JUDGMENT: JUSTICE (R) ABDUL MAJID TIWANA:--(1). This appeal is directed against the judgment/order, dated 27.06.2000, by which Mr. Mohammad Afzal Bhatti, Collector of Customs, Rawalpindi, confiscated the seized Hino-Pak bus, bearing registration No, BRF-7616, under section 156(1)(89) of the Customs Act, 1969 read with SRO 1374(1)/98. dated 17.12.98, after coming to the conclusion that it was brought into Pakistan in violation of the provisions of section 3(1) of the Imports and Exports (Control) Act, 1950 read with section 16 of the Customs Act, 1969.
2. Brief facts of the case are that on 21.10.99, pursuant to a secret information about the smuggled vehicle, the staff of Intelligence and Investigation (Customs and Excise) Drug Cell Unit, Tarnol, Islamabad, detained at GoIra Mor, G.T. Road, Rawalpindi. Hino bus displaying registration No, BRF- 7616, being driven by M. Tanvir, who could not satisfy them about the genuineness of certain papers in his custody. The Seizing Agency investigated the case, during which they also obtained the report of Technical Wing (Laboratory) of the FIA at Islamabad about the number of chassis of the bus, and rejecting the defence of the appellant and his associates (who allegedly owned the vehicle at different times), placed the case before the Collector of Customs, Rawalpindi (the respondent herein) for adjudication.
3. Commencing the adjudication proceedings, the respondent issued show cause notice, dated 17.01.2000, to different persons, including Mohammad Kashif appellant, who was the last owner of the seized vehicle, as per entries of the registration book issued by the Motor Registration Authority.
Lahore. Contesting the show cause notice. he submitted his reply through his Advocate wherein he. inter alia, alleged that the bus was locally made by M/s. Hino-Pak Motors Ltd., Karachi and it had not been smuggled into Pakistan from abroad. He explained that the real number of the seized bus was LXK-2823 issued by Motor Registration Authority, Lahore, in his name and being its real owner he subsequently gave the bus to Syed Ameer Abbas of Chiniot on installments. The driver of the bus at the time of seizure, to whom show cause notice was also issued, supporting the appellant, alleged that the bus at the time of interception was displaying its real registration No, LXK-2823 and fake registration No, BRF-7616 was subsequently placed thereon by the Seizing Staff of Customs, whose palm he could not oil, to implicate him in this case. In any case, displaying of wrong or fake registration number on the vehicle, even if it was so, was not an offence under the Customs laws.
The appellant also challenged the genuineness of the expert report of FIA Laboratory about the doubtful nature of the chassis number of the bus and alleged collusion between the Laboratory Expert of the FIA and the Seizing Officer. In support of his assertion that the bus was assembled/manufactured locally by Hino-Pak Motors Ltd., Karachi and it was not of foreign origin, he produced a certificate of the said company.
4. It appears that during the pendency of adjudication proceedings, on the application of the appellant for the reexamination of the chassis number and engine number 'of the bus by the FIA Technical Expert in his presence, the respondent constituted a committee consisting of the appellant or his representative, the representative of Hino-Pak Motors Ltd. and a member of the Seizing Staff. He directed the Technical Expert of FIA Laboratory to conduct re-examination of the chassis and engine numbers of the seized bus in the presence of the aforesaid committee and submit his report but the Expert does not seem to have obeyed him and simply reiterated in writing the opinion contained in his earlier letter No, 471/C/TW/FIA/2000/142, dated 08.03.2000, which doubted the genuineness of the chassis number of the vehicle on account of its difference with the one written on the stripe affixed on the body and dominant abnormalities in stamping of the number of chassis detected on chemical examination.
5. Without enforcing the compliance of his above order about the re-examination of the chassis and engine number of the seized vehicle by the Technical Expert of F.I.A., which he could do and should have done, the respondent proceeded to decide the case and passed the impugned order after coming to the conclusion that--
(a) the seized bus at the time of its seizure displayed fake registration number and it was lawfully seized by the Intelligence Staff;
(b) there was difference between the chassis number on the main frame and the one written on the stripe affixed on its body near the driver's seat;
(c) there was sufficient weight in the report of Technical Expert of FIA about the dominant abnormalities in stamping the chassis number on the main frame of the bus which falsified the report of M/s. Hino-Pak Motors Ltd., about the genuineness of the chassis and engine number;
(d) no sale and purchase document was produced by the appellant, nor the original purchaser of the bus, namely, Amanullah Khan, from the said Company ever appeared before him despite notice;
(e) no document was produced to prove as how this bus was sold and purchased by different persons after its sale by the said company; and
(f) its present owner, namely, Ameer Abbas Shah (as per statement of the driver) had vehemently alleged in his unsigned letter, dated 24.01.2000, that one Ijaz Sheikh and Tariq, residents of Sargodha, were responsible for non-payment of duty and tampering with the bus chassis.
6. We have heard the learned counsel for the appellant and the learned departmental representative of the respondent at sufficient length. We have also heard Major (R) Naik Muhammad Khan, representative of the Hino-Pak Motors Limited at Islamabad; Mr. Mehboob-ul- Arifeen, Intelligence Officer of Customs; and Sheikh Zafar, Technical Inspector, FIA, Islamabad, who have especially been called to hear about their respective roles in this case. After perusing the record in the light of the arguments addressed from both sides and hearing the explanation furnished by other three persons in support of their roles, we are of the view that the conclusion reached by the Collector of Customs, Rawalpindi, the respondent herein, are unfortunately based on flimsy reasons. There was no justification for the Staff of Customs, Intelligence, Islamabad, to seize the bus manufactured by M/s. Hino-Pak Motors Limited, a well-known local manufacturing concern of big vehicles at Karachi, merely on the ground that it was displaying a fake registration number. It was not a customs offence and the Seizing Staff and their high-ups fully knew or should have known it. We are inclined to agree with the stance adopted by or on behalf of the appellant that fake registration No, BRF-7616 might have been subsequently placed on the vehicle by the Seizing Staff themselves in order to justify its wrongful seizure and make out a false case against the appellant and all others, who had been concerned with the valuable vehicle as owners at different occasions, for ulterior mercenary motives. As per record verified by Major (R) Nek Mohmmad of M/s. Hino-Pak Motors Ltd., before us, the chassis of the bus had been sold to one Amanullah of Lucki Marwat in September, 1998, for Rs. 30 lacs. Obviously it was a new big vehicle of considerable value and a 'big catch' for the Seizing Staff to negotiate bribe bargain with its owners.
Besides other factors, the unexplained inordinate delay of a little less than three months in issuing show cause notice by the respondent, which by itself was fatal to the prosecution case and has many adverse implications for all concerned with this case in the customs heirachy is also a pointer in the direction of mala fide proceedings for the said motives.
7. As regards the identification of the vehicle by means of number of chassis and the number of engine, no body, including the respondent, had bothered to ascertain its engine number and the entire stress of the Seizing and Investigating Authority has remained confined only to falsify its chassis number engraved on its frame by comparing it with the chassis number written on a stripe attached to its body near the driver's seat. Much emphasis has erroneously and purposely been laid by the Customs Authorities on the report of Technical Expert of the FIA regarding the difference between the chassis number on the frame of the vehicle and the chassis number written on the iron stripe affixed on the wooden body. Who does not know that a small stripe or plate made of iron is placed on the wooden party of the body of the bus near the driver's seat by the body-makers in order to easily ascertain the chassis number of the vehicle punched on its frame. In the instant case, if it was different from the one on the chassis frame, the fault was that of the body-makers and not of the manufacturers of its chassis and the engine. If the Technical Expert of FIA found difference between the number and chassis placed on the frame of the bus and the number of chassis written on the stripe, it could not be made basis for doubting the genuineness of the number of chassis placed on the frame, as it could possibly be a genuine mistake on the part of the body-builders to write incorrect chassis number on the stripe. Besides, the stripe could easily be replaced and no wonder the fake stripe might have been placed by the Seizing Staff, in whose exclusive custody by the vehicle had been for a long time, by replacing the original one for fabricating a case against the appellant for ulterior motives. It is an admitted fact that despite Specific orders of the respondent, the Technical Expert of F.I.A. did not re-examine the chassis number and engine number of the seized vehicle in the presence of the committee constituted by him and it indicates his (expert) collusion with the Seizing Staff and wilful disobedience to a lawful order of the respondent, for which he has to account for. During the course of arguments when he (Sheikh Zafar, Inspector) was asked as to why he did not examine the engine number of the seized bus at the time of examination at the instance of Seizing Staff and confined his examination only to the chassis number, he came out with a poor explanation that the engine of the bus at that time stood sealed by the Customs Authorities and he could have no access thereto. However, he had no answer to the question as to why he did not obey the order of Collector (the. respondent) to re- examine the bus in the presence of the Committee. Had he done so, we are sure, the cat would have been out of the bag and the entire case of the Seizing Staff would have fizzled out.
Presumably, he did not re-examine the vehicle to ascertain its engine number purposely at the instance of the Seizing Staff with whom he appeared to be in collusion and later when he not only omitted to re-examine the vehicle but also avoided to appear before the respondent as a witness when he called him for evidence. However, it remains enigmatic for us as to why the respondent did not use his coercive powers, or did not report to his higher officers, to compel his appearance before him for fair decision of the case and proceeded to rely on his lacunic report. In any case, no reliance could be placed on the difference of chassis number of the vehicle on its frame and the one on stripe of the body, nor any weight could be attached to the one-sided, ambiguous and mala fide report of the Technical Expert of FIA.
8. It appears that M/s. Hino-Pak Motors Ltd., Karachi, in order to safeguard their own business, good will and reputation deputed their senior officer to assure the Seizing Staff as also the respondent about the genuineness of the seized vehicle they had manufactured/assembled and sold to one.
Amanullah Khan of Lucky Marwat, who later transferred it and after changing many hands, ultimately the appellant happened to own it as a registered owner. Maj. (R) Naik Mohmmad of M/s. Hino-Pak Motors Ltd. had always been appearing before the Customs Authorities for the said purpose and he has put in appearance also before this Tribunal and with reference to various documents on the record he has asserted correctness of the chassis number on the frame of the seized vehicle as also of the engine number fitted on it. He has lamented that because of this false case and fabricated evidence his company has suffered a lot in its reputation and goodwill as the allegation of smuggling of their valuable product has seriously tarnished their image in the business circles and adversely affected the business of his Company for no fault of it. We are inclined to agree with what he has stated. There could be no doubt in the genuineness of various documents of the company produced by him before the Customs Authorities and it was fatuous to say that the company did not produce or prove the relevant documents in supporting the claim of the appellant about the genuineness of the vehicle and its local manufacture. If Amanullah Khan, the original purchaser of the chassis from M/s. Hino-Pak Motors Ltd., had not turned up to contest the show, cause notice, it was not a fact to be laid stress on in support of the conclusion that the seized vehicle was a smuggled one. He had a right to sell the chassis or the bus and after the sale he was least concerned with what was happening to it, nor it, was the duty of the Company to prove as where its body was fabricated. I Similarly, the so called un-signed letter of Ameer Abbas Shah, which was casually referred to by the driver of the bus, was not a piece of evidence to be relied upon by the respondent. The appellant had brought on the record the registration book, issued by the Motor Registration Authority, Lahore and this by itself was sufficient proof of his ownership but the respondent unfortunately ignored this piece of evidence available on the record for no valid reason.
9. In view of the above, we accept the appeal, set aside the impugned judgment/order, dated 27.06.2000, passed by the respondent and direct immediate release of the seized bus in this case, alongwith its registration book and other papers seized by the Customs Authorities, to the appellant or any person duly authorised by him in this behalf.
10. Keeping in view the mala fide and reckless conduct of Mr. Mehboob-ul-Arifeen, Intelligence Officer (Customs), who was the main architect of the case and whom we have heard in respect of his role therein, we direct him to compensate the appellant from his own pocket so far as the loss of, or damage to, any part or component of the bus during its customs custody is concerned, but this order shall not be made as an excuse to further detain the bus.