' AJMAL MIAN, J.-The petitioner through this petition has prayed for the following reliefs :- "(a) To declare that the show-cause notice issued on 2-6-1982 to the petitioner as time-barred and as such quash the same;
(b) to declare that every act ensuing therefrom to be illegal, void and of no legal effect and as such set aside the same;
(c) to order the respondent to deposit with the Nazir of this Honourable Court, who shall be the constructive trustee of the petitioner, any proceeds that may have accrued from the conversion of the petitioner's goods; or in the alternative;
(d) to order the respondents to deliver the 23 packages of the,petitioner into the custody of the Nazir of this Honourable Court, as constructive trustee of the petitioner;
(e) the said proceeds of conversion or the delivery of goods be made to the petitioner by the Nazir;
(f) Grant cost of the entire petition and proceedings; and
(g) Grant any other/further/better relief or reliefs to the petitioner which this Honourable Court may deem fit and appropriate in the circumstances of the petition."
2. The brief facts leading to the filing of the above petition are that the petitioner, who is an Iranian businessm an and Irani national was dealing in Imports and Exports of goods. It has been averred that the petitioner imported certain goods from Dubai for Iran, which were to be transmitted through land route of Pakistan after their arrival at the Karachi Sea Port through the two launches, namely, Al-Data and Al-Kousar, which factually arrived on 17-3-1981 and 24-3-1981, respectively.
The petitioner's goods which comprised of 224 packages, were off-loaded at the Karachi Sea Port.
It seems that the above goods were seized by respondent No, 1 on the ground that the same were intended to be smuggled into Pakistan and were to be sold in Pakistan. It further seems that the petitioner was served with a show-cause notice dated 2nd June, 1981 c/o Mubin Ahsan, the petitioner's shipping agent. In pursuance of which respondent No, 1 passed an order dated 21st June, 1981 (despatched on 21st July, 1981) confiscating the aforesaid goods under section 156 (9) of the Customs Act, 1969 (hereinafter referred to as the Act).
' It may be observed that it is the case of the petitioner that the above show-cause notice should have been served within two months from the date of the seizure either on the petitioner or his clearing agent. It further seems that the petitioner filed C. P. No, 635 of 1981 on 29-7-1981 in this Court impugning the above action. In the above petition on the basis of the statement made by the learned Standing Counsel, Mr. Inayat Ali, the petition was disposed of by an order, dated 29-7- 1981, which reads as follows :- ' Mr. Rashid Munir for Petitioner. Syed Inayat Ali for Respondents. Date of hearing : 29-7-1981.
' AJMAL MIAN, J.-Syed Inayat Ali files a photostat copy of the memo. Dated 14-7-1981 indicating that the Board of Revenue has authorised the re-exporting of the consignment in question by the petitioner. Since the main relief prayed for by the petitioner stands conceded by the respondents the petition stands disposed of in the above terms with no order as to costs.
' After the passing of the above order by this Court, the respondents released 201 packages, out of above 224 packages and therefore, 23 packages were short delivered. The petitioner being aggrieved by the above short delivery has filed the above petition.
(3) (a) In support of the above petition Mr. Rashid Munir, learned counsel for the petitioner has urged as follows :-
(I) That the seizure of the goods was illegal as the goods were in transit and were not intended to be sold in Pakistan.
(ii) That the respondents have auctioned 23 packages without any lawful authority.
(iii) That before passing the confiscation order, the petitioner was not heard.
(iv) That the petitioner in any case is entitled to the auction sale-proceeds without any deduction of the sale tax, Customs Duty and K. P. T. Charges.
(b) On the other hand Mr. Inayat Ali, learned Standing Counsel, for the respondents has contended as follows :-
(i) That the seizure was legal.
(ii) That under subsection (4) read with subsection (5) of section 169 of the Act, the respondents were entitled to auction the seized goods before any adjudication.
(iii) That a notice was in fact issued to the petitioner through his agent.
(iv) That in any case above show-cause notice and the order passed in pursuance thereof for confiscation were not acted upon as the goods were released except 23 packages.
(v) That under subsection (5) of section 169 of the Act, the petitioner is entitled to receive the balance after deduction of Customs duties, sales tax and other charges.
4. Before dealing with the above contentions, it may be pertinent to point out that the above short delivered 23 packages were auctioned, according to the learned counsel for the respondent by 11th June, 1981 for a sum of Rs, 2,86,56., and according to the respondent a sum of Rs, 2,02,965 was deductable on account of the Customs duty and sale tax and a further sum of Rs, 12,540 on account of the storage charges, thus leaving a balance of Rs, 71,063, which sum, the respondents are willing to pay to the petitioner.
5. As regards the first contention of Mr. Rashid Munir, it may be observed that he has referred to a Ministry of Commerce notification dated 25th June 979, which indicates that under para. 6 of the Schedule 1 to the said notification, goods could have been imported for transmission across to any country outside Pakistan under claim for exemption of duty or for refund of duty either in whole or in part. In our view, the case as set up by the respondents was that the above goods though imported on paper for transmission accross Pakistan, but they were intended to be smuggled into Pakistan and were intended to be sold in Pakistan. If the above allegation was correct, the above notification had no application to the instant case. It may be observed that it is an admitted position that the petitioner did not insist on taking the goods to Iran, but agreed to re-export the same to the country of origin. It may also again be stated that respondent No, 1 had passed the aforesaid order confiscating the goods on the ground that they were in fact intended to be disposed in Pakistan. The above order was not acted upon in view of the direction given by the Federal Government. We are not inclined to go into the question, whether in fact the above goods were intended to be sold in Pakistan or not, because this involves investigation of the disputed question of fact.
6. Referring to the 2nd contention of Mr. Rashid Munir that the auction of the 23 packages before the adjudication was illegal, it may be stated that our attention has been invited by Mr. Inayat Ali, learned Standing Counsel for the respondent to subsection (4) of section 169 of the Act, which reads as follows :- "169 (4).-When anything liable to confiscation under this Act is seized by the appropriate officer under section 168, the Collector of Customs or any other officer of Customs authorised by him in this behalf may, notwithstanding the fact that adjudication of the case under section 179, or an appeal under section 193, or a revision under section 196 or a proceeding in any Court, is pending cause the thing to be sold in accordance with the provisions of section 201 and above the proceeds kept in deposit pending adjudication of the case or, as the case may be, disposal of the appeal or revision or the final judgment by the Court."
It may be observed that under the above-quoted subsection (4), it was permissible to auction the goods before even adjudication upon the question of confiscation. However, it was urged by Mr. Rashid Munir that the respondents could not have been given a blanket cover and that in fact the above subsection (4) of section 169 was intended to cover perishable goods, which was the practice followed by the Customs Authorities. In our view, no such condition can be spelt out from the above-quoted subsection. The auction therefore, during the pendency of the adjudicating upon was permissible under the above subsection (4).
7. Reverting to the 3rd contention of Mr. Rashid Munir that the petitioner was not heard before the passing of the order of confiscating dated 21-6-1981, it may be observed that he has invited our attention to the aforesaid show-cause notice dated 2-6-1981, which was addressed to the petitioner, but was sent care of Noor & Company, Machi Miani Road, Kharadar, Karachi. It has been vehemently urged by Mr. Rashid Munir that the show-cause notice should have been served on the petitioner or on Messrs Jan & Co., who had sent their letter dated 17-3-1981 to the Customs Authorities indicating that they were appointed the petitioner's clearing agent. It has been further urged by him that since the above show-cause notice was not served in accordance with the law, the above show cause notice and the order passed in pursuance thereof were illegal. It will suffice to observe that the above show-cause notice as well as the above-order were not acted upon inasmuch as in pursuance of the aforesaid direction of the Federal Government, the goods comprising of 201 packages were released to the petitioner for reexport to the country of origin.
8. As regards the 4th contention of Mr. Rashid Munir that the petitioner is entitled to the sale- proceeds of the auction of the above 23 packages, it may be mentioned that our attention has been iuvited by Mr. Inayat Ali to subsection (5) of section 169 of the Act, which reads as follows :- "169 (5).-If on such, adjudication or, as the case may be, in such appeal or revision or proceeding in Court, the thing so sold is found not to have been liable to such confiscation, the entire sale proceeds, after necessary deduction of duties, taxes of dues as provided in section 201, shall be handed over to the owner."
' It may be observed that the above-quoted subsection provides that if on such adjudication or as the case may be, in such appeal or revision or proceeding in Court, the thing so sold is found not to have been liable to such confiscation, the entire sale-proceeds after deduction of duties taxes, duties or dues as provided under section 201 shall be banded over to the owner. However, it was urged by Mr. Rashid Munir that subsection (5) of section 169 can b pressed into service only if the seizure is legal and since the seizure was illegal, the petitioner is entitled to receive the full amount of the proceed without any deduction. In this regard, it may be pertinent to observe that the goods were auctioned on the basis that the Customs duties and sale taxes were paid and, therefore, normally the sale proceeds would be more than cost of the goods without payment of duties and taxes etc. In our view, even if it is to be held that the seizure was illegal, the petitioner will not be entitled to the entire sale-proceeds for the foregoing reasons. The petitioner's right if any, may be to make a claim for the value of the goods sold and damages if any.
9. It was next contended that under section 171 of the Act the respondents were under obligation to inform the petitioner in writing the grounds of seizure which was not done, and, therefore, seizure was illegal. Reliance has also been placed upon the case of Azizullah v. The State (1) in which the, facts were that an Afghan national was arrested and the goods were seized from his possession at the Air Port and it was held that since the grounds of] seizure were not conveyed to the appellant/accused, there was violation of] section 171 of the Act. It will suffice to observe that in the instant case the seizure had taken place at the K. P. T. Shed. According to Mr. Rashid Munir there was a news item in the Dawn dated 8th September, 1981. In our view, the above Karachi case is distinguishable from the instant case. Furthermore, we are not inclined to go into the above question, as the petitioner may have to file some other legal proceeding for the recovery of the actual price of the goods and damages if he feels that he is entitled to the same. We, therefore, dismiss the above petition, subject to the right of the petitioner to receive the aforesaid balance amount lying with the respondents without prejudice to his right to file other proceeding for the recovery of the price or any damage in accordance with law. Any observation made hereinabove will not prejudice the petitioner's proceeding if any filed by him.
(1) PLD 1981 Kar. 251