ABDUL ALEEM Versus THE STATE

Abdul Aleem, proprietor of Fatima Enterprises, Lahore, was tried by the learned Special Judge, Customs, under section 156(1)77 of the Customs Act, 1969, for having made untrue statements in the two airways shipping bills in respect of goods being exported by him to a foreign importer at Singapore. The learned Special Judge, Customs, by his judgment, dated 16-5-1981, convicted Abdul Aleem under the said section and sentenced him to one year's rigorous imprisonment. The appeal (Criminal Appeal No. 280/C of 1981) preferred by Abdul Aleem, convict, against his conviction and sentence is now before me for disposal.

2. The prosecution case in brief is that Abdul Aleem, accused, who is the proprietor of Fatima Enterprises, Lahore, had contracted to sell knitted metallic nylon fabrics/ Dopattas to Madia Trading Company of Singapore. Abdul Aleem, accused, engaged Abdul Qayyum, P.W.2, proprietor of Mahireen Agencies, Lahore, as his Customs clearing agent. On behalf of Abdul Aleem, accused, the clearing agent, namely Abdul Qayyum P. W.2 on 20-7-1977 produced packing lists Exhs. P.A. and P. B., invoices Exhs. P. C. and P. D. airways bills Exhs. P. E. and P . F . and airways shipping bills P. G. and P. H. at the Customs Office at P.I.A. Airport, Lahore. In all these documents, the goods to be exported were described as knitted metallic nylon fabrics and knitted metallic nylon Dupatas. The two airways shipping bills covered 70 and 50 bales respectively. When the documents were being processed, the anti-smuggling staff attached with the customs inspected the bales covering both the shipments, when it was discovered that a major portion of the goods happened to be ordinary nylon fabrics and ordinary nylon Dupatas and not metallic nylon fabric and metallic nylon Dupatas, as disclosed in the documents. Memos. P.L. and P.M. were prepared, showing the nature of the fabrics and Dupatas recovered from the shipments covered by the two airways shipping bills.

3. Abdul Aleem, accused, admitted that he intended to export 120 bales of knitted metallic nylon fabrics and knitted metallic nylon Dupatas to Singapur, through Mahireen Agencies, his clearing agent. He admitted all the documents that were submitted by his clearing agent to the Customs Authorities at the P.I.A. Airport at Lahore, on 20-7-1977. He, however, denied that he had signed the said declarations and documents knowing or having reason to believe that the same were false. He mentioned that Mr. Rasheed Ahmad had purchased 200 bales for him at Faisalabad, that goods were packed for export in Rasheed Ahmad's godown, that 120 bales were directly sent by the said person to Lahore, through a transport agent, and that it was due to the mistake of the employees of the said Rasheed Ahmad of Faisalabad, that the wrong goods got packed. He stated that the nature of the goods which were packed were not within his knowledge. He further stated that he had no time to check the goods, on account of the urgency which was involved in their shipment. He lastly stated that he did not claim any rebate, which otherwise was due to him.

4. I have heard the arguments of the learned counsel for the appellant and the Customs Authorities and have perused the record. It is not denied in this case that 120 bales of the appellant which were to be air-lifted to Singapur and were checked only contained a small portion of knitted metallic nylon fabrics and knitted metallic nylon Dupatas. It is further not denied that the appellant had signed documents Exhs. P.A., P.B., P.C., P.D., P.E., P.F., P.G. and P.H. The defence of the appellant is that the mistake in the documents was due to the fact that his agent, who had been engaged to purchase the goods and pack and tranship them from Faisalabad had wrongly packed goods ordered with those not ordered, of which fact he had no knowledge and that as he had not made any declarations, knowing or having reason to believe that the same were false in any material particulars, his conviction under section 156(1)77 of the Customs Act was illegal.

5. Before dealing with the defence of the appellant it is necessary to reproduce section 32 and section 156(1)14 and 77 of the Customs Act, 1969, as they were in July, 1977:-

Section 32. Untrue statement error, etc .-- (1) If any person, in connection with any matter of customs, -

(a) makes or signs or causes to be made or signed, or delivers or causes to be delivered to an officer of customs any declaration, notice, certificate or other document whatsoever, or

(b) makes any statement in answer to any question put to him by an officer of customs which he is required by or under this Act to answer, and such document or statement is untrue in any material particular he shall be guilty of an offence under this section.

Section 156 .-- Punishment for offences .-- (1) Whoever commits any offence described in column 1 of the Table below shall, in addition to and not in derogation of any punishment to which he may be liable under any other law, be liable to the punishment mentioned against the offence in column 2 thereof:

Offences

Penalties Section of this Act to which offence has reference.

14. If any person commits an offence under section 32.

Such person shall be liableto a penalty not exceeding five thousand rupees or three times the value in respect of which such offence is committed, whichever he greater; and such goods shall also be liable to confiscation.

32

77(i) If any person makes, signs or uses, or causes to be made, signed or used, any declaration, statement or document in the transaction of any business relating to the customs, knowing or having reason to believe that such declaration, statement or document is false in any material parti cular; or counterfeits, falsifies or fraudulently alters or destroys any such document, or any seal, signature, initials or other mark made or impressed by an officer of customs in the transaction of any business relating to the customs; or

Such person shall on conviction of any such offence before a Special Judge, be liable to imprisonment for a term not exceeding three years, or to fine, or to both.

General

(ii) being required under this Act to produce any document, refuses or neglects to produce such document; or

(iii) being required under this Act to answer any question put to him by an officer of customs, does not correctly answer such question.

6. Subsection (1) of section .32 of the Customs Act, 1969 makes it a penal offence punishable under section 156(1)14 for any person, in connection with any matter of Customs,--

(a) to make any declaration, notice, certificate or other document;

(b) to sign any declaration, notice, certificate or other document;

(c) to cause to be made or signed any declaration, notice, certificate or other document;

(d) to delivery or cause to be delivered any declaration, notice, certificate or other document to an officer of Customs; or

(e) to make any statement in answer to any question put to him by an officer of Customs, which he is required by or under this Act to answer; which declaration, notice, certificate, or other document or statement is untrue in any material particular.

7. The words 'any matter of Customs', in section 32 of the Customs Act covers everything relating to the functions, operation and affairs of the Customs.

8. The most important point that falls for consideration is the word 'untrue' in section 32. On this depends the true interpretation of this section. The Supreme Court of Pakistan in M/s. Eastern Rice Syndicate v. Central Board of Revenue P L D 1959 SC (Pak.) 364 has held that the word 'untrue', as appearing in subsection (1) of section 39 of the Sea Customs Act, 1878, (as amended in 1957), carries 'the sense of falsity to the knowledge of the person concerned'. Had this case been one under section 156(1)14 of the Customs act, 1960, I would have, following the view laid down by the Supreme Court, been compelled to examine whether the declarations made by the appellant and his agent were not only false, but that they knew or had reasons to believe that they were false.

9. However, the case is not one under section 156(1)14 of the Customs Act, but under section 156(1)77 thereof. The appellant has been convicted under the first limb of sub-item (i) of Item 77.The penalty under this item can only be inflicted on a person, who--

(a) makes any declaration, statement or document in the transaction of any business relating to the customs;

(b) signs any declaration, statement or document in the transaction, of any business relating to the-customs;

(c) causes to be made, signed or used any declaration, statement, or document, in the transaction of any business relating to the customs, knowing or having reason to believe that such declaration, statement or document is false in any material particulars.

10. It is clear in the instant case that the prosecution has not, been able to show that the appellant knew or had reason to believe' that' the declarations or statements he was making in documents Exhs.P.G. and P.H., which are the subject of the charge, were false in material particulars. Rather, the appellant has been able to show, through a large numbers of defence witnesses produced by him, that he had asked one Rasheed Ahmad D.W.2 of Faisalabad to purchase the goods for him, pack the same and transmit them to him to Lahore, that the said Rasheed Ahmad D.W. 2 did purchase these goods and had them packed, through his servants, including one Noor Din D.W. 3, that the goods purchased and packed covered other export orders as well that the goods got mixed up in the packing, that Mubarak Ali D.W. 4 brought about 100 bales of the packed goods by truck to Lahore and that the appellant was not aware of the goods getting mixed up at Faisalabad when he signed and made the various statements and declarations in the different documents to the Customs Authorities. The appellant, therefore, is entitled to an acquittal.

11. For the foregoing reasons, this appeal is accepted and the conviction and sentence of Abdul Aleem, appellant, .is set aside. He is on bail, his bail bond shall stand discharged.

12. Before concluding, I would like to mention that in 1981 that words 'and such document or statement is untrue', as appearing in section 32(1) of the Customs Act, were replaced by the words 'knowing or having reason to believe that such document or statement is false' and the penalty provided under section 156(1)14 was enlarged to include sentence of imprisonment as well, in case the case was sent for trial to the Special Judge. The amendment to section 32(1) was perhaps due to the observations made by the Supreme Court of Pakistan in Messrs Eastern Rice Syndicate's case (supra). Likewise, in the same year (i.e. 1981), the first limb of sub-item (i) of item 77 of subsection (1) of section 156 of the Customs Act was omitted: This was perhaps to remove the discrimination arising out of two parallel provisions of law governing the same matter being present. However, with the language of section 32(1) of the Customs Act, as it now stands, it would be difficult for the Customs Authority to bring home guilt to any person accused of an offence under section 156(1)14 of the Customs Act, because it would well-nigh be impossible to prove that a declaration or statement made by a person was one which he knew or had reason to believe was false in material parti culars. Originally section 167(37) of the Sea Customs Act, 1878, covered a number of misdescriptions, misstatements, etc., which though innocent, could be punished with the lesser penalty of confiscation and fine. With the new Customs Act being enacted in 1969 on principles akin to the new Customs Act enacted in India, a number of important provisions of the old Act were carelessly left out. If mistakes; misrepresentations and misstatements, not wilfully made, are to be made actionable, the law would require appropriate amendment.

M.B.A./A-288/L Appeal accepted'.