ZAFFAR HUSSAIN MIRZA, J.--By this petition for leave to appeal the Collector Central Excise and Land Customs, Baluchistan, Quetta and others seek to call in question judgment dated 2nd June, 1986, by a Division Bench of the High Court of Baluchistan, Quetta, whereby the constitutional petition filed by Rehm Din, respondent herein, was accepted and orders of confiscation passed by the petitioners in respect of Iranian currency seized from his possession, were declared as having been passed without lawful authority and of no legal effect with further consequential directions.
2. Briefly the facts are that a show-cause notice dated 24th December, 1983 was served by the Deputy Collector, Central Excise and Customs, Baluchistan, Quetta, on the respondent calling upon him to explain why action under section 156 (1) (89) of the Customs Act, 1969 (hereinafter referred to as the Act) should not be taken against him. The allegations contained in the aforesaid show- cause notice were as under:- "On 27-10-1983, Customs Staff at Beleli, Check Post signalled Bus No.QAB-9545 to stop as it approached the check post while heading towards Quetta. The Customs Staff thoroughly checked the Bus. One Rahm Din son of Haji Zareen who was suspected to be in possession of foreign currency, was asked to declare if he had any foreign currency. He replied in the negative. He was brought to the customs office for body search which resulted in recovery of 65,00,000 (sixty-five lakh) Irani Rials from his specially made waist belt. Since no proof of legal import was produced as required under section 187 of the Customs Act, 1969, the said currency was seized and the accused person was arrested for contravention of section 3(1) Import and Export (Control) Act, 1950, read with section 2 (s) and 16 of the Customs Act, 1969, and 58 of the foreign Exchange (Regulation) Act."
The respondent in reply to the aforesaid notice urged that no action can be taken against him relying upon SRO No.1016 (1) 79, dated 17th October, 1979, whereby the foreign currency brought into Pakistan can be declared within three months from the date of arrival as according to the respondent he entered Pakistan on 20th September, 1983, whereas the currency was seized by the authorities on 27th October, 1983. He further contended that by virtue of the State Bank of Pakistan Notification No. F.E. 1/78-SB, dated 11th May, 1978, it was permissible for any person to bring in Pakistan from any place outside Pakistan without limit any currency notes or bank notes, and maintained that the seizure of currency was illegal and without jurisdiction. As regards the circumstances under which th6 foreign currency was seized from his possession he stated: "That the applicant is an Afghan Muhajir and due to the recent revolution in Afghanistan the applicant migrated from Afghanistan and entered in Pakistan in the last week of September, 1983, with a luggage and the currency. Later on 27th October, 1983, in the morning when he was coming to Quetta in a Bus No. QAB 9545, the respondent stopped the bus and checked, during checking the respondent found some foreign currency from the possession of the applicant, therefore, the respondent seized the foreign currency."
The admitted position is that seizure was effected while the respondent was travelling in the bus towards Quetta Town at Ballall Check Post. It appears that the respondent was also taken into custody and was tried- by the Special Judge Customs, Quetta, under section 156 (1) (89) of the Act for attempting to smuggle into Pakistan 65,00,000 Irani Rials. The respondent was convicted and sentenced to R.I. For two years and a fine of Rs.1,000 etc. Vide judgment dated 12th February, 1985.
3. In the adjudication proceedings by order dated 8th April, 1984, the Collector of Central Excise and Land Customs, Baluchistan, ordered forfeiture of the foreign currency in question. The respondent unsuccessfully challenged the order in an appeal before the Central Board of Revenue which was disposed of by order dated 25th June, 1984, and his revision was also dismissed on the ground of delay in filing the same by the Secretary, Ministry of Finance, Islamabad, petitioner No.3 herein.
4. Having failed to obtain relief from the departmental authorities the respondent invoked the constitutional jurisdiction by a constitutional petition in the High Court of Baluchistan, Quetta. The learned Judges of the Division Bench as already stated accepted the constitutional petition and quashed the impugned orders before them. The Division Bench in its judgment observed that action for confiscation against the respondent was taken on two grounds, namely, (i) that when intercepted at the check point the respondent even though asked to declare any foreign currency in his possession declined to do so and (ii) that the alleged contraband currency was brought into Pakistan from unauthorised route. On both these points the learned Judges of the Division Bench held against the petitioners. On the first point their conclusion on the material placed before the Court was that when the currency was brought into Pakistan no body from the Customs Department had asked the respondent and his father to declare the same as they had come from an unspecified route in September, 1983. On 27th October, 1983, when the respondent was searched, the learned Judges held he was not importing foreign currency into Pakistan but was only in possession thereof. It was pointed out with reference to the notification of the State Bank of Pakistan that the person importing the currency was not under obligation to make a declaration in respect of the imported currency on his own but only if so required by the Customs Authorities "at the time of his arrival, and not subsequent to his arrival". The allegation that at the check point the respondent was required to make a declaration was found by the Court to be factually incorrect. In this behalf learned Judges referred to the evidence of Mr. Baqar Hussain Jaffery, Sepoy of the Customs Department, who had intercepted the bus, recorded by the Special Judge in the criminal prosecution where no mention was made about his having called upon the respondent to make a declaration before searching his person. Finally it was pointed out that this allegation was denied by the respondent in his constitutional petition in paras. (5) and (7) supported by an affidavit of the respondent but the contents of these paragraphs were not controverted by filing any counter- affidavit. In these paras it was alleged that the respondent and his father had gone to the Customs Department at Chamman, sometime before the day of the seizure, to enquire about the conversion of the Iranian currency and were informed that the same could be changed by the State Bank of Pakistan at Quetta. On the second point the learned Judges agreed with the view taken by Baluchistan High Court in a previous case and held that sub-clause (iii) of section 2(s) of the Act was controlled by the opening part of clause (s) of section 2 which required that the goods described in the three clauses, to constitute smuggling, must be brought into Pakistan "in breach of any prohibition or restriction for the time being in force, or evading payment of customs duties or taxes leviable thereon." In this view of the matter the learned Judges held that the mere fact of the currency having been brought by an unspecified route would not constitute smuggling. The decision of the learned Judges of the High Court in substance proceeds mainly on the aforementioned grounds.
5. Mr. Iftikhar Muhammad, learned counsel appearing for the petitioner contended that the view taken by the learned Judges of the High Court is untenable in law and requires to be re-examined by this Court, whether goods of any description imported into Pakistan from an unauthorised route did not ipso facto constitute smuggling as defined by section 2(s) of the Act. He also submitted that findings of the High Court on the factual aspect are unjustified. He further submitted that reliance placed by the learned Judges on the decision of this Court reported as Central Board of Revenue and another v. Khan Muhammad PLD 1986 SC 192 was misplaced and the decision of this Court in an earlier case namely, civil petition for leave to appeal No.2-Q/1984 (Momeen v. The State) was erroneously rejected as having no bearing on the case. Counsel also strongly urged that even though the goods in question were brought through an unauthorized route, the Customs' staff were legally competent to enquire from the respondent with regard to the possession of the currency for the first time at Balleli Check Post. It was next urged that the respondent having been convicted by the competent Court of law for the offence of smuggling in respect of the same subject---matter was not liable to receive any confessional treatment in the adjudication proceedings. Finally the learned counsel emphatically contended that the Afghan Nationals had not been allowed by Pakistan Government to bring any quantity of foreign currency without making declaration on the check post under the provisions of the Customs Act.
6. After hearing the learned counsel at length we are of the opinion that in view of the peculiar circumstances of this case, it is not a fit case for grant of leave to appeal. It may be stated at this stage that the contents of the Notification NO.F.E.1/78-SB, with regard to import of currency notes issued by the State Bank of Pakistan dated 11th May, 1978, were not disputed nor was it denied that the said notification was applicable and in operation on the material date in this case. Further the admitted position is that the respondent was also proceeded against under sections 4, 8, 9 and 23 of the Foreign Exchange Regulation Act, 1947, before the learned Sessions Judge/Foreign Exchange Tribunal, but was acquitted of the charge vide judgment dated 11th October, 1985. Therefore, it appears to us that it would be fair to conclude that there was no prohibition in regard to the possession of the foreign currency on the relevant date.
7. Now section 180 of the Act requires that no order for confiscation of any goods, can be passed, unless the owner of the goods is informed in writing (or if the person concerned consents in writing, then orally) of the grounds on which it was proposed to confiscate the goods. The section also makes a mandatory provision for giving an opportunity of being heard to the affected person. On a plain reading of the provisions of section' 180, it is fairly plain that the grounds on which the Customs Authorities proposed to confiscate the goods must state precisely and clearly the facts which constitute the customs offence. Therefore the requirements of reasonable opportunity of being heard would be satisfied only when the particulars of the facts alleged and grounds are brought to the notice of the person proceeded against and the order of confiscation is finally passed upon such grounds. In the present case as indicated by the show-cause notice, the sole ground on which it was proposed to take action for confiscation was that the respondent did not make a declaration of the foreign currency in his possession when asked by the Customs Staff to do so. The order of confiscation passed in adjudication proceedings by the Collector of Central Excise and Land Customs dated 8th April, 1984, has not been placed on record nor the subsequent orders passed by the higher departmental authorities except the order of Central Board of Revenue dated 25th June, 1984 the relevant portion of which reads as under:- "I am inclined to agree with the adjudicating authority that bringing in foreign currency through an unauthorised route constitutes smuggling in terms of section 2(s) sub-para. (III) of the Customs Act 1969, even though there is no restriction on bringing in foreign currency through an authorised route."
Therefore, it appears to us that the final orders of confiscation passed by the departmental authorities were passed on the ground that the foreign currency in question was smuggled into Pakistan in so far as the same was brought into Pakistan by an unauthotised route as provided by section 2(s)(III) of the Act. As observed herein--above the learned Division Bench of the High Court did not agree with the view taken by the department that goods otherwise importable through authorised routes into Pakistan without any prohibition, if brought by means of unauthorised routes would constitute smuggling. However, we are of the opinion that it is not necessary to determine this question of law in the facts of the present case as this petition can be disposed of on the short ground that the order of adjudication being ultimately based on a ground which was not mentioned in the show-cause notice, the order was palpably illegal and void on the face of it. We have carefully examined the show-cause notice and find no reference whatsoever or necessary facts relating to the ground that the alleged contraband goods were imported into Pakistan from an unauthorised route. In view of this palpable legal infirmity, we do not consider it necessary to examine the other contentions raised by the learned counsel. We may, however, point out that it is the case of the petitioners themselves that they were competent to call upon the respondent at the check point at Balleli to make a declaration with regard to the possession of any foreign currency. In the premises if the respondent could establish that he was not required to make a declaration in terms of the State Bank of Pakistan Notification, there would be no basis for confiscation of the currency as contraband currency. We have examined the factual aspect and agree with the finding of the Division Bench that no such demand was made requiring the respondent to make the declaration before the search of his person and seizure of currency. We also agree with the High Court that the conviction in the criminal prosecution has no bearing on the adjudication proceedings which are independent proceedings under the provisions of the Act.
8. For all these reasons we feel that this is not a fit case for leave to appeal and accordingly the petition is hereby dismissed.
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