1. SALEEM AKHTAR, J.--- On 25-5-1989 the petitioner was apprehended while attempting to smuggle out foreign as well as Pakistani currency out of Pakistan as alleged by the respondents. He was located inside the International Terminal Building departure lounge and before examining his baggage he was asked to declare whether he was carrying any contraband in his baggage or on his person to which he denied. A search was made in the presence of two Mashirs and Pak.
2. Rs.3,00,000 and 600 U.A.E. Dirhams concealed in. The layers of the Dupattas were recovered. The currency was seized and the petitioner was arrested. Notice under section 171 of the Customs Act was served and he was charged under section 8(2) of the Foreign Exchange Regulation Act, 1947 as no N.O.C. Was produced by him. A notice was issued on 23-7-1989 by registered post asking him to show cause on or before 21-8-1989 why penal action should not be taken against him. The hearing was fixed on 21-8-1989 at 10 a.m. It seems that no reply was received and as stated by the respondent reminder was issued and finally a reply was received. According to the petitioner reply is dated 28-9-1989 but in the impugned orders it has been mentioned as dated 30-9-1989. Not satisfied with the reply the matter proceeded before the Deputy Collector Customs who passed order on 30-10-1989 confiscating the currency recovered from the petitioner and personal penalty of Rs.1,50(XX) was also imposed. It may be mentioned that prior to this order reminders were issued on 10-9-1989 and 11---10-1989 and the hearing was fixed on 21-8-1989, 26-9-1989 and Finally on 22-10--1989 but the petitioner did not- appear on any date. The petitioner riled an appeal which was dismissed and revision filed by him met the same fate.
3. Mr. Sohail Muzaffar, the learned counsel for the petitioner, has stated that the petitioner had a confirmed ticket for Turbat but as plane was over--booked he went to see off his friend who was leaving for Dubai and was standing at the International Terminal when he was apprehended. From the impugned order it is clear that the petitioner held a confirmed ticket for Dubai and further that he was found inside the International Terminal. Mr. Sohail Muzaffar the learned counsel further contended that the petitioner did not have a Visa for Dubai but as. Explained in the impugned order it is not necessary to obtain visa as at the request of any friend or relative at the airport of Dubai visa can be granted.
4. The learned counsel then contended that the notice was received after expiry of two months of the date when arrest was made and therefore, the entire proceedings is in violation of section 168 of the Customs Act. In reply submitted by the petitioner the date on which notice was received by the petitioner has not been mentioned. It has vaguely been stated that it was received after two months of the date of seizure. Such statement is not sufficient to discharge the burden cast upon him as respondents have stated in clear terms that the goods were seized on 25-5-1989 and show cause was issued on 23-7-1989 and was despatched to the petitioner on 24-7-1989. The notice was sent by registered post and in terms of section 215 of Customs Act proper mode was adopted by respondent No.1. In these circumstances the petitioner should have proved by cogent evidence that notice was received after two months of the seizure. This has not been done. Section 108, subsection (2) provides that where any goods are seized under subsection (1) and no show--- cause notice in respect thereof is given under section 180 within two months of the seizure, the goods shall be returned to the person from whose possession they were seized provided that the period may be extended for reasons to be recorded in writing. There is an obligation on the Customs Authority to give notice within two months of the seizure but failure to do so may result in releasing of the goods. It does not debar the Customs Authorities from taking penal action against the petitioner.
5. The learned counsel then contended that petitioner was not allowed any hearing and thus respondent No.1 passed order in violation of principles of natural justice and Customs General Order and therefore, it is void. Respondent No.1 had issued notices but the petitioner did not appear.
6. In these circumstances the question of violation of principle of natural justice does not arise because it is due to default of the petitioner that the order was passed in his absence. He cannot be allowed to take advantage of his own default. We do not find any merit in the petition which is dismissed in limine.
7. N.H.Q./R-198/K