' Ali Nawaz Budhani, J.-- ' By our short order dated 14th September,1983 we had dismissed this Constitutional Petition for the reasons to be recorded later. Following are the reasons for our aforesaid order.
2. The petitioner in the instant Constitutional Petition is proprietor of Messrs Shinwari Minerals and Rocks, Landi Kotal. He obtained an Import Licence bearing No,506967 for the import of ball bearings. The said licence was issued by the Chief Controller of Import and Export and the Executive Officer and the Controller of Import and Export Peshawar. Petitioner opened a letter of credit bearing No,81/027/R.G.307 with his bankers Messrs. Allied Bank Ltd., G.T.Road, Peshawar on 7th March,1981. Pursuant to the sai4 letter of credit the petitioner appointed his attorney in order to have assistance and representation on behalf of taxes etc. The goods were imported and were received at the port but since the goods were not in accordance with the required classification, the same were seized by the Customs Authorities. The goods remained at the port for a period more than one and half year and that in the process, the consignment was damaged and rusted and had become unserviceable. The petitioner made efforts to get the consignment released from the Customs Atuthorities or in the alternate to transfer the consignment to State Ware-House to save himself from the acts of excessive demurrage. The respondent served a show-cause notice,- dated 22nd August,1981 to show-cause as to why legal actions should not be taken under S.156(1)
(14) of the Customs Act,1969. Consequently the petitioners counsel appeared before the respondent No,1 and argued the show cause notice and drew the attention of the respondent No,1 to S.168(2) of Customs Act. The arguments were heard and no order was passed though repeated requests were made to pass the final order He, therefore, filed the present Constitutional Petition.
He prayed in the said petition as under:-
(i) To declare that the show-cause notice given to the petitioner is illegal, and has been passed without jurisdiction the same being in violation of the provision of subsection (2) of the S.168 of Customs Act, and as such, is without lawful authority.
(ii) That the respondents Nos.1 and 2 be directed to release the goods of the petitioner, lying at the Karachi Port Trust unconditionally.
(iii) Any other reliefs which this Court may deem fit and proper under the circumstances of the case.
(iv) Cost of the petition be awarded.
3. The respondent No,1 filed counter-affidavit showing that the petitioner has not come with clean hands. In fact the actual petitioner Ali Umer knows nothing of these proceedings and his attorney by name Shah Muhammad who has not only signed Constitutional Petition but had answered the show-cause notice wherein after admission of the offence has prayed for a lenient view. In para. 5 of the counter-affidavit of the respondent No,1' he has contended that it is not a case of seizure under section 168 but it is a case of a deliberate wrong import against an import licence which does not cover the goods in any respect. The goods were imported without a valid licence. The petitioner had imported ball bearings of the prohibited sizes and such sizes are not covered by the licence. The number of bearings said to be imported and as shown in the Bill of Entry and invoice, are 14,388 pieces, while in fact the actual number of ball bearings consisted of 86,910. The value shown is Rs,5,04,534 but the actual value of the ball bearings so imported is at Rs,15,30,620.40. Thus, offence' were committed under three statutes namely Import and Export (Control) Act, The Foreign Exchange Regulation Act,1947 and the Customs Act IV of 1969. It is further contended by the respondent No,1 that the forgerywas committed in obtaining clearance and two appraisers of the Customs were also involved A criminal case was registered which is pending against the petitioner who is absconder and five others under 5.156(1), Items (77) and (82) of the Customs Act.
1969. The petitioner concealed all the facts from the Honourable Court and by misrepresentation obtained a release order "by consent" against bank guarantee. The cleverness of the petitioner is evident in this respect. He did it to avoid the confiscation of the goods outright. At present the goods are out of charge of the Customs Authorities and penalty cannot be imposed. It is further contended that the petition is not maintainable. The goods were not seized under section 168 but were imported without valid licence and as scuh were detained because such goods were brought in the country illegally. Further, it is contended in the counter-affidavit that there was no hearing on 22nd October,1981 as alleged in the petition.
4. This petition was argued by the learned counsel Mr.Raja Qureshi on behalf of the petitioner and Mr.Muzaffar Hussain argued the petition on behalf of the respondents.
5. In his arguments the learned counsel for the petitioner Mr.Raja Qureshi drew our attention to section 168 clause 2 of the Customs Act, which is reproduced as under:- "Where any goods are seized under subsection (1) and no stfoW-cause notice is given under S.180 within two months of the seizure of the goods, the goods shall be returned to the person from whose possession they were seized, provided that aforesaid period of two months may for reasons to be recorded in writing be extended by the Collector of Customs by a period not exceeding two months."
6. Clearly the section so referred is not applicable in this case and it is misconceived by the learned counsel. These goods were not seized. They were imported without a valid licence. In the contentions raised in the petition the facts were suppressed. The learned counsel has no reply to explain as to how the ball bearings of forbidden dimension and sizes were imported and as to why instead of importing the ball bearings of a smaller dimension to the extent which was permitted in the Import Licence, ball bearings of bigger dimension and size to an excessive number of 86,910 were imported. In the arguments he stated that it was the mistake from the source wherefrom it was ordered to be imported i,e, Hong Kong but he concedes that the goods of forbidden nature were imported and in excessive number. Mr.Muzaffar Hussain, learned counsel for the respondents states that the goods were not seized under section 168(2) of the Customs authorities and they were detained and were liable to penalty and confiscation as required under section 17 of the Customs Act. The section 17 of the Customs Act may be reproduced as under:- "Detention and confiscation of goods imported in breach of section 15 or section 16 where any goods are imported into or attempted to be exported out of Pakistan in violation of the provisions of S.15 or of a notification under S.16, such goods shall, without prejudice to any other penalty to which the offender may be liable under this Act, or any other law, but subject to rules, be liable to detention and confiscation."
This is not a case of seizure of goods under section 168(2) but a case which is envisaged by sections 15, 16 and 17 of the Customs Act. Mr.Muzaffar Hussain has further argued that the proceedings started by the attorney were the proceedings based on fraud and a criminal case is filed and is pending before the competent Court i,e, Special Customs Court. It is further stated by the learned counsel for the respondent No,1 that a Consent order was obtained from this Court under a bank guarantee and the goods were released on that consent order although subsequently applications were made by respondent No,1 for amendment of the said order and grant of stay to the respondent in respect of the goods but unfortunately by an order of this Court Miscellaneous Application for the stay or to amend the consent order were dismissed. Thus the goods were out of the custody of the Customs Authorities.
7. On the other hand Mr.Raja Qureshi has referred to an unreported judgment by S.Rehman, J. Of Lahore High Court. We have perused the judgment and the facts involved in that case are quite different from the facts of the present case. A bus was intercepted by the Rawalpindi Central Excise and Customs and on search of fruit other articles were secured which were presumed to be smuggled articles. These artilces were seized alongwith the bus and section 168(2) came into operation. In the present case the goods were imported without a valid licence and goods were received at Port Wharf. The goods were not seized but were detained for confiscation and penalty, under section 17 of the Customs Act. We, therefore, are of the opinion that the unreported case referred to us is on the different footing than the present case. On the date of final hearing, however, the learned counsel. Mr.Raja Qureshi submitted that the petition may be allowed to be amended but we declined to do so as we thought it was to protract the case.
8. The petition was not maintainable and unfortunately on furnishing only a bank guarantee the goods were taken out from the custody of the Customs. For the facts and reasons discussed above, we dismiss the petition with costs and direct that the amount furnished as bank guarantee may be realized by the Customs Authorities.