MUHAMMAD NAEEM ANWAR, J. This Custom Reference has been filed by the petitioner under Section 196 of the Customs Act, 1969, for determination of the following questions: - "Questions of law: I. Whether as per facts and in the circumstances of the case, "Seized Gold" clearly hit by Section 2 (c), 16 & 139 of the Customs Act, 1969?
II. Whether as per facts and in the circumstances of the case, "Seized Gold" clearly hit by Section 3 (1) of the Import & Export Act, 1950?
III. Whether as per facts and in the circumstances of the case, according to the SRO No.760 (1)/2013 dated 09.02.2013 issued by Govt: of Pakistan, certificate from Trade Development Authority of Pakistan is required on import of the Gold / jewelry?
IV. Whether as per facts and in the circumstances of the case, initial onus of proof, valid importation and payment of duties and taxes are even its lawful possession is upon the person in possession of questionable goods under Section 187 r/w 156 (1) (90) of the Customs Act, 1969?
V. Whether as per facts and in the circumstances of the case, SRO No.566 (1)/200 5 "Gold" is restricted / prohibited item?
VI. Whether as per facts and in the circumstances of the case, the learned Appellate Tribunal was acted within jurisdiction by substituting its own wisdom upon that of the legislative instrument?
VII. Whether as per facts and in the circumstances of the case, the judgment of the august Peshawar High Court, Peshawar in Appeal SAO No.25 of 2005 passed on 09.12.2010 titled "Collector Customs versus Gul Jan" the seized gold did not attract the Section 2 (s) of the Act?
VIII. Whether as per facts and in the circumstances of the case, the judgment of the august Supreme Court of Pakistan in Civil Appeal No.1050 of 2009 reported in SCMR 2017 Page 585 titled Collector of Customs versus Wali Khan, the seized goods did not attract the Section 2(2) of the Act?
IX. Whether as per facts and in the circumstances of the case, an illegal act can be justified and allowed within the state boundary if same was done for the sake monetary gain and interest of public or State?
02. Briefly stated facts of the case, as per record are that on 24.09.2019 at about 07:30 hours when respondent namely Faisal Rasool s/o Abdul Ghani, who had to fly through Flight No. EK-637 from Bacha Khan International Airport, Peshawar to Dubai, whose bag was checked by Airports Security Force (ASF) scanning machine, which revealed foreign origin gold jewelry lying in the shopping bag, so the said bag alongwith passenger was subsequently handed over to Custom officials on duty, who made out the seizure report in the following term: SEIZURE REPORT 1 Flight No. EK 637 From Peshawar to DXB 2 Seizure Case No. 110/2019 3 Date & Time of SeizureDated: 24.09.2019 at 07:30 Hrs 4 Place of Seizure International Departure Hall (BKI)
Airport, Peshawar 5 Description of GoodsF/O Gold (Jewellery) =1000.750 Grams (Gross) Net weight 865.230 Grams 6 Market V alue PK Rs.6125828/- 7 C.I.F Value PK Rs.6125828/- 8 Duty & Taxes InvolvedPK Rs.2518941/- 9 Name & Address of owner of the Seized goods.Faisal Rasool S/O Abdul Wali R/O House # 222 St # 4 Sector E-7, Hayat Abad Phase 7, Peshawar Passport No. CS9801671, CNIC No.17301- 1261 167-9 10Name of the detecting Staff / Seized Of ficer1. Mr . Safdar Hussain Inspector Customs BKI, Airport Peshawar
2. Muhammad Sharif Inspector Customs BKI, Airport Peshawar
3. Hawaldar Mehboob 11Law Contravened Sections 2(S), 16 & 139 of the Customs Act, 1969 read with Section 3
(1) of the Import & Export Control Act, 1950, further read with SRO 760(I)/2013 dated 02.09.2013.Punishable U/S 156(1), (8)
(9)(70) & (89) of the Customs Act 1969 and Section 3(3) of the Import & Export Control Act, 1950.
On query, the passenger produced only receipt of foreign origin gold jewelry, however failed to produce any other document for legal import /export of foreign origin gold jewelry, thus, the recovered article was seized under section 168 of Customs Act, 1969, for violation of section 2 (s), 16 and 139 of Customs Act, 1969 and section 3 (1) of Import & Export (Control) Act, 1950 read with Statutory Regulatory Order (SRO)
No.760(1)/2013 dated 02.09.2013 punishable under section 156 (1) (8) (9) (70) and (89) of Customs Act and section 3 (3) of Import and Export (Control) Act and the matter was submitted for adjudication under section 179 of the Customs Act, 1969.
03. Adjudication proceedings were initiated against the respondent which were finally culminated in Order- in-Original No.456/2019 dated 27.12.2019 by the Additional Collector, Collectorate of Customs (Adjudication), Islamabad, Camp Office, Custom House, Peshawar, whereby foreign origin gold jewelry was outrightly confiscated to the State in accordance with clause (8) (9), (70) & (89) of section 156 (1) of the Customs Act read with section 3 (3) of Import and Export (Control) Act, 1950 for violation of section 2 (s), 16 & 139 of the Customs Act and section 3 (1) of Import and Export (Control) Act, 1950 and for violation of Statutory Regulatory Order (SRO) dated 02.09.2013.
4. Being not satisfied, respondent has filed Custom Appeal No.40/PB/2020, whereby, Order-in-Original No.456/2019 dated 27.12.2019 of the learned Additional Collector Customs (Adjudication), Islamabad, Camp Office, Custom House, Peshawar was set aside by the Custom Appellate Tribunal, Peshawar Bench through its judgment dated 16.09.2020.
5. Learned counsel for the petitioner for the contended that respondent was served upon with show cause notice to the effect that as to why the penal action under sections 156 (1) (8) (9) (70) & (89) of Customs Act and under relevant provisions of Imports and Exports (Control) Act, 1950 and why the foreign origin gold jewelry, as per seizer report, should not be confiscated to the State but he could not produce any valid, genuine document for import / export of foreign origin gold, who in response to show cause notice, replied that he is the college student and it was his utmost desire to explore job prospect in Dubai after completion of his education in Pakistan, as such, he procured visit visa for Dubai and booked a seat in Flight No. EK-637 Emirates Carrier from Bacha Khan Airport Peshawar to Dubai for 24.09.2019 and when his luggage was scanned through scanner machine of ASF personnel and on discovery of foreign origin gold from baggage, on demand he produced the receipts vide which he purchased the gold for his wife on different trips from Dubai, for which he has paid all the taxes and brought the jewelry to Pakistan. However, when he was handed over to the Custom Authorities, neither the receipts were found valid nor any other document was produced by him to justify the export of foreign origin gold from Pakistan to Dubai, as such, for violation of relevant provisions of Customs Act, 1969 and Imports & Exports (Control) Act, 1950 r/w SRO dated 02.09.2013 were confiscated to State but the learned Custom Appellate Tribunal in violation of law, accepted the appeal filed by the respondent, which is unwarranted without justification and against the law of the land, as such, the instant reference in accordance with the questions formulated in para No.2 of the reference.
6. Arguments heard and record perused.
7. Admittedly, the foreign origin gold jewelry was detected by the scanning machine of ASF, which was handed over to the Custom Authorities, which on weighing were found 1000.750 grams (gross) Net weight 865.230 grams, as such, he should have been given an opportunity for declaring the goods carried by the passenger in accordance with mandatory provision of Section 139 of the Customs Act, 1969, which reads as: - "139. Declaration by passenger or crew of baggage.- The owner of any baggage whether a passenger or a member of the crew shall, for the purposes 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 articles for examination: Provided that where the Customs Compu terized System is operational, all declara tions and communications shall be electronic"
8. Non-compliance of aforementioned explicit provision of law would render the entire proceedings nullity in the eye of law and that too when the respondent' s luggage was not taken into possession by the custom officials deputed for the specific purpose at Bacha Khan Airport rather when his baggage was checked / scanned by the scanner machine installed by ASF and later-on, respondent alongwith his baggage was handed over to the custom authorities. Though, the petitioner has filed this reference with the legal questions formulated by him but has not annexed the entire record of the proceedings conducted by the custom authorities at the spot, however, it is an admitted fact that Bacha Khan Airport is a notified place in accordance with the provision of Section 9 of Customs Act, 1969. It is pertinent to mention that for a notified place the matter of smuggling through import was required to be checked by the Customs officials only or by any other Federal or Provincial Government Officer, who has been notified by the Federal Government to function as "Officer of Customs". It is also important to note that if any other officer is authorized by the Federal Government to function as Customs Officer, even he cannot interfere in the functions of a Regular Officer at a notified place. In this respect section 6 of Customs Act, 1969 is reproduced as under: - "6. Entrustment of functions of customs officers to certain other officers.- (1) The Board may, by notification in the official Gazette, entrust, either conditionally or unconditionally, any functions of any officer of customs under this Act to any officer of the Federal Government, Provincial Government, State Bank of Pakistan and Scheduled Banks: Provided that where any officer in performance of his functions under this section commits any offence under this Act, such officer shall, in addition to any other penalty which may be imposed under any other law for the time being in force, be liable to such punishment as is specified in sub-section (1) of section 156 for the offence committed by him.(2) No officer entrusted with any functions of any officer of customs under sub section (1) shall interfere in any manner in the performance or discharge of any duty by an officer of customs in places notified under section 9" .
09. Moreso, Section 139 of Customs Act, 1969 reproduced above, envisages that it was mandatory for custom officer to provide an opportunity for declaring the goods carried by the passenger. In case, the passenger declares the goods, he was carrying, his act of bringing these articles to such place does not amount to an offence as held in case titled "Feroz Rahim Batla vs. The State" (1980 P.Cr.LJ 663) wherein it was held: - "I have perused the investigation papers submitted before me by the learned counsel for the State. 1t appears to me that as reflected in the F.I.R. the goods of the applicant were- taken possession of by the S.P.O. immediately on their being unloaded and the applicant was interrogated. Section 142 of the Customs Act makes provision for making the true declaration under section 139 to the Appropriate Office and for detention of dutiable articles at the request of the passenger until he leaves the country. It is, therefore, cleat that if such a declaration is made to the Appropriate Officer, the mere fact that certain goods are brought in the Airport which are subject to payment of duty or the import of which is prohibited or restricted will not constitute an offence punishable under section 156 (1), clause (8) of the Customs Act."
10. Recently , Hon'ble Sindh High Court in case titled "Mumtaz-ud-Din vs. The State" (2020 PTD 129) has held that: - "From the above examination of an important prosecution witness, it is clear that the applicant was arrested before approaching to concerned customs officer and he was not allowed to declare the goods, he was bringing with him. In this respect, the law is very much clear and as per Section 139 of the Customs Act, if a passenger declares with proper details of goods he is carrying and shows his readiness to pay the Customs duty, it cannot be termed that he was smuggling some goods"
11. In the latter part of the judgment it was also held: - "16. Now, in view of the prosecution evidence so far recorded, the prosecution case is that the applicant was intercepted while he was coming Pakistan from Belgium, he was intercepted by the FIA officials either inside or outside the plane but without his approaching to customs officials and certain quantity of parts of Glock pistols were recovered from his baggage. He was neither given an opportunity to declare those parts of Glock pistols nor he was allowed to approach the concerned customs officials available within 'customs declaration hall' and he was arrested when in the plan or just disembarked"
12. Thus, keeping in view the afore-stated provisions of law and while taking guidance from the principle enunciated in the aforementioned precedents, the Customs Appellate Tribunal has rightly decided the matter, through appreciation of facts and proper application of law.
13. In view of the above, the instant Reference is answered in negative.