' WAJIHUDDIN AHMED, J.--The factum, circumstances and competence of seizure by the Customs of the personal baggage, allegedly, belonging to the petitioner are in dispute in this petition.
2. Facts, as disclosed in the petition, are that the petitioner, for a period of five years preceding the filing of the petition, had been working for gain at Dubai, U.A.E. On 4-3-1986, being ,a Pakistan national, he arrived at the Karachi Airport after a stay in Dubai exceeding six months. The petitioner's accompanying baggage comprised of one suit-case, three hand bags and three shopping bags, all containing household goods/articles as set out in Annexure "A" to the petition.
Customs staff, allegedly, detained the referred baggage, neither preparing any list/inventory nor giving any acknowledgement of the same to the petitioner. Thereafter, the petitioner was made to run from pillar to post but his baggage was not released, prompting, ultimately, a complaint, dated 3-5-1986, to the Collector of Customs (Preventive) wherein similar facts were stated. This is said to have resulted in the Collector making a direction to the relevant Assistant Collector to pass due orders whereupon such officer passed and served orders dated 28-5-1986. It is recorded by the said Assistant Collector of Customs (Preventive) that on 4-3-1986 seven packages, which had arrived from Dubai by Emerites Airline Flight No,EK-600, were found lying abandoned in the Customs Examination Hall, occasioning strict watch, as the same were suspected to contain contraband goods. Later, examination was conducted in the presence of two mashirs resulting in recovery of restricted goods, as shown in the schedule attached with the order dated 28-5-1986.
However, no schedule is found to be so attached with such order nor one, at any material time, was filed by the respondents who, in fact, have chosen not even to have submitted a counter-affidavit controverting the averments in the petition. Following upon seizure under section 168 of the Customs Act, 1969, it is recited in the referred order that, while show-cause notice was under issue the passenger, Sardar Israr Hussain Baloch, holder of Pakistani Passport NoA-231508, claimed the ownership of the packages in question through documentary evidence and requested for summary adjudication, which was acceded to. The adjudicating officer released some six items, in all valuing Rs,10,330 to the petitioner, confiscating "the remaining goods being in excess". The petitioner was warned to be careful in future and was also given an option to redeem 40 numbers of Toy Pistols, on payment of redemption fine of Rs,200 and taxes livable thereon. The petitioner appealed to the Collector of Customs (Appeals), who, through order dated 12-8-1986, dismissed the same, maintaining that due allowances had been granted but some of the goods like Toy Pistols, 120 numbers, Stud Sprays, 570 numbers etc. Were admittedly in commercial quantity, did not constitute bona fide baggage and were, therefore, rightly confiscated. Consequent revision before the Government of Pakistan also failed, Additional Secretary to that Government observing that the points raised had been adequately discussed at the appellate level.
3. As to the seizure/detention of the goods, the petitioner has throughout maintained that the goods were in the nature of accompanied baggage and apart from a cursory recital in the impugned order of the Assistant Collector there is no contrary finding either at the Appellate or at the Revisional level on that question. Even in these proceedings no counter-affidavit has been filed controverting the averments of the petitioner. Together with this we find that there was no reason, cause or motive for the petitioner to abandon his accompanying baggage since, even on the findings of the three successive Customs Authorities, no contraband article, except a bottle of whisky, which the petitioner disclaims, was found in the baggage. Such bottle of whisky also has figured, for the first time, in the order passed on revision. That such baggage belonged to the petitioner and accompanied him stands also duly corroborated by the so-called acceptance of the Assistant Collector of the documentary evidence, which the petitioner preferred before him. In these circumstances, we are constrained to accept the petitioner's version of the matter and find that the accompanying baggage of the petitioner was seized from the possession of and in the full view of the petitioner, whereas such, at best, could be a case for detention. Such finding fixes the subordinate Customs Officials with mala fides, which appears to have been strengthened on further facts which would find place below. Here, it requires to be emphasised that there is a manifest distinction between "detention" and "seizure", as those terms are understood and applied under the Customs Act, 1969, and cognate law. Speaking generally, the notion behind detention is to hold back any goods within the Customs limits till such time as due duty, fine or penalty is paid, the last of these situations being covered by section 186 of the Customs Act. Seizure, however, carries a different idea and is to be effected under section 168 of the Customs Act in relation to goods "liable to confiscation" under that Act. Thus, unless goods are, prima facie, found liable to confiscation, no question of seizure, a very serious concept under the Customs Law, arises and, at the highest, only detention may be resorted to, enabling the concerned party to seek release the moment due pecuniary liability is met and discharged.
4. As has been seen, the petitioner's case is and has been that no inventory whatever was prepared and that aspect of the matter is aggravated since no such list/schedule is attached with the order of the Assistant Collector of Customs even though such order clearly stipulates that to be the case. No such list has been brought even on the record of this case by the respondents. Added to this is the circumstance that the Assistant Collector of Customs, throughout his discourse in his impugned order, has not found any of the items in the personal baggage of the petitioner to be in the nature of contraband. All he says is that some of those items have been found to be "in excess" and "confiscated outright". On appeal the finding is, as recapitulated above, that "some of the goods like pistols, 120 numbers, and Stud Sprays, 570 numbers, etc. Are admittedly in commercial quantity and do not constitute bona fide baggage." On revision a bottle of whisky is added, as observed, for the first time, which, of course, the petitioner disowns. The only aspect of the matter, therefore, which the petitioner had to meet was the allegedly commercial quantity of some of the items. His explanation is that such were items of indifferent value, having been picked as free toy samples at Dubai and were meant for children of the petitioner's tribe, who is a Baloch by race, and such items have been released on the basis of minimum valuation in other instances of personal baggage. In support are attached photostat copies pertaining to other Pakistani expatriates relevant to their accompanied or unaccompanied baggage declaration. Even in the petitioner's case, the Assistant Collector, in his impugned order, has allowed redemption of "40 Numbers Toy Pistols on payment of redemption fine of Rs,200 and taxes payable thereon".
5. The foregoing could well have been the situation and it would appear that the petitioner did rely on such documentary precedents before the Customs but, apparently, to no purpose.
6. The petitioner has further placed reliance on the Passengers (Non-Tourist) Baggage (Import)
Rules, 1983 and in particular on rule 5 thereof. It is manifestly clear to us and the petitioner does not urge without substance that, under the then prevailing Rules, he was entitled to bring goods into Pakistan up to the value of Rs,6,000, as tax free, as well as goods of the further value of Rs,10,000, on payment of applicable taxes. The Customs hierarchy has clearly been in error in allowing to the petitioner goods worth Rs,10,330 only and resorting to confiscation for the rest. It was their bounden duty to permit him full allowance, particularly when it was only for the alleged excess quantity that the punishment was being imposed. Such excess could be and was, as shown before us, bona fide.
Since the claimed goods were, speaking strictly, not contraband outright and thus not liable to confiscation under the Customs Act, there was no occasion to seize the same and the seizure was plainly unlawful. As to the allegedly, commercial quantities in which items of insignificant value, as supported by the material on record, were brought, it has remained uncontroverted that such were intended and meant as gifts for children in a large tribe. Thus, in the absence of liability to seizure, we do not see as to how the extreme punishment of confiscation, apparently under section 156(1)
(9) read with section 180 of the Customs Act, could have been resorted to.
7. At this stage mention may be made to the fact that during the course of this dispute the petitioner had lost his passport but had produced due evidence of such loss, which was accepted.
No objection at any level of these proceedings has been raised in relation to such circumstance and none, we are of the view, can be raised either now or hereafter on that score.
' In the light of the above circumstances, we accept this petition, declare the orders impugned to be without lawful authority and direct the respondent No,4 to assess the confiscated goods in accordance with the material which the petitioner has produced here or may produce before such respondent and that being done, permitting due allowance of Rs,16,000, as relevantly applicable to personal baggage, release the confiscated goods to the petitioner. In such terms this petition is allowed and with costs.