JUDGMENT: MR. HAFIZ ANSAR UL HAQ, CHAIRMAN/MEMBER JUDICIAL.--(1). This appeal has been filed by Sabir Jan s/o Kaftan and another (appellant herein) against the Order-in-Original No. 225 of 2023 dated 25.10.2023, passed by the Collector of Customs (Adjudication), Islamabad.
2. Brief facts of the case as per record are that it has been reported by the Assistant Collector (HQ), Collectorate of Customs (Enforcement), D.I. Khan that an information was received that an Afghan national will be trying to smuggle foreign currency to Pakistan through concealment. As such vigilance was enhanced. On 25.07.2023 an Afghan national namely Sabir Jan S/o Kaftan, R/o Khost holding Tazkira No. 1401-0200-78792, driving vehicle No. KBL-89484 entered Customs Station, Ghulam Khan. Upon arrival at the Customs Station, the driver did not declare the currency to Customs staff. On physical search of his body and his vehicle, an amount of US $ 18,000/-. Afghani currency 13,000/-Afghani and Pak. Rupees 208,000/- was found concealed in the upper portion of the driver's cabin.
The driver was asked to show the legal import and lawful possession of the amount of foreign currency but he was unable to provide any legal import or lawful possession of the same. Since the driver failed to declare aforementioned currency before Customs staff and could not produce any document regarding lawful import and bona fide possession of the currency and that since the currency was only recovered during body search and was deliberately concealed in the vehicle to circumvent Customs controls at the Customs Station, Ghulam Khan, therefore, the foreign and Pak currency were seized in terms of Section 168 of the Customs Act, 1969, for violation of Section 2(s), 16 and 139(3) of the Customs Act, 1969, read with SBP Notification No. F.E. 2/2021-SB dated 06.10.2021 further read with Section 3(1) of the Imports and Exports (Control) Act, 1950 punishable under clauses (8) (iii) and (70) of Section 156 (1) of the Customs Act, 1969, read with Section 3(3) of the Imports and Exports (Control) Act, 1950.
3. The Collector of Customs (Adjudication), Islamabad after issuing the show cause notice decided the matter vide the impugned Order-in-Original No. 225 of 2023 dated 25.10.2023 whereby the seized foreign currency was confiscated outrightly.
4. Being aggrieved from the aforesaid order, the appellants have filed the instant appeal on the following grounds:--
(i) That the impugned order is erroneous, illegal, unlawful, sketchy, void, vague, ultra vires and against all facts of the case, hence the same is not sustainable in the eyes of law and should be set aside on this sole ground,
(ii) That, the appellants condemned unheard as the matter was decided in absence of Appellants while solely relying upon the departmental stance by the Learned Respondent Nb. 2 and did not exercise his powers justly, fairly and in accordance with law, Thus no fair opportunity of hearing was provided to appellants in any manner, hence the impugned order in original has lost his value in the eyes of law;
(iii) That the impugned order is result of mis-reading and non-reading of material available on record and wrong interpretation of applicable law, further the learned respondent no. 2 badly failed to exercise the powers so vested to him;
(iv) That the show cause notice and order in original , is result of mis-joinder and non-joinder of necessary and proper parties, without impleading the seising officer and stuff available on spot at the time of declaration fair adjudication is not possible in terms of Sec 180 read with Sec 179 & Article 10-A of the Constitution of Pakistan 1973;
(v) That the order in original has been passed in contravention of settle principles of equity and natural justice, rules of appreciation of evidence and judgments rendered by the Superior Courts.
The natural justice required the case of appellant should be decided after affording him proper opportunity of hearing, the relevant case laws on this point will be provided at the time of arguments;
(vi) That, in instant matter the Seizure Report was framed under Sec 168 of the Customs Act, 1969 on 25.07.2023 whereas the Show Cause Notice under Sec 180 is issued on 02.10.2023 in contravention of proviso of Sec 168 of the Customs Act, 1969. Therefore the Show Cause Notice is time barred and all superstructures built on such illegal and unlawful notice should be crumble down on this sole alone consequently the confiscated currency liable to be returned in favour of Appellant No. 2.
(vii) That, it is relevant to mention here, in 'above given facts and circumstances the Islamabad High Court, Islamabad vide case law cited as 2021 PTD 501 while setting aside the concurrent findings of Adjudicating Authority and Customs Appellate Tribunal had released the currency in favour of Petitioners on account of time barred order in original. Thereafter the Department being aggrieved filed Civil Petition before the August Supreme Court of Pakistan which was decided vide C.P Nos. 1358 and 1359 of 2021 titled as Collector of Customs, MCC, Islamabad Vs. Israr & Others.
(viii) That no notice under section 171 of the Customs Act, 1969 was served to the Appellants as clearly depicts from bare perusal of show cause notice read with Seizure Report and all the proceedings based upon illegal seizure and detention, hence nullity in the eyes of law.
(ix) That, the Learned Respondent No. 2 while deciding the instant matter inadvertently or mistakenly in Para No. 7 Line No. 4 of impugned order applied the maximum limit per person per visit prescribed in the Notification No F.E 2/2021-SB dated 06.10.2021 in context of Persons travelling to Afghanistan, however the Appellant No. 1 was travelling to Pakistan as facts narrated in show cause notice read with seizure report and no limit is available under any law for in bringing the currency except correct declaration in term of Sec 139 read with Sec 142 of the Customs Act, 1969 Hence Learned Respondent No. 2 badly failed to appreciate the facts of matter in hand
(x) That the Appellant No. 1 properly declared his currency and same was never concealed in any manner, the customs staff firstly allowed the Appellant No. 1 to proceed with the currency and vehicle but later on they changed their minds and allowed die Appellant No. 1 to proceed with vehicle only and detained the currency reasons well known to them, it is necessary to mention here the customs officials while admitting the declaration of Appellant No. 1 neither seized the vehicle nor initiating any criminal proceedings against the Appellant in the shape of criminal case, Hence it is proved no men's rea and guilty intention was proved against the Appellant No. 1, it is settled law where no men's red or guilty intention is involved the amount is liable to be released forthwith; That it is necessary to mention here every judicial and quasi-judicial findings should be based on sound reasons and justifications and the order which does not contain rebuttal of grounds advanced, substantial reasons and even not reflects an objective consideration should be treated as non-speaking, Sketchy and arbitrary in any system of law, more over if any authority, forum, court or Tribunal gave a finding of not commit any offence resultantly illegal and unlawful case has been made against the Appellants in voilation of the applicable law.
(xii) That, despite correct declaration invoking of Section 156(1) clauses (8) (iii) and (70) of the Customs Act, 1969, read with Section 3(3) of the Imports & Exports (Control) Act, 1950 and read with all other provisions for the time being in force for violation of Section 2(s), 16 and 139(3) of the Customs Act, 1969, read with SBP Notification No.-F.6.2/2021-SB dated 06.10.2021 further read with Section 3(1) of the Imports and Exports (Control) Act, 1950 is not the requirement of law, on the other hand as per facts and circumstances of instant matter these provisions are not attracted against the Appellants in any manner. Merely on the basis of wrong interpretation of statutory provisions the Appellant is still suffering;
(xiii) That normally in case of correct declaration the currency firstly detained by the relevant staff and not seized and the same method was not adopted to the extent of Appellants, later on they changed their minds after consultations with high officials instead of detaining currency, illegally, unlawfully and malafidely seized the currency without giving any reasonable opportunity to justify his property, however these tactics are not tenable in the eyes of law and against the spirit and scheme of Customs Act, 1969.
(xiv) That, after correct declaration U/Sec 139 and 142 of the Customs Act, 1969, normally the passengers are directed to handover such type of items to the nearest relative or anybody who has come to see off the passenger and are not seized normally. In the instant case it was informed to customs staff that subject currency belongs to Appellant No. 2 but it is unique case that despite of declaration and knowing actual facts the currency was seized by the relevant staff in grave violation of fundamental rights of citizens secured by the Constitution of Pakistan 1973;
(xv) That the present Appellants are neither smuggler nor had been involved in any criminal activities in whole of their lives having unblemished record and while leaving, as per law, he had given the correct declaration before the agencies operating in the Declared Station and there was no reason for the Customs Staff to seize the currency which was declared;
(xvi) That the Appellant No. 1 was not produced before the Gazetted officer of the customs or the magistrate its grave violation of section 159 of the Customs Act, 1969, further amounted to procedural lapse. When the law has provided procedure, same must be observed as provided under the law, non-observance of the provisions contained in S. 159 of the Customs Act, 1969, would render the search and seizure illegal and further proceedings in that behalf would not be validated reliance placed on 2008 PTD (Trib) 194;
(xvii) That it is the duty of the officers present at the search counter to guide each passenger regarding any prohibition or restriction of baggage or currency, but no such guidance or assistance was ever explain to the Appellants. Further there is nowhere mentioned in ticket as well as in passport regarding restriction of carrying foreign currency or any obtaining of permission from the regulatory authority i.e. State Bank of Pakistan and no notice board affixed at the declared Station regarding any type of restriction/prohibition of baggage or currency; (xviii) That it is humbly submitted to thrash out the actual facts and to reach at just and fair decision and to decide the case on merits, therefore direction may kindly be issued to Department to produce CCTV footage before this Honorable forum;
(xix) That before issuing show cause notice the prosecution is bound to determine men's-rea show-cause notice cannot be issued without proving any guilty intention or knowledge and men's-rea on the part of Appellants, in the present case, element of men's-rea is not visible, guilty intention and any involvement is without any evidence, therefore provisions of Customs Act cannot be invoiced against the Appellants; That mere on the basis of presumption, personal whims and thinking show cause notice cannot be issued because show cause notice is foundation of any proceedings and whole superstructure built on the basis of allegation leveled in the show cause notice. It is relevant to mention here that for the issuance of show cause notice the strong and reliable evidence is required which is apparently lacking in the instant case, moreover the fundamental rights of an individual are protected by the Constitution of Pakistan 1973 which is supreme law, mere on the basis of allegation the issuance of show cause notice is against the above said fundamental rights given by constitution of Pakistan 1973, principle of equity and natural Justice, rules of appreciation of evidence and further not sustainable in the eyes of law;
(xxi) That Section 16 of the Customs Act deals powers to restrict and prohibit import and export of goods. This Section defines the powers to restrict and prohibit. Powers under the said section are to be exercised by the Federal Government and no subordinate has the authority to do the same.
Actions of the respondent agency of invoking Sec 16 against the present appellant tantamount to usurpation of function beyond its statutory mandate and such actions are not only nullity in the eyes of law but ultra vires of the Customs Act, 1969 read with Sec 16 of the same.
That in same circumstances where previous conduct or involvement not found this Honorable Tribunals through various judgments released the currency in favour of law-abiding citizens; therefore the Appellants will produce the case laws for your kind assistance at the time of arguments and expects a lenient view from this Honorable forum for redressal of their grievances.
5. During the arguments of the case, learned counsel Mr. Asad Ayaz Advocate for the appellants, while reiterating the grounds of appeal and further contended that according to the State Bank of Pakistan's Notification No. F.E. 2/2017-SB dated 30.08.2017, the importation of foreign currency notes or bank notes is permitted without limitation, provided a declaration is made. He contends that he was not given the opportunity to declare the currency, as the seizure occurred before he reached the currency declaration counter. This assertion is supported by the seizure report, which indicates that the seizure took place from the body search of the appellant as soon the appellant entered in the premises of Customs Station Ghulam Khan, prior to the declaration counter. He added that the respondent invoked the State Bank of Pakistan Notification No. F.E. 2/2021-SB dated 06.10.2021 and seized the currency under the same notification, which deals with the exportation of foreign currency therefore, cannot be invoked against the appellants in the instant case. As far as the importation of currency is concerned, the appellants had done nothing against the law as per SBP Notification No. F.E. 2/2017-SB dated 30.08.2017.
6. On the other hand, learned Departmental Representative opposed the contention of the appellant and stated that the appellant was taking out the currency in question from Pakistan without any declaration and documentation; that the seizure was made at the scanning Hall when the appellant was departing to Afghanistan; that as per the State Bank of Pakistan Notification does not allow taking out of such huge amount of currency from Pakistan. He supported the impugned order and prayed for dismissal of the appeal.
7. Arguments heard. Record perused.
8. Perusal of the record reveals that after seizure of the foreign currency in question, the adjudication authorities while issuing show cause notice has erred to quote the correct codification of law i.e., invoking State Bank of Pakistan's Notification No. FE. 1/2021-SB dated 06.10.2021, which fact has also been confirmed by the Departmental Representative that the above notification has wrongly been invoked as the same is for export of the currency.
Before going into the details and merits of the case, it is deemed appropriate to mention here that the original essence of legislation is to streamline the law of the county, avoiding loopholes and not to allow anyone to apply own principles for self satisfaction, therefore, the same is to be followed and applied as per its real spirit as codified and enforced by the relevant Acts after proper procedure. If the executants and authoritative bodies misunderstand or misinterpret the relevant law then how others, who violate it, will follow and understand it. Therefore, the law should be followed strictly according to the real fundamental nature of the same.
9. In this case, as per law, the appellants were required to charged under the State Bank of Pakistan's Notification No. FE. 2/2017-SB dated 30.08.2017, which specifically deals with the importation of foreign currency into Pakistan, which was in field at the time of import of the said currency. As per the said Notification, there is no bar on import of foreign currency into Pakistan from any place outside Pakistan, therefore, the appellants were at liberty to bring into Pakistan any foreign currency notes without limit. Nothing in rebuttal has been brought on record by the respondents to negate the effect of the above mentioned Notification dated 30.08.2017.
10. For the sake of convenience, the Notification No. FE.2/2017-SB dated 30.08.2017 is reproduced as verbatim:- APPENPIX III-26 NOTIFICATION NO. F.E.2/2017-SB Dated the 30th August, 2017 Import of Currency Notes In pursuance of Government of Pakistan Notification No. F.I (8)-EF/49 dated the 2nd May, 1949 and in supersession of the State Bank of Pakistan Notification No. F.E. 5/92-SB dated the 28th December, 1992, read with its Notification No. F.E.1/2012-SB dated the 16th June, 2012, the State Bank of Pakistan is pleased to permit any person to bring into Pakistan:-
(1) From any place outside Pakistan any, foreign currency notes or bank notes without limit except un-issued notes.
(2) Notes legal tender in Pakistan not exceeding Rs. 3,000/- (Rupees Three Thousand Only) from India and Rs. 10,000/-(Rupees Ten Thousand Only) from any place other then India, in value in all per person at any one time.
Sd/- (Tariq Bajwa)
Governor"
11. Perusal of the abovementioned Notification of the State Bank of Pakistan reveals that an incoming passenger is allowed to bring into from any place outside Pakistan any foreign currency notes or bank notes without limit without any restriction or condition.
Therefore, the said Notification/SRO, which was in field at the time of seizure, authorizes the appellants to hold such unlimited foreign currency without any restriction and condition and were entitled to bring into Pakistan the whole amount of the recovered foreign currency.
12. In view of the above, the impugned Order-in-Original No. 225 of 2023 dated 25.10.2023, passed by the Collector of Customs (Adjudication), Islamabad is modified and Respondent is directed to release the whole foreign currency i.e., 18000 US Dollars and 13000 Afghani Currency to the appellants.
13. As far as, rest of the amount i.e., Pakistani currency is concerned, as per the above quoted Notification of the State Bank of Pakistan, the Notes legally tendered in Pakistan not exceeding Rs.
10,000/- (Rupees Ten Thousand Only) from any place other than India, in value in all per person at any one time can be brought into Pakistan, therefore, the amount of Rs. 10,000/- of Pakistani Rupees be also released to the appellants. Rest of the Pakistani currency shall remain confiscated.
The impugned order is modified accordingly.
14. The appeal is partly accepted and stands disposed of.
15. Copies of the judgment be sent to the parties and file be consigned to record after completion.