' MUHAMMAD BASHIR KHAN JEHANGIRI, J.---This petition under Article 199 of the Constitution of Islamic Republic of Pakistan is directed against the orders dated 7-10-1985, 18-1-1986 and 19-5-1987 passed by Superintendent, Customs Prevention, Bannu; Collector Central Excise and Land Customs (Appeals), Lahore, and Central Board of Revenue in Federal Government, respondents 3, 2 and 1 respectively.
2. The brief facts leading to the filing of the above petition are that on 28-4-1985 at 0930 hours, Nazir Shah, the then A.S.H.O.City Police Station, Bannu, while on patrol duty alongwith the police party, intercepted at Chowk Tehsil Bazar Bannu, a tonga on suspicion and search thereof led to the recovery of cloth of foreign origin measuring 1,232 yards duly packed in gunny bags. Khalil-ul- Rahman, petitioner herein, who occupied the seat in Tonga claimed it to be his cloth, on demand failed to produce any documents in support of legal possession or import of the offending cloth.
The cloth alongwith its Tonga and mare were accordingly seized under clause (8) and (89) of section 156(1) of the Customs Act, 1969 (IV of 1969) (hereinafter called as the Act). The seized cloth was deposited in the Customs State Warehouse, Bannu. A notice purporting to be in pursuance of section 168 of the Act was served upon the petitioner to show cause within ten days as to why penal action under clause (8)(89) of section 156(1) of the Act should not be taken against him. The defence of the petitioner before respondent No,2 was that the cloth seized was country made, as such no provision of the Act or Rules framed thereunder had been violated and, therefore, it was not liable to confiscation. The examination report of a Deputy Superintendent Land Customs revealed that the seized cloth had already been issued to C.S.D. Canteen, Bannu, therefore, the question of examination/verification did not arise. Conversely it was the case of the respondents that the petitioner could not produce any documentary evidence in support of his claim that the seized cloth was country made. In consequence, respondent No,3, by his impugned judgment dated 5-10-1985, ordered outright confiscation of the cloth in favour of the State under clauses (8) and (89) of section 156(1) of the Act and further imposed a fine of Rs,100 in lieu of the confiscation of Tonga and the mare. Aggrieved by the order of respondent No,3, the petitioner preferred an appeal which was also dismissed by the impugned order of respondent No,2 dated 18-1-1986.
Feeling still dissatisfied, the petitioner filed a revision petition to respondent No,1 which too was dismissed on 9-5-1987 by the Member (Judicial) Central Board of Revenue in the Federal Government. Hence this Constitutional petition.
3. In support of this petition, Mr. Khawaja Nawaz Khan, the learned counsel for the petitioner, has urged as follows:--
(i) That notice under section 171 of the Act having not been served upon the petitioner, the impugned order of outright confiscation of the goods and the subsequent orders being in breach of the mandatory provisions of section 171 were, void ab initio.
(ii) that the confiscation order of the cloth passed by respondent No,3 was illegal, in that the cloth was disposed of prior to the issuance of the show-cause notice; and
(iii) that the seized cloth was country made and that the illegal seizure of the cloth thereof by respondent No,4 and subsequent outright confiscation by respondent No,3 and its disposal to C.S.D. Canteen on the charge of its being of foreign origin was void and of no legal authority.
4. On the other hand, Mr. Muhammad Salim Khan Gandapur, learned counsel for the respondents, has contended as follows:--
(i) That the seizure of the cloth was quite legal, in that it was not found by the Seizing Officer but also by the C.S.D. Manager, Bannu to be of foreign origin;
(ii) that under subsection (4) read with subsection (5) of section 169 of the Act, the respondents were entitled to dispose of the offending cloth through the C.S.D.; and
(iii) that a notice was admittedly issued to the petitioner which was sufficient compliance of the mandatory provisions of section 171 of the Act.
5. It is a common ground between the parties that a notice was served upon the petitioner although the section cited therein was 168 rather than 171 of the Act. We have given our anxious consideration to the respective stands taken up by the learned counsel for the parties and are of the view that this ground was never agitated before the forums below and has been pressed into service for the first time which could not be of any legal consequence. Obviously, the petitioner cannot be allowed to canvass a plea in the writ jurisdiction which he had not pleaded before the authorities concerned. The presumption would be that had the requisite notice not been served upon the petitioner, he would have taken up this plea and the authorities concerned would have considered and disposed it of. Nonetheless, in para-2 of his memorandum of appeal before the Member (Judicial) Central Board of Revenue, the petitioner had admitted in terms unequivocal that in "show-cause notice" dated 26-5-1985, the appellant was called upon to show cause as to why penal action should not be taken under clause (8) or (89) of section 156(1) of the Act and the seized articles be confiscated". This, to our mind, was sufficient compliance of section 171 of the Act.
Nonetheless, the petitioner having not urged this ground before the respondents, the objection as to the violation of requirements of section 171 ibid, in the circumstances, is without substance.
6. The principal attack to the impugned orders was that there was no material before the respondents to hold the offending cloth to be of foreign origin. This plea was consistently raised before the respondents and was not found to carry weight. In the impugned order dated 5-11-1985, passed by respondent No,3, it has been specifically observed that the petitioner has not been able to produce evidence that the cloth was country made. The cloth was held to be (of) foreign origin, not only on the ground that no documentary evidence was produced, but also that the Manager C.S.D. Had accepted the cloth to be of foreign origin and then disposed it of. Now this requirement could be called to be insufficient or defective but we could not be convinced that it was without jurisdiction or that it was in violation of any law or rule for the time being in force. This contention urged on behalf of the petitioner is, also not tenable.
7. As regards the second contention canvassed at the Bar on behalf of the petitioner, suffice it to say that under subsection (4) of section 169 of the Act when anything liable to confiscation is seized under section 168 of the Act, the Collector of Customs or any other Officer (in the instant case respondent No,3) may, notwithstanding the fact that adjudication of the case under section 179 or an appeal under section 193 or revision under section 196, cause the thing to be sold in accordance with section 201 of the Act ibid and have the proceeds kept in deposit pending adjudication of the case. It would thus be seen that such a hasty disposal of the seized goods may look to be quite unjustified and strange, still it does prima facie, fall within the purview of subsection
(4) of section 169 of the Act.
8. For the aforesaid reasons, we find no substance in this petition which is dismissed accordingly.
The parties are, however, left to bear their own costs.