by the Appellate Court. In that case, the appellant had appealed from the judgement, dated 11th March, 1981 of the Special Judge (Customs), Lahore, whereby he was convicted of an offence under Clause (8) of Section 156(1) of the Customs Act, 1969 and sentenced to suffer rigorous imprisonment for five years and two lashes.
The Appellate Court accordingly set aside the appellant's conviction and sentence for the reasons given therein, which are inapplicable to the instant case.
(iii) As already discussed in depth in the preceding sub-paras, Section 139 of the Customs Act, 1969 makes it obligatory upon the passenger, for the purpose of clearing his baggage, to make a verbal or written declaration of its contents in such manner as may be prescribed by the rules to appropriate officer. Section 142 ibid provides that if a passenger makes his true declaration under Section 139 ibid at the time of arrival and shows his clear intention to re-export his prohibited or restricted or dutiable goods imported by him (Reliance 1985 PTCL CL 515), then his dutiable and/or contraband goods may be detained by the customs staff for the purpose of being returned to him on his leaving Pakistan, subject to the condition if the Customs Officer is satisfied that these were not imported with the intention of consumption in Pakistan. The facts and circumstances of the cases in the cited judgements are thus distinguishable from the facts and circumstances of the instant appeal because the accused passenger/respondent No. 1 was departing for Dubai by PIA flight and he was caught red-handed with the impugned foreign currency, while attempting to smuggle the same, thus, the provisions of Section 142 will not be attracted in this case, as the same provisions do not relate to exportation of any prohibited/restricted |CG goods. Therefore, possession of any dutiable/prohibited/ restricted goods by any passenger at the time of his departure abroad will certainly constitute an offence of CH smuggling. In the instant case before us, the accused passenger/respondent No. 1 had failed to make oral declaration of the contents of his baggage before its examination thereof by the customs staff on duty, though he had ample opportunity to do so. As already discussed above, we notice that the seizing officer has conceded before the Trial Court to the effect that accused passenger/respondent No. 1 was not provided an opportunity of filing declaration under Section 139 ibid. Filing of declaration means written declaration and that practice Cl has been discontinued altogether since long.
(iv) The case laws cited in the impugned Order- in-Appeal are out-dated in the backdrop of insertion of Proviso to Explanation to Section 156(1) of the Customs Act, 1969, which clearly provides that, "in the case of accompanied baggage or any un-manifest goods meant for export, the offence shall be deemed to have been completed when such baggage/goods enter into the customs area." The word "customs area" has clearly been defined under Section 2(i) of the Customs Act, 1969, which reads as under: " "customs-area" mean the limits of the customs- station specified under Section 10 and includes any area in which imported goods or goods for export are ordinarily kept before clearance by the customs authorities." Likewise, the word "custom station" has been clearly defined in Section 2(k) ibid, which reads as under: " "customs-station" means any customs-port, customs-airport or any land customs-station." (v)
Proviso was added to Explanation to Section 156(1) of the Act in 1982, whereas the first judgement cited by the learned Collector (Appeals), in his Order-in-Appeal relates to the special criminal application No. 27/97, decided on 3rd October, 1979. The principle laid down in that case is thus, clearly outdated, irrelevant and inapplicable to the instant case after insertion of the aforesaid Proviso. Likewise, the second cited judgements by the learned Collector (Appeals), Peshawar relate to Criminal Appeal No. 162-C of 1981, decided on 18th May, 1981, the principle laid down therein is also clearly out-dated, irrelevant and inapplicable to the instant case after insertion of the aforesaid Proviso.
(vi) Proviso to Explanation to Section 156(1) of the Act was, in fact, added to lay inconsistency in various provisions of the Act to rest. Moreover, the said Proviso has been added to the latter Section of the Act, whereas Sections 139 ibid is the formal Section of the Act and the recognized principle of interpretation of a statute is that latter provisions of the Act will override the formal provisions of the same Act. Lt is our considered view that the aforesaid Proviso will be rendered futile if reliance is only placed on the provisions of Section 139 of the Act. It is also a recognized principle of interpretation of a statute that the effect) should be given to every part of the statute | and as a general rule, a construction, which renders the other provisions meaningless or inoperative should be avoided and a construction which makes the other provisions operative, rather than the one which may make other provisions idle, nugatory or inoperative, should be favoured.
(vii) The most relevant and recent judgement of the apex Court relating to the instant case, in identical facts and circumstances, is in the Criminal Appeals No. 519-527, titled Collector of Customs vs. Khud-e-Noor and others. We have discussed the same in the succeeding sub-paras.
(h) The inference drawn by the learned Collector (Appeals) to the effect that the seizing agency has failed to give an opportunity to the then appellant (now respondent No. 1) to declare the impugned currency in terms of Section 139 of the Customs Act, 1969 nor any documentary evidence or compliance of the said Section has been incorporated anywhere in the seizure documents, show cause notice and even in the impugned Order- in-Original, is also not based on factual, circumstantial and evidential position of the case as already discussed by us in depth in the preceding paras. Moreover, the inference drawn by him to the effect that the seizing agency has also failed to prove any concealment of the impugned currency/ misdeclaration made by the then appellant (now respondent No. 1) is also not based on factual, circumstantial and evidential position of the case as already discussed by us in the preceding paras in detail.
(i) We, however, agree with the learned Collector (Appeals), regarding his observation that the appellant department has failed to produce any documentary evidence against the then appellant (now respondent No. 1) by showing his previous involvement in the act of smuggling.
However, we also agree with the learned counsel for the appellant that the respondent No. 1 is a habitual offender as he made about thirty (30) visits abroad in only two years, which is evident from his passport. As already discussed in the preceding paras, we, however, observe that it was due to apathy and lack of diligence on the part of the concerned customs officials of the appellant-department, who could not properly investigate his previous visits abroad so as to bring material evidence in this behalf on record.
(j) We also agree with the learned adjudicating authority and the learned Collector (Appeals), regarding their finding/observation to the effect that the prosecution could not produce any substantial material evidence on record showing involvement of other accused persons in the instant offence. We have already discussed this issue in detail in the preceding paras and have observed with regret that it was due to apathy and lack of diligence on the part of the concerned customs officers of the appellant-department, who could not bring substantial material evidence on record against other accused persons, said to be involved in the instant offence. Regarding submission of original affidavits by the close relatives of the respondent, we observe that the same are an after-thought and not tenable as already discussed in the preceding paras.
(k) We, however, disagree with the inference drawn by the learned Collector (Appeals), to the effect that the statement of the respondent under Section 165 of the Act was a fabricated one, as the same observation is based on presumption and not corroborated or substantiated by any documentary evidence. Such observation by the learned Collector (Appeals) is nullity in the eyes of law. We, however, notice that the learned adjudicating authority has deviated from the patent rale of law to the extent that the statement of the accused recorded under Section 165 of the Customs Act, 1969, which is analogous to Section 161 Cr.P.C, cannot be used against him. Even statements of the witnesses recorded under Section 165 of the Act, are not to be treated as a substantive piece of evidence, which can never by itself make the basis of holding a person guilty of offence and that too, without giving an opportunity to him for cross-examining such witnesses. In the instant case, the statement of the accused passenger/respondent No. 1, recorded under Section 165 ibid, could not be validly accepted as the relevant piece of evidence.
(I) We also observe that bail-after-arrest was granted to the respondent No. 1, as the issues raised before the Trial Court needed further inquiry. Speaking in legal terms, the Honourable Trial Court was fully cognizant of its limitation and made only tentative assessment of the issues raised before it at the bail stage and did not go into the deeper appreciation of the issues involved in the prosecution case. The trial proceedings have almost been finalized in this case and the judgement in this regard is yet to be announced.
39. Tenth Issue:-Whether the recent pronouncement of the apex Court is relevant/applicable to the instant appeal?
(a) Though the contention of the learned counsel for the appellant is that the most recent pronouncement of the apex Court on the subject matter, in identical facts and circumstances, is in Criminal Appeals No. 519-527 of 2005, titled Collector of Customs vs. Khud-e-Noor and others, which has laid down all past ambiguities arising from different criminal and adjudication proceedings to rest and there is no need to reincarnate those out-dated issues again to create further ambiguities and legal complications. However, the learned counsel for. The respondent No. 1 has a different view. According to him, the Protection of Economic Reforms Act, 1992, enjoins upon all the resident or non-resident Pakistani citizens and all other persons, to bring, hold, sale, transfer and take out foreign currency within or out of Pakistan in any form and shall not be required to make a foreign currency declaration at any stage nor shall one be questioned in regard to the same and the provisions of the aforesaid Act have overriding effect in terms of Section 3 thereof.
He has thus, contended that the Act of taking out foreign currency will not amount to smuggling, meaning thereby that violation of prohibition and restriction contained in any other Section of the Customs Act or any other law for the time being in force cannot be said to be smuggling. He has also placed reliance on some cited judgements.
(b) We observe that the learned Collector (Appeals), has placed his reliance on Appellate Tribunal's Judgement in Appeal No. 52 of 1995 in the case of M/s. Haji Faiz Muhammad vs. Member (Judicial), CBR and Collector of Customs, Central Excise and Sales Tax, Peshawar, while deciding this case. We feel that the aforesaid cited judgement is distinguishable from the present case for the reasons that in that case, the adjudicating authority had confiscated the impugned foreign currency and then ordered for its release on redemption fine, whereas in the present case, the adjudicating authority has outrightly confiscated the impugned foreign currency under the relevant provisions of the Act.
Thus, the precedent of the Appellate Tribunal's, Islamabad Bench in this behalf is not applicable or relevant to the present case.
(c) We are also of the considered view that an early decision of the Tribunal as a precedent per incuriam is not binding and in this behalf we place our reliance on the case law cited in the case of Collector of Customs vs. Abdul Majeed, reported as 2001 CLC 1461 Lahore, wherein the Honourable Court has observed that in a case relating to assumption of jurisdiction in matters relating to "baggage", the Tribunal observed, that it could not adopt a different view, than held by it in the past.
However, the observation did not find favor with the Lahore High Court, which observed, that the binding nature of the precedents is restricted only to the judgements of the Superior Courts. A decision by a Tribunal of special or restricted jurisdiction, cannot have the force of law irrespective of its antiquity. It is correct, that a consistency of view adopted by a forum exercising judicial functions is necessary for its harmonious working, particularly for a forum like the customs Tribunal, which is seated at different cities of the federating units. However, where the earlier decision of the Bench of the Tribunal was per incuriam, it did not at all bind, even a single Bench of the Tribunal. A decision per incuriam does not bind either the same forum or even a lower forum, as held in the case of Abdul Razzak vs. Collector of Customs, reported as 1995 CLC 1453.
(d) We find that the aforesaid issues raised by the learned counsel for the respondent No. 1 have been clearly settled by the Superior Court in Appeals No. 519-527 of 2005, as cited by the learned counsel for the appellant. In that judgement, in para-7 thereof, the Honourable Supreme Court has observed as under: "7. Next question for consideration is whether in respect of culpable act, committed by a person, the Act, 1969 shall remain suspended in terms of Section 3 of the Act, 1992. Answer to his proposition has already been given in the case of Irshad Ahmad Sheikh (ibid)...." (e) The other issues raised by the learned counsel for respondent No. 1 have Undisputedly been settled in the most recent judgement by the Appellate Tribunal in case of Gul Khan and others vs. The Collector of Customs, Rawalpindi in Appeal C. Nos. 61 of 2003, 128, 129, 130, 131, 132, 134, 135 of 2004 and 79 of 2006, wherein it has been observed in Para 9 & 10 of the judgement herein under: "9. We have heard the contentions of both the sides and perused the relevant record available before us. We have observed that the foreign currency was being taken out of Pakistan by the accused persons on their body. The Honourable Supreme Court of Pakistan in its judgement referred above has observed that according to the definition of economic reforms. Incorporated in Section 2(Tl(bl of the-Act 1992. It means economic policies and programmes, laws and regulations announced, promulgated or implemented by the Government on and after the 7th day of November 199Q, relating to privatization of public sector enterprises, and nationalized banks, promotion of savings and investments, introduction of fiscal incentives for industrialization and deregulation of investment, banking, finance, exchange and payments system, holding and transfer of currencies, it was observed that in the foreign exchange (Temporary Restriction! Act.
1998. The concept of transfer of currency was not amended. The transfer of currency outside the country, therefore, means legal transfer i.e., through authorized dealers, banks, etc., and not through personal baggage or by any other illegal manner. It was observed that the Act of 1998 is applicable w.e.f. 28th May. 1998 and in pursuance of its Section 2. The protection of Act of 1992 was suspended and after the promulgation of the same on 21.07.1998. The State Bank of Pakistan issued Notification No. 1017(IV1998. According to Clause (d) of the said Notification, a person was authorized to take out of Pakistan foreign exchange issued to him by an authorized dealer in Pakistan and endorsed on his passport to the extent of $ 10.000/- or equivalent thereto in any other currency. It was observed by the Honourable Court that the word 'transfer' means a legal transfer and even if a person claim to be benefited of the Act. 1992. Which was amended subsequently by means of Act, 1998. He has to show that he is legally authorized to transfer currency outside the country for any purpose including his business. It was held by the Honourable Supreme Court of Pakistan that if a person claims that he has been authorized to take the currency out of Pakistan, he has to adopt the proper procedure i.e., through banks and no one can be allowed to shift currency except to the tune of US $ 10.000/- as it has been prescribed by the State Bank of Pakistan.
The learned counsel for the respondents contended that since the foreign currency recovered from the appellants was purchased from the money changers and not from the authorized dealer, therefore, the appellants were not legally authorized to take the foreign currency out of Pakistan.
10. We have observed that the seizure in the case of appellant Sheikh Muhammad Akmal was made by the custom authorities after completion of all legal formalities after detection of case by the staff of Airport Security Force.In view of above, action taken by the custom authorities was perfectly in accordance with the law as seizure and all other subsequent actions were taken by customs authorities. The evidence produced by the appellants has been examined and we are of the view that since the foreign currency was purchased from the money changers and not from the authorized dealers, therefore, the appellants were not authorized to take the foreign currency out of Pakistan. In view of above, there is no merit in the appeals and the same are dismissed."
(f) On careful perusal of the Order-In-Appeal No. 24 of 2007, dated 17.01.2007, we find that the judgement pronounced by the Supreme Court of Pakistan in Criminal Appeals No. 519-527 of 2005 was not referred to at all in the impugned order passed by the learned Collector (Appeals), though the said judgement was very much in the field. We regret our inability to understand that the learned Collector (Appeals), though has referred to outdated judgements as back as 1981 and also to an outdated precedent of this Tribunal as back as 1995, but he has not referred to the most relevant and recent pronouncement of the apex Court as aforesaid. In this behalf, we also refer to the judgement of the Honourable Supreme Court of Pakistan in the Criminal Petition No. 212 of 2006, wherein it has been observed as under: "A perusal of impugned judgement indicates that the judgement pronounced by this Court in Criminal Appeals No. 519 to 527 of 2005 was not referred to at all in the impugned order passed by the Lahore High Court. It may be noted that in the said judgement, after having taken into consideration the relevant provisions of the Foreign Exchange (Temporary Restriction) Act, 1998 and Protection of Economic Reforms Act, 1992 it was held that currency cannot be taken outside the country without adopting proper procedure i.e., either through Bank or Agents etc., Prima facie, it seems that the respondent had not followed the procedure while carrying out the currency outside the country." (g) We are of the considered view that it is against the principles of natural justice that the learned Collector (Appeals), should give a different conclusion on the same facts, circumstances and evidences as arrived by the Honourable Supreme Court of Pakistan in the judgement cited in Criminal Appeals No. 519 to 527 of 2005. In this behalf, we also gain strength from the judgement cited in the case reported as PTCL 1994 CL 112. We, however, observe that the learned Collector (Appeals), has disposed of the appeal filed by the then appellant (now respondent No. 1) pending before him by using vague observations, which were devoid of material evidence/substance. The operative part of the Order-in-Appeal cannot be considered as an effective disposal of appeal before the first appellate forum as it rather shows lack of proper application of mind. It is our considered view that not the conclusion, but the reason is a hallmark of any judicial order, thus, we find the impugned Order-in- Appeal as sketchy and cannot be said to meet the requirements of the judicial order, which must contain the contentions raised before him by- the 'rival parties and its reasoning based on evidential substance for passing a reasoned order in accordance with the relevant provisions of the Customs Act, 1969 read with Section 24-A of the General Clauses Act, 1897.
40. In view of what has been stated above, we find that the learned Collector (Appeals), Peshawar has based his findings on incorrect facts, circumstances and irrelevant and inadmissible evidence and in support of his arbitrary and fanciful findings, he has placed his reliance on the irrelevant and inapplicable judgements, which are obviously out-dated in view of Proviso to Explanation to Section 156(1) of the Customs Act, 1969. We have, however, gone into the deeper appreciation of the factual and legal issues of the case, like making declaration under Section 139, skillful concealment of the impugned foreign currency in the zip pockets of one of two suit-cases of the respondent No. 1, in a manner so as to avoid detection, applicability of various provisions of the Customs Act, 1969 invoked by the appellant-department in this case and citations of various relevant judgements of the Superior Courts in support of our observations/findings thereon. We find that the impugned Order-in-Appeal is perverse, arbitrary fanciful, improper, unfair and based on wrong inference drawn by the learned Collector (Appeals), from .The material evidence on record and the same Order-in-Appeal is thus, considered by us as non-judicious and non- speaking order in view of the afore-stated cogent reasoning, facts and circumstances of the instant case and relevant citations of the Superior Courts, which lend credence to our observations/findings in this behalf. We are, thus, not inclined to sustain the impugned Order-in- Appeal. The instant appeal, thus, succeeds and is accepted. The Order-in-Appeal No. 24 of 2007, dated 17.01.2007, is, therefore, set aside and the Order-in-Original No. 683 of 2006, dated 13.12.2006, is restored. However, the non offending goods involved in this case are ordered to be returned to the Respondent No. 1, if not required in any other case or by the Trial Court or the Appellate Court or by any other forum/Court.
41. Announced on 25.03.2009.
42. Concerned parties be informed within ten (10) days of passing of this judgement.