Can the confiscated vehicle be released?

PLJ 2013 Tax Cases (Kar.) 82

Present: Aqeel Ahmed Abbasi, J.

KIFAYATULLAH--Appellant

versus

SPECIAL JUDGE CUSTOMS AND TAXATION, KARACHI and another--Respondents

Special Criminal Appeal No. 5 of 2012, decided on 1.10.2012.

Customs Act, 1969 (IV of 1969)--

----Ss. 156(1), 179, 180, 181 & 185-C--Auction of confiscated vehicle on basis of order of Special Judge--Validity--Such order of Special Judge was erroneous in law--High Court set aside impugned order while allowing appellant to seek release of confiscated vehicle from adjudicating authority or such Tribunal.      [Pp. 83 & 85] A & B

1987 MLD 1536 & 2002 SCMR 1527, ref.

Mr. Dilharam Shaheen, Advocate for Appellant.

Mr. Jawaid Farooqui, D.A.G. for Respondents.

Date of hearing: 1.10.2012.

Order

Being dissatisfied by the judgment dated 18-5-2012 passed by the learned Special Judge Customs and Taxation at Karachi in Case No. 106 of 2012 to the extent of property order whereby the learned Special Judge has ordered that the vehicle be also confiscated and auctioned in accordance with law, the appellant has filed instant appeal.

2.  It is inter alia contended by the learned counsel for the appellant that the learned Customs Judge has erred in law by passing the impugned judgment with regard to confiscation and auction of the seized Oil Tanker i.e. vehicle bearing Registration No. TLG-555, as according to the learned counsel, such authority is not vested in the Customs Court. After having referred to the provisions of Sections 179, 180, 181 and 185-C of the Customs Act, 1969, learned counsel has submitted that from bare perusal of the above mentioned provisions of law, confiscation and disposal of the confiscated goods falls within the domain of adjudicating authority, whereas, Customs Court has the jurisdiction to try the offences under Customs Act, against the accused persons nominated therein. In support of her contention, learned counsel for the appellant has placed reliance in the case of Government of Pakistan v. Mahmood Ahmed Qureshi and others reported as 2002 SCMR 1527 wherein, according to the learned counsel for the appellant, the Hon'ble Supreme Court has already decided the controversy and it has been held that the authority to confiscate and to dispose of the confiscated goods vests in the adjudicating authorities.

3.  On the other hand, Mr.Jawaid Farooqui, the learned D.A.G., though could not controvert the contention of the learned counsel for the appellant, however, has referred to the case of Khuda-e-Nazar v. The State reported in 1987 MLD 1536 wherein, per learned D.A.G., it has been held that if no adjudication proceedings are pending before the Customs Authorities, the learned Customs Judge has the jurisdiction to pass the order under Section 517, Cr.P.C. for the release of the confiscated goods.

4.  During the course of proceedings, counsel for the appellant has filed a statement dated 1-10-2012 along with annexures including show cause notice, its reply, order-in-original and the memo. of appeal filed before the Customs, Excise and Sales Tax Appellate Tribunal, duly acknowledged by the Assistant Registrar, to show that the adjudication proceedings in respect of the confiscated goods and the subject vehicle are pending disposal before the Customs Appellate Tribunal. From perusal of the order-in-original, it is noted that the Additional Collector of Customs after having taken cognizance of the order passed by the learned Special Judge (Custom and Taxation), dated 18-5-2012 relating to the property has disposed of the case in terms of the Court's order.

5.  Learned D.A.G. while confronted with the hereinabove facts, including the fact regarding pendency of the adjudication proceedings before the Customs, Excise and Sales Tax Appellate Tribunal could not controvert the legal arguments advanced by the counsel for the appellant in this regard, however, contended that during pendency of the appellate proceedings before the Customs, Excise and Sales Tax Appellate Tribunal, the subject vehicle may not be allowed to be released unless appropriate orders are passed either by the adjudicating authority or appellate forum, where proceedings are pending.

6.  I have heard both the learned counsel, perused the record and examined the case-law relied upon by both the learned counsel. It will be advantageous to reproduce hereunder Paras 13 and 14 of the judgment of the Hon'ble Supreme Court in the case of Government of Pakistan through Additional Secretary (Customs), Ministry of Finance, Islamabad and another v. Mahmood Ahmed Qureshi and another 2002 SCMR 1527, which reads as follows:--

13.  Relying upon aforesaid judgment, learned High Court in the case reported as Muhammad Sarwar v. Federal Government of Pakistan and others (1988 PCr.LJ213), authored by Mr. Justice Rustam S. Sidhwa, in para 20, observed as follows:--

"20.  In the instant case, the right of the Special Judge, Customs, to punish the petitioner for smuggling and that of the Customs Officers to adjudicate whether the smuggled goods should be confiscated, both arise out of the same provision of law, namely item (89) of sub-section (1) of Section 156 of the Customs Act, 1969. As held by the Supreme Court in Adam's case (PLD 1969 SC 446), the proceedings before the Special Judge are judicial proceedings for the determination of the guilt of the person concerned for committing the act of smuggling and entailing a punishment of imprisonment for the same and the proceedings before the Customs Officers for the confiscation of the goods are departmental proceedings and such Customs Officers are not Judicial Tribunals and that through the State has concurrent remedies, but each is independent of the other and they cannot be termed to be mutually exclusive. Earlier, the Supreme Court in Messrs S.A.Haroon and others v. The Collector of Customs, Karachi and the Federation of Pakistan (PLD 1959 SC 177 at 201) had held that though the Adjudicating Officer was not a judicial tribunal, yet principles of natural justice applied before him, as proceedings before him were at least of a quasi-judicial character, if not of a judicial character."

14.  On above point in the case reported as State through Director General, Pakistan Coast Guards, Turbat v. Sabro and another (1992 PCr.LJ 1795) authored byMunawar Ahmed Mirza, C.J., as he then was, relying upon the case of Adam (supra) he held as follows:--

"However, adjudication of property subject-matter of seizure exclusively falls within the domain of Customs Authorities contemplated by Sections 179 and 181 of the Customs Act."

Therefore, and any order of the Customs Judge would not, ipso facto overrule, the decision delivered by the Custom Officers adjudication proceedings, nor the acquittal of the accused would nullify the effect of the adjudication proceedings, unless the said proceedings on their own strength were contrary to law and against the principles of natural justice.

7.  From perusal of the above referred judgment of the Hon'ble Supreme Court, it appears that the order of the Special Judge (Customs and Taxation) directing confiscation and auction of the confiscated vehicle, particularly when the adjudication proceedings are pending before the customs authorities, is erroneous in law and contrary to the ratio of the judgment of the Hon'ble Supreme Court. Accordingly, I hereby set-aside the impugned order of the Customs Court to the extent of confiscation and auction of subject vehicle i.e. Oil Tanker registration No. TLD-555.

8.  The appellant shall be at liberty to seek release of the confiscated vehicle from the adjudicating authority or from the Customs, Excise and Sales Tax Appellate Tribunal, where the, appeal of the appellant is pending disposal. Such request of the appellant shall be considered and appropriate order in accordance with law may be passed, preferably within two weeks, however, keeping in view the ratio of the judgment of Hon'ble Supreme Court and the directions as contained in the instant order. However, it is clarified that till such time the subject vehicle shall remain under the custody of the customs authorities. Instant appeal is hereby partly allowed in the above terms.

 (R.A.) Appeal partly accepted