NOOR ALI VS ASSISTANT COLLECTOR (AFU), 2018 PTD-QUETTA-HIGH-COURT-BALOCHISTAN 816 (2017)

Customs Act (IV of 1969)---

----Ss.15, 16, 156(8)(89) & 196---Imports and Exports (Control) Act (XXXIX of 1950), S.3---Foreign currency---Seizure---Applicant claimed to be the owner of foreign currency recovered from a person at the airport---Held, to prove his claim, applicant neither before Adjudicating Authority nor before Appellate Tribunal produced any paper to show that in fact he was travelling in the same flight with the accused---Neither passport was produced nor ticket or boarding pass to establish that they were in fact traveling in the same flight---Plea taken by the applicant and another claimant of the currency was not only illogical but also irrational---Foreign currency might have been purchased from authorized currency dealer though authenticated but the same had not brought any change as the case was not of purchase of foreign currency, rather it was carrying of money aboard in excess contrary to Foreign Exchange Manual, 2002, thus to be dealt with accordingly---High Court declined to interfere in the order-in-original passed with correct appreciation of facts law which suffered with no illegality---Appellate Tribunal had rightly upheld the same---Both the forums below having not committed any illegality, reference was dismissed in circumstances.

Naseebullah Khan Achakzai for Petitioner.

Akhlaq Ahmed Shah, Assistant Attorney General for Respondents.

Date of hearing: 5th December, 2017.

ORDER

MRS. SYEDA TAHIRA SAFDAR, J.---The applicant Noor Ali son of Abdul Ghaffar approached this Court to question legality of the order-in-original dated 31st July 2012 passed by the Assistant Collector Model Customs Collectorate, Chaman Road, Quetta, whereby his claim for return of the foreign currency already seized was declined, rather its confiscation was ordered as mandated by Section 156 (8), and (89) Customs Act, 1969 (Act, 1969), and order dated 12th August 2014 of the Customs Appellate Tribunal, whereby the request in the appeal was declined, while the order-in-original was upheld.

2.The applicant pressed the instant Reference on the following question of law:

"Whether the impugned order passed by the respondent No.3 confirm to judicial propriety, as the same being the final fact finding authority, was required to record, the core issue, the contention of the parties and to give full devotion for determination of the variance therein, by applying judicial mind but not on presumptions, conjectures and surmises?"

3.The learned counsel for the applicant and learned Assistant Attorney General were heard at length. The learned counsel for the applicant narrated the facts and was of the view that the material before the customs hierarchy was not properly appreciated, resulted to deprived him of the money legally obtained. The learned counsel referred to a letter issued by the Consulate General of Pakistan (Community Welfare Wing) to the Joint Director(s) Overseas Pakistanis Foundation dated 17th May 2012, which was with a request to look into the matter and to refer his case to A.S.F Custom Department Quetta. A receipt issued by Karwan Exchange Company B-Private Limited was also referred to press that he purchased the currency from an authorized dealer, thus he could not have been deprived of it.

4.In reply the learned Assistant Attorney General strongly contested the case of the applicant, while pressed that there was no question of purchase and selling of the currency, rather the recovery was from a person who was travelling abroad, and was carrying the currency in excess to the prescribed limit. He further referred to the punishment awarded to Ali Khan, the person from whose possession the currency was recovered; vide judgment dated 10th June 2015 of the Special Judge, Customs, Quetta, who was charged for the offence of smuggling.

5.The brief facts of the case as contained in the First Information Report dated 1st May 2012, order-in-original and order of the Appellate Tribunal that a person namely Ali Khan son of Muhammad Noor was apprehended on 1st May 2012 by the Airport Security Force Staff, and on search foreign currency comprising of 20,000 US Dollars, and 5200 UAE Dirhams were recovered from his possession. On recovery the currency was seized, and the person was arrested with service of notice under section 171 Customs Act, 1969, with proper documentation. On this report the case was placed before the Special Judge, Customs, Quetta, and also the adjudication started under the Customs Laws. During course of adjudication two claimants of the recovered currency namely Daroo Khan and Noor Ali (present applicant) appeaed, and filed separate applications, which were dealt by the Adjudicating Authority, but were dismissed. The case to the extent of Ali Khan was dealt on merit, with the decision that there was violation of law, thus an amount of 10000 US Dollars was returned to Ali Khan, while the remaining 10000 US Dollars and 5200 UAE Dirhams were confiscated. This resulted in filing of the appeal before the Appellate Tribunal by all the three, but the plea taken was disbelieved, resulted in dismissal of the appeal.

6.This order dated 12th August 2014 of the Appellate Tribunal was questioned in the instant Reference, which was filed on 19th March 2015 with an application for condonation of delay. Thus before going into merit of the case the initial question would be whether the Reference was filed within the stipulated period of ninety (90) days, and if not what would be its fate? The learned counsel for the applicant contended, and also as per the contents of the application that the certified copy was not issued to the applicant at the relevant date when the judgment was announced, nor the order was served on him as mandated by the law, rather he himself obtained the copy in March 2015, and without any further loss of time approached this Court. Though the respondent filed parawise comments, but silent to the extent. In absence of any specific plea taken in rebuttal the assertion made by the applicant is to be believed, thus the delay if any occurred in filing of the instant Reference is condoned for the reason.

7.Now reverting to the merit of the case, the recovery was from Ali Khan at Quetta Airport on 1st May 2012 not denied by the applicant. The recovered currency was 20000/- US Dollars and 5200 UAE Dirhams, thus held to be in violation of Section 3 (1) Import and Export (Control) Act, 1950, and also of Sections 2 (s), read with sections 15 and 16 the Customs Act, 1969, also violative of S.R.O. 566(I)2005 dated 6.6.2005. S.R.O. 499(I)/2009, dated 13th June, 2009, thus constituted an offence punishable under Section 156 (1) clauses (8), (9), (89) and (90) the Customs Act, 1969, read with paragraph 10 of Chapter 18 of the Foreign Exchange Manual, 2002 issued under the Foreign Exchange Regulation Act, 1947. Thus apart from revistration of the case a show-cause notice was issued to Ali Khan, and the adjudication commenced. During course two persons namely Daroo Khan and Noor Ali (present applicant) entered in the picture with a claim that out of the recovered money 9000 US Dollars were of Daroo Khan, while the remaining 2000 US Dollar and 5200 UAE Dirhams were of Noor Ali (present applicant). Thus the adjudication was not only against the accused Ali Khan, but the claims of Daroo Khan and Noor Ali were also considered and through a joint order the Adjudicating Authority decided the matter on 18th July 2012. The currency within allowed limit was returned to Ali Khan and the remaining was confiscated.

8.The applicant Noor Ali claimed to have purchased the currency from an authorized dealer, while at the Airport on the respective date the amount of 9000 US Dollars was claimed to be recovered from Ali Khan, and 9000 US Dollars from Daroo Khan and 2000 US Dollars with 5200 UAE Dirhams from him, separately. It was their cases that due to shortage of time their flight was going to be missed, thus they left the money with the Airport Security Force Staff with a request to Ali Khan to collect the currency, but Ali Khan never returned, their efforts to contact him failed, thus in Dubai they approached the Consulate General of Pakistan, who on their request issued letter to the Joint Director Overseas Pakistanis Foundation. It was their plea that no act of smuggling was on part of Ali Khan, rather the excessive amount was owned by them (Daroo Khan and Noor Ali).

9.The Adjudicating Authority disbelieved the plea taken by the applicant and Daroo Khan and dismissed their application mainly for the reason that the recovery was from Ali Khan and claim of the remaining two persons were afterthought. This resulted in filing of the appeal before the Appellate Tribunal, who also disbelieved the claim taken by the applicant resulted in dismissal of the appeal.

10.The applicant before this Court though was with the same plea, but in fact only pressed the Reference, that the order of the Appellate Tribunal failed to fulfill the legal requirement, the necessary ingredients were missing, thus it was not an order as mandated by law. A judgment required to contain concise statement of case, the points for determination, the decision thereon and the reason for such decision. The judgment passed by the Appellate Tribunal though failed to fulfill the described requirement, but in view of the facts that this Reference was filed as far as back in March 2015 and a considerable time has already been lapsed. The question of law raised by the applicant purely technical in nature, though established even then due to the time consumed in the proceedings it would neither appropriate, nor just to decide the Reference exclusively on the question of law raised by the applicant, as the only possible order would be remand of the case for re-writing of the judgment to the Appellate Tribunal, this would not bring any change in the decision of the case. Thus it would be in interest of the parties and also to meet the ends of justice to deliver a decision on merit of the case, specifically with reference to the law.

11.It was for the reason that the applicant was with the plea that he was travelling in the same flight along with Ali Khan, and recovery of the foreign currency was in the ratio, as narrated in the preceding para, thus there was no violation of the law, nor anyone of them was carrying the foreign currency in excess to the provided limit. It was further his case that he rushed to take the flight, thus left the amount with Ali Khan with the understanding that he (Ali Khan) would bring the money with him as both of them were travelling to Dubai. He only pressed purchase of the currency from an authorized dealer, to prove his claim, but it was not enough. For the reasons that the currency was asserted to be recovered from one person i.e. Ali Khan, who was apprehended and charged. To prove his claim he (applicant) neither before the Adjudicating Authority, nor before the Appellate Tribunal produced any paper to show that in fact he was travelling in the same flight, with Ali Khan. Neither the passport was produced, nor the ticket or the boarding pass to establish that they in fact were travelling in the same flight. In addition the plea taken that he (applicant) and Daroo Khan left the money with Airport Security Force Staff with the request to return it to Ali Khan not only seems to be illogical, but also irrational. The foreign currency might have been purchased from the authorized currency dealer, though authenticated, but would not bring any change as the case was not of purchase of foreign currency, rather it was carrying of money aboard in excess contrary to the Foreign Exchange Manual 2002, thus to be dealt accordingly. The Assistant Attorney General was with the statement that said Ali Khan was also convicted for the offence of smuggling by the competent court and the conviction sustained. He referred to the judgment passed on 10th June 2015 in support thereof, which was also with a direction for confiscation of the amount i.e. 10000 US Dollars and 5200 UAF Dirhams in favour of the State.

12.In view of the above discussion the order-in-original was passed with correct appreciation of the facts and the law, and suffered with no illegality, and the Appellate Tribunal rightly upheld the order-in-original, thus no illegality committed by the respective forums. The applicant has failed to make out a case to establish any illegality in the impugned orders, thus the Reference is dismissed for want of merit.

MH/3/Bal Reference dismissed.