SYED SARDAR HUSSAIN SHAH, CHAIRMAN/MEMBER (JUDICIAL).----This appeal has been filed by Gul Mullah son of Muhib Ullah (hereinafter called appellant) against the Order-in-Original No.130 of 2015, dated 26.11.2015, passed by the Additional Collector of Customs (Adjudication), Islamabad, Camp Office, Customs House, Peshawar.
2. Brief facts of the case as per prosecution story are that, the Anti-Smuggling Officer, HQ Frontier Corps, Khyber Pakhtunkhwa Peshawar on 19.09.2015, during the course of routine Anti-Smuggling duties at Torkham Check Post, the troops of Khyber Rifles recovered Pakistani currency of Rs.60,00,000/- (details as per Recovery Memo. No.260/2015, dated 19.09.2015). Allegedly, the seized Pakistani Currency was being smuggled from Pakistan to Afghanistan without valid documents. On demand, the appellant failed to produce any legal documents in respect of the said currency. The F.C. staff seized the same under the provisions of section 168 of the Customs Act, 1969 for violation of sections 2(s) and 16 read with Section 3(1) and (3) of the Imports and Exports (Control) Act, 1950 punishable under Section 156 (I) Clauses (8) and
(89) of the Customs Act, 1969 and Foreign Exchange Regulation Act, 1947. The case papers were submitted for adjudication in terms of Section 179 of the Customs Act, 1969.
3. Subsequently, a show-cause notice was issued to the appellant on 14.10.2015. The learned Additional Collector (Adjudication), Islamabad, Camp Office, Customs House, Peshawar, out rightly confiscated the seized Pakistani Currency of Rs.60,00,000/- with imposition of personal penalty of Rs.300,000/- on the appellant (owner) in terms of Section 156(1) Clauses (8) and (89) of the Customs Act, 1969 vide his order dated 26.11.2015. Hence the instant appeal to this Tribunal.
4. We heard arguments of the learned counsel Mr. Malik Hassain and Mr. Anwar Ullah for the appellant at well as Mr. Alhaj Gul, Superintendent Customs/Departmental Representative of the respondents and gone through the record of the case.
5. In this case, F.C. troops of Khyber Rifles seized Pakistani. Currency of Rs.60,00,000/- from the possession of the appellant on the allegation that he was smuggling the currency in question from Pakistan to Afghanistan. The seizing party had not taken into possession the passport, travelling itinerary. The only allegation was the currency in possession of the appellant. It is very much strange that the seizing agency has not proved how appellant was going out of Pakistan. The currency in possession of a person is no offence but its taking out of Pakistan is an offence under Section 2(s) of the Customs Act, 1969. Section 2(s) is reproduced as under:-- "smuggle" means to bring into or take out of Pakistan, in breach of any prohibition or restriction for the time being in force or enroute pilferage of transit goods or evading payment of customs-duties or taxes leviable thereon".
6. Keeping in view the definition provided under section 2(s) supra, no offence is said to be committed in this case except the presence of the appellant at Torkham, having in his possession the currency. No evidence on file is available to suggest that the appellant was making' an attempt to smuggle the currency out of Pakistan.
So, it can be safely presumed than the appellant could not be charged for the act of smuggling under the Customs Act. It could be an offence and mere suspicion that he would be committing an act of smuggling. The possession of currency could not be substituted with proof of evidence of smuggling.
7. There is no evidence with the prosecution, which reflects that the appellant was going out of Pakistan. In absence of such evidence the appellant shall not be penalized for an offence which he did not commit. He might be in Torkham for some business activity as Torkham is a business hub. There are many markets and bazaars where business is in abundance and lot of people are going there for business activities which does not mean without proof particularly without taking into possession the Passport, Visa or any other Itinerary, that the appellant was taking out of Pakistan the currency. The recovery memo prepared by Lieutenant Col./Wing Commander Khyber Rifles has not marginal witnesses and there is no thumb impressions or signature of marginal witnesses to ascertain that at what place the seizure was conducted neither is there any entry or exit of the vehicle available on record to show that the appellant was moving towards Afghanistan or otherwise. More fascinatingly, there is nothing on record to show that the appellant was going to Afghanistan without having any means of transport nor the same fact has been mentioned in the Show Cause Notice and nor any statement from the driver of the vehicle (if so) had been obtained/recorded on the spot. The specific place of occurrence/seizure has neither been mentioned in the recovery memo nor in the seizure report. In the recovery memo, the place of seizure has been shown as Torkham Check post while Torkharn Check Post is a Customs Station. The D F.C. authorities have no jurisdiction to seize any goods at the Customs Station. Documents on file show that being a business man the appellant does carry a reasonable, justifiable amount with him for dealing with his business. The prosecution has miserably failed to prove that the possessor intended to export or takes out the amount to Afghanistan.
8. The appellant through an application provided as additional documents in shape of affidavit which shows that the appellant is doing business in Landi Kotal for a registered company i.e. Daryab and Company, which imports animal skins from Afghanistan to Pakistan. The said Company had its offices in Torkhum, Landikotal and also in Lahore for the Import and Export. On 19.09.2015 the said amount was taken from Landikotal office to Torkhum office by the appellant, and the F.C. troops of Khyber Rifles seized the above mentioned amount from the appellant.
9. Likewise, the appellant has produced copy of authority letter (placed at page 13 of the file) duly verified by the Daryab and Co. Import Export, Manufacture Leather Garments Factory, Lahore, that the appellant is authorized agent/buyer for Messrs Daryab and Company, and the said Company deputed the appellant to buy sheep skin and other allied raw material related to animals skin for the company at Landikotal and Torkham, Khyber Agency. The appellant has also annexed copies of documents of import and registered Company's name Daryab and Co., vide NTN No.3962796-9 and sale tax No.030039627619 (placed on file), which show the innocence of the appellant-- In this case the Adjudicating officer has manifested the appellant as Afghan National, but the available record i.e. CNIC No.17301-2553804-5 disclosed that Gul Mullah son of Muhib Ullah is resident of Shaheen Muslim Town, Mohallah Akhun Abad No.5, Peshawar. The CNIC was issued on 04.04.2011 and valid upto 31.03.2021, so it is clear that the appellant is a Pakistani citizen and not an Afghan, which is duly verified from the office of NADRA.
10. In view of the above discussion, we accept this appeal. The impugned Order-in-Original No. 130 of 2015 dated 26.11.2015, passed by the Additional Collector of Custom (Adjudication), Islamabad, Camp Office, Custom House, Peshawar is set aside. The respondents are directed to return the currency taken into possession, to the actual owner . The appeal stands disposed of in above terms.