' A case was registered against the petitioner under section 156(1) (8) of the Customs Act, 1969 at Police Station F.I.A. Airport, Lahore vide F.I.R. No,20, dated 29-6-1985. The charge was attempted to smuggle US $1,27,000 from Pakistan to Dubai. The petitioner was sent up for trial and the learned Special Judge, Customs vide judgment, dated 20-2-1991 acquitted the petitioner. On the departmental side proceedings were commenced for confiscation of the seized foreign currency which was so confiscated vide order, dated 5-6-1986 of respondent No,
1. An appeal against the said order was dismissed by a Member (Judicial), C.B.R. Vide order, dated 16-5-1991. The petitioner then filed an appeal before the Customs, Excise and Sales Tax Appellate Tribunal, Lahore which was allowed vide order, dated 18-10-1999. The said learned Tribunal concluded that as the charge of smuggling was dropped, the foreign currency stood automatically restored to the petitioner.
Against this order of the Tribunal a Customs Appeal No,11 of 2000 was filed by the respondent- Department which was found to be time-barred and dismissed by a learned D.B. Of this Court on 11-9-2000. The Supreme Court of Pakistan refused to grant leave and dismissed C.P. No,2655-L of 2000 on 1-1-2001. Meanwhile, after the acceptance of his appeal by the said Tribunal the petitioner had been approaching the respondents for the release of the said currency. Since the applications were not responded to, he filed Criminal Original No,3 of 2001 in Civil Appeal No,11 of 2001. In reply to the said criminal original the respondent named therein filed a reply wherein it was stated that the said amount of US $ 1,27,000 has since been sold and converted into Pak. Currency amounting to Rs,33,92,883.80 in June, 1993. According to the writ petition the said amount was tendered in form of a pay order but the criminal original was withdrawn to file a separate writ petition. The matter was disposed of accordingly on 15-2-2001. The respondents sent a cheque, dated 13-2-2001 in the said amount of Rs,33,92,883 which amount, according to the petitioner, was received under protest.
Prayer has been made in this writ petition that the sale of the said foreign currency be declared to be illegal and without lawful authority and direction be issued to the respondents to pay a sum of Rs,41,15,517 which amount according to the petitioner makes up the deficiency vis-a-vis the prevailing exchange rate on the date the refund was actually made.
2. The respondents in their comments have pleaded estoppel as according to them the said amount of Rs,33,92,883 has been received by the petitioner. The respondents insist that the order of the Appellate Tribunal, dated 18-10-1999 was devoid of legal force as the appeal was not competent since the foreign currency constituted accompanied ' baggage. The act of selling of the currency is stated to be bona fide as according to the respondents they had proceeded to sell the currency seven years after the order of confiscation. This act is justified on the basis of section 169 of Customs Act, 1969.
3. Learned counsel for the petitioner contends that under the Customs General Order No,5 of 1992, dated 19-4-1992, the respondents were required to deposit the said foreign currency with the State Bank of Pakistan. Learned counsel questions the sale of the currency on the ground that it is violative of the said C.G.O. And that under section 169(4) of the said Act the sale of confiscated currency had to be made in accordance with the provisions of section 201 of the said Act. The precise contention is that no notice as mandated by section 201 of the said Act was served upon the petitioner before the sale. Sh. Izharul Hach learned counsel for the respondents, on the other hand, argues that notwithstanding the fact that the appeal against the order of the Tribunal was dismissed by this Court which order was upheld by the Supreme Court, the respondents would be within rights to question the vires of the said order of the Tribunal inasmuch as, according to the learned counsel, the writ petition is for all purposes a proceeding for execution of the said order.
According to the learned counsel the order impugned before the learned Tribunal related to goods exported as baggage inasmuch as the foreign currency was recovered from the baggage of the petitioner as such in terms of proviso to section 194-A(1) of Customs Act, 1969 an appeal was not to lie to the Tribunal. Learned counsel has tried to justify the act of sale of the currency by stating that in accordance with some instructions applicable at the relevant time the respondents were bound to sell the currency and to convert it into Pak. Rupees.
4. I have gone through the several documents appended with the writ petition as also with the comments filed by the respondents. So far as the said first rather main contention of the learned counsel for the respondent-Department is concerned, I have examined the order of the Tribunal and I find that the case was heard in the presence of a departmental representative and no objection was raised to the competency of the appeal. No other foundation has been laid in was course of the present writ petition to find as to whether the said point as raised in the course of appeal filed in this Court under section 196 of the Customs Act or the C.P. Filed in the Supreme Court of Pakistan. Be that as it may, a remedy was available against the said order of the Tribunal which in fact was availed but ultimately the appeal was dismissed by a learned D.B. Of this Court.
The order was upheld by the Supreme Court of Pakistan. I am also not in agreement with the learned counsel for the respondent-Department that the present writ petition is akin to a proceeding for execution of the order of the Tribunal. On the other hand, the petitioner seeks a direction to the respondents to do what they are required by law to do. Needless to state that under the law upon adjudication or if so held in an appeal or revision or proceedings in the Court the thing confiscated if found not to have been liable to such confiscation, the respondents are liable to hand over the same to the owner. I am, therefore, not at all inclined to entertain the said objection of the learned counsel for the respondents.
5. Coming to the contentions raised by the learned counsel for the petitioner, I find that it is the respondents own case that the foreign currency confiscated by them stood lying with them till 1993. Now on 19-4-1992 the said C.G.O. No,5 of 1992 was promulgated which required the respondents to deposit the currency with the State Bank of Pakistan. They have not done so and, there is no explanation at all as to why the said order issued by the C.B.R. Was not complied with. So far as the matter of sale is concerned, it is a plea of the petitioner that the sale was conducted in violation of section 201 of the said Act inasmuch as no notice was issued to the petitioner as mandated therein. I may state here that it has not at all been denied by the respondents that the sale was conducted without the said notice. According to the. Documents accompanying the comments, vide letter, dated 22-6-1993 of Deputy Collector of Customs (Mr. Muhammad Azhar Iftikhar) US $ 1,27,000 were sent to the Manager, National Bank of Pakistan, Main Branch, The Mall, Lahore through Muhammad Din, Deputy Superintendent Customs for disposal. The documents issued by the said Bank, accompanying the comments, show that in the first instance on 23-6-1993 a sum of US $ 1,26,150 was purchased for Rs,33,68,987 at the rate of Rs,26.706 per US $ while in the second instance on 7-9-1993 a sum of US $816.66 was purchased at the rate, of Rs,29.772 per US $ for a total amount of Rs,24,272.84. A deduction of Rs,356.66 was made and the amount remitted was Rs,23,896.18. This makes a total of Rs,33,92,883.10 i,e, the amount sent to the petitioner vide cheque, dated 13-2-2001.
6. In the absence of any explanation whatsoever for selling the currency in violation of the provisions of the section 201 of the said Act as also in disregard to the directives issued by the C.B.R.
Failing to make the deposit of foreign currency with the State Bank, the respondents are bound to hand over the said amount of foreign currency of US $1,27,000 to the petitioner or to pay its equivalent in Pak. Rupees as per prevalent exchange rate on 13-2-2001 when the said amount of Rs,33,92,883 was actually tendered to the petitioner which amount was accepted by the , petitioner under protest as noted on the acknowledgement note (Annexure "G"). The officers concerned of the respondent-Department have proceeded in this matter with negligence and in dereliction of their duty. The currency continued to remain deposited with them, according to their own showing in the comments, after about 7 years of its confiscation. By that time the learned Special Judge had already acquitted the petitioner of the charge .Of smuggling and he was actively pursuing his remedies in the forums appealable under the Customs Act, 1969. Even if the said C.G.O. No,5 of 1992 directing the said officers to deposit the currency in the State Bank of Pakistan were not to be there, it was the duty of the said Officers to take absolute care in the matter of disposal of the currency in terms of section 169 read with section 201 of the Customs Act, 1969. They have failed to do so without any just cause. The said officers, after fixation of individual responsibility in a departmental inquiry, are liable to be proceeded against under the E&D Rules and the resultant loss suffered by the Department to be recovered from them. Office to remit copy of this order to the Chairman, C.B.R., Islamabad immediately.
7. For the reasons stated above and with the above observations this writ petition is allowed. The sale of the foreign currency seized from the petitioner and later confiscated is declared to be illegal and without lawful authority and the respondents are directed to pay the value of the said currency of US $ 1,27,000 in Pak. Rupees as per rates prevalent on 13-2-2001 for inter Bank exchange of US $ with Pak. Rupees. No orders as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.