' This judgment is intended to dispose of the following two writ petitions wherein the same questions of facts and law are involved:-
(i) Writ Petition No,4279 of 1998 titled as 'Muhammad Nawaz etc. v. The State.
(ii) Writ Petition No,6734 of 1998 titled as 'Anjam Sheraz v. The State etc.'
2. The epitomized facts of both the writ petitions are almost the same while there is difference of proposed relief about which the separate prayer has been made in each writ petition. The facts of the matters are that Muhammad Nawaz petitioner No,1 of Writ Petition No,4279 of 1998 is the proprietor of M/s. Fancy Traders 5-Bull Road, Lahore, Jamal-ud-Din Rana petitioner No,2 is the proprietor of M/s. Subhan Traders, Bull Road, Lahore and Anjam Sheraz petitioner No,3 is employed as an Examiner in the Customs Department in the Central Board of Revenue and is presently posted at Dry Port, Lahore. Muhammad Nawaz and Jamal-ud-Din Rana petitioners Nos.1 and 2 imported the goods which were received in Pakistan in container number Anil 981362. They were received in Dry Port, Lahore. They filed two bills of entry containing separate No,4075 and 4076 through Waheed Ahmad Custom Clearing Agent, Lahore. The same were examined by Anjam Sheraz petitioner No,3 of Writ Petition No,4279 of 1998 who has also filed Writ Petition No,6734 of 1998. The assessm ent report prepared by Anjam Sheraz petitioner was approved by the Principal Appraiser who submitted the same before the Deputy Collector Customs, Lahore. Petitioners Nos. 1 and 2 were directed to pay the duty alongwith fine at 5% which was deposited by them on 3-2- 1998. The goods were out of charge of the Custom Authorities and the aforesaid petitioners/importers were allowed to remove the same from Dry Port, Lahore. However, on 3-2- 1998 Deputy Director Intelligence working in the relevant Directorate General, Intelligence and Investigation (Customs and Excise), Lahore supervised a raid with his subordinates namely Muzaffar Abbas Naqvi and Malik Muhammad Latif both Senior Intelligence Officers as well as Maqsood Hussain, Mubashir, Muhammad Din Pehalwan and Ghulam Mujtaba sepoys in the Dry Port, Lahore after receiving secret information that the goods had been grossly misdeclared in terms of quantity and description with whom Customs Staff and others had connived to evade the Government Revenue. Expressing about the commission of offence under sections 156(1)-8, 14, 81, 82, 86 and 178 of the Customs Act, 1969 (hereinafter called as Act for brevity sake), Abdul Ahad Khan, Superintendent Customs Intelligence, Lahore got recorded First Information Report No,6 dated 3-2-1998 on the basis of section 161 of the Act (Book No,3) at Directorate General Intelligence and Investigation (Customs and Excise), Lahore. The goods were taken into possession by the Intelligence Officers on 4-2-1998 when the inventory was prepared which allegedly included some of the banned items mentioned in Notification dated 23-5-1985 issued under section 2(s)(ii) of the Act.
3. Feeling aggrieved Muhammad Nawaz, Jamal-ud-Din Rana and Anjam Sheraz petitioners filed Writ Petition No,4279 of 1998 wherein they contended that the seizure in the form of inventory showed that the goods were not prohibited or banned within the meaning of section 2(s) of the Act as those had not been notified under section 16 of the Act by the Federal Government and that the offence under section 156(1)-8 of the Act had been added with mala fide intention in order to exaggerate gravity of the offence so that they were deprived of their right of seeking the indulgence of the Court. They filed the aforesaid writ petition to get declared that an offence under section 156(1)-8 of the Act was not made out against them as they have not smuggled into or out of Pakistan the goods. They averred that the goods were imported at the duly declared Customs Port Lahore under section 9 of the Act and the Customs Area duly specified under section 10 of the Act, that the bills of entry were duly filed at the Custom Port by the Clearing Agent, that thereafter the case had been duly examined and that the goods were assessed to Custom Duty which had been duly paid. They maintained that the goods were neither prohibited nor banned under section 2(s)(ii) read with section 16 of the Act as according to the Import Policy Order for the year 1997 all the goods detailed in the Seizure Report could be imported against the free list. They maintained that there was no legal or factual justification to add the offence under section 156(1)-8 of the Customs Act, 1969. They prayed for the issuance of the writ about the proposed declaration mentioned supra.
4. Anjam Sheraz petitioner mentioned above also independently filed Writ Petition No,6734 of 1998 to obtain a declaration to the effect that the registration of case F.I.R. No,6 dated 3-2-1989 under sections 156(1)-8, 14, 81, 82, 86 and 178 of the Customs Act, 1969 is without jurisdiction, without lawful authority, illegal and void against him and that all the consequential proceedings were also void, mala fide without jurisdiction and without lawful authority. According to him he was employed as an Examiner in the Customs Department in the Central Board of Revenue and was presently posted at Dry Port, Lahore. He contended that the aforesaid F.I.R. Desired to be quashed was registered on the allegation that he had not carried out examination of a container in which goods were imported by M/s. Fancy Traders, 5-Bull Road, Lahore and M/s. Subhan Traders of Bull Road, Lahore, that the goods have been found in excess of import documents and that the Examination Report was got prepared from him by the importers and the Clearing Agent to evade the duty and taxes on the imported goods. He maintained that he examined the imported goods contained in Container No, APLU 981362 on 28-1-1998 while in the aforesaid F.I.R. No,6 the number of container was mentioned as APLU 981340. He pleaded that the Appraiser, on the basis of the Examination Report made by him (writ petitioner), assessed the duty and taxes on the imported goods and the assessm ent was passed by the principal Appraiser and that since some goods were in excess the Deputy Collector imposed 5% fine on the value of the goods. According to him both the importers after the assessm ent of the duty and taxes had deposited a total sum of Rs,4.69.366 on 3-2-1998 and thus the goods were out of charge after the payment of duty and taxes under section 83 of the Act. He asserted that before the removal of the goods from the Dry Port premises a raiding team of the Directorate General Intelligence and Investigation (Customs and Excise), Lahore headed by a Deputy Director proceeded in the matter and lodged the impugned F.I,R. No,6, dated 3-2-1998 while the goods were seized and the Seizure Report and Inventory was prepared on 4-2-1998 from the premises of the Dry Port which is the Customs Station Port when neither the importers nor their representatives were associated. He contended that whole of the proceedings conducted by the Deputy Director of the office of Directorate General Intelligence and Investigation (Customs and Excise) I & P Branch, Lahore from taking into possession of the Container No, APLU 981340 of the goods delivered and the seizure of the goods were illegal, without jurisdiction and without lawful authority. He pleaded that the complainant and the Team Members were not Officers of the Customs authorised to lodge the report and that under sections 3 and 4 of the Act the powers to discharge the duty were conferred. He maintained that the powers to proceed under sections 32, 156(1)-8, 14, 81, 82, 86 and 178 of the Act were not conferred on the respondents who could not discharge the duty of the Officers of Customs under the above provisions of the Act whereupon the lodging of the F.I.R. Was wholly illegal, without jurisdiction and without lawful authority. He maintained that the Directorate General Intelligence and Investigation (Customs 'and Excise), Lahore have not been conferred the powers under sections 32 and 179 of the Act who could not proceed in the matter even though they were entrusted with certain powers by the Central Board of Revenue vide Notification dated 22-4-1982. He maintained that the limits of the Dry Port were notified by the Central Board of Revenue vide Notification No,S.R.O.1250(1)73, dated 24-8-1983 and the staff of the Directorate of Intelligence and Investigation (Customs and Excise). Lahore have no statutory jurisdiction to enter in to Port Area, conduct the raid and make seizure of the goods unless the same were examined, evaluated. Assessed out of charge and taken out of the Dry Port premises and that all the proceedings were illegal, coram non judice and of no legal effect. He maintained that the allegations in the F.I.R. Were wholly baseless as the importers deposited all the taxes as assessed by the Custom Authorities and deposited into Government treasury at Dry Port Lahore. He took up the specific stand that the Directorate of Intelligence and Investigation (Customs and Excise), Lahore was never notified as "Police Station" within the meaning of section 4(1)(s) of the Code of Criminal Procedure and that the F.I.R. Could not be registered there and the investigation could not be conducted. He maintained that the goods imported by the importers were not the smuggled goods and that for the worst the case would fall within the purview of misdeclaration to be dealt with under section 32 punishable under clause (14) of section 156(1) of the Customs Act, 1969 and that also after the registration of the proper F.I.R. By the competent Authority. He added that at the time when he examined the goods contained in Container No, APLU 981362 the same were found in accordance with the invoice and packing list and that he performed his duties strictly in accordance with the rules. He pleaded that the subject-matter of the F.I.R. Was Container No, APLU 981340 and not Container No, APLU 981362 which contained the goods and were examined by him whereupon the appraiser had assessed the duty and taxes. He stated that no goods could be seized unless the same were liable to confiscation under the law. He maintained that the provisions of sections 173 and 168 of the Act were violated because no notice was served upon the importers, Consequently he prayed for the issuance of the proposed relief.
5. In both the writ petitions the separate reports comments were submitted which contained the same type of defence. It was mentioned in the aforesaid reports and comments that it was a case of misdeclaration in terms of quantity and description of goods wherein the importers with the help of the Clearing Agent and the Customs Staff had evaded the Government Revenues. According to the respondents they had intimated the Additional Collector Dry Port, Lahore vide letter dated 28-1- 1998 with respect to Container No, APLU 981362 that the same was either misdeclared or incorrectly stated which may be desealed/opened in the presence of the staff of the Directorate of Intelligence and Investigation (Customs and Excise) (Regional Office), Lahore. It was pleaded that F.I.R. No,6 was registered by the competent Directorate authorised in the matter by the Central Board of Revenue and that all the proceedings conducted thereof were justified and legal. It was also expressed that the petitioners of both the writ petitions had not come with clean hands to seek justice who had deliberately misstated the facts and that they had not adopted and exhausted the legal forum to get redressed the grievance.
6. I have heard the learned counsel for the parties and gone through .The record before me.
Learned counsel for the petitioners argued that Notification dated 23-5-1985 issued under section 2(s)(ii) has to be read with section 16 of the Act, according to which the Import Policy was issued and the goods were not banned and, thus, not smuggled. He added that the duty and the fine at 5% assessed by the Collector of Customs was paid and that there was no evasion of duty and, thus, the goods were not smuggled. He maintained that even though vide Notification dated 22-4- 1982 the Officers of the Directorate of Intelligence and Investigation (Customs and Excise), Lahore specified in column No,2 of the concerned table were declared as the Officers of the Customs to exercise the powers and discharge the duties under the provisions of the Act specified in column No,3 of the said table within the area of their respective jurisdiction, they were not "Appropriate Officers" referred to in various provisions of the Act being the Officers of Customs mentioned in the corresponding entry in column No,3 of the table. He clarified that the officers of the Directorate of Intelligence and Investigation (Customs and Excise) (specified) in column No,2 of the table were declared as the Officers of Customs, who could perform the duties of Appropriate Officers in case of their transfer in the other cadre wherein the Collector, Additional Collector, Assistant Collector, Superintendent, Principal Appraiser, Inspectors/Preventive Officers/Appraisers worked and that both the powers could not be exercised by the Officers of the Directorate of Intelligence and Investigation (Customs and Excise), Lahore and vice versa by the Officers of the Collect orate i,e, Collector, Deputy Collector etc. Etc. Mentioned above. According to him specific sections were mentioned in notification dated 22-4-1992 under which the Deputy Director as well as Director of Intelligence and Investigation.(Customs and Excise) could exercise the powers which were under sections 26, 48, 60, 90, 91, 92, 139, 157(2), 158, 159 to 168(1)(3) and (4), 171, 173, 175, 198 and 199 and that they could not act beyond that. It was specifically asserted that the Directorate of Intelligence and Investigation (Customs and Excise) was not a "Police Station" and that any direction was simply illegal, without jurisdiction and without lawful authority which was liable to be ignored. He maintained that the Police Stations were established either by the Federal Government or by the Government of the concerned Province and not by the Director General Intelligence and Investigation (Customs and Excise), Islamabad. He emphasised that under section 4(s), Cr.P.C.
"Police Station" means any post or place declared generally or specially, by the Provincial Government in this behalf and that under section 5(2) of the Code of Criminal Procedure all offences under any other law shall be investigated,, inquired into, tried and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. He added that under sections 3 and 4 of the Act read with section 2(b) containing the definition of "Appropriate Officer" and section 2(o) containing the definition of "Officers of Customs", the exercise of powers and the discharge of duties have to be carried out provided that the Central Board of Revenue may by general or special order impose such limitation or conditions on the exercise ci such powers and discharge of such duties as it thinks fit. He continued that there was no F.I.R. In the eyes of law containing No,6, dated 3-2-1998 registered at the Directorate of Intelligence and Investigation (Customs and Excise), Lahore and, thus, the matter cannot be further processed with. He laid the emphasis that it may be a case of misdeclaration to be taken up by the Collector of Customs who is empowered under section 179 of the Act keeping in view the quantum of price of goods. He continued that the information about the commission of any offence under the Act or any attempt has to be given in writing to the Officer-in-charge of nearest Customs House, or Customs Station under section 192 of the Act or if there is no such Customs House or Customs Station to the Officer In charge of the nearest Police Station and if the Officers-in-Charge of a Police Station has received any information he shall as soon as possible communicate it to the Officer-in-charge of the Customs House or Customs Station. He maintained that it is a case of transgression of authority on the part of the Directorate of Intelligence and Investigation (Customs and Excise), Lahore and that F.I.R. No,6, dated 3-2-1998 is liable to be quashed having been recorded without jurisdiction and without lawful authority. On the contrary learned counsel for the respondents laid the emphasis that the petitioners have come to the Court with unclean hands who tried to make evasion of Customs duty by playing the trick with the connivance of the Custom Staff who were criminally liable in the matter. He referred to order, dated 5-3-1994 and order dated 11-5-1994 issued by the Directorate General of Intelligence and Investigation (Customs and Excise), Government of Pakistan, Islamabad whereby it was directed to receive complaints and issue F.I.Rs, in the prescribed form, to maintain the register of arrest and detention and to proceed further in the matter of investigation. He emphasised that in view of these letters the Officers of the Directorate of Intelligence and Investigation (Customs and Excise) could register the F.I.R., assign the number to it and initiate the investigation as well as proceedings. He also referred to Notification dated 10-3-1990 issued by the Central Board of Revenue Government of Pakistan whereby functions mentioned in Annexure 'B' were assigned to be performed by the Directorate General of Intelligence and Investigation (Customs and Excise), Islamabad. According to him vide Annexure 'B' the Directorate General of Intelligence and. Investigation (Customs and Excise) were authorised "to perform enforcement duties and to carry out preventive operations throughout the country related to smuggling, evasion of Federal taxes through clandestine removal of dutiable goods, misdeclaration, valuation frauds, fraudulent claims of refund and rebate etc. And to detect and investigate cases cognizable under the Prevention of Smuggling Act, 1977. He referred to Notification dated 22-4-1982 whereby the Officers of Directorate of Intelligence and Investigation (Customs and Excise) were authorised to discharge the duties of Officers of Customs under the provisions of Act specified in Column No,3 and Notification dated 20-9-1984 whereby the functions of the Appropriate Officers were assigned to the Officers of Customs regarding the provisions of the Customs Act mentioned in corresponding entry of the table. According to him the Officers of the Directorate of Intelligence and Investigation (Customs and Excise) were also the Appropriate Officers and the proceedings have rightly been conducted. He added that due to the evasion of the Custom Duty the goods were "smuggled" within the purview of section 2(s) of the Act and that the Notification dated 23-5-1985 was issued by the Federal Government and obviously by the Finance Ministry while the Import Policy was issued by the Federal Government through the Commerce Ministry under section 16 of the Act and that the items mentioned in Notification dated 23-5-1985 were banned even today. He added that many of the items incorporated in Inventory on 4-2-1998 were restricted/banned according to Notification, dated 23-5-1985 and that the provisions of section 156(1)-8 of the Act are prima facie applicable. He added that the petitioners of both the petitions tried to evade the Custom Duty and thus they were not entitled to the discretion of this Court especially when the efficacious remedy of defending themselves before the learned Custom Judge was available to them.
7. My view is that the reasoning adopted by the learned counsel for the petitioners has to prevail.
First of all I would like to give my verdict on the topic as to whether the F.I.R. No,6, dated 3-2-1998 could be registered/lodged in the Directorate of Intelligence and Investigation (Customs and Excise), Lahore. My answer is in the negative. For reaching at this conclusion I have to refer to section 4(1)(s) of the Code of Criminal Procedure according to which "Police Station" means any post or place declared generally or specially by the Provincial Government in this behalf to be a Police Station and includes any local area specified by the Provincial Government. Section 154 of the Code of Criminal Procedure deals with the First Information Report under the caption information in cognizable cases and provides that every information relating to the commission of a cognizable offence if given orally to an Officer In charge of a Police Station, shall be reduced to writing by him or under his direction and be read over to the informant; and every such information, whether given in writing or reduced into writing as aforesaid shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such Officer in such form as the Provincial Government may prescribe in this behalf. According to Rule 17 of the Punjab Anti-Corruption Establishment Rules, 1985 under the caption Police Station of the establishment "cases shall be registered by the establishment having the jurisdiction". A specific reference can be made to the Police Stations of Criminal Investigating Agency and the Police Stations of Anti-Narcotic Force which have been established by the Federal Government. The Director General of Federal Investigating Agency. The Inspector-General of Police of a Province, the Director Anti-Corruption Punjab themselves cannot establish/constitute a Police Station under their respective control, administration. However, they can recommend in this regard to the Federal Government and concerned Provincial Government in appropriate cases. Likewise the Director General of the Directorate of Intelligence and Investigation (Customs and Excise), Islamabad cannot establish/constitute any Police Station for particular area and any such order/direction in the matter can safely be termed as without jurisdiction, without lawful authority and consequently in executable and ineffective. The admitted position is that the Directorate of Intelligence and Investigation (Customs and Excise) of every region in the country has not been declared as a "Police Station" by the Federal Government of Pakistan. The mere fact that the order dated 5-3- 1994 has been issued by the Directorate General of Intelligence and Investigation (Customs and Excise), Islamabad with respect to the receiving of complaints and issuance of F.I.Rs, in the prescribed form and to maintain the register of arrest and detention etc. Etc. Has no legal force being without lawful authority. No provision of law has been produced before this Court empowering the Directorate General of Intelligence and Investigation (Customs and Excise)
Islamabad to declare its regional office, Lahore being headed by the Director of Intelligence and Investigation (Customs and Excise) as the Police Station. This being the factual and legal position, no F.I.R. Within the purview of section 154 of the Code of Criminal Procedure can be registered or got registered in the Directorate of Intelligence and Investigation (Customs and Excise), Lahore Region, Lahore. It shall not be out of place to refer to section 5(2) of the Code of Criminal Procedure.
According to it under the caption trial of offences against other laws it is narrated "that all offences, under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. The mere issuance of the aforesaid order dated 5-3-1994 from the Directorate General of Intelligence and Investigation (Customs and Excise), Islamabad is not an "enactment" for the purpose of holding that the Directorate of Intelligence and Investigation (Customs and Excise), Lahore is a "Police Station". It would be relevant to refer to section 192 of the Customs Act, 1969 which provides that "any person who comes to know of the commission of any offence under this Act, or an attempt or likely an attempt to commit any such offence, shall, as soon as, may be given information thereof in writing to the Officer In charge of the nearest Customs House or Customs Station or if there is no such Customs House or Customs Station, to the Officer In charge of the nearest Police Station. It is further provided in this section 192 that "the Officer In charge of a Police Station who receives any information mentioned in subsection (1) shall as soon as possible communicate it to the Officer In charge of the nearest Customs House or Customs Station". It means that section 192 of the Customs Act itself provides as to how criminal case is to be got initiated. The only irresistible conclusion which can be drawn from the aforesaid state of affairs, analysis of the matter and discussion would be that the Directorate of Intelligence and Investigation (Customs and Excise), Lahore Region, Lahore is not a "Police Station" and that no F.I.R.
Can be registered there. This is simply a transgression of authority on the part of the Directorate General of Intelligence and Investigation (Customs and Excise), Islamabad to issue the order for the establishment of the Police Station at its subordinate Regional Offices. Thus, the aforesaid order contained in Letter No,CNI1(35)DGCl/I&P/94/806, dated 5-3-1994 is also held to be without jurisdiction, without lawful authority and inoperative. It is an instance of projection of one's authority without legal justification and may be a source of polarization between the Directorate General of Intelligence and Investigation (Customs and Excise), Islamabad on the one side and the Chief Collector of Customs as well as his subordinates on the other side. However, I have clarified the matter according to my view in the aforesaid legal perspective for future working of the Directorate of Intelligence and Investigation (Customs and Excise) Lahore Region, Lahore as well as the other offices of the other Regions falling within the territorial limits of the Province of Punjab. The necessary consequence is that F.I.R. No,6, dated 3-2-1998 registered at the Directorate of Intelligence and Investigation (Customs and Excise), Lahore Region, Lahore cannot remain in the field and I quash the same. However, it is made clear that the competent Authority may proceed afresh in accordance with law against the petitioners as being expressed infra.
8. This is the stage to determine as to whether the goods imported by the aforesaid two importers/writ petitioners are the "smu ggled goods". According to section 2(s) of the Customs Act, 1969 "smuggled" 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 (i) Gold bullion, Silver bullion, Platinum, Palladium, Radium, precious stones, entiques, currency, Narcotics and Psychotropic substances or manufactures of gold or Silver or Platinum or Palladium, Radium or precious stones and any other goods notified by the Federal Government in the official Gazette which in each case exceeds Rs,5,000 in value or any goods by any route other than a route declared under section 9 or 10 of the Act or from an 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 expression shall be construed accordingly. Some of the goods said to have been recovered from the container of the importers are the perfumery cosmetic and toilet preparations which according to Notification dated 23-5-1985 are the banned and negative items and on this ground the plea of the respondents is that the same are the smuggled goods.
The said plea is liable to be ignored in view of section 16 of the Act according to which the Federal Government may from time to time by Notification in the official Gazette prohibit or restrict bringing into or taking out of Pakistan of any goods of specified description by air, sea or land. It is the admitted position that perfumery cosmetic and toilet preparations remained banned items till the year 1989 and in the Import Policy issued for the year 1990 the same were declared to be importable items. According to the Import Policy for the year 1997-98 no item mentioned in the Inventory prepared by the Directorate of Intelligence and Investigation (Customs and Excise), Lahore on 4-2-1998 is a banned item. The contention of the learned counsel for the respondents is that the aforesaid Notification dated 23-5-1985 was issued by the Federal Finance Ministry while the Import Policy is framed and published by the Federal Commerce Ministry and, thus, the entry of the goods imported by the Importers has yet to be determined subject to the Notification dated 23-5-1985. It would be an error to agree with him. Notification dated 23-5-1985 has been issued by the Federal Government while the Notification about the Import Policy is also issued by the Federal Government. This being the position the Notification dated 23-5-1985 is not applicable to the goods on free list. The fresh Notifications issued thereafter by the Federal Government have to play the role and the same have to be followed. It is declared that Notification dated 23-5-1985 is not applicable for all the times which is subject to the fresh Import Policy of the Federal Government and the same need not be followed by the concerned officer: and is not binding on both the Importers. This being the position the goods mentioned in Inventory prepared on 4-2-1998 which were imported in Pakistan through the prescribed route and which are not the banned items are not the smuggled goods. It is the admitted position that the duty with 5% fine has been paid by the importers and, thus, it is not a case of evasion of payment of customs duty or tax leviable thereon.
In case the untrue statement has been made with regard to the goods as contemplated under section 32 of the Customs Act, 1969 the remedy is still available under subsection (3) of section 32 of the Act according to which through the issuance of a notice the liability of the importers/writ petitioners for the payment of the amount to be specified in the notice shall have to be complied with. In this regard section 179 of the Act shall have to be referred, according to which the powers of the Officers of Customs from the rank of the Collector of Customs and his subordinates are mentioned to deal with such a matter. Consequently I hold that the goods imported by the importers/writ petitioners are not the smuggled goods and the Customs Authorities can proceed further in accordance with law keeping in view the law of the land.
9. This is the proper stage to determine the separate status of Collector Customs and subordinates and the Officers of the Directorate of Intelligence and Investigation (Customs and Excise), Lahore.
Section 3 of the Act provides about the appointment of Officers of Customs which contains different Offices of different designations like Chief Collector of Customs to Assistant Collector of Customs mentioned therein as well as at point (g) an Officer of Customs with any other designation. According to section 4 of the Act an Officer of Customs appointed under section 3 shall exercise such powers and discharge such duties as are conferred or imposed on him by or under this Act and he shall also be competent to exercise all powers and discharge all duties conferred or imposed upon any Officer subordinate to him provided that notwithstanding anything contained in this Act or the Rules the Board may by General or Special Order imposed such limitation or conditions on the exercise of such powers and discharge of such duties as it thinks fit.
Notification No,SR0-56(1)/93, dated 19-1-1993 on the subject of Assignment of functions of the "Appropriate Officer" to the various "Officers of Customs" contains that the Central Board of Revenue is pleased to assign the function of the "Appropriate Officer" referred to in various provisions of Customs Act, 1969 given in column 2 of the table to the Officers of Customs mentioned in the corresponding entry in column No,3 of the said table. In this Notification the designations of the Officers are from the Collector of Customs and his subordinates like Additional Collector, Deputy Collector, Assistant Collector, Superintendents, Principal Appraiser, Deputy Superintendent, Inspectors, Preventive Officers etc. Etc. In Notification No,SR0-388(1)/82, dated 22- 4-1982 issued under sections 3 and 4 of the Customs Act, 1969 on the subject of "Appointment of Officers of the Directorate of Intelligence and Investigation (Customs and Excise) to discharge the duties of Customs Officers" the Central Board of Revenue was pleased to authorise the Officers of the Directorate of Intelligence and Investigation (Customs and Excise) specified in column No,2 of the table to exercise the powers and discharge the duties of Officers of Customs under the provisions of Customs Act, 1969. The powers contained under sections 26, 48, 60, 91, 92, 139, 157(2),
158. 159, 160, 161 to 168(1, 3, 4), 171, 174, 175, 198, 199 of the Act are to be exercised. It shall not be out of place to express that the Officers of Directorate of Intelligence and Investigation (Customs and Excise) as well as the Appropriate Officers referred to in various provisions of the Customs Act, 1969 comprise the members of Customs department who are transferred from one Branch to another Branch referred to above. However, they have different status and have different functions to perform. According to section 2(b) "Appropriate Officer" in relation to any function to be performed in this Act means the Officers of Customs to whom such functions have been assigned by or under this Act. According to section 2(o) "Officers of Customs" means an Officer appointed under section
3. Keeping in view the aforesaid definitions I shall have to express that the Officers of the Directorate of Intelligence and Investigation (Customs and Excise) have been assigned the powers to discharge the duties of Officers of Customs. Various Officers of different ranks designated as Director General of Intelligence and Investigation (Customs and Excise) down to the subordinates to the rank of the Intelligence Officers are mentioned therein in Notification No,SRO-388(i)/82, dated 22-4-1982 to exercise the powers under different sections. According to Notification No,SR0- 56(1)193, dated 19-1-1993 referred to above the persons mentioned therein from the rank of Collector of Customs and his subordinates have been mentioned as the Appropriate Officers who have been declared as the Officers of Customs. It means that both Appropriate Officers and the Officers of the Directorate of Intelligence and Investigation (Customs and Excise) have been declared as the Officers of Customs. Thus, it can be held that the Appropriate Officers cannot interfere in the working of the Officers of the Directorate of Intelligence and Investigation (Customs and Excise) and vice versa the powers of Collector Customs etc." have not been conferred upon the Officers of Directorate of Intelligence and Investigation (Customs and Excise) in view of the aforesaid Notification obviously issued under sections 3 and 4 of the Customs Act, 1969. This being the position Notification, dated 22-4-1982 on the basis of which the Officers of the Directorate of Intelligence and Investigation (Customs and Excise) were empowered to exercise the functions under different sections of the Act, 1969 is anomalous as concurrent jurisdiction has not been abolished. The functions allocated under sections 26, 48, 91, 92, 139, 157(2) (to the extent of release of confiscated goods pending the adjudication) 158 to 168(1, 3, 4), 171, 174, 175, 198 and 199 are to be exercised by the Officers of Directorate of Intelligence and Investigation (Customs and Excise).
Under section 162 of the Act the authority has to be exercised by the Judicial Magistrate at the request of Officers of Customs. In section 167 of the Act the designation of the Officer is not mentioned. They have not been empowered to enter the dry porti and to initiate the proceedings under section 156 of the Act. The competent Officers of Customs had proceeded in this matter upon whom the Officers of the said Directorate have no upper hand or superior authority. This being the position the Officers of the Directorate of Intelligence and Investigation (Customs and Excise) could not proceed in this case as impugned by the writ petitioners/importers. Without the removal of the anomaly by the Central Board of Revenue such type of difficulties shall have to be faced by its subordinates working in the Customs Department. It is proper to refer to sections 157(2)/168(1, 3, 4) which make out the different status of the Officers of Customs and the Appropriate Officers as according to these statutory provisions the aforesaid designations have different functions to perform and status to enjoy. The functions allocated in Annexure 'B' of Notification No,3(4)/16-ACE-III, dated 10-3-1990 to the Directorate General of Intelligence and Investigation (Customs and Excise), Islamabad shall have to be specified keeping in view the legal aspect of the appointment of the Officers of Customs under section 3 of the Act who are not subordinates to the aforesaid Directorate and can proceed under the provisions of the Customs Act, 1969 independently within their jurisdiction. The said type of dichotomy shall have to be removed/settled by the Central Board of Revenue, Islamabad.
10. In view of what has been said above, it can safely be held that the Deputy Director of the office of Directorate of Intelligence and Investigation (Customs and Excise) has proceeded in the matter without any jurisdiction and without lawful authority who could not enter the Dry Port Lahore and register the F.I.R. The result is that, as held above, F.I.R. No,6, dated 3-2-1998 is liable to be quashed regarding which the order has been issued. Thus, this case at present falls under section 32(3) of the Act to the extent of both the importers/writ petitioners against whom the adjudication of the duty has to be made by the competent Officer under section 179 of the Act without fixing their criminal liability especially when the Deputy Collector of Customs has already proceeded in the matter who can further proceed thereof. Anjam Sheraz writ petitioner, accordingly, stands exonerated. The Collector Customs Lahore shall proceed till 31-5-1998 in the matter to adjudicate about the imposition of the penalty within the purview of section 179 read with section 32(3) of the Act against the importers/writ petitioners. Both the importers/writ petitioners haw deposited the duty alongwith 5% fine already on 3-2-1998 and, thus, they are not criminally liable who obvious are liable to pay more penalty subject to the discretion/authority of the Collector of Customs Lahore keeping in view the fact that the goods imported by both the writ petitioners are not the smuggled goods.
11. Before parting with this judgment I am tempted to express that different Departments of the Government and different Branches of each Department have to proceed and act according to the jurisdiction and authority allocated to it by the competent Authority. To exemplify there are different branches of police, viz. Local Police, Central Intelligence Agency, Legal Branch, Anti- Corruption Establishment, Task Force, Highways Police, Motorway Police, Railway Police, Federal Investigating Agency, Central Intelligence Agency and Anti-Narcotics Force etc. Etc. If any branch starts meddling/interfering according to its whims or desire in the working of the other branch and their actions are approved, I must record and express that there would be administrative chaos in the society which is not the intention of law. Likewise the tussle of powers going on between the Officers of the Directorate General of Intelligence and Investigation (Customs and Excise), Islamabad and his subordinates on the one side and the Chief Collector of Customs and his subordinates on the other side shall have to be settled by the Central Board of Revenue keeping in view the difficulties being faced by the concerned citizens i,e, importers and exporters of goods as sometimes they become the shuttle cock between the tug of war of both the aforesaid branches of the Customs Department. The narration of the post "Appropriate Officers" and "Officers of Customs" in different sections of the Customs Act, 1969 shall have to be specified with their respective powers to be exercised by them keeping in view the aforesaid enactment in letter and spirit and this anomaly shall have to be removed thereof. If found proper the Federal Government may be moved for the establishment of the "Police Stations" at the appropriate places so that the difficulty, if any, being faced by the Customs Department stands removed.