This Custom Reference under Section 196 of the Customs Act, 1969 ("the Act") is filed by the Applicant, being dissatisfied by the judgment passed by the Custom Appellate Tribunal, Bench-II, Lahore (the "Appellate Tribunal ") in C.A.No.243/LB/2018 dated 19.11.2018 whereby custom appeal filed by the Resp ondents was accepted and their vehicles were released.
2. This Custom Reference is being decided along with connected C.R. No.02 of 2019, C.R. No.03 of 2019, C.R.
No.04 of 2019, C.R. No.05 of 2019 C.R. No.06 of 2019, C.R. No.07 of 2019, C.R. No.08 of 2019, C.R. No.09 of 2019 and C.R. No.11 of 2019. These Custom References are being dealt with and decided together as a common question of law arises for an opinion of this Court.
3. Following question of law is pressed for our opinion in all the Customs Refere nces, which is asserted to have arisen out of judgment:- a. Whether vehicles which were confiscated under Section 157(2) of the Customs Act, 1969 can be released unconditionally when the offended goods loaded on these vehicles were proved to be smuggled as defined under section 2(s) of the Custom Act, 1969?
4. It is not necessary to narrate the facts of each individual custom reference since a common question of law is being decided, which should determine the outcome of the custom references.
5. Learned counsel for the Applicant inter alia submitted that the impugned judgment passed by Appellate Tribunal is contrary to the law and facts of the case to the extent of release of truck trailers unconditionally; that impugned judgment has been passed in a slipshod manner without taking into considerati on the requirements of Section 157(2) of the Act; that evidence produced by the Applicant, as well as the laboratory test reports, have not been properly examined by the Appellate Tribunal, as the same fully connects the Respondents with the crime in terms of Section 2(s) read with Section 16 of the Act. He has placed reliance on "Collector of Customs, Peshawar v.
Wali Khan and others" (2017 SCMR 585) and "Collector of Customs, Multan v. Muhammad Tasleem" (2002 MLD 296 ).
6. Conversely , learned counsel for the Respondents has vehemently opposed the arguments advanced by the learned counsel for the applicant and submitted the impugned judgment has been passed strictly in accordance with law and does not require any interference by this Court. He placed relianc e in judgments referred in the impugned judgment and prayed for dismissal of Custom Reference.
7. We have heard the arguments of learned counsel for the parties and perused the record.
8. We have noted that the impugned judgment has been passed by the Appellate Tribunal in respect of the owners of vehicles which were confiscated by custom authorities on the allegation of smuggling HSD oil (in iror drums) and clothes etc of foreign origin. Admittedly , the trucks were intercepted by the customs authorities on the basis of spy information near Rajanpur on 10.02.2018 while being carried from Quetta to Multan . Such detention was converted into seizure and trucks were seized on the charges of violating the provision of Section 2(s) read with sections 16 and 18 of the Act read with sections 3 and 3(1) of the Import and Export Control Act, 1950 punishable under section 156(1)(89) of the Act.
9. The Appellate Tribunal has dealt with the issues in detail in the impugned judgme nt by giving reasons, perusal of which reflects that on the basis of material available on record, finding on facts has been recorded, according to which, the Applicant could not establish the allegation of smuggling against the Respondents. In this regard, the Appellate Tribunal in its judgment has observed that "it appears that the role of owners of the transport vehicles becomes twice removed from that of the owners of goods transported. When no connivance of the intermediary is established, the entities which are one further step away cannot be burdened with deprivation of their property (confiscation of their transport vehicles) and that too without first establishing their liability . In these circumstances, they cannot be penalized when no incriminatory evidence is adduced to establish their role entailing penalty , particularly , when the intermediary between them and the "offending goods" goes scot free ".
10. The primary argument agitated before us is with regard to confiscation of vehicles under section 157(2) of the Act. In this respect, learned Appellate Tribunal has observed that "it is evident that the expression "liable to confiscation" cannot be equated with "shall be confiscated" The "liability" for confiscation has to be established".
The Appellate Tribunal, while explaining "confiscation" under Section 157 of the Act has also placed reliance on "Suleman v . The State" (PLD 1062 (W . P) Lahore 1 1), relevant portion thereof is as under: "The words" shall be liable to confiscation" do not mean the same thing as the words "shall be confiscated". The plain meaning of the words "liable to confiscation" are that the conveyance may be confiscated in a proper case, otherwise: the legislature would have used the words "shall be confiscated". To make a thing liable to confiscation amounts to a declaration that the thing is available for confiscation. The use of the word "shall", here in the context, only means that in a case the Court considers proper , it will have power to order the confiscation of the conveyance".
The Hon'ble Supreme Court of Pakistan has already discussed in details the same principle in "Haji Abdul Razzak v. Pakistan through Secretary , Ministr y of Finance, Islamabad and another" (PLD 1974 Supreme Court 5) wherein it was held as under:- If the words "liable to confiscation" in section 168, Sea Customs Act, 1878, give a discretion to the confiscating authority to deprive a person of his property , then it follows that this discretion must be exercised upon the principles of natural justice; that is to say, the persons sought to be deprived of the property must be given notice to show-cause, they must be furnished with adequate opportunity of putting forward their point of view and the same must receive due consideration. Furthermore, according to one of the principles now well accepted, no person should be deprived of his property by way of penalty unless it is clear that he is in some measure responsible for assisting or furthering the commission of the offence committed. No innocent person should be unjustly punished or deprived of his property . Indeed, there was an indication even that the owner of the vehicle was also involved. If that be so, then it is difficult to appreciate on what basis even a reasonable suspicion could arise ac to the complicity of the appellant. The mere fact that the F.I.R. about the theft of the, vehicle was lodged after the vehicle had been seized at another place by the Customs auth orities does not mean that the appellant must have had earlier knowledge of the illegal or improper use of the vehicle. The authorities should have made some attempt to show at least that the knowledge of the seizure -had been conveyed to the appellant before he lodged the report at the police station. In these circumstances, the order of the Customs Authorities was set aside and directions were issued that the vehicle confiscated be released forthwith".
11. We are of the considered opinion that the learned Appellate Tribunal has rightly decided the issues, which otherwise are based on the finding of facts, after detailed discussion, deliberation and interpretation of provisions of law and as such does not carry any mistake apparent on the record, therefore, does not require any interference by this Court.
12. In view of above discussion, question of law is answered in affirmative against the applicant department.
Resultantly , instant Custom reference is dismissed .
13. Office shall send a copy of this order under seal of the Court to the Appellate Tribunal as per Section 196(5) of the Custom Act, 1969.