QAZI MUHAMMAD FAROOQ, J.--This Constitutional petition calls in question the legality of the seizure and confiscation of certain contraband articles by the Customs Authorities on the strength of the provisions of section 16/139/156(1)(70) of the Customs Act, 1969 and the Passengers (Non- Tour1st) Baggage (Import) Rules, 1983 read with section 3(1) of the Imports and Exports (Control)
Act, 1950.
2. Briefly stated the facts giving rise to this petition are these. The petitioner Abid Khan is an overseas Pakistani working in Dubai. He belongs to Peshawar and his permanent home address is house No.2/85, Yakatoot Gate, Peshawar. He booked two boxes as his unaccompanied baggage at Dubai Airport for Peshawar through Airway Bill No. 214-71241693 dated 5-6-1990 under the cover of personal effects and household effects. The consignment arrived at Peshawar on 7-6-1990 by Flight No.PK-221. However, pursuant to a prior tip off that the boxes contained contraband articles, the Customs authorities stored the same in the Godown and on 11-6-1990 sent a notice under section 26 of the Customs Act, 1969 by registered post to the petitioner at his given address but it was returned undelivered. Resultantly, on 19th June, 1990 the boxes were opened in presence of the Cargo Terminal Manager and other officials of the P.I.A. And the ensuing examination resulted in the recovery of 40 V.C.Rs., 10 V.C.Ps., 126 Gents Watches, 37 ladies watches 200 packets (each containing 10 pieces) of Toyota Motor D1stributor Kit (points) and 500 ladies hair clips. The Articles recovered from the boxes were seized and the petitioner was informed through a notice under section 171 of the Customs Act sent to him on 19-6-1990 by registered post. Ultimately, a notice was sent to him on 2-7-1990 under section 180 of the Customs Act by registered post whereby he was called upon to show cause within ten days as to why penal action should not be taken against him under sections 16, 139 and clause (70) of subsection (1) of section 156 of the Customs Act, 1969 and the Passengers (Non-Tour1st) Baggage (Import) Rules, 1983 read with section 3(1) of the Imports and Exports (Control) Act, 1950 and the contraband goods should not be confiscated. He was also directed to appear before the Deputy Collector, Customs and Central Excise on 14-7-1990. The petitioner did not respond to the notice in any manner with the result that an ex parte order was passed on 14-7-1990 by the concerned adjudicating Officer whereby the seized articles were confiscated. Feeling aggrieved the petitioner filed an appeal on 16-8-1990 against the seizure/confiscation order before the Collector (Appeals) Customs and Excise, Lahore but it was dismissed on 19-9-1990 on which he filed a revision petition but without success as it was rejected on 21--11-1991 by the Additional Secretary to the Government of Pakistan, Ministry of Finance.
Thereafter, he filed this writ petition seeking a declaration to the effect that the orders dated 14-7- 1990, 19-7-1990 and 21-11-1991 were without lawful authority and of no legal effect. He further prayed that the confiscated articles may be treated as frustrated cargo and he may be allowed to take them back to Dubai.
3. It was contended by the learned counsel for the petitioner that the petitioner had booked the boxes in question for Germany in the name of his real brother residing there and simultaneously had booked two boxes containing his personal effects for Peshawar but inadvertently the Cargo Manager at Dubai had sent the boxes booked for Germany to Peshawar. It was further contended that the seizure and confiscation of the articles contained in the petitioner's boxes was absolutely illegal and he was entitled to get them back under the provisions of section 168(2) of the Customs Act as it was made without giving him the requisite notices under sections 26 and 171 of the Customs Act in general and the mandatory notice under section 180 in particular. It was lastly contended that it was a case of frustrated cargo which ought to have been dealt with under section 138 of the Customs Act read with Frustrated Cargo Export Rules, 1970 allowing*the petitioner to take the articles back to Dubai without paying any duty.
4. The learned counsel for the respondents on the other hand contended that the petitioner had not produced any document about the despatch of two boxes from Dubai to Germany by PIA, therefore, his allegation that the boxes sent by him to Germany were inadvertently despatched to Peshawar by PIA Cargo Dubai was false. It was further contended that all the requisite notices were sent to the petitioner by registered post on his given address but he had deliberately ignored them in order to take the plea that he was condemned unheard. It was further submitted that it was not a case of frustrated cargo because the petitioner had booked the boxes containing commercial goods for Peshawar Airport and had given his address in the Airway Bill which was drawn up at the time of booking the boxes at Dubai.
5. The story of inadvertent swa pping of boxes is incredible as no document has been pressed into service to show that the petitioner had also booked two boxes at Dubai Airport for Germany in the name of his brother. The contents of the Airway Bill No.214-71241693 dated 5-6-1990 clearly show that the boxes in question were booked for Peshawar. We also do not find any force in the contention that the seizure and confiscation of the contraband articles contained in the suspect boxes having been made without giving the requisite notice to the petitioner were illegal and a case for the return of the same is made out. Copies of the postal receipts available on the record leave no room for doubt that the notice under sections 26, 171 and 100 of the Customs Act were sent to the petitioner by registered post on 11-6-1990, 19-6-1990 and 2-7-1990 respectively on his address given in the Airway Bill which has not been disputed. There is an in-built provision in the Customs Act which makes it manifest that a notice sent by registered post shall be deemed to have been duly served. It is contained in section 215 of the Customs Act which is worded thus:-- Service of order decision etc.--Any order or decision passed or any summons or notice issued under this Act shall be served-- (a)by tendering the order, decision, summons or notice or sending it by registered post to the person for whom it is intended or to his agent; or (b)if the order, decision, summons or notice cannot be served in any manner provided in clause (a), by affixing it on the notice board of the Customs House."
We are fortified in our view by an instructive judgment of the Supreme Court of Pakistan reported as Manoo Gul and others v. Pakistan and others (PLD 1989 Supreme Court 605) wherein it was held that the notice is served as soon as it is sent by registered post to the accused. The following observations of their Lordships may be reproduced with advantage:-- "As regards notice the Act has been made self-sufficient otherwise there was no need for incorporating section 215 in the Act. The provisions of section 215 do not envisage delivery of show- cause notice to the addressee within two months in order to exercise the power to retain the seized goods beyond two months for more than one reason; firstly, effectiveness of the notice is not made dependent upon the service or delivery of the notice to the person to whom it is addressed for if it is so interpreted the receipt of notice can be avoided by the addressee till the time of two months expires so as to become entitled to claim the return of goods; Secondly, the provisions of section 215, clause (b) further support this interpretation, which provides that if the notice cannot be served through post, it can be served by affixation on the notice board of the Custom House. Accordingly the notice in this case was served as soon as it was sent by registered post to the appellants."
The petitioner cannot clamour for the return of goods as the requisite notice under section 180 of the Customs Act was served on him by registered post within the stipulated period of two months.
In this context it will be pertinent to mention that subsection (2) of section 168 of the Customs Act requires that the notice envisaged by section 180 of the Act should be given to the person concerned within a period of two months (extendable for a further period not exceeding two months) and if such notice is not given the goods must be returned to him. As for the contention that the confiscated goods ought to have been treated as frustrated cargo it will be enough to say that only those goods can be treated as frustrated cargo within the contemplation of section 138 of the Customs Act which are brought into a Customs station by reason of inadvertence, misdirection or untraceability of the consignee. The consignment in question does not meet the requirement of section 138 of the Act inasmuch as not only the undisputed address of the petitioner was mentioned in the Airway Bill No.214-'71241693 dated 5-6-1990 but the petitioner had also taken the delivery order from the PIA Cargo Terminal Manager, Peshawar on 9th June, 1990 as is evident from the correspondence between the said Cargo Terminal Manager and Qazi Waheeduddin, authorised attorney of the petitioner, available on record. This writ petition is, therefore, dismissed leaving the parties to bear their own costs.