HUMAYUN KHAN SIKANDARI, MEMBER (TECHNICAL). ---This appeal has been filed by M/s. SISA Customs Clearing Agency, Peshawar (hereinafter called as the appellant) against the Order-in- Appeal No. 4/2007-Lic, dated 16.06.2007, by the Collector of Customs, Custom 2010 M/s. SISA Customs clearing Agency V. Deputy Collector (HQ) C.L. 729 , of Customs, House, Peshawar.
2. Precisely, the stated facts of the case as recapitulated from the available case record are that Asmat Nawaz son of Kachkool, sub-agent of the appellant was arrested by the customs staff for violation of the provisions of Sections 156(1)(8)(89) and 178 read with Section 2(s) of the Customs Act, 1969, and 6, 7, 8 and 9 of Control of Narcotics Substances Act, 1997, and an F.I.R. No. 26, dated 26.06.1998, was subsequently lodged against him for the charge of smuggling of foreign-origin Heroin Powder. Accordingly, the Customs House Agent Licence No. 3/95 of the appellant was suspended in terms of Rules T9 and 21 of the Customs Agent (Licensing) Rules, 1971. Consequently, a show-cause notice was issued to the appellant and after hearing the parties the Deputy Collector (HQ) of Customs (Licencing Authority), Peshawar vide his Order-in-Original No. 2 of 2004- Lic, dated 26.12.2006, ordered as under:- "6. I have gone through the record of the case, heard the respondent and have come to the conclusion that charges against the licensee stand established. Although the licensee has been acquired'' by the Honourable High Court and on technical grounds accepting his stance that he was out of station and had only signed the shipping bill even then he cannot be exonerated of his responsibilities being a Clearing Agent because he was supposed to have ensured that the consignment which was presented through his Customs Agency to the Customs had no contraband items, which he failed to ' do so. Further, his stance that he was out of Peshawar and had only signed the shipping bill is also not tenable in view of the fact that before signing over the Shipping Bill, he was required to have satisfied himself about contents of the documents as well as of the consignments. Non-assurance of the above speaks of his inefficiency as a result of which the incident of smuggling attempt of Heroin had happened and it was due to the vigilance on the part of customs through which the attempt was foiled. However, his plea regarding his non-presence in the city further transpires that he was not in a position to directly handle/supervise his job of clearance of goods, which is very much sensitive in nature. Alone the above version of the respondent is sufficient for revocation of his licence in view of the fact stated in preceding sentence. The negligence on the part of the Clearing Agent is an offence within the meaning of Clause (i) (ii) (iv) (viii) of sub-rule (1) of Rule-19 of' Customs Agents Licencing Rules, 1971 (now under Clauses (i) (ii) (iv) (viii) of sub-rule (1) of Rule 103 of Customs Agents Licencing Rules, 1971 issued under SRO.13(I)/71, dated 08.01.1971 (now under sub-rule (1) of Rule 103 of Customs Agents Licencing Rules, 2001 issued under SRO.450(I)/2001, dated 18.06.2001), I, therefore, order revocation of Custom House Agent Licence No. 03/95 of M/s. SISA Customs Agency, Peshawar and also forfeiture of Security worth Rs. 30,000/- deposited in the shape of Defence Saving Certificate in terms of sub- rule (2)'of Rule 19 of Customs Agents Licencing Rules, 1971 issued under SRO. 13(l)/71, dated 08.01.1971 (now under sub-rule (2) of Rule 103 of Customs Agents Licencing Rules, 2001 issued under SRO.
450(l)/2001, dated 18.06.2001)."
3. Being aggrieved of the impugned Order-in- original, the appellant filed an appeal before the Collector of Custom, Custom House, Peshawar, who which his Order-in- Appeal No. 04/2007-Lic, dated 16.06.2007, ordered as under:- "I have gone through the case papers, heard both the parties and come to the conclusion that although the Court has exonerated the licence holder from the charge of connivance with the smuggler of heroin powder but the act of negligence stands proved. I, therefore, uphold the decision of the licencing authority to the extent of revocation of license. I also uphold the forfeiture of security amount to the extent of fifty percent of the total amount. The remaining 50% of the security amount is ordered to be refunded to the appellant."
4. Being further aggrieved of the impugned Order-in-Appeal, the appellant filed the instant appeal to this Tribunal on, inter alia, the following grounds:-
(a) that impugned order is erred both in law and fact;
(b) that upon the surface of the Order-in-Original No. 02/2007, it is clearly mentioned that date of institution of the case was 26.06.1998 and date of judgment is 03.04.2007, Which took 9 years. No justification was shown for such inordinate delay. On many occasions, without prejudice to the merit of the case, it has been held by the Superior Courts that such inordinate delay as a quashing affect upon the proceedings pending for such long years:
(c) that impugned orders, humbly submitted are based on presumption rather based on any cogent evidence to the effect that whether appellant agent was sharing any mens Tea with exporter/transporter or not, hence, the order being based on conjecture and surmises, are liable to be revoked per se;
(d) that the learned competent adjudicating officers have already exonerated the appellant from any deliberate act of mis-declaration;
(e) that under the circumstances where not by mere implication but by candid and dear findings exonerated the appellant that he was not involved in the wrong, with all due respect, the executive licensing authority, was bound of the judicial order, could not go other way on the basis of mere presumption, conjectures and surmises, hence, the impugned orders are severely suffering from the grave illegality and in proprietary;
(f) that, therefore, this Honourable Tribunal is under legal obligation to arrest the perpetual illegality, which unfortunately translated into deprivation from not only his decade long source of livelihood but honour and respect of the appellant in the society which would have a continuous impeding effect on his any venture in life to win again bread and butter for his family;
(g) that the appellant will not only loose its broad and butter but also a decade long professional credence if his license is not restored. Though the appellant for now wrong of his already suffered for 10 years or so, his permanent deprivation would be unjustified under the circumstances by any yardstick of law; and
(h) that he was not present at the time of processing of shipping bill of goods at Peshawar. The appellant did not have any financial interest in the instant case of export;
5. On the last date of hearing fixed for 27.10.2009, the learned counsel for the appellant appeared and almost reiterated the same arguments as advanced by him in the memo, of appeal. On the other hand, the Departmental Representative appearing for the respondent controverted the arguments advanced on behalf of the appellant and almost raised the same averments as given in the parawise comments to the memo. Of appeal (placed on record).
6. I have minutely perused the available case record with the assistance of the representatives of the rival parties and have also anxiously considered the oral and written submissions made by them. I find that the impugned order by the Licencing Authority is not a speaking and judicious order as the submissions made by the appellant before him have not been fully dilated upon therein. The D.R. Has stated that Asmat Nawaz s/o Kach Kool, Sub-agent of M/s. SISA Customs Clearing Agency was arrested by the Customs Staff for violation of the provisions of Sections 156(1), (8), (89) and 178 of the Customs Act, 1969, read with Section 2(s) ibid and 6, 7, 8 and 9 of the Control of Narcotics Substances Act, 1997, and accordingly, an F.I.R. No. 26, dated 26.06.1998 was lodged against him for the charge of smuggling of foreign origin Heroin Powder. In terms of sub- rule (11) of Rule 16 of the Customs Agent Licensing Rules, 1971 (then applicable), the licensee (appellant) was responsible for all acts of his employees, holding a customs permit. In the instant case, Mr. Asmat Nawaz s/o Kach Kool was the authorized sub-agent of the said Agency, therefore, the clearing agent was held responsible for illegal act of his sub-agent and as such, the licensing authority felt it appropriate to suspend his license.
7. At this juncture, I would .Like to revert to the operative part of the Honourable Peshawar High Court, Peshawar in consolidated Criminal Appeal No. 53/2001, dated 19.09.2001 titled Suhail Ahmad s/o Kiramat Naz, Peshawar effetc. v. The State, which is reproduced in verbatim as under:- "(5) To determine as to who had designed and authored the present offence, I proceed to consider and evaluate the case of the appellants individually. Appellant Suhail Ahmad and Arbab Athar, admittedly, the owners of SISA Industries (Pvt) Limited have stated ill their statements recorded under Section 342, Cr.P.C. That two days prior to the occurrence, they had gone to Islamabad for medical check-up in Al-Shifa Hospital. Before they left for Islamabad, they had signed all the relevant documents in favour of specified dealer namely Alqudas as usual to avoid any unnecessary delay in the export of the consignment. They also alleged that they had authorized Asmat Nawaz appellant to send the said documents to Alqudas and .Directed him to export the consignment in question for the said dealer. They expressed their ignorance and unawareness as to the concealment of the narcotics in question in the honey cans. While assessing the evidence, it is observed that none of the P.Ws. Has uttered a single word leading to the commission of crime of these two appellants. The only circumstance available against them is that they are the owners of the SISA Industries (Pvt) Limited, which itself would not be sufficient to implicate them in the commission of the Offence.
(6) As sated above, both these appellants were not present in Peshawar and obviously these appellants did not have the chance to examine the honey cans in question. Atta Muhammad complainant admitted that these two appellants were never involved in any such-like cases.
Similarly, Muhammad Hanif, Court Witness, stated that both the appellants are highly qualified and never remained involved in any criminal case. Thus, in the circumstances, the evidence against the appellants are insufficient to sustain their conviction. Asmat Nawaz, appellant claimed that the goods in question were never brought to his office and he has never taken them but he had only produced the consignment documents to the Customs authorities. His statement is supported by Khawaja Jan who admitted that the goods were brought to the airport directly by him and his partner Chaknoor, absconding accused. Thus, his involvement could also be not proved.
(7) Reverting to the case of Khawaja Jan, the alleged owner of the goods in question, had stated in his statement recorded under Section 340(2), Cr.P.C. That he is innocent and had come to the airport with Chaknoor, absconding accused who is an Afghan refugee little knowing that he had concealed the heroin in the honey cans. His statement is not worth consideration. It is in the evidence and sufficiently proved that he had himself presented the goods in question to the Customs authorities as its owner, which is enough to prove his connection with the commission of the offence.
(8) In the circumstances, I allow Crl. Appeal No. 53/2001 and Cr. Appeal No. 55/2001 and the appellants of these appeals namely, Suhail Ahmad, Arbar Athar Ahmad Kan and Asmat Nawaz are acquitted. They are on * bail and therefore, are absolved of the liability of the bail bonds. Cr. Appeal No. 85/2001 filed by Khawaja Jan is dismissed."
8. However, the D.R. Has stated that although the licensee (appellant) was acquitted by the Honourable High Court on technical grounds accepting his stance that he was out of station and had only signed the shipping bill even then he cannot absolve himself of his responsibilities as clearing agent, because he was required to have ensured that the consignment which was presented through his Customs Agency to the customs had nothing objectionable which he failed to do. Furthermore, stance Of the appellant that he was out of Peshawar and had only signed the shipping bill is also not tenable in view of the fact that before signing the shipping bill, the appellant was required to have satisfied himself about the contents of the documents, as well as of the consignment. The appellant has admitted his inefficiency by stating that his agency had not been officially engaged in the impugned transaction rather the agency shipping bill was being misused by a person namely Hayat Khan, who was sub-agent of another customs agency. If the appellant had observed due care, his Customs Agency's documents could not have been used by any unauthorized person.
9. I find that in the instant case, the Customs House Agent License of the appellant was suspended on 07.08.1998, as is evident from the Order-in-Original by the licensing authority, which has been appealed against arid it was on 09.08.2006, after the period of more than eight (8) years, that this case was decided by the licensing authority. The D.R. Has stated that there is no time of limitation for adjudication of such cases, however, it is observed that though expeditious disposal of cases is the requirement of the time, as well as is the mandate of every Civilized law, because it^ determines the rights of the parties and also saves them, from unnecessary inconvenience, which they face by going to the concerned forum or Court repeatedly in the same matter. It is now a settled law, that where no limitation for conclusion of any proceedings is fixed, such proceedings must be concluded, within a reasonable time. It is all the more necessary, where the law requires issuance of a notice, within a particular time. In the instant case, having issued the notice, within the stipulated period, the licensing authority was required to complete the proceedings with/n a reasonable time. Obviously, where law requires issuance of notice as a necessary corollary, it expects completion - of proceedings on such notice, within the relevant time period. Merely, issuing a notice, the licensing authority is not absolved of this duty to complete the proceedings, within a reasonable time period. In fact, issuance of a notice does not give an unending period of time to complete the proceedings. The purpose of issuance of notice within certain time frame will obviously be defeated, if the licensing authority, after having acted and issued a notice is allowed to sleep over the matter, or drag it along for almost eight years. It is my firm view that the impugned Order-in-Original, passed by the licensing authority, after the time period of almost eight years, cannot be said to have been rendered in accordance with law. All the superstructure built subsequently, thereupon, would also suffer from the same infirmity. Such impugned orders would be liable to be set at naught, on the ground of their having been passed against the express provisions of law. In this behalf I gain strength from the judgment in the case of Tripple-M (Pvt) Ltd. v. Federation of Pakistan, as reported in 2002 YLR 2792. Similarly, when the Honourable High Court exonerated the appellant from the charges, levelled against him, the licensing authority should have clearly acted in good faith as no charge of mis-declaration production of false documents, collusion and fraud had been proved against the appellant and revocation of his license merely on the grounds of his inefficiency could be a very harsh decision.
10. Factually enough, directing the revocation of the licence of the appellant, which is not only a very harsh decision in the light of pronouncement of the Superior Courts, but also has direct bearing on his losses in monetary terms. Here, I would revert to the case of M/s. East End Exports, Karachi v. Chief Controller of Imports & Exports, as reported in PLD 1965 SC 605, wherein the Honourable Supreme Court has expressed itself against irresponsible exercise of public power in suspending the licence of an importer. In that view of the matter, a greater restraint ought to have been exercised in the suspension or revocation of the license of a professional, like the appellant, which stands on a higher pedestal than the export licence. Again in the case of K.G. Traders v.
Deputy Collector, decided by Justice Sabihuddin Ahmad, it has been observed (heroin that the suspension of the customs clearing agent license was a very serious matter inasmuch as he is sought to be deprived of his very right to livelihood and it is impossible to quantify his loss in monetary terms. It is also now a settled law that a custom agent cannot be held responsible, unless he is shown to be a beneficiary of the evasion of taxes or violation of any law. Moreover, the Appellate Tribunal has already held that the responsibility for the fraudulent actions/transactions by the principle cannot be foisted upon the Customs agent under Section 209 of the Customs Act, 1969.
11. In view of the forgoing reasons, I am inclined to set aside the impugned order by the Licencing Authority and remand the case back to the Licencing Authority for decision afresh by taking into consideration the issues raised by the appellants, as also reproduced in para 4 above and .Then pass a speaking and judicious order by providing an ample opportunity of hearing to the appellant and by also deducing any material evidence, if placed before him in this regard. The instant appeal thus, stands disposed of in the aforesaid manner.
12. This judgment consists of seven (07) pages and each page bears my official seal and signature.
Attested copy of this judgment be issued to the concerned parties within ten (10) days from today.