1. SALAHUDDIN AHMED, J.-In this Rule nisi issued on an application under Article 98 of the Constitution the petitioner has challenged the legality of certain orders passed against him under section 167(8-B) of the Sea Customs Act by the Collector of Customs, Chittagong on the 15-10-1965, and maintained in appeal and revision by the Central Board of Revenue, Government of Pakistan and by the Joint Secretary, Government of Pakistan, Ministry of Finance respectively.
2. Petitioner No. 1 is the proprietor of a fountain pen assembl--ing industry known as East Pakistan Industries and petitioner No. 2 is a partner of the former. This Rule is in respect of fountain pen parts imported on two licences being No. 526966 dated 26-10-1964 and No. 758034 dated 28-9-1964 (hereinafter called the said import licences), for the shipping period July---December 1964. The case of the petitioners is that petition No. 1 has been regularly importing fountain pen part in accordance with the licences issued to it under an order of the Central Government made under section 3 of the Imports and Exports (Control) Act, 1950. Hereinafter called the Act of 1950, since the shipping period beginning from January to June 1963, and has been clearing consignments of the said fountain pen parts. Except on one occasion, namely, for the shipping period July to December 1963 the imported articles were cleared through the customs at Chittagong and at Chalna without any objection from the authorities concerned. Only in the case of such articles imported on a licence issued for July to December, 1963 the consignment was cleared after the matter had been referred to the Collector of Customs, Chittagong (respondent No. 1) and the Controller of Imports and Exports (respondent No. 4). It is further stated that until the 8th February 1965 neither the Customs authorities including the Collector of Customs nor the Controller of Imports and Exports was of the view that the fountain pen parts imported by petitioner No. 1 were not permissible on the import licences held by the petitioner notwithstanding the fact that prior public notice issued by the Chief Controller of Imports and Exports, similar to the prior public notice issued in the present case, existed Furthermore, it has been stated that the public notice dated the t-7-64 Issued in the present case, which appears at page 135 of "Manual of Imports and Exports Control" issued under the authority of the Chief Controller of Imports and Exports, Government of Pakistan, merely lays down the import policy of the Government for the shipping period July to December 1964, and is meant for the guidance of the public as well as the authorities responsible for issuing licences in accordance with the order of the Central Government dated the 12-6-51 made in exercise of the powers conferred by section 3(1) of the Imports and Exports Act, 1950 (XXXIX of 1950). The petitioners have stated that the aforesaid public notice has no legal sanction behind it to enable the authorities to institute legal proceedings against the licenses importing fountain pen parts on a licence issued in disregard of the terms of the said notice. The petitioners have further stated that the Superintendent, Foreign Posts Customs, Dacca has also released a consignment comprising fountain pen parts other than fountain pen nibs imported under the aforesaid import licences. It is claimed that the said import licences expressly permitted petitioner No. I to import "fountain pen parts" without any restriction, whatsoever and without any indication that "fountain pen parts" referred (sic) merely (sic) to "fountain pen nibs".
3. Two sets of affidavits-in-opposition have been put in, one on behalf of respondents Nos. l to 3, (1)
4. Collector of Customs, Chitta--gong, (2) Central Board of Revenue, Government of Pakistan, (3) the Government of Pakistan through the Joint Secretary, Ministry of Finance, and the other on behalf of respondent No. 4, the Controller of Imports and Exports Government of Pakistan, Dacca. It is significant to note that in none of the affidavits any legal sanction has been claimed for the public notice in question. It has never been asserted that the said public notice has been issued under any provision of law. All that has been said in the affdavits is that the aforesaid public notice contains the policy of the Government of Pakistan directing inter alia that for the shipping period July to December 1964 only "fountain pen nibs" should be permitted to be imported in accordance with the licence to be issued under the aforesaid order of the Central Government dated 12-6-51. It is further stated that the afore--said public notice and the said import licences are inter-related and they must be considered together to determine what goods are permissible for import under the said import licence. It is claimed that as the aforesaid public notice containing the policy for the shipping period in question permitted importation for fountain pen nibs only, the notice must be regarded as putting a legal restriction on the importation of all fountain pen parts other than nibs irrespective of anything to the contrary in the said import licences. - It is, therefore, submitted that the petitioner has imported fountain pen parts other than nibs in contravention of the import policy for July to December, 1964 and is con--sequently liable under the law for having contravened the provi--sions of the 1950 Act.
5. Learned Advocate Mr. Haidermota appearing for the peti--tioners has contended that petitioner No. 1 has not contravened any provisions of law so as to make it liable for any proceeding under the Sea Customs Act. He has argued that the petitioner 'has imported "fountain pen parts" strictly in accordance with the terms of the said import licences which expressly permit the importation of "fountain pen parts", without any restrictions. He has further contended that the public notice merely contains the policy of the Government of Pakistan in regard to importa--petition of certain articles and that it has no legal sanction behind it.
6. Appearing on behalf of the respondents learned Deputy Attorney-General, too has failed to point out any law under which the aforesaid public notice has been issued.
7. We are in full agreement with the contentions advanced on behalf of the petitioner. The said import licences have admit--tedly been issued in terms of the order of the Central Government dated 12- 6-51 issued under section 3(1) of the Imports and Exports Control Act, 1950. This order of the Central Government which is to be found at page 105 of the said Manual of Imports and Exports, prohibits the import by sea, land or air from any country outside Pakistan of any goods of the description specified in the schedule annexed to the order except inter alia, the following namely, (XIII) any goods which are covered by import licence or an import permit or a clearance permit issued by the Chief Controller of any Controller or Deputy Controller or Assistant Controller of Imports and Exports (vide, at page 107 of the said Manual). The said schedule mentions "fountain pen and parts thereof, including nibs for fountain pens" under part IV Group `S' item 2 at page 138 of the said Manual. The import licences one of which has been annexed to the petition as Annexure "A", expressly mention fountain pen parts under I. T. C. Classification IV/S/2, which means part IV, Group S, item 2 of the said Schedule at page 138 of the Manual. We are told that the aforesaid order of the Government dated 12-6-51 has not been superseded or in any way modified. In these circumstances the conclusion is inevitable that petitioner No. 1 has "fountain pen parts" which have been specifically mentioned an the said Import licences strictly in accordance with law and with the express permission granted to it by the requisite authority, namely, the Chief Controller of Imports and Exports, Government of Pakistan. It follows, therefore, that the petitioner has not contravened any provision of law while importing "foun--tain pen parts" in accordance with the said import licences.
8. As regards the said public notice dated 1-7-64 (as amended up to 17-9-64) appearing at page 155 of the said Manual it may be recalled that none of the respondents claimed any legal sanction for the notice nor has mentioned any provision of law under which the notice was issued or could be issued. In this connection the character of the notice appearing at page 3 of the said Manual also supports the conclusion that the public notice has no legal sanction behind it. At page 3 of the said Manual the following passage appears under the sub-heading "Public Notices--- "Details of policy and procedures on import and export and basis for issue of licences are announced through public notices for the guidance of the public. These public notices are Issued either by the Ministry of Commerce or the Chief Controller of Imports and Exports and regional Controllers.
9. The Chief Controller issues public notices announcing import policy for every shipping period in accordance with the decisions of Government. The policy so announced lays down procedure for licensing under cash, and or loan and other, related matters. The regional Controllers issue public notices announcing the basis of licensing for import of commercial items and industrial requirements in respect of their regions."
10. It is also of interest to quote the following from the case page of-- the Manual :- "The Chief Controller heads the import and export Con--troller organisation with offices in different parts of the country. He is responsible for issue of licences and implementation of the policies of Government relating to imports and exports."
11. It is evident from these extracts that public notices merely} contain details of policy and procedures on import and export and furnish basis for issue of licences, and further that the Chief Controller of Imports and Exports who heads the import and: export control organisation in the country is solely responsible not only for the issue of licences but also for the implementation of the policies of Government relating to imports and exports. Considered in the light of these instructions the said import licences authorising the importation of fountain pen parts have no doubt been issued in clear disregard of the Government policy as contained in the said public notice but, for this the petitioner --should not be held liable, if any one is guilty of disobeying the --instructions contained in the public notice issued under the --signature of the Chief Controller of Imports and Exports, it is the authority itself which issued the public notice and was required, under the said Manual to implement the policies of the Government relating to imports and exports. In these circumstances we are: clearly of opinion that petitioner No. 1 is not guilty of contra--vention of any law so as to make it liable for the action under-- section 19 of the Sea Customs Act read with section 3(3) of the --Imports and Exports (Control) Act which have led to the confis--cation of the petitioner's goods and section 167(8-B) of the Sea Customs Act and to an imposition of the fine of Rs. 50,000, in~ lieu of confiscation of the goods. It is of interest to quote here the following passage from the order passed by the Government of Pakistan (Vide Annexure `J' paragraph 7 page 72 of then petition) :- "The Government after considering all the circumstances of the case is of the view that the contention of Advocate that a Public Notice issued by CCI and E was of no value was not, acceptable. It is however, quite true that because of the various --acts of omission and commissions in which the CCI and 1 and the Collector of Customs are involved the petitioners, could be said to be under the impression that they could import fountain pen parts other than nibs also under the licence held by them. While holding them guilty of ITC contravention the Government is of the view that the ends of justice would be met if the fine of Rs. 1,50,000 fixed iv lieu of confiscation of the goods by the Collector is reduced to Rs. 50,000 (Rupees fifty thousand only).
12. To this extent therefore the revision is admitted."
13. We accordingly make the Rule absolute and declare that the impugned orders dated the 16-10-65, 28-2-66 and 22-10-66 passed respectively by the Collector of Customs, Chittagong the Central Board of Revenue, and the Government of Pakistan has been passed without lawful authority and are of no legal effect.
14. It may be mentioned here that Annexure `I' mentioned in prayer (A) of the petition and in the aforesaid Rule nisi is an inadvertant error for Annexure `J'.
15. We further direct the respondents to release the petitioner's consignment of fountain pen parts which are the subject-matter of the impugned orders. In the facts and circumstances of the case we award petitioner No. 1 costs of five gold mohurs to be paid by respondent No. 4 alone.
16. A. H. KHAN, J.----I agree.