This is a petition under section 561-A, Cr.P.C. By Shaikh Saleem Ali, Managing Director, Messrs Capital Flour Mills, Lahore, petitioner, for the quashment of criminal proceedings pending against him and one other under section 4(3)/22/23 of the Foreign Exchange Regulation Act, 1947, in the Court of Sessions Judge (Foreign Exchange Tribunal), Lahore.
2. The prosecution case in brief is that on 31-12-1984, the Chief Controller of Imports and Exports granted import Licence No. 560751 to the Director of Industries, Government of West Pakistan for importing:-- "Flour Milling Machinery including Milling, Cleaning, Heating, Cooling. Equipments and Electric Cables, Wire, Tools and Accessories (excluding notified items) falling under:-- "I.T.C. Part IV Group M-2 Items Nos. 1, -2 and 3.
I .T.C Part IVM-1 No. 1.
I. T. C. Part IVE-2 No. 3, 4 and 11." for a total value of Rupees Four Lacs Fifty Thousand (Rs.4,50,000). The Director of Industries, Government of West Pakistan transferred this Import Licence in. Favour of Messrs Capital Flour Mills on 18-2-1965. Pursuant to the said Import Licence, Messrs Capital Flour Mills acquired foreign exchange by opening Letters of Credit Nos. 1288/65, 1287/65 and 976/65, dated 19-6-1965 for Rs.2,984, Rs.2,000 and Rs.20,000, respectively from West Germany through United Bank Limited, The Mall, Lahore, for the impart of Carbon Blocks under I.M.P. Form Nos. 716928, 748699 and 748674, dated 19-8-1965, 24-8-1965 and 17-7-1965 respectively. It is the case of the State Bank of Pakistan that Carbon Blocks which were imported were neither component parts of Flour Milling Machinery nor covered by Import Licence No. 560751. Rather, it was stated that the import of Carbon Blocks was not permitted under Public Notice No. 1(65) Import-R, dated 11-1-1965. In the private complaint filed against the petitioner it was also averred that the Carbon Blocks were neither utilized in the construction, completion or installation of the Flour Milling Machinery nor they could be sold privately or in the open market, which the petitioner and the importer company had done. It was finally averred that Shaikh Saleem Ali, petitioner, and his colleague Malik Muhammad Hayat Khan Taman had committed fences under section 4(3)/22/23 of the Foreign Exchange Regulation Act, 1947 and they were, therefore, punishable under section 23 of the said Act.
3. On behalf of the petitioner it is submitted that carbon blocks are used in carbon block brushes which are used in electric motors and that since electric motors constitute a part of the Milling Machinery, the import of carbon blocks did not constitute any violation of the goods that were permissible for import under the Import Licence in question. It is submitted that Flour Milling Machinery included items notified in Chapter IV Group M-2, Item No. 3, namely, "Machinery and Mill work and parts and accessories thereof of all sorts, not otherwise specified". It is further submitted that public notice, dated 11-1-1965 did not include carbon blocks as one of the items banned for import to Pakistan. It is further submitted that the bill of entry released by the Customs House, Karachi, showed the proper Brussel's nomenclature number and the equivalent Pakistani number for the item imported, namely, 85, 24/7232 and that the Customs Department, after seeing the relevant Import Licence, the invoices, the goods and the quantity, quality and the description of the goods, released the goods and, therefore, a press: ion should be drawn that the goods which were imported conformed the Import Licence. As regards the allegation that the petitioner-company had not used the carbon blocks in the construction, completion or installation of the Flour Mills or that they had privately sold the same in the open market, it is submitted that these offences fall under the Imports and Exports (Control) Act, 1950 but the complainant not having been filed in respect of any of the offences under the said Ordinance, the same cannot be urged against the petitioner-company.
4. I have heard the arguments of the learned counsel for the petitioner and the State Bank of Pakistan and have gone through the record. It cannot be denied that carbon blocks are used in carbon block brushes which are used in electric motors and electric generators. This is conceded even by the learned counsel for the State Bank of Pakistan, who himself has produced a book confirming the said fact. It is not denied that Import Licence No. 560751 permitted the import of Flour Milling Machinery including the necessary equipments and accessories relative thereto, which obviously included electric motors and generators to run the same. Carbon blocks being used in electric motors and generators cannot be said to be an item not covered by the Import Licence.
5. As regards the assertion of the learned counsel for the State Bank that the import of carbon blocks was not permitted by the public notice, dated 11-1-1965. The learned counsel was not able to show any specific head or item from the said notification by which Carbon blocks were excluded from the import.
6. As regards the allegation in the complaint that the carbon blocks were sold privately or in the open market in violation of the said public notice, dated 11-1-1965 or the provisions of the Imports and Exports (Control) Act, 1950, the complaint has not been submitted for violation of any section of the said Imports and' Exports (Control) Act, 1950. The complaint has beer: submitted only with regard to violation of the provision of the Foreign Exchange Regulation Act, 1947. The learned counsel for the State Bank of Pakistan has not been able to draw my attention to any prima facie evidence showing that the Capital Flour mills had sold privately or in the open market the carbon blocks.
7. The upshot of the above discussion is that prima facie no case appears against the petitioner for violation of sections 4(3) and 22 of the Foreign Exchange Regulation Act, 1947. In fact, the goods were also cleared by the Customs after physical inspection. Had the same violated the provisions of the import policy, they would have been forfeited.
8. For the foregoing reasons,, this petition is accepted and the complaint filed by the respondent under section 4(3)/22/23 of the Foreign Exchange Regulation Act, 1947, against the petitioner and another is hereby quashed.