MUHAMMAD ASLAM Versus THE MEMBER (JUDICIAL), CENTRAL BOARD OF REVENUE, KARACHI

1. MUKHTAR AHMED JUNEJO, J.--- Petitioner Muhammad Aslam has invoked Constitutional jurisdiction of this Court for challenging an order, dated 21-5-1990 passed by the Additional Secretary, Central Board of ,Revenue, Government of Pakistan, in Revision Application No.153/Rev: Customs of 1990.

2. Admittedly petitioner Muhammad, Aslam on 12-10-1985 travelled from Hong Kong to Bangkok by Swiss Airline and on the same day he took P.I.A. flight from Bangkok to Karachi. While so travelling the petitioner was carrying three suit-cases containing 5,804 pieces of spectacle frames. Said suit cases were booked by the petitioner with Swiss Airline on 12-10-1985 at Hong Kong for Bangkok (according to him) and for Karachi (according to Customs Authorities). The three suit-cases were however, carried by Swiss Airline to Zurich obviously due to some mistake. Ultimately the three suit-cases came from Hong Kong to Karachi Airport where the same were seized by the Customs Authorities after their contents were examined on 16-10-1985. The suit-cases before being examined were lying the Lost and Found Baggage Section of P.I.A., at Terminal II of Karachi Airport, as unclaimed property. On 21-12-1985, petitioner Muhammad Aslam claimed the seized goods and asserted that the same were booked by him from Hong Kong for Bangkok as personal baggage, but the same were not offloaded at Bangkok and then sent to Karachi. Petitioner took stand before the Customs Authorities that the seized goods were meant for Bangkok and not for Karachi and they were mishandled and sent to Karachi.

3. The matter was heard by the Deputy Collector of Customs (Preventive), who under his order, dated 9-4-1987 took view that the consignment in question was meant for Karachi and the plea that the same was transit baggage, was an afterthought and that an offence under clause 9 of section 156(1) of the Customs Act, 1969, was made out. After holding so the Deputy Collector, Customs ordered confiscation of the said goods. Said order was challenged by the appellant in Customs Appeal No.750 of 1987 before the Collector of Customs (Appeals) who under his order dated 18-11-1987 held that the spectacle frames which were carried in the baggage of the petitioner, were meant for Karachi and the same were rightly confiscated as the same were also mentioned in Form A filed with the Customs authorities by the petitioner on reaching Karachi Airport. Petitioner took the matter before Central Board of Revenue in Rev. Application No.153/Rev. Customs of 1990, where it was heard by an Additional Secretary to the Government of Pakistan, who passed the impugned order, dated 21-5-1990. Several factual and legal pleas were taken before the Additional Secretary in revision application to the effect that no investigations were carried out after seizure of the goods in question and no enquiry was held and that the seizure of the goods took place in presence of staff who had full knowledge of the baggage in question, that the petitioner was not summoned for hearing and there was violation of sectio4 139 of the Customs Act, that no notice was issued to the petitioner after the seizure and that the petitioner was entitled to release of the goods under subsection (2) of section 168 of the Customs Act, as show-cause notice was not issued to the petitioner, within sixty days of the seizure and that the adjudicating authority had acted in a mechanical manner while .deciding the case and had wrongly presumed that the burden of proof rested on the petitioner. Under the impugned order the Additional Secretary took view that the petitioner's pica, that the goods should be released to him under subsection (2) of section 168 of the Customs Act, was not tenable because the competent authority had extended the time limit for issuance of show-cause notice by two months and that the petitioner had failed to furnish any legal authority to the effect that the department was bound to communicate to him the reasons which led to the extension of the time limit for issuance of the show-cause notice, and that the petitioners' contention, that the goods were meant for Bangkok, was not substantiated by the evidence on record, as the goods were meant for Karachi, while taking such view, the Additional Secretary maintained the order passed by the Collector of Customs but at the same time ordered release of the goods in question against a redemption fine of 50% of the value thereof in addition to the duty/taxes leviable thereon. Hence this Constitution petition.

4. Mr. Amer Raza Naqvi, learned counsel for the applicant argued that the three suit-cases were booked on 12-10-1985 at Hong Kong for Bangkok and not for Karachi and that the Swiss Airlines had by mistake taken the suit cases to Zurich and then to Karachi. It was next argued that no show-cause notice under section 3(1) of the Import and Export Control Act, 1950, was issued to the petitioner till he himself contacted the Collector of Customs for redress. Lastly it was argued that the show-cause notice under subsection (2) of section 168 of the Customs Act, was not issued within the statutory period of two months from the date of: seizure of the goods and; that there was no compliance with section 1319 of the Customs Act.

5. In his order dated 9-4-1987 the Deputy Collector has taken view that the goods in question were properly booked for Karachi and they were meant for Karachi. While taking such view, the Deputy Collector took into consideration version of Swiss Airlines to the effect that the petitioner requested for return of his three suit-cases to Hong Kong instead of Karachi from Zurich, where the same were ever carried. The Deputy Collector also considered evidence of the seizing officer to the effect that the suit-cases in question bore interline tags showing Karachi as destination. It was further mentioned in said order that the petitioner lodged Property Irregularity Report, at Karachi where he filed Form A for the mishandled baggage. After considering all this evidence the Deputy Collector came to the conclusion that subject consignment was meant for Karachi and the plea of the same being transit baggage was an afterthought. This finding of fact was not disturbed either by the Collector of Customs in appeal or by the Additional Secretary, C.B.R. in revision. The order dated 18-11-1987 passed by the Collector (Appeals) further shows that the petitioner boarded Swiss flight on 12-10-1985 at Hong Kong for coming to Karachi via Bangkok and that at Bangkok the petitioner had to change his flight and boarded a flight for Karachi and he had to do this within a period of two hours. While considering these facts the Collector (Appeals) in his order has rightly observed that plea of the petitioner that he had to deliver contents of the three suit-cases at Bangkok to somebody and receive P.W.A. to fill in the suit-cases, was belied by the facts as the time of two hours for changeover from Swiss Airline to P.I.A. at Bangkok was barely sufficient for transfer of a passenger as well as his baggage. It has also been mentioned in the order, dated 28-11-1987 that the petitioner on reaching Karachi and not finding his baggage containing the spectacles frames of high value, got panicky and he wanted to go back to Hong Kong to get the delivery of his baggage at Hong Kong. The Collector (Appeals) has maintained the finding that the spectacles frames which were carried in the baggage of the petitioner, were meant for Karachi and they reached right destination. These findings of fact cannot be upset in Constitution petition.

6. In respect of issuance of notice under section 168(2) of the Customs Act, there is mention in the impugned order, that the competent authority for valid reasons had extended the time limit for issuance of the show-cause notice by two months. Proviso below subsection (2) of section 168 of Customs Act, says that the period of two months mentioned in subsection (2) may for reasons to be recorded in writing, be extended by the Collector of Customs for a period riot exceeding two months. In view of this provision there is no substance in the legal objection raised by learned counsel for the petitioner on Had the consignment in question been meant for disposal at Bangkok and was not meant for Karachi, the petitioner would have moved the Customs Authorities under section 142 of the Customs Act. Admittedly no such move was made and consequently section 139 of Customs Act did not come into play.

7. As a result of all this discussion there is no substance in this constitution petition which was dismissed with costs under a short order on 17-3-1992 and these are reasons for the same.

8. H.B.T./M-1739/K Petition dismissed.