JUDGMENT JUSTICE (R) AKHTAR HASSAN, -CHAIRMAN.-1.
This appeal calls in question the Order-in-Original No. 25/1995 dated 22.4.95 of the learned Collector of Customs, Lahore, whereby he even after remand, adhered to his earlier Order-in- Original No. 48/89 of 17.12.89 reiterating the view that the 67 rennies of gold weighing 670 tolas recovered from the Suzuki car in possession of the appellant Nizar Ali near Chauburji Chowk Lahore City on 28.8.87 at 0130 hours in pursuance of a nakabandi, were contraband being of foreign origin and were really being taken by them to the border village Dial for smuggling them out to India.
2. It was a nakabandi laid principally by the Pakistan Rangers in pursuance of a secret information assisted by an Inspector Customs Mr. Waqar Yousaf and a Sub-Inspector of Police Mr. Mohammad Naseeb Khan. They were able to recover not only the gold rennies numbering 67 bearing foreign marks such as "JOHNSON MATHEY 999.0 LONDON 10 TOLAS, SWISS BANK CORPORATION 10-TOLAS AND UNION BANK OF SWITZERLAND 10 TOLAS FONDEUR ESSAYEUR 999.0" but also Pak. Currency valuing Rs.
2,90,000/- and an unlicensed Rifle of 7MM calibre of foreign origin alongwith 07 rounds. Besides, on his personal search, his watch, golden ring, National Identity Card and a 32- bore arminious Revolver without license alongwith 06 rounds were taken into possession. A criminal case was registered at the P.S Lytton Road, Lahore.
3. In reply to the Show Cause Notice, the appellant traversed the alleged nakabandi and pleaded that in fact the Rangers raided his house on 27.8.87 at 10 P.M. And recovered 70 pieces (as against 67) of gold weighing 700 tolas; currency notes worth Rs. 3,00,000/- (as against Rs. 2,90,000/-) and his licensed rifle and revolver. He maintained that the differential quantity of gold and the currency notes were mis-appropriated by the Rangers. His version was that the gold was purchased by him in the shape of, ornaments weighing 901 tolas through Mr. Mohammad Hasham Saraf in the liquidation proceedings of the Punjab and Kashmir Banks Limited conducted by the High Court, Lahore and that later he get it melted and purified. He asserted that the Rangers had no jurisdiction to raid his house or even to lay a nakabandi at the Chauburji Chowk and also assailed validity of the Show Cause Notice.
4. Earlier in Order-in-Original No. 48/89 dated 17.12.89 the gold weighing 670 tolas and the Suzuki car were confiscated while the Pak. Currency and the other items were released.
5. In appeal, the Learned Member (Judicial) remanded the case vide his Order-in-Appeal No. 038/1991 dated 18.5.91 directing to consider non-compliance of CGO 10 of 1974 dated 27.3.74; issuance of the Show Cause Notice out of time; and the want of territorial jurisdiction of Rangers in effecting the recovery in the down town of Lahore.
6. Mr. Mohammad Naeem Qazi, Advocate emphasised that the Rangers were not competent to take up any such adventure beyond 5 mile border belt as provided in section 6 of the W.P. Rangers Ordinance, 1959 and SRO 314 of 11-7-59 and that at the most they could have laid the so-called secret information with the Police Station Lytton Road, Lahore for all further proceedings. On the other hand, the representative of the Department urged that the Rangers were accompanied by an Inspector of Customs (Mr. Waqar Yousaf) a Sub-Inspector of Police (Mohammad Naseeb Khan) both working on deputation with them and that the entire proceedings were conducted by the former.
7. The record particular the FIR supports the version that the Rangers were not alone but instead were accompanied by the Inspector Customs and a Police official. It was not shown if the restriction of working within 5 mile border belt was also applicable to the Customs official. Indeed such restriction was intended to be imposed under section 6 of the Customs Act, 1969 upon "certain other officers". SRO 29(1)/73 of 03-1-1973 entrusted the functions of Customs Officers on the Officers of the Rangers and it were they who could wield such powers or discharge such functions within the 5 mile border belt.
Conversely, an Officer of the Customs shall, under section 4 of the Act exercise such powers-7----- ---------- as are conferred on him by or under the Act. One need not enumerate what powers the Inspector Customs on deputation with the Rangers could wield.
8. I must say the objection was purely technical and had no merit when juxtaposed with the provisions of section 7 of the Act which reads "7. Assistance to the Officers of Customs-All officers of Central Excise, Police and the Civil Armed Forces and all officers engaged in the collection of land-revenue are hereby empowered and required to assist officers of customs in the discharge of their functions under this Act."
9. It has to be seen that the statutory provision shall prevail as against all. Contentions based upon this SRQ or that inasmuch as it tilts the pendulum to the opposite side by impinging upon all officers of------------------ the Civil Armed Forces to assist officers of Customs in the discharge of their functions. In other words, the Inspector Customs could legitimately require the Rangers to assist him in laying this naka etc., etc. And it shall be the latters' bounden duty to assist him in the process. The provision is open ended contemplating no restriction as to time, place, territory or methodology in rendering such assistance*. It was rightly claimed that no objection could be taken on legal plane to engaging the Rangers in the City of Lahore at the instance of the Customs Inspector like Waqar Yousaf.
10. I have carefully gone through the various authorities relied upon by the Learned Counsel for the appellant in support of the contention that Rangers could not exercise power in Customs cases beyond the 5 mile border belt. 1989 P.Cr.1.J. 1190, FTCL 1986 CL. 270 and PUD 1991 SC 630 were authorities really supporting the view that the Rangers had no power to make seizure of contraband goods beyond the border belt or the Port areas. With respect, in none of these the typical provisions of section 7 ibid finds mention, nor indeed its broad-based spectrum admit any such constraint. The nature of duties or functions of a Customs Officer call*'for action, in many cases instanteously leaving no room for lethargic planning or observing various brass tacks in the matter of chasing an un-canny smuggler who might be more often than not carrying not only soft goods, but also lethal bombs etc. As a terrorist. Prompt action might be indispensable and perhaps section 7 provides answer for it. It leaves all to the discretion of a Customs Officer who could call with impunity any officer of the Civil Armed Forces (including Rangers) "to assist" him in the discharge of his functions. Mr. Kazi could not deny that the impugned raiding party had the Inspector Customs with them. His presence in the process would raise a presumption that it was he who "required" the Rangers "to assist" him in performance of his duties.
11. Next, the expression "Officers of Customs" is defined in ' section 2(o). It means an officer appointed under section 3 which in turn in its clause (g) includes "an officer of Customs with any other designation". No attempt seems to have been made by the appellant to indicate that Mr. Waqar Yousaf, Inspector Customs in this case could not operate in Lahore. Apparently he belonged to the "Customs Intelligence" whose officers as at page 79 of the Customs Act, 1969, Seventh Edition, 1997 by Najib A. Chaudhry.
"-------- have powers of search of the places and conveyances; arrest of persons; and seizure of offending goods and conveyances--------- ".
On this view of matter, it is extremely difficult to agree with the E Learned counsel.
12. No other point was raised. The Show Cause Notice as held in para 17 of the impugned Order-in- Appeal was within time. The appellant failed to bring on record any material revealing that he had purchased the bullion in question in a court proceeding, nor did he make any practical demonstration showing that he could affix the foreign marks on the rennies by any device. His hollow argument was rightly rejected.
13. There is no substance in the appeal and the same is dismissed.