' The facts necessary for the disposal of this petition are that a Morris Oxford Car (1965-Model) bearing No, LGE-71 was sold under orders of the Assistant Commissioner' Toba Tek Singh, at an open public auction held on the 15th of October 1974, and was purchased by Muhammad Ashraf, petitioner, for Rs, 9,000.00. He applied to the Excise and Taxation Officer (Motor Registering Authority for the present purposes) Lyallpur, for permanent registration of the car. The said officer referred the matter to the Assistant Collector, Central Excise and Land Customs, Lyallpur, seeking guidance from him as to whether or not the car be registered, as the customs duty and other charges had not been paid. Under orders of the Deputy Superintendent, Central Excise and Land Customs Department, Lyallpur, the car was then taken into custody on the ground that the petitioner had failed to "produce customs payment documents". The petitioner has filed the petition under Article 199 of the Constitution with the prayer that the order dated the 13th of February 1976 whereby the car was seized be declared to be without lawful authority; the respondent restrained from recovering any customs duty etc., from the petitioner and a direction issued to them to register the car in favour of the petitioner.
2. The case of the petitioner is; (a) that the petitioner being a bona fide purchaser for value of the car sold to him as a confiscated state property, its seizure was not warranted by clause (s) of section 2, read with section 168 of the Customs Act, 1969, and (b) that the car having been sold through Court-auction was deemed to be free from all encumbrances and at any rate the petitioner had no means to investigate the title of the original owner of the car in order to protect himself from any apparent or latent defect in it.
3. The car was recovered from Noor Muhammad and Muhammad Shafi sons of Badar Din against whom a case under sections 420/365, P. P. C. Had been registered at Police Station, Toba Tek Singh.
They were released on bail, but they absconded and were declared proclaimed offenders, and proceeded against under section 512 of the Code of Criminal Procedure, The car was then sold under orders of the Court. The car was manufactured abroad. It is not denied that customs duty was leviable on the import of the car into Pakistan. The Central Excise and Land Customs Department has taken a definite stand that no customs duty had ever been paid on the import of this car. The word "smuggle" as defined in clause (s) of section 2 of the Act means : "to bring into or take out of Pakistan, in breach of any prohibition or restriction for the time being in force, or evading payment of customs-duties or taxes leviable thereon,-
(a) gold bullion, silver bullion, precious stones, currency, marufactures of gold or silver or precious stones or any other goods notified by the Federal Government in the official Gazette, in each case exceeding one thousand rupees in value; or
(b) any goods by any route other than a route declared under section 9 Of 10 or from any place other than a customs station, and includes an attempt, abetment or connivance of so bringing in or taking out of such goods; and all cognate words and expressions shall be construed aecordingly."
The car could be imported into Pakistan subject to the condition that the prescribed customs duty was paid on it, and since the same had not been paid, the import of the car was in violation of law.
If the car had been imported through the route declared under section 9 or 10 of the Act, there was no reason why the Customs Authorities should have failed to extract the customs duty before permitting the entry of the car into the territories of Pakistan. Ex facie the car had been imported by some route other than a route declared under section 9 or 10 of the Act or from any place other than a customs-station, and was, therefore, smuggled one. Under section 155 read with Item No, 90 of the Table thereto, the goods which are chargeable with a duty which has not been paid, or with respect to the importation or exportation of which there is a reasonable suspicion that any prohibition or restriction has been contravened, are liable to confiscation. And, under subsection (1) of section 168 of the Act, the goods liable to confiscation can be seized by an officer of the Department only authorized in this behalf. Since in the present case the prescribed customs duty had not been paid before the car was imported into Pakistan, it was smuggled one and liable to confiscation and seizure. The action of respondent No, 1, in the circumstances. Was perfectly in accordance with law.
4. Learned counsel for the petitioner however, relied on subsection (3) of section 32 of the Act to contend that it was the duty of the Customs Authorities to have served a notice on Noor Muhammad and Muhammad Shafi within four months of the import of the car and that since they had failed to do so within the stipulated period, the seizure of the car after the lapse of four months was without lawful justification. Subsection (3) of section 32 reads as follows :- "Where, by reason of any inadvertence, error or misconstruction, any duty or charge has not been levied or has been short-levied or has been erroneously refunded, the person liable to pay any amount on that account shall be served with a notice within four months of the relevant date requiring him to show cause why he should not pay the amount specified in the notice "
This provision applies only where the Customs Authorities were in a position to levy the duty or charge but failed to do so due to "inadvertence, error or misconstruction". In other words, if the Customs Authorities were aware of the import of the car and they had not levied the duty or it had been short-levied, for any of the reasons, a notice had to be served on the person liable to pay any amount on that account, within four months. It is not the case of the petitioner that it was imported on Carnet-de-Passage, because in that case the import for a short term on temporary basis was possible. The import of it through the customs-post, in any other case, without the payment of the customs duty was also not possible. Therefore, the question of inadvertent or erroneous omission to levy the customs duty did not arise. In the circumstances, subsection (3) of section 32 was not attracted and the contention raised in this behalf is untenable.
5. The petitioner purchased the car in an open public auction held under orders of the Court. The rights, title and the obligations of the original owners of the car thus stood passed on to the petitioner. Simply because the car had been sold under orders of the Court, the petitioner could not get a better title than of the original owners of the car. The general principle is that a Court-sale carries with it no guarantee that the property is the property of the judgment-debtor, the auction- purchaser takes the risk and bears the loss if it is subsequently discovered not to be the property of the judgment-debtor. There is no warranty of title in Court-sales. In Sawdarninee v. Kishen Kishore
(1) it was observed by Peacock, C. I., at page 10 of the Report : "A purchaser at a sale in execution knows that all that he purchases is the right and title of the judgment-debtor. He knows that no one guarantees to him that the judgment-debtor has a good title and he purchases the property with his eyes open, and he regulates the price which he bids for the lanai with reference to the circumstances under which he is purchasing and the risk he runs." Section 55 of the Transfer of Property Act, l882, lays down a general rule for all private sales that there is an implied warranty of title, in the 'absence of a contract to the contrary. This rule, however, does not apply to sales in invitum to which the principle of caveat emptor is applicable, and D as held by their Lordships of the Privy Council in Dorab Ally Khan v. Abdool Aziz (2) "all that is sold and bought is the right, title and interest of the jugdment-debtor with all its defects." What is guaranted is that the judgment- debtor shall not recover back the properties sold. In Maung Aye Maung v A. Scott & Co. (3) where an engine bad been sold at public auction under orders of the Court, it was held that only the right, title and interest of the judgment-debtor passed. A similar view was expressed by Bhide, J., in Gurdit Singh v. Hakumat Rai (4). The petitioner when he purchased the car through Court-auction should have been put on guard by the fact that it bore foreign registration number. He should have at least put himself on enquiry whether the custoi s duty etc., had been paid. He had not even cared to E take into possession the relevant documents concerning the vehicle. Therefore, in my view the car was rightly seized under section 168, and section 156 read with item No, 90 of the Table annexed thereto.
6. The petitioner had alternate remedies by way of appeal (section 193) and revision (section 196) against the order of respondent No, 1 to which he has not resorted. He may, in the peculiar circumstance of the case, do so even now and the concerned authorities, 1 have no doubt while determining the penalty, will consider his case, in the light of the fact that he is a bona fide purchaser for consideration and himself not guilty of evading payment of the customs duty.
7. Subject to the above observations, this petition is dismissed.
Petition dismmissed.
(1) (1969) 12 Suth W R 8 (2) 5 Ind. App. 116
(3) AIR 1940 Rang. 1 (4) AIR 1932 Lab. 56