AJMAL MIAN, ACTG.C.J.-- This petition is directed against the orders, dated 27th March, 1975, 18th April, 1977 and 15th July, 1984 passed by respondents Nos. 1, 2 and 3 respectively. The brief facts leading to the fling of the above petition are that two trucks/trailers entered into Pakistani border from Nokundi side with the goods loaded in West Germany. The Superintendent, Land Customs, Nokundi Station sent two bills of lading/manifest of the two trucks filed at the border to the Land Customs Office, Quetta. The details of the Truck Nos. And the bills of lading/manifest are as follows:- "(1) Truck/Trailer No. 34-PV-204/34-LP-404
(a) Bill of Lading/Manifest No. 161.M.0970, dated 26-7-1974.
(b) Number of packages = 361.
(2) Truck/Trailer No. 34-PV-205/34-LP-405.
(a) Bill of Lading/Manifest No. 166.M.5024, dated 26-7-1974.
(b) Number of packages = 485.
Total number of packages = 846."
On 28th August, 1974, the petitioner filed three bills of entries through their Clearing Agent, which was also signed by the petitioner, i.e. (i) bill of entry bearing No. 105 covering 168 cases, (ii) bill of entry bearing No. 106 covering 269 cases; as per declaration of the petitioner both above consignments i.e.; 437 cases contained pharmaceutical glass ampoules and (iii) bill of entry bearing No. 107 covering 11 cases, as per declaration contained chemicals. The total value of the contents of the above cases covered by the above three bill of entries was declared as Rs.6,17,530.40. The above first two bill of entries were assessed by the Customs Office at Quetta on 29th August, 1974 at the rate of 10% sales tax, but the aforesaid third bill of entry was not assessed, as the petitioner claimed exemption from payment of sales tax. In pursuance of the above assessm ent, the petitioner deposited Rs.25,291 and Rs.27,310 as sales tax amounts against the above bill of entries bearing Nos. 105 and 106 covering 168 and 269 cases respectively on 29th August, 1974 and got clearance. While the above trailers were proceeding towards Lahore, they were intercepted by the Customs staff at Sariab Road, Quetta on 29th August, 1974 and were brought back to the Customs Office at the Railway Station, Quetta. They were un-loaded and it was found that instead of 448 cases as declared, the trailers contained 843 cases. Upon opening of the cases, it was found that the contents of the cases comprised of cosmetics, perfumes, soaps, toilet preparations, empty lipstick containers, air-conditioners and automobile parts etc. Their value was assessed at Rs.1,53,41,018. The petitioner was arrested and proceeded with before the Customs Tribunal for the Criminal Offence, which culminated in acquittal order. He and the other two persons, named Abdul Rashid and Shahid Hussain, in addition to the firm, were issued with a show- cause notice, dated 25-10-1974 by the Collector Central Excise and Land Customs, Hyderabad.
They submitted a reply, dated nil denying the allegations contained in the above show-cause notice and stating therein, that they were issued five import licences i.e.; three for chemicals (for a sum of Rs. 1 lac, Rs. 1 lac and Rs.57,000; one for hardware covering metallic containers for Rs.1 lac, and one for pharmaceutical glass ampoules for Rs.10 lacs. It was also stated by them that they had opened L.Cs. With the three German firms for the items mentioned, the details of which were given as follows:- S. No.Name of the Suppliers. Goods imported from the Suppliers.
1. Messrs Margaret Astor A.G. West Germany.1. Glass Ampoules.
2. Chemicals.
3. Metallic containers.
2.Messrs Degussa, West Germany.1. Chemicals.
3. Messrs Hankel International GmbH, West Germany.1. Chemicals.
It was also stated that upon enquiry from their supplier, they had come to know that cosmetics and certain other goods were loaded in the said trailers by their supplier by reason of inadvertance and misdirection by the labourers and their Export Manager.
Respondent No. 1 i.e., the Collector, Central Excise and Land Customs, Hyderabad after getting the value of the items re-assessed by the Principal Appraiser, Customs House, Karachi at the petitioner's request and after hearing him, by his above impugned order, dated 27th March, 1975 ordered outright confiscation of the seized goods under section 156(9) and section 156(14) of the Customs Act, 1969 (hereinafter referred to as the 'Act') and also imposed a penalty of Rs.50 lacs under each of the above two provisions of the Act.
The petitioner being aggrieved by the above order filed an appeal before the Central Board of Revenue, Islamabad which by its order, dated 18th April, 1977 dismissed the same. After that, the petitioner went in revision before the Federal Government, Ministry of Finance, but the same was also dismissed by the aforesaid impugned order, dated 15th July, 1984. The petitioner being aggrieved by the above orders has filed the present petition.
2. In support of the above petition Mr. Zaheer Ahmed, learned counsel for the petitioner has urged as follows:-
(i) That since no notice under section 171 of the Act was served upon the petitioner at the time of seizure of the goods, the entire proceedings and the orders passed, stand vitiated;
(ii) That since the Customs Officer concerned had assessed the above bills of entries, the Collector of Customs or any other Officer was not competent to re-open the case except that the Central Board of Revenue at the relevant time was competent to re-open the case under section 195 of the Act;
(iii) That Mr. S.T.R. Zaidi, Collector, Central Excise and Land Customs, Hyderabad, was not validly appointed as the Collector of Customs and, therefore, the proceedings taken by him and the order passed in pursuance thereof, are void;
(iv) That section 181 of the Act is ultra vires as it confers un-fettered discretion without providing any guideline to the Officer to give option to pay in lieu of confiscation of the seized goods or to confiscate outright.
(v) That the goods which were covered by the import licences and the bill of entry could not have been forfeited with the goods, which were not covered;
(vi) That the valuation of the goods has not been determined as provided under section 25 of the Act;
(vii) That in order to invoke section 33 read with section 156(14) of the Act, it was incumbent upon the Customs authorities to have proved that the petitioner had deliberately made the false statement, which they failed to discharge and, therefore, the invoking of the above provisions, was not warranted by law;
(viii) That the Appellate Order was no order in the eye of law, as it did not contain any reason for dismissal of the appeal;
(ix) That since the Customs authorities found that lipstick containers were partly made of metal and partly of plastic, they were covered by the import licence pertaining to hardware, as per Rule 3(c) of the interpretation contained in the Customs Tariff Manual, 7th Edition by Najib A. Choudhry, Advocate, and
(x) That the imposition of the penalty in the sum of Rs.50 lacs under section 156(9) of the Act was not justified, as the goods were not imported by the petitioner without the import licences, but were sent by the supplier by mistake.
On the other hand, Mr. Raja M. Afsar, learned counsel appearing for the official respondents has contended as under:-
(i) That the scope of Constitutional jurisdiction of this Court is limited to jurisdictional defects and this Court cannot interfere in exercise of the above jurisdiction merely because of the fact that the competent forum has taken an erroneous view in the matter;
(ii) That the instant case involves complicated disputed questions of facts and, therefore, it is not a fit case, in which, this Court should press into service its constitutional jurisdiction;
(iii) That admittedly, the petitioner was smuggling the items without any import licence valuing lacs of rupees and this Court would not exercise its discretionary relief in favour of the petitioner, whose conduct was questionable;
(iv) That the petitioner cannot be allowed to agitate the question that no notice under section 171 of the Act was served, as the same was not raised either before the Collector or before the Central Board of Revenue in appeal, nor in the memo. Of revision before the Federal Government, but first time was raised through the supplementary submission made by the petitioner's counsel through his letter, dated 17th July, 1983 (Annexure P.10 to the petition);
(v) That there is a distinction between an irregularity committed at the investigation stage and at the stage of trial and any irregularity at the former stage, would not vitiate the subsequent proceedings; and
(vi) That the confiscation of the seized goods and imposition of penalty of Rs.50 lacs on each count under section 156(9) and 156(14) of the Act, were justified and were in accordance with the law.
3. Adverting to the first submission of Mr. Zaheer Ahmed, learned counsel for the petitioner that since no notice under section 171 of the Act was served upon the petitioner at the time of seizure of the goods, the entire proceedings and the orders passed, stand vitiated, it may be observed that he has referred to section 171 of the Act, which provides that "when anything is seized, or any person is arrested under this Act, the officer or other person making such seizure or arrest shall, as soon as may be, inform in writing the person so arrested or the person from whose possession the things are seized of the grounds of such seizure or arrest". He has also referred to the following cases:-
(i) S.M. Yousuf and others v. Collector of Customs and others, reported in PLD 1968 Kar. 599, in which, a Full Bench comprising of three learned Judges of the erstwhile High Court of West Pakistan while construing section 172-A(i)(ii) and (iii) of the Sea Customs Act, 1878 and Article 2 of the late Constitution of Pakistan, 1962, held that the requirement of the above section 172-A of the Sea Customs Act, 1878 provided safeguard and failure to prepare statement in writing of his belief that the premises to be searched had smuggled goods, amounts to breach of statutory provision and violation of Article 2 of the Constitution.
(ii) Abdul Rauf and another v. The State and another, reported in 1983 P Cr. L J 19. In the above case, the then Acting Chief Justice of this Court allowed a Constitutional Petition against the conviction under the Act on the ground that the mandatory notice under section 171 of the Act was not served before initiating criminal prosecution under the Act.
(iii) Hizbullah v. The State and another, reported in PLD 1984 Quetta 1, in which, another the then Acting Chief Justice of this Court while acting as the Special Appellate Court (Customs) took the view that non---compliance of section 171 of the Act would not vitiate the trial.
It was urged by Mr. Zaheer Ahmed, learned counsel for the petitioner that the latter case does not lay down the correct law apart from the fact that the earlier judgment of this Court mentioned hereinabove at S. No. (ii), was a judgment of the High Court, which was binding on the learned Special Appellate Court (Customs) and, therefore, the latter judgment is void in fact. It may be observed that it is not ascertainable as to how the learned Acting Chief Justice could have disposed off a writ petition while sitting S.B. Be that as it may, the view taken in the above subsequent case of this Court reported in PLD, 1984 Quetta 1, seems to have been impliedly approved by the Honourable Supreme Court of Pakistan while dismissing a petition for leave i.e.; Criminal Petition No. Q-2 of 1984 in the case of Momeen Khan v. The State decided on 8th May, 1984 against the judgment of the learned Special Appellate Court (Customs), dated 14th April, 1984, in which inter alia it was also held that non-service of notice under section 171 of the Act does not vitiate the criminal trial resulting into conviction.
4. In our view, it is not necessary for us to examine the question, whether one view is correct or the other. It will suffice to observe that in the present case, the departmental proceedings under the Act were taken against the petitioner in October 1974. He did not raise any objection either before the Collector or before the Appellate authority i.e.; the Central Board of Revenue, or even in his memo. Of his revision to the effect that he was not served with any notice under section 171 of the Act. As pointed out hereinabove, first time the petitioner had come out with the above contention in July 1983 through his Advocate's letter, dated 17th July, 1983 (Annexure P.10 to the petition). The question, whether a notice', was served or not, is a question of fact, which should have been raised at the earliest opportunity. The view taken by the revisional authority in the instant case that the petitioner could not be allowed to agitate the above question after about 10 years, seems to be in consonance with law. Even otherwise, the mere fact that this Court might have taken a different view, would not justify the interference by this Court. It was further submitted by the learned counsel for the petitioner that it was for the Customs authorities to have alleged the factum of service of the above notice under section 171 of the Act and to have proved the same even in the absence of any objection from the side of the petitioner. In our view, there is a marked distinction between a criminal prosecution under the Act or under any other Penal Law and a departmental proceeding under the Act. One may urge that in a criminal prosecution the entire burden squarely lies on the prosecution, but in a departmental proceeding, the burden on the department to prove, may not be so heavy, as the latter proceedings are for condemnation of the goods smuggled and not to punish corporally the person involved. In our view, the petitioner should have raised this point before the Collector in response to the show-cause notice and in the absence of any such objection, he could not have been allowed to agitate the above question after expiry of nearly 9 years before the revisional authority.
5. Reverting to Mr. Zaheer Ahmed, learned counsel for the petitioners' second submission that since the Customs Officer concerned had assessed the above bills of entries, the Collector of Customs or any other Officer was not competent to re-open the case except that the Central Board of Revenue at the relevant time was competent to re-open the case under section 195 of the Act, it may be observed that he has invited our attention to section 195 of the Act, as stood prior to the Finance Act, 1975, which provided that `the Board may of its own motion call for and examine the records of any proceedings under this Act for the purpose of satisfying itself, as to the legality or propriety of any decision or order passed therein by an officer subordinate to it and may pass such order as it may thinks fit ....' It may be observed that by the Finance Act. 1975, the words `or the Collector of Customs' were added to, but since the instant case is of 1974, the above amendment is not relevant as rightly pointed out by Mr. Zaheer Ahmed, learned counsel for the petitioner. In this regard, it may be stated that this point was also first time raised by the petitioner through his Advocate's above letter, dated 17th July, 1983 and not either before the Collector or before the Appellate authority i.e.; the Central Board of Revenue. Be that as it may, we are inclined to hold that the above section 195 of the Act has no application to the instant case, as rightly held by the Federal Government in the revisional order. It is not a question of re-opening of a disposed off or adjudicated case. Admittedly, the petitioner had filed declarations through the above three bills of entries to the effect that 437 cases contained pharmaceutical glass ampoules and 11 cases contained chemicals. Contrary to the above declarations, upon re-examination, 843 cases were found, which contained different items that what was declared. It was not a case of re--opening of an adjudicated or assessed case, but it was a case of detection of an attempt to smuggle goods.
Mr. Zaheer Ahmed, learned counsel for the petitioner has referred to the cases of secretary of State v. Mask & Company, reported in AIR 1940 P C 105 and William Lawrence v. Government of Pakistan and others, reported in 1986 SCMR 1077. In the former case, the Privy Council while construing section 188 of the Sea Customs Act, 1878 held that the words `decisions or orders' used in the above section are wider words and of a more general nature than adjudications referred to in section 182 and are not confined to adjudications under section 182, but include decision by an Officer of Customs as to the rate of duty applicable to particular goods, which necessarily involve the determination of the particular category in the tariff classification into which the goods fall.
Whereas, in the latter case, a petition for leave was declined against the judgment of the Sind High Court, whereby the writ petition was dismissed on the ground that the alternate remedy provided under the Act was not availed of by the party in respect of proceedings initiated by, the Collector under section 195 of the Act.
6. In our view, the above cases have no application to the instant case for the reasons already recorded hereinabove.
7. As regards Mr. Zaheer Ahmed's contention that Mr. S.T.R.. Zaidi, Collector, Central Excise and Land Customs, Hyderabad was not validly appointed as the Collector of Customs and, therefore, the proceedings taken by him and the order passed in pursuance thereof, are void., it may be observed that he has referred to section 2(e)(f) and (g) and section 3 of the Land Customs Act, 1924 in furtherance of his above submission. It may also be observed that section 3 of the Land Customs Act, 1924 provides that the Chief Customs Authority may, by notification in the official gazette, appoint, for any area adjoining a foreign frontier and specified in the notification, a person to be the Collector of Land Customs and such other person as it thinks fit to be Land Customs Officers. Whereas, section 2(e) gives the definition of the expression `foreign frontier' by providing 'it means the frontier separating any foreign territory from any part of Pakistan'. It may also further be observed that sub-clause (f) of section 2 defines the expression `foreign territory' as means `any territory which has been declared under section 5 of the Indian Tariff Act, 1894 to be foreign territory for the purposes of that Act', whereas, clause (g) of section 2 provides the definition of the expression `land customs area' as means `any area adjoining a foreign frontier for which a Collector of Land Customs has been appointed under section 3'. It was, therefore, contended by the learned counsel for the petitioner that the Notification, dated 13th April, 1967 issued under section 3 of the land Customs Act, 1924 (Annexure `P.13' to the petition) appointing, inter alia, the Collector of Central Excise, Hyderabad for the areas, namely, Commissioner's Divisions of 'Hyderabad, Khairpur, Quetta and Kalat, Bahawalpur and the Districts of Muzaffargarh, Dera Ghazi Khan and Multan of Multan Division, is not in consonance with the above provisions of the Land Customs Act, 1924. It was also urged by him that there is a marked distinction between a revenue Division and the land customs area. He has also submitted a few subsequent notifications, which were according to him, in accordance with the above provisions of the above Act. It may again be pointed out that this objection was also first time raised by the petitioner through his Advocate's letter, dated 17th July, 1983 i.e.; after expiry of nearly 9 years. Be that as it may, in our view, there is no requirement under the Land Customs Act to couch a notification of appointment in particular words or manner.
Section 3 empowers the Chief Custom Authority to appoint, inter alia, the Collector of Land Customs for any area adjoining a foreign frontier and specified in the notification. The factum that some of the District like Dera Ghazi Khan might have no foreign frontier, as was urged by the learned counsel for the petitioner, would not nullify the appointment of the Collector of Central Excise under the land Customs Act, 1924, as admittedly, the appointment has been made by the competent authority and most of the areas mentioned in the notification have foreign territory adjacent to them.
8. As regards Mr. Zaheer Ahmed's contention that section 181 of the Act is ultra vires as it confers unfettered discretion without providing any guideline to the officer to give option to pay in lieu of confiscation of the seized goods or to confiscate outright, it may be observed that in furtherance of his above contention, he has referred to section 183 of the Sea Customs Act, which provides that whenever confiscation is authorised by this Act, the officer adjudging it shall give the owner of the goods an option to pay in lieu of confiscation such fine as the officer thinks fit. He has also referred to above section 181 of the Act, which gives discretion to the officer concerned to give the owner of the goods an option to pay in lieu of confiscation of the goods such fine as the officer thinks fit. It has been, therefore, contended that whereas in the former section, there was no discretion given to the officer, but he was obliged to give option to the owner of the goods to pay fine in lieu of the confiscation, whereas in the latter Act, the officer is not under any such obligation. But has been given unfetterd discretion without providing any guideline on the question, as to when to give option and when not to give option in lieu of confiscation. Before dilating upon the merits of the above submission, it may be pointed out that this ground has not been urged in the petition, but during the submission of the arguments, Mr. Zaheer Ahmed, learned counsel for the petitioner has raised the same. Be that as it may, in our view, the above submission is not tenable. Whenever a discretion is given to an officer to do or not to do an act, guideline is not provided in every case.
However, the officer is expected not to act arbitrarily or capriciously, but to exercise discretion vested in him in a fair and just manner. Learned counsel for the petitioner is unable to point out that exercise of discretion in the instant case, can be termed as arbitrary or capricious. Mr. Zaheer Ahmed has not cited any case-law in support of his above submission.
9. Adverting to Mr. Zaheer Ahmed, learned counsel for the petitioner's submission that the goods which were covered by the import licences and the bill of entry could not have been forfeited with the goods, which were not covered, it may be observed that he has referred to subsection (i) of section 157 of the Act, which provides that `confiscation of any goods under this Act includes any package in which they are found, and all other contents thereof. It has, therefore, been contended that the goods which were not covered by the import licences could have been confiscated and not the goods which were covered by the import licences. It was further submitted by him that if a container in the form of a wooden case contains mixed items, some of which are covered and some of which are not covered by the import licences, the entire contents of the case can be confiscated, but if the items of goods which are covered by the import licences are packed separately in the cases from the items of the goods which are not covered, the former cannot be confiscated. It will suffice to observe that the three competent forums have recorded finding of fact that none of the items was covered by declaration, which the petitioner had filed in the form of 3 bills of entries referred to hereinabove. A cursory perusal of the inventories jointly prepared in the presence of the petitioner indicates that the value of the items which are not covered at all by any import licence i.e.; cosmetics, perfumes, soaps, toilet preparations air-conditioners and automobile parts etc.; valued at about Rs. 5 lacs and, whereas, the other items valued at about Rs.2-1/2 lacs, as pointed out by the Deputy Collector in his letter, dated 19th February, 1977 at page 37 of the department file referred to by the learned counsel for the petitioner for contending that the petitioner was not associated. Even the above items valuing about Rs. 2-1/2 lacs were found not to be in conformity with the items covered by the import licences. Furthermore, admittedly no bill of entry was filed by the petitioner in respect thereof, except pertaining to 11 cases containing chemicals, declared value of which was Rs.1,01,840 only. If the above trailers would have reached their destination, the petitioner would have received the above items without the backing of requisite import licence and without making any payment of the Custom duty and sales tax etc. In this view of the matter, the above contention is untenable.
10. As regards Mr. Zaheer Ahmed, learned counsel for the petitioner's contention that the valuation of the goods has not been determined as provided under section 25 of the Act, it may be observed that subsection (1) of section 25 of the Act provides that `the value of any imported goods shall be taken to be the normal price, that is to say, the price which they would fetch on the date referred to in section 30 i.e.; on the date when the bill of entry is presented, on a sale in open market between a buyer and a seller independent of each other. Whereas, subsection (2) of section 25 of the Act provides the criterion for determining the normal prices of imported goods. In the present case, as pointed out hereinabove, that after the interception of the trailers when they were unloaded at the Customs Office at Railway Station, Quetta, the value assessed was Rs.1,53,41,018. As mentioned in the impugned orders, at the request of the petitioner, the value of the goods was re-appraised by the Principal Appraiser of the Karachi Customs House and was determined at Rs.53,69,307. The petitioner had not placed any material on record before any of the forums below to give his own valuation for the items in question. It was urged by the learned counsel for the petitioner that factually the petitioner was not associated with the assessment of the valuation and that he was not given the basis. In one of documents on record, the basis of the valuation has been indicated.
In any case, the question what should be the value of the items was within the domain of the three competent forums, which adverted to the above aspect and, therefore, in exercise of Constitutional jurisdiction, we cannot record our own finding. It may be observed that the joint inventory prepared contains the break-up of the value of the various items at pages 191 to 195 of file No. 894 of the revision file. The petitioner has not placed even before us any material to indicate that the above valuation is not correct.
11. Adverting to Mr. Zaheer Ahmed, learned counsel for the petitioner's contention that in order to invoke section 33 read with section 156 (14) of the Act, it was incumbent upon the Customs authorities to have proved that the petitioner had deliberately made the false statement, which they failed to discharge and, therefore, the invoking of the above provision, was not warranted by law, it may be observed that he has referred to the case of Messrs Eastern Rice Syndicate v. Central Board of Revenue, Finance Ministry, Government of Pakistan and others, reported in PLD 1959 SC (Pak.) 364, in which, the Honourable Supreme Court of Pakistan while construing item 9-B of section 167 of the Sea Customs Act, 1878 held that the essence of the above penal provision appears to be that the offender has obtained an advantage at the hands of the Customs authorities or has induced them to take some form of action authorised by the statute, by making a statement which is untrue in any material particular. It was further held that the word `untrue' carries the sense of falsity to the knowledge of the person concerned. It has been pointed out by the learned counsel for the petitioner that the petitioner had no knowledge of the fact that his supplier had sent by mistake some of the goods which were not covered by the import licences and, therefore, the petitioner cannot be accused of making untrue statement. It has been further submitted by him that at the time of checking of the goods by the Customs staff at the Customs Office Railway Station, Quetta, the petitioner was not present and that the department in order to implicate the petitioner made interpolation in their record by adding the words subsequently on the back of the bill of entries `in presence of the importer'. He has also invited our attention to the fact that the bills of lading/manifest filed by the drivers of the trailers at the point of entry into Pakistan declaring 846 cases, were not available with the petitioner and, therefore, he could not have realised that the trailers contained more than what he was declaring. It was also vehemently urged by him that the entire case of the Customs authorities is based on attributing knowledge to the petitioner, which is belied by the record and the facts of the case. It was further submitted by him that certain additional documents were received by the Bank on 7th September, 1974 from the Exporter, which he produced before the Customs authorities on 10th September, 1974 covering 320 cases.
12. Before dilating upon the above contentions, it will be pertinent to examine the version given by the supplier Messrs Margaret Astor in their letter, dated 4th October, 1974 in response to the petitioner's letter, dated 24th September, 1974. It will be advantageous to reproduce the above letter in toto, which reads as follows:- "Dear Mr. Husain, We acknowledge receipt of your letter of September 24, 1974 and greatly regret the inconvenience caused by what appears to be a clear case of wrong despatch of goods. Going through our records we realize that some 440 cases lying in our export godown containing some obsolete rejected and dried up cosmetics, and a Volkswagen car engine, laboratory air-conditioners, some car spare parts and tyres originally meant for our factory workshop, were all marked incorrectly for Pakistan and despatched over in two trucks along with chemicals and containers actually ordered by you. While almost simultaneously the cases of glass ampoules meant for you have reached another destination Messrs Margaret Astor S.A. Bern/Switzerland, and they too are naturally complaining.
Now the mistake has occurred mainly due to the negligence of duty by our export manager Mr. Gerd Sylla who has been fired from his job since. It was a period of summer holidays. Our regular packers were on leave. So, Mr. Sylla hired some Greak labourers to do the packing. There were language difficulties of course but Mr. Sylla did not really look after the complete packing done by these Greak workers. So, occurred numerous packing and despatch mistakes during that period and there are some other customers besides you who have received wrong consignments.
However, we are here to listen and help solve your problems. `May we suggest that you explain the exact situation to the authorities how it all happened and get their permission to re---export to us all the wrongly despatched goods. As and when you do this we from our side shall arrange to send you your ordered glass ampoules. If, however, permission for re-export cannot be obtained enclosed herewith are the proforma invoices for the obsolete, dried up and rejected cosmetics that cannot be sold as such. These items need emptying, refilling and re-processing and the value is merely for the containers etc. By all means please show these invoices for all practical purposes. The air-conditioners were actually ordered by our factory for our Nitrecellulose section, car engine and spares etc. For some of our vehicles. If you need them keep them. The value is mentioned on the invoices. Alternatively please secure permission for re-export of these items as well.
We look forward to your early reply and once again regret the inconvenience caused.
With best regards, MARGRRET ASTOR AG (Sd.)"
A perusal of the above quoted letter indicates the following alleged facts:-
(i) That the two trailers contained 440 cases, which were not covered by the petitioner's import licences;
(ii) That the above 440 cases were lying in the suppliers export godown containing obsolete rejected and dried up cosmetics, and a Volkswagen car engine, laboratory air-conditioners, some car spare parts and tyres originally meant for their factory workshop;
(iii) That they were allegedly marked incorrectly for Pakistan and despatched in two trucks;
(iv) That the above trucks did not contain any pharmaceutical glass ampoules, but were despatched to another purchaser; and
(v) That the above mistake had occurred because the export Manager was on leave.
The version contained in the above letter has been rightly disbelieved by the three forums and is belied by the facts of the present case, inter alia, for the following reasons:
(i) That the value of the items not covered by the import licences, as pointed out hereinabove, was assessed at Rs.51 lacs against the total value of Rs.53 lacs of the entire consignment, and therefore, the allegation that the above 440 cases contained obsolete rejected and dried up cosmetics, is totally incorrect;
(ii) That the goods were intercepted on 29th August, 1974; the supplier did not bother to write any letter to the petitioner till 4th October, 1974 and that too in response to the petitioners' letter, which conduct also adversely reflect on the bona fide of the above version;
(iii) That as pointed out hereinabove, out of the three bills of entries, two of the bills of entries bearing No. 107 in respect of 168 cases, and bearing No. 106 in respect of 269 cases, totalling 437 cases, allegedly containing pharmaceutical glass ampoules, factually did not contain, as according to the above quoted letter, glass ampoules meant for the petitioner had reached another destination of the supplier.
(iv) It is surprising that at no stage during the last 12 years, the supplier had approached the Customs authorities or the Foreign Office, Government of Pakistan through their Embassy for claiming the above 437 cases as their property, though according to the valuation, the value of the items contained therein was about Rs.51 lacs, which fact also adversely reflects on the bona fide of the version set up.
13. In our view, the finding of the learned revisional authority that `the petitioner himself was consciously involved in this wrongful act, and was rightly punished `seems to be in consonance with the record and the circumstances of the instant case.
It was vehemently urged by the learned counsel for the petitioner that factually the petitioner was not present at the time of examination of the containers and the trailers at the Customs Office at the Railway Station, Quetta. He has submitted that though the petitioner along with his Manager had come to Quetta, but after signing the bills of entries and other papers on 28th August, 1974, he went back to Lahore and, therefore, on the back of the bills of entries originally the presence of the petitioner was not recorded, but subsequently the words `in presence of the importer' were added.
In this regard, it may be observed that at the request of learned counsel for the petitioner, at the time of Katcha Peshi of this petition, the record of the Customs Department pertaining to the instant case was summoned, which comprised of four files and which was available with us during the arguments and which was referred to by the learned counsel for the petitioner. We have also perused the entire record ourselves. In furtherance of the above submission, learned counsel for the petitioner has referred to Collectorate File No. 8(51)Cus/74/Part, which contains the bills of entries. A perusal of the endorsements on the back side of the above bills of entries indicates that in the bill of entry bearing No. 105, the words `in presence of the importer' in the beginning of line No. 2 were added by the same person who had made the above endorsement by the same pen, whereas, in the bill of entry bearing No. 106, the above words are contained in line No.2. The above words do not appear in the bill of entry bearing No. 107 relating to 11 cases covering chemicals.
14. It may be observed that the above question was raised by the petitioner first time before the revisional authority, not in revision, but through his Advocate's letter, dated 18th July, 1983 (Annexure `P.11' to the petition) and not before the Collector or the Appellate authority, i.e.; the Central Board of Revenue. Be that as it may. In our view, the above controversy is not material, as we are inclined to hold that the finding of the revisional authority that the petitioner was consciously involved in the above illegal act, as observed hereinabove, seems to be correct. As having held that the version given by the supplier in the above quoted letter is belied, it must follow that the above items of goods valuing about Rs.51 lacs would not have been exported without the knowledge of the petitioner and probably- without having received the consideration for the above items from the petitioner. Even otherwise, the factum that the present petitioner was present when the goods were examined by the Customs authorities, stands proved, inter alia, by the statement of Mr. Muhammad Akram, a clerk of the Clearing Agent Messrs Haji Gul. Muhammad Paracha, Exh. D.1 in file bearing No. 894, where he has stated as under:- "The officers required me to open the doors of the trailors under examination which 1 complied by ordering my labour and as many packages as were ordered, were unloaded from the trailors on the ground. A few of which were opened and examined on the ground. Mr. Saeed Akhtar Inspector climbed the trailors, and examined the packages inside the trailors. The importers were also present on the occasion and they (Mr. Aftab Hussain and Mr. Rashid Manager) follows Mr. Saeed Akhtar in the trailors, one by one. I along with the Deputy Superintendent Incharge (Mr. Wasti) remained standing on the ground near the trailors when the examination of goods inside and outside the trailors was going on. I had no worry as the importer was himself present who could explain all the things including any discrepancies:"
It may again be observed that even otherwise, the controversy is of no consequence and even if it is to be held that the petitioner was not present, that would not affect the case.
15. As regards, learned counsel for the petitioner's submission that the bills of entries/manifest delivered by the drivers at the point of entry into Pakistan to the Customs authorities indicating 846 cases, was not available with the petitioner and that he had no access and therefore, the conclusion of the Collector that the petitioner had the knowledge, is unfounded, it may be observed that in view of the aforesaid reasons, the above contention also has no merits. The petitioner had the knowledge from the very inception, as rightly concluded by the revisional authority.
16. It was also vehemently urged by the learned counsel for the petitioner that the drivers of the trailers were not examined and they were let off without confiscating their trucks/trailers. It may be pointed out that the number of cases declared by them at the point of entry through the bills of lading/manifest quoted hereinabove, more or less tallies with the actual number of the cases i.e.; 843 found upon unloading of the trailers after interception of the same, which fact, indicates that the drivers or the carriers had no knowledge about the above illegality and, therefore, they were apparently rightly not involved in the above case.
17. Reverting to Mr. Zaheer Ahmed's submission that the petitioner had submitted further documents on 10th September, 1974 in respect of 372 cases containing chemicals after the same were received by their Bank on 7th September, 1974, it may be observed that he has referred to Annexure `P.6' to the petition, which is petitioner's letter, dated 27 October, 1976 submitted before the Central Board of Revenue. It may further be observed that admittedly, the above three bills of entries filed on 28th August, 1974 did not cover the above 372 cases except that 11 cases related to the chemicals, whereas, 437 cases, as per declaration, contained pharmaceutical glass ampoules, which were in fact not exported by the supplier as per above quoted letter. The Customs authorities found that even the above 372 cases did not contain chemicals and other items referred to in the above letter, of which, the petitioner held import licences. Furthermore, admittedly, the petitioner had not filed any bill of entry in respect of the above 372 cases except 11 cases containing chemicals. It is not clear from the petition file, whether the above 11 cases were covered by the above 372 cases.
18. As regards, Mr. Zaheer Ahmed, learned counsel for the petitioner's contention that the appellate order was no order in the eye of law, as it did not contain any reason for dismissal of the appeal, it may be observed that we have given our serious thought to the above aspect It is true that the above appellate order apparently does not contain any reasoning though the appellate authority had provided an opportunity to the petitioner to argue his case through a counsel and also to file whatever pleadings he wished to file, but we find that the revisional authority has dealt with each of the submissions of the petitioner and, therefore, he had an opportunity to ventilate his grievance before a forum provided under' the hierarchy of the forums under the Act and, therefore, this cannot be agitated in this Constitutional Petition. We have also noticed that the original order contains all the submissions of the petitioner and the' reasons for not accepting the same.
Furthermore, no purpose is going to bed served, if we were to remand the case to the appellate authority on the above ground, as was suggested in the alternative by the learned counsel for the petitioner, as more than 12 years have expired from the date of the above incident and the goods have already been auctioned after the disposal of the criminal case, which resulted in acquittal of the petitioner on some other grounds.
19. Adverting to Mr. Zaheer Ahmed, learned counsel for the petitioner's contention that since the Customs authorities found that lipstick containers were partly made of metal and partly of plastic, they were covered by the import licence pertaining to hardware, as per Rule 3(c) of the interpretation contained in the Customs Tariff Manual, 7th Edition by Najib A. Choudhry, Advocate, it may be observed that it is a disputed question of fact, whether the lipstick containers were covered by the import license pertaining to hardware though the major portion of the same was of plastic.
It may also be observed that in any case, the High Court cannot in writ jurisdiction go into the above question in the absence of any material on the basis of which, it could have been urged that the finding of the Customs authorities on the above question was contrary to the record and the law.
20. Mr. Raja M. Afsar, learned counsel appearing for the official respondents in support of his submission that the scope of constitutional jurisdiction of this Court is limited to jurisdictional defects and this Court cannot interfere in exercise of the above jurisdiction merely because of theth fact that the competent forum has taken an erroneous view in the matter has referred to the following cases:-
(i) Muhammad Hussain Munir and others v. Sikandar and others, reported in PLD 1974 SC 139 in which, the Honourable Supreme Court of Pakistan held that `it is well-settled that where a Court or a Tribunal has jurisdiction and it determines that question, it cannot be said that it acted illegally or with material irregularity merely because it came to an erroneous decision on a question of fact or even of law".
(ii) Ghulam Nabi and another v. Khan Muhammad Afzal Khan, Settlement Commissioner, Lahore and another, reported in 1970 SCMR 68. In the above case, the Honourable Supreme Court while declining leave against a judgment of the erstwhile High Court of West Pakistan at Lahore held that 'mere fact that another view of evidence on record was possible was no ground for interference in writ jurisdiction against the finding of the Settlement authorities'. . .
(iii) Dyal Singh College Trust Society through Iqbal Hussain, General Attorney of the Trust v. The Custodian of Evacuee Property, West Pakistan, Lahore and others, reported in PLD 1962 (W.P.) Lah.
352, in which, a Division Bench of the erstwhile High Court of West Pakistan at Lahore held that the question, whether the property was evacuee or not, was within the exclusive domain of the Custodian and that decision cannot be questioned by the High Court in exercise of writ jurisdiction.
(iv) Mst. Mahmooda Begum v. Chief Settlement Commissioner West Pakistan and another, reported in PLD 1962 (W.P.) Lah. 911. In the above case, a Division Bench of the erstwhile High Court of West Pakistan at Lahore while dealing with a settlement case held that if the impugned order was within the jurisdiction of the tribunal. Writ would not be issued in exercise of Constitutional writ jurisdiction, if the only grievance was that the order Was not proper or just.
(v) Najmuddin Ahmed Mulla v. The Chief Settlement Commissioner, Karachi and 3 others, reported in PLD 1964 (W.P.) Kar. 425, in which, a Division Bench of the erstwhile High Court of West Pakistan at Karachi while dealing with x settlement matter held that where the Settlement authority had ample jurisdiction and exercised the revisional jurisdiction vested in him, but by mistake or omission committed an irregularity in the description of the power as appellate, the High Court would not render the impugned order without jurisdiction and a nullity in exercise of writ jurisdiction.
21. Reference may also be made to the recent pronouncements of the Honourable Supreme Court of Pakistan in the following cases:-
(i) Abdul Rehman Bajwa v. Sultan and 9 others, reported in PLD 1981 SC 522, in which, the Honourable Supreme Court set aside the judgment of the High Court by holding that it had exercised its constitutional jurisdiction under Article 199 of the Constitution not properly and held that Court or Tribunal set up under ordinary law having jurisdiction to decide a particular matter, has jurisdiction to decide it rightly or wrongly and that the mere fact of decision being incorrect, or such as to which High Court would not have arrived, does not render decision without jurisdiction.
(ii) Noor Muhammad v. Sarwar Khan and 2 others, reported in PLD 1985 SC 131. In the above case, a Full Bench of the Honourable Supreme Court while dismissing petition for leave against a judgment of the Lahore High Court, whereby a writ petition was dismissed against the executing Court and the revisional order passed by the District Judge, held that `where a Court (in contradistinction to persona designate) had jurisdiction to decide a matter, it could do so rightly or wrongly and that mere fact that decision of a Court on a question of fact or law was not correct, did not necessarily render it without lawful authority'. The tendency to file Constitutional Petitions against the orders of Courts having jurisdiction was deprecated.
22. Suffice to observe that generally the High Court does not interfere in exercise of Constitutional writ jurisdiction with the orders passed by competent forums within their competence under the relevant law merely on the ground that it would have taken a different view in the matter, or that the view was erroneous, unless exercise of the power by such tribunal was in violation of some provision of law or in excess of jurisdiction or, which suffered from failure to exercise jurisdiction.
23. Mr.Raja M. Afsar, learned counsel appearing for the official respondents in support of his submission that the instant case involves complicated disputed questions of facts and, therefore, it is not a fit case, in which, this Court should press into service its Constitutional jurisdiction has referred to the following cases:-
(i) Syed Saghir Ali v. Mehr Din and others reported in 1968 SCMR 729.
(ii) Umar Daraz Khan v. Muhammad Yousuf and others reported in 1968 SCMR 880.
(iii) Mian Muhammad and others v. The Government of West Pakistan, through the Secretary, Revenue Department, Government of Pakistan, Lahore and The Collector, Rahimyar Khan, reported in 1968 SC MR935.
(iv) Syed Ali and another v. Nawab Siddiq Ali Khan and another, reported in 1969 SCMR 567.
In this regard, it may be observed that it is a well-settled principle of law by now that writ jurisdiction is not designed or intended to probe into the complicated disputed questions of facts, when the relevant law, provides other forums for the said purpose.
24. Reverting to Mr. Raja M. Afsar, learned counsel for the official respondents's submission that admittedly, the petitioner was smuggling the items without any import licence valuing lacs of rupees and this Court would not exercise its discretionary relief in favour of the petitioner, whose conduct was questionable, it will suffice to observe that this cannot be accepted as a general proposition of law. In a fit case, the High Court even in case of smuggling can interfere in exercise of writ jurisdiction, if there has been violation of some provision of law or the impugned action is tainted with malice. Furthermore, Article 4 of the Constitution of Islamic Republic of Pakistan, 1973 provides that to enjoy the protection of law and to be treated in accordance with law, is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan and that in particular no act detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law. The above Article negates the above broad proposition.
25. This leads us to the last submission of Mr. Zaheer Ahmed, learned counsel for the petitioner that the imposition of the penalty in the sum of Rs.50 lacs under section 156(9) of the Act was not justified, as the goods were not imported by the petitioner without the import licences, but were sent by the supplier by mistake, it may be observed that this aspect has already been dealt with hereinabove. We are also inclined to hold as has been held by the revisional authority, that the petitioner was involve in the above transaction consciously and, therefore, he had the knowledge.
The amount of the fine imposed seems to be in consonance with the relevant provision of law keeping in view the value of the goods assessed and the factum that the same fetched about Rs.30 lacs upon auction even after the expiry of four years from the date of seizure and so also the imposition of fine under section 156(14) of the Act for untrue statement contained in the above three bills of entries.
Before parting with the above discussion; we may also observe that from the aforesaid department record placed before us, it seems that the Customs Inspector concerned was departmentally punished and was removed from the service, when the Customs personnels who caused the detection of the above smuggling, were awarded financial benefits.
26. For the aforesaid reasons, the petition is dismissed. However, there shall be no order as to costs.
S. No.Name of the Suppliers. Goods imported from the Suppliers.
1. Messrs Margaret Astor A.G. West Germany.1. Glass Ampoules.
2. Chemicals.
3. Metallic containers.
2.Messrs Degussa, West Germany.1. Chemicals.
3. Messrs Hankel International GmbH, West Germany.1. Chemicals.