MR. MUHAMMAD SADIQ MEMBER (TECHNICAL).--(1). By this judgment we shall dispose of the above-mentioned appeal filed by Lizhen Wu etc. (the appellant) against the Order-in-Original No. 42/2019 dated 17.04.2019, (the impugned order) passed by the learned Additional Collector of Customs (Adjudication), Lahore.
2. Brief facts of the case are that a lady passenger LIZHEN WU R/o China (the Appellant) was intercepted while carrying foreign currency, allegedly concealed in her bag, at the Allama Iqbal International Airport, Lahore on 15.12.2018. On demand the said lady passenger produced her boarding card and her Chinese Passport No. G39200522. Reportedly the said passenger was asked as mandated under section 139 of the Customs Act, 1969 (the Act), whether she was carrying anything dutiable or objectionable with her or in her accompanied baggage to which she replied in negative. The accompanied baggage of the said passenger was physically examined which led to the recovery of foreign currency i.e. US $ 22,505/-, Pak Rs. 10,400/- and Chinese Yen 1,617/- (total amount equaled to Pak Rs. 3,194,604/). The said currency was seized under section 168(1) of the Act for contraventions of provisions of Section 2(s), 16, 139 & 187 of the Act, read with Rule-11 of the Baggage Rules, 2006 notified vide SRO. 666(1)/2006 dated 28.06.2006 and Section 3(1) & (3) of the Imports & Exports (Control) Act, 1950 and Section 8(2) of the Foreign Exchange (Regulation) Act, 1947 punishable under clauses (8) & (70) of Section 156(1) of the Act, read with SRO. 499(I)/2009 dated 13.06.2009 on allegation of attempted smuggling of the said foreign currency from Pakistan.
On demand the owner/claimant namely LZHEN WU R/o China failed to produce any legal documents of the said foreign currency. The case was referred for adjudication.
3. The adjudication proceedings before the learned Additional Collector of Customs (Adjudication), Lahore culminated into passing of the impugned Order. The operative part of the Order reads as follows:-- I am of the considered opinion that the charges leveled in the show cause notice stand established against the respondent. Therefore, in exercise of powers conferred upon me under section 179 of the Customs Act, 1969 1, order for outright confiscation of the amount i.e. US$ 22505/-, Pak Rupee 10,400/-and Chinese Yen 1617/- under section 2(s), 16, 139 and -Clause (8)(i) and (70) of Section 156(1) read with SRO. 499(1)/2009 and Section 8(2) of the Foreign Exchange Regulations Act, 1947 as prescribed vide SRO. 1017(I)/98 dated 21.07.1998".
4. Aggrieved by the above impugned order, the appellant filed the instant appeal mainly on the following grounds: i. That the impugned order is illegal and without jurisdiction. ii. That the Appellant had brought the impugned currency after having drawn it from her banks before travelling to Pakistan. iii. That the learned adjudication officer failed to appreciate the evidence of withdrawal of the foreign currency from banks (as reflected in bank statements) and unjustly confiscated the said currency. iv. That the appellant had not concealed the impugned foreign currency in any manner. v. Rather when inquired about the said currency, she voluntarily disclosed the contents of her baggage/ hand bag and got it examined. vi. That there was no mens rea on the part of the Appellant in carrying the impugned currency in that the image of the said currency were detected by the ASF scanning staff who took the said lady passenger to the Customs for legal proceedings. vii. That the Appellant had discharged the burden of proof in terms of sections 156(2) and 187 of the Act to prove lawful possession/holding of the said currency.
5. On the other hand, Mr. Asghar Ali, inspector appeared on behalf of the respondent department and defended the impugned order.
6. We have gone through the relevant case record and arguments of the parties. The different facets of controversy are; (a) proof of lawful possession; (b) Whether there is misreading and non- reading of facts under the impugned order; (c) whether or not declaration was made under section 139 of the Act and circumstances thereof; and (d) whether provisions relating to "smuggling attempt" are attracted. These areas are dilated upon as follows to arrive at fair appreciation of the controversy:
(a) Firstly, the appellant contended that the learned adjudicating authority (Additional Collector Customs Adjudication Lahore) has erred while passing the impugned order by not considering the facts of the case objectively. It was brought before the said officer, the details of the bank statements of the appellant which amply manifested that she had enough money in her banks in China, withdrew a handsome amount before travelling to Pakistan and brought it to Pakistan. After her stay, she was carrying back the remaining amount with her during her intended travel, when the currency was seized from her.
(b) Secondly, the non-reading or misreading of facts and law attributed by the Appellant to the learned Adjudication officer is apparent in that she firmed up her opinion in disregard of the evidence adduced, (bank transactions of the Appellant (then Respondent) and the demeanor of the appellant had observed while voluntarily declaring the, contents of the baggage). Had the department produced tangible evidence to the contrary, the same could have been made basis of the findings made by the learned Additional Collector (Adjudication) while making decision in the case.
(c) Thirdly the appellant had arrived at the Lahore airport on the day of seizure of the impugned. currency, she had disclosed the same to the government officials/ASF staff deputed at the scanning of luggage at the international arrival hall. The departmental representative admitted that (i) the ASF officials took the appellant to Customs, and (ii) no written declaration was solicited even after that incident. Under provisions of section 139 of the Act, declaration is to be solicited by an appropriate officer of Customs, whereas in the instant case, no concrete evidence is available to that effect. Merely taking green channel does not mean that declaration had formally been solicited by the appropriate officer as aforesaid. It is evident that the appellant did not resist Customs/ASF to examine and search her belongings. Prior to any appropriate officer's soliciting declaration, she had disclosed the contents of her belongings containing currency. The appropriate and lawful course of action in the circumstances on the part of the Customs officials would be to advise her of the permissible limit of the currency she was entitled to carry and to return or temporarily detain the excess of the such permissible limit. This action would be well within ambit of section 142f the Act. The Seizing agency made seizure of the impugned currency from her hand carry bag, which she herself had declared to the ASF staff that she was carrying. The said action has not been aptly and objectively appreciated by the learned Additional Collector Adjudication in the impugned order.
(d) Fourthly, accordingly to the seizing agency the action of the appellant fell within the ambit of "smuggling" as she "attempted" to take the impugned currency in contravention of the limitation stipulated under the law. However the Appellant contended that she had lawful possession of foreign currency which she had withdrawn from her bank account before travelling to Pakistan. She had spent some portion during her stay in Pakistan and was not carrying the remainder with her.
The learned Counsel for the appellant has averred that possession of the currency, per se, is not against the law of land. The adjudication officer incorrectly arrived at decision in the instant case that mere possession of foreign currency attracted attempt to smuggling in terms of clause 2(s) of the Customs Act, 1969. The recovery of impugned currency from the handbag was made which she disclosed, owned and solicited guidance in accordance with law. The initiation of action by the Seizing Agency on behest of the ASF during clearance of the Appellant augmented absence of any mens rea op her part. It is viewed that in the instant case the findings of the learned adjudication officer are not in consonance with the ratiocination of the cases decided by the superior courts especially the following: i. In case reported as 2011 P.Cr. L.J 238, (State v. Hotu Ram), the Honorable Lahore High Court Lahore disapproved the action of Customs officials apprehending the accused (a passenger), carrying a sizeable quantity of gold and silver (exceeding two kilogram), belonging not only to him but also to his family members at the Railway Station Lahore. The Honorable Lahore High Court Lahore, in the said case, termed the action of the Customs officials as having "entangled not only an innocent person but also an innocent family in the case". In the instant case, the Appellant's position is on more sound footing in that she had not even concealed the impugned currency. It is viewed that possession or currency, per se, does not fall within the ambit of smuggling in terms of section 2(s) of the Act. ii. The findings of the learned Collector (Adjudication) are also in disregard of the dictum held in the case reported as "1987 MID 1602" by Honourable Sindh High court. Under the aforementioned case, mere presence of gold in baggage of the accused without any attempt to conceal it from detection was held "not sufficient to hold that the accused was guilty of smuggling or attempting to smuggle gold into Pakistan". iii. In the case titled "Abdul Salam versus the State", reported as "PTCL 1984 CL 29, recovery of over five kilograms of silver from the baggage of a passenger (the Appellant in that case), who was to board a Dubai bound plane at Lahore airport, was not held "attempt" of smuggling. The Honorable Lahore High Court held that ".:.. 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."
After dilating upon the different aspects of the case it ruled that "the fact that a passenger has brought some banned items in his baggage up to 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 as to avoid detection".
7. As observed in this Tribunal's judgment in C.A.No. 269/LB/2017 dated 12.12.2018 "....in a civilized polity, no public functionary could have an unbridled discretion so as to trample on the dignity of a person, or to harm him or to pounce upon his property arbitrarily. Rather the State functionaries, ...must observe transparency and fairness as enshrined under the Constitution of Pakistan, particularly under articles 4 and 24(1) ...".
8. In view of the above, this appeal is allowed and the impugned Order-in-Original No. 42 of 2019 dated 17.04.2019 is set-aside.
9. The Parties be informed through registered post A.D or by UMS.
10. The File be consigned to record after completion.