IMAM ALI G. KAZI, J.- This petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 has been filed by the two petitioners. M/s. Tawakkal General Export Corporation, a registered partnership firm, and M/s. Tawakkal Garment Industries Limited, a public limited company. Both the petitioners belong to the common trading group and claim to be exporters of some standing and repute in the country.
2. The petitioners presented 4 consignments of polyester and textile fabrics, bed sheets etc. To the Custom Authorities for shipment to their consignees abroad in February, 1991. They allege that aforementioned 4 consignments meant for export have been subjected to unwarranted action and illegal delay by the three Respondents who are all authorities of the Customs Department.
They allege that after the shipping documents were processed in accordance with law and rules by the first two Respondents {Collector of Sustoms (Export) and Director Intelligence and Investigation (Customs & Excise)} and samples drawn from the consignments for the purpose of determination of the valuation of the goods, they have been threatened for an action by Respondents No. 2 & 3. The Petitioners complain that Respondent No.2 detained their goods for overinvoicing and served them with notices under Section 26 of the Customs Act, 1969. They have been informed by such notices issued by the Respondent No.3 that action agianst them is to be taken for mis-declaration, false declaration or concealment of proper description of the goods and have been called upon to show cause why action should not be taken against them. They were also required to produce certain documents.
3. The petitioners allege that they had given offers for the transfer of Muslim Commercial Bank Limited under the privatisation policy notified by the Federal Government. Their offer was not accepted by the Authorities in power and the Petitioners earned their displeasure for having participated in the process. At the behest of the authorities in power in the country series of acts victimising the Petitioners were initiated and the action taken by the Customs Authorities is a part of such series of actions. This has necessitated them to file the present petition impugning notices issued by the Respondents under Section 26 of the Customs Act, 1969.
4. After this petition was filed it appears that Collector of Custom (Export), the Respondent No.1 herein, issued show cause notices to the petitioners on 10th July, 1991, intimating them that on physical check of goods intended to be exported by them it was found that cotton printed bed sheets with pillow covers and other cotton printed fabrics were of substandard quality. Samples drawn from the consignments, were examined by the Central Laboratory and goods found not to confirm to the specification laid down by the rules of Pakistan Standards Institution. The goods contained less weight and were of lighter density. The count and sizes were also contrary to the declaration made in the invoices and bills-of-export. According to the notices, the provision contained in Notification No. SRO-1169 (I)/73 dated 8th August, 1973, issued under Export (Quality Control) Order, 1973, was contravened by them. It was further alleged that documents like receipts etc. Procured from Petitioner No.1 and on the basis of inquiries and investigation conducted in the market, it was found that such documents were bogus and fabricated. The goods were, therefore, seized by them and the notices under Section 171 of the Customs Act, 1969 issued. The Petitioners then sought amendment of the Petition to impugned such notices which was allowed and amended Petition filed.
5. The case of the Respondents briefly stated is that they have taken action and seized, the goods under powers conferred on them by the Export (Quality & Control) Order, 1973 published by Notification No. SRO-1169(I)/73 dated 8th August, 1973, read with Section 16 of the Customs Act, 1969, as the goods intended to be exported were substandard. They have seized the goods under Section 171 of the Customs Act, 1969, and proper notices issued to the petitioners. It is, therefore, claimed that they will be within their authority to commence adjudication proceedings against the petitioners and in case they are aggrieved they have alternative remedies available under the law and the petition on that ground is liable to be dismissed.
6. It has been strenuously contended by Mr. Naseem Farooqui, Advocate for the Petitioners, that the Respondents had acted malafide due to their participation in their attempt to purchase Muslim Commercial Bank earning displeasure of the Government in power. Being a malafide act it is liable to be struck down on that ground alone. He further pointed out that in any event Notification relied on by the Respondents has no application to the case of the Petitioners and the whole exercise conducted by the Respondents is patently without jurisdiction. According to him neither the provisions of Imports & Exports (Control) Act (XXXIX of 1950) nor Pakistan Standards Institution (Certification Marks) Ordinance, 1961 or the Pakistan Standards Institution (Certification Marks)
Rules, 1962 are attracted in their case. In support of his such contentions he referred to the cases published in PLD 1958 S.C. 41, PLD 1959 S.C. 364, PLD 1965 S.C. 671 and PLD 1972 S.C. 279.
7. Mr. Naeemur Rehman's, Standing Counsel appearing for the Respondents, mainly contended that the petition is not maintainable and according to the notified standard of such goods, the goods intended to be exported by the petitioners are substandard and export of such goods are prohibited under Section 16 of the Customs Act, 1969. The petitioners have also given wrong descriptions of the-goods and they are liable for action under Section 32 of the said Act. He also referred to the Pakistan Standards 65 of 1987 (2nd Revision) issued by Pakistan Standards Institution, Karachi, prescribing standard for such goods. The report of the analyser clearly shows that the goods intended to be exported by the petitioners are of substandard quality and cannot be permitted to be exported. He further contended that the petitioners have been hasty in filing the Petition merely against a notice without availing the machinery for adequate relief provided under the Customs Act, 1969. In support of his contentions he has referred to the cases reported in PLD 1971 Karachi 874 and PLD 1958 S.C. 41.
8. The main contention of the Respondents as finally narrowed by them is that the goods intended to be exported by the petitioners is of substandard quality and export of such goods is prohibited under the law. In order to appreciate such contention, it is necessary to examine their contention in the light of provisions made in the Exports & Imports (Control) Act, 1950, Pakistan Standards Institution (Certification Marks) Ordinance, 1961 and the rules framed under that Ordinance and the Notification issued by the Federal Government thereunder.
9. Section 3 of the Imports & Exports (Control) Act, 1950, empowers the Federal Government to prohibit or restrict import and export of the goods. It is reproduced herein below:- "3. Powers to prohibit or restrict imports and exports (1) The Federal Government may, by order published in the official Gazette and subject to such conditions and exceptions as may be made by or under the order, prohibit, restrict or otherwise control the import or export of goods of any specified description, or regulate generally all practices (including trade practices) andd procedure connected with the import or export of such goods, (and such order may provide for applications for licences under this Act, the evidence to be attached to such applications, the grant, use, transfer, sale or cancellation of such licences, and the form and manner in which and the periods within which appeals and applications for review or revision may be preferred and disposed of, and the charging of fees in respect of any such matter as may be provided in such orders).
(2) No goods ot the specified description shall be imported or exported except in accordance with the conditions of a licence to be issued by the Chief Controller or any other officer authorised in this behalf by the Federal Government.
(3) All goods to which any order under sub-section (1) applies shall be deemed to be goods of which the import or export has been prohibited or restricted under (Sec. 16 of the Customs Act, 1969 (IV of 1969), and all the provisions of that Act shall have effect accordingly).
(4) Notwithstanding anything contained in the aforesaid Act the Federal Government may, by order published in the official Gazette, prohibit, restrict or impose conditions on the clearance whether for home consumption (or warehousing or) shipment abroad of any imported goods or class of goods."
10. The Federal Government in Exercise of such powers have been issuing notifications either prohibiting export of the goods or prescribing conditions for such export. One of such notifications referred to by the Respondents was issued vide-Notification No. SRO-1169(I)/73 dated 8th August, 1973. Its para 3 prohibits export of inferior goods. It is reproduced below:- "3. Prohibition of export of inferior goods:- No person shall export from Pakistan any goods which do not confirm to the standard or grade designation applicable to, or the samples, of such goods."
11. According to the definition of term "Standard" given in the Notification, it means a Pakistan standard as defined in the Pakistan Standards Institution (Certification Marks) Ordinance, 1961.
12. The Respondents as stated by them have acted under this Notification and. According to them since the standard has been already prescribed, the goods of the petitioners being below that standard will be considered to be the goods prohibited for export.
13. The Central Government in the Ministry of Commerce is similarly empowered to prohibit or restrict export of certain articles as provided by Section 8 of the Pakistan Standards Institution (Certification Marks) Ordinance, 1961. This Section is reproduced herein below: - "8. Power to prohobit or restrict export of certain articles:
(1) The Central Government in the Ministry of Commerce may, by notification in the official Gazette and subject to such conditions and exceptions as may be made by or under the notification, prohibit, restrict or otherwise control the taking out of Pakistan of articles of any specified description which do not bear the Standard Mark or regulate generally all practices (Including trade practices) and procedure connected with the export of such articles.
(2) No articles of the specified description shall be taken out of Pakistan except in accordance with the conditions of a licence to be issued by an officer authorised in this behalf by the Central Government in the Ministry of Commerce.
(3) All articles to which any notification under, sub-section (1) applies shall be deemed to be goods of which the taking out of Pakistan has been prohibited or restricted under Section 19 of the Sea Customs Act, 1878 (VIII of 1878), and all the provisions of that Act shall have effect accordingly except that Section 183 thereof shall have effect as if for the word "shah" the word "may" were substituted.
14. The Institution set up under this enactment is required by rule 3 tc establish certain standards and publish the same. The Pakistan Standards established by the Institution before the commencement of the regulations (9th June, 1969) are required to be published in official Gazette as soon as may be after the date of commencement. Thereafter a list of Pakistan Standards established by the Institution during any quarter shall be published immediately following quarter to which this relates. Mr. Naeemur Rehman's, Standing Counsel for the Respondents, although he has filed a photostat copy of Pakistan Standards 65 of 1987 dealing with "cotton cloth sheets", has not been able to produce any Notification authenticating such publication in the official Gazette.
Sud publication in absence of Notification in terms of rule 3 of the Pakistan Standards Institution (Certification Marks) Rules, 1962 will be of no legal effect for the purpose of the aforesaid rules.
15. In view of above it may be noted that the Federal Government is authorised to prohibit or restrict export of certain articles as provided by Section; of the Imports and Exports (Control)Act, 1950 read with Section 8 of the Pakistar Standards Institution (Certification Marks) Ordinance, 1961, through notification to be published in the official Gazette. The Government had issued Notification bearing No. SRO-1169(I)/73 dated 8th August, 1973, entitled astl Exports (Quality Control) Order, 1973, which prohibited export of inferior goods which do not confirm to the standard orgrade prescribed by Pakistan Standards Institution (Certification Marks) Rules, 1962. Such a Notification was issued b; the Federal Government in exercise of their powers conferred by sub-section (1' of Section 3 of the Imports and Exports (Control) Act, 1950. Jt is on the basis o this Notification that the Respondent claim that they had detained the goods o the petitioners.
16. It may be pointed out here that on the very next day of the publicatioi of the notification mentioned in the preceding paragraph the Federal Governmen on 9th August, 1973 in exercise of their powers uq^ler sub-section (1) of Section I of the Imports and Exports (Control) Act, 1950 published SRO-l174(I)/7i prohibiting export of certain commodities under conditions mentioned therein Schedule V contained items which could only be exported subject to qualit control. Various notifications were issued modifying this notification from time to time. SRO-591 (I)/76 dated 19th June, 1976; SRO-599(I)/77 of 9th July, 1977; Notification No. 971(I)/78 of 1st August, 1978; SRO- 685(I)/79 of 31st July, 1979, SRO-846 (I)/80 of 17th August, 1980; SRO-904(I)/81 of 16th August, 1981; SRO- 731 (I)/82 of 20th July, 1982; SRO-635(I)/85 dated 1st July, 1985; SRO-636(I)/86 dated 30th June, 1986; SRO-550(I)/87 dated 29th June, 1987 and SRO-697(I)/90 dated 1st July, 1990 were issued prohibiting export. All these notifications contain Schedule V giving a list of commodities which alone could be exported under quality control. The last notification published in 1990 was in the field when the Respondents initiated action in this case. The items mentioned in Schedule V of such Notification do not contain the commodities intended to be exported by the petitioners. The Schedule V of notification mentioned above specifically deals with the commodities which can only be exported under the quality control. It, therefore, dearly follows that special provision made in the said notification shall prevail over the gdfteral provision of law mSde in para 3 of the Exports (Quality Control) Order, 1973 and restrictions contained therein will be applicable only to items given in Schedule V. In view of it there Was no power available to the Respondents to inifthte action under Exports (Quality Control) Orddfc, 1973.
17. The action taken by the Respondents in detaining the goods af the petitioners meant for export for the foregoing reasons is patently "ttfrihput jurisdiction and lawful authority. In view of such conclusion we do not consider it necessary to deal with the other grounds urged by Mr. Naseent Farooqui, Advocate for the petitioners. The objection raised by Mr. Naeemur Rehman's, the Standing Counsel appearing for the Respondents, that the petition is not competent as the Petitioners have notr availed of the alternate remedy available to them under the law has also no force as the action taken by the respondents absolutely lack competency and jurisdiction.
For the foregoing reasons we declare that the action taken by the respondents and impugned in this Petition is without lawful authority and to be of no legal effect. We, therefore, allow this petition with costs.