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Petitioner: ADEEL-UR-REHMAN and others VS Respondent: FEDERATION OF PAKISTAN and others
Court Name: Sindh High Court Judge(s): Muhammad Mujeebullah Siddiqui, S. A. Sarwana Title: ADEEL-UR-REHMAN and others vs FEDERATION OF PAKISTAN and others Case No.:C.P. Nos. D-703, D-704, D-770, D-914, D-934, D-1132, D-1133 and D-1134 of
JUDGMENT
Reported As: 2004 PTD 534 Result: Order accordingly Judgment JUDGMENT S. AHMED SARWANA, J.---As the above eight petitions involve similar questions of facts and points of law they have been heard together with the consent of the parties and are being disposed of by this consolidated judgment. For the purpose of brevity, we shall principally refer to the facts of C.P. No, D-703 of 2003 which are as follows:-- 2. Adeel-ur-Rehman, the sole proprietor of Gatron Corporation (hereinafter referred to as the "Gatron"), pursuant to a Letter of Credit established on 11-3-2003 imported from Indonesia a consignment of Betel Nuts. On 22-4-2002 Gatron filed the Bill of Entry alongwith all relevant documents including Phytosanitory Certificate issued by the Government Department of the country of origin in respect of the consignment but the Collector of Customs declined to release it and detained the same for examination of its quality. On or about 26-4-2003 the Collector sent samples of the goods to H.E.J. Research Institute of Chemistry, University of Karachi (hereinafter referred to "HEJ") for testing. After carrying out Microbiological Analysis of the Betel Nuts Samples, HEJ sent its Report, dated 9-5-2003. The relevant portion of the Report of the Sample in C.P. No,703 of 2003 reads as follows: "Betel nuts infested with insects 8.9% cfu/g Total Bacterial Count 86,00 cfu/g Mould 1,500 g Yeast/g 7,000 g Salmonella Not detected
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Remarks: The given sample of betel nuts" was found to have a low microbiological load within the specified limits for food items." The Plant Protection Department obtained a Test Report, dated 19-5-2003 of the Betel Nuts Sample from PCSIR Laboratories. The relevant portion of which reads as follows:-- "Total Aerobic Count/g 1.8 X 10.'3 Mould Count/g 8.1 X 10^ 2 On the basis of PCSIR Report the Department of Plant Protection issued Release Order, dated 19-5- 2003 which reads as follows:-- RELEASE ORDER Plants and plant products specified below were examined by a duly authorized officer of this Department and were found apparently free from injurious insects and diseases. The consignment may now be released to the consignee "(under lining added)." Gatron alleges that in spite of the above order the Collector did not release the consignment in sheer disregard of his responsibility conferred upon him under the law and consequently it filed the present Constitution petition for an order directing the Collector of Customs to release the Betel Nuts consignment detained at Karachi Port. 4. On 5-5-2003 the petition was admitted for regular hearing and a notice was issued to the respondents for hearing of the temporary injunction application alongwith the main petition on 24- 6-2003, The Collector of Customs in his Parawise Comments submitted that a number of consignments in which release Orders had been issued by the Plant Protection Department were subsequently, after Laboratory Tests, found to be unfit for human consumption. He also submitted that any edible product not fit for human consumption was a Banned Item (Negative List) specified in clause (H-I) of Appendix 'Aof the Import, Trade and Procedures Order (Import Policy) for the year 2002-2003 read with section 16 of the Customs Act, 1969 and as such, the Collectorate was justified in obtaining Microbiological Reports and detaining the goods. 5. The facts of C.P. No, D-704 of 2003 filed by Waseem are identical to C.P. No,D-703 of 2003 which was admitted on the same day and proceeded with simultaneously. The relevant portion of the HEJ Microbiological Analysis Report, dated 7-5-2003 of the Betel Nuts sample was as follows:-- "Betel nuts infested with insects: 9.2 % Total Bacterial Count; 19,000 cfu/g Mould: not detected Yeast/g: 2,000/g" 6. C.P.C. No, D-770/2003 also filed by Gatron was-admitted for regular hearing on 20-8-2003. The relevant portion of the HEJ Microbiological Analysis Report, dated 11-6-2003 of the sample reads as follows:-- "Betel nuts infested with insects: 7.0% Betel nuts without infested 93.0% Total Bacterial Count; 12,000 cfu/gm ....... ....... Mould: Not detected Yeast/g: 15,000" 7. C.P. No, D-934 of 2003 filed by H.Y. Corporation was admitted for regular hearing on 20-8-2003. The relevant portion of the H.E.J. Microbiological Analysis Report, dated 28-6-2003 in respect of Betel nuts sample reads as follows:--
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"Betel nuts infested with insects: 6.0% Betel nuts without infested 94.0% Total Bacterial Count; 75,000 cfu/gm ....... ....... Mould: Not detected Yeast/g: 2,000 8. C.P.0 Nos. D-1132, D-1133 and 1134 of 2003 filed by Messrs Yasin Sons are still at Katcha Peshi stage. The H.E.J. Microbiological Analysis Reports, dated 7-7-2003 of the samples in respect of the said three petitions read as follows:-- C.P. 1132/03 C.P. 1133/03 C.P. 1134/03 "Betel nuts without infested: 90.90% 94% 95/1% Betel nuts infested with insects; 9.10% 6% 4.9% Total Bacterial Count: 40.000 cfu/g 12,000 cfu/g 10,000 cfu/g ..... Yeast/g: 7,000 5,000 C.P. No, D-914 of 2003 filed by Interplast Inc. Was admitted for regular hearing on 20-8-2003. There are five consignments and according to H.E.J. Microbiological Analysis Reports, dated 7-7-2003 the results of the samples range as follows:-- Betel nuts infested with insects; From 13.9% to 20.50% Betel nuts without infested: From 86.1% to 79.50% Total Bacterial Count: From 8,000 to 85,000 cfu/gm Yeast/g: From 2,000 to 8,000 Remarks: (a) The insect infested betel nuts (13.9%) are not fit for human consumption. (b) The remaining part of the sample "betel nuts" (86.1 %0 was found to have a low microbiological load below the specified limit for food items. [The remarks are in respect of the least infested sample. 9. It transpires that Collectorate of Customs was not able to fully comprehend the HEJ Reports and its recommendations and on 22-4-2003 sought clarification from H.E.J. The query reads as follows:- - "(2) This Collectorate has received various test reports of betel nuts issued by your laboratory. In most of these reports, the findings are that a certain percentage of betel nuts was found to be infested and that portion has been reported to be not fit for human consumption and, for the remaining portion, has been found to have low biological load below the specified limit for food items. (3) In this connection, it is pointed out that in case of betel nuts which is an agricultural product, the individual nuts are quite different from each other, and hence the commodity as such is heterogeneous item. The determination of percentage of infestation in such heterogeneous goods is not clearly understood and gives an impression that infested portion of a consignment and be visually separated and that the other portion may be fit for human consumption. It is, therefore, requested to kindly clarify the above situation and also inform whether the infested and non- infested portions could be segregated by naked eye." H.E.J. By its reply, dated 28-4-2003 explained its Reports in the following terms: "This is with reference to your letter (ref. No, Reg. SI/Misc/188/2002-AIB(X), dated April 22, 2003 regarding the reports issued by us about the quality of imported betel nuts.
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Betel nuts are an agriculture produce of blended origin and therefore any infestation can make the entire consignment potentially unfit for human, consumption. It is also understood that in any agriculture produce, some part may not be of goods quality and therefore grading and separation are the standard techniques. However, in case of betel nuts, due to small size and large quantities, it does not seem to be possible to visually separate infested and non-infested parts. We therefore request you to kindly interpret the results in the reports as following: (a) 10% or more insect infestation (Microbiological load low or high, in both cases)Potentially unfit for human consumption (b) Less than 10% infestation with low microbiological loadCan be consumed after careful discarding of the infested/infected parts. (c) High microbiological load Unfit for human consumption By letter, dated 3-7-2003, H.E.J. Further clarified its earlier letter of 28-4-2003 in the following terms (a photocopy of this Letter was supplied to the Court by the petitioners counsel on 14-7-2003): "This is with reference to our previous letter, dated April 28, 2003 (enclosed herewith), kindly interpret the 2nd paragraph of our said letter as follows. "Betel nuts are an agriculture produce of blended origin and therefore, infestation (more than 10%) can make the entire consignment potentially unfit for human consumption. Kindly interpret the 3rd paragraph of our above mentioned letter as follows:-- It is also understood that in agriculture produce, some part may not be of good quality and therefore, grading and separation are the standard practices world over. However, in case of betel nuts (if infested/infected parts are found more than 10%),it does not seem to be practically possible to visually separate infested from the non-infested parts. We therefore, request you to kindly interpret the results in the reports as following:-- (a) 10% or more insect infestation (Microbiological load low or high, in both cases)Potentially unfit for human consumption (b) Less than 10% infestation with low microbiological loadCan be consumed after careful discarding of the infested/infected parts. (c) High microbiological load Unfit for human consumption 10. After hearing the arguments on the first three petitions on 5-7-2003, the Court appointed the Official Assignee as Commissioner to draw random samples from the various consignments in question and obtain fresh Microbiological Analysis Report from H.E.J. The Official Assignee submitted his Report, dated 14-7-2003, according to which the results in C.P. No,D-703 of 2003 filed by Gatron and C.P. No,D-704 of 2003 filed by Wasim were reported as follows:-- C.P. 703 C.P. 704 Betel nuts without infestation 90.2% 90.6% Betel nuts infested with insects; 9.8% 9.8% Total Bacterial Count: 50,000 cfu/gm 80,000% ...... Yeast/g: 8,000/g 10,000/g" On 16-7-2003 after hearing the parties, on the suggestion of Mr. Mazhar Jafri, learned counsel for the petitioners, Official Assignee was directed to get fresh samples of the consignments in the three petitions tested from Aga Khan University Hospital Laboratory. The petitioners were directed
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to deposit with the Official Assignee a sum of Rs,15,000 towards the testing fee. No such deposit was made and instead on 31-7-2003 the three petitioners filed applications for withdrawal of the three petitions. On 6-8-2003, the Court dismissed the applications for withdrawal on the ground that the petitions were in the nature of public interest litigation and Mr. Nadeem Azhar, learned D.A.-G., on instructions from the representative of the Customs Department. Stated that in view of important question of law and the important issue of health of citizens further consignment of betel nuts shall not be released until these petitions have been decided by the Court. The hearing was then adjourned to 20-8-2003 for further proceedings. On 20-8-2003, the Official Assignee informed the Court that one Haji Shafiqur Rehman, representative of the petitioners had appeared before him on 16-8-2003 and requested for adjournment as he was making arrangement for grounding of the containers so that the required samples could be drawn. One Miss Fouzia Rasheed, holding brief for Mr. Sohail Muzaffar, Advocate, undertook to file power on behalf of the petitioners and on her request the hearing was adjourned to 16-9-2003 to enable the petitioners in the three petitions to comply with he Court's order. The power was however not filed by Mr. Muzaffar. 11. On 16-9-2003 the Official Assignee submitted his Report alongwith three Analysis Reports, dated 15-9-2003 which was placed on record. 12. The learned counsel for the petitioners and the respondents submitted their arguments on 16 and 17 September 2003. Mr. Babar Awan, learned counsel for the petitioners in C.P. Nos. D-703, 704 and 770 of '2003, submitted his arguments with reference to the record of C.P. No, D-703 of 2003. He contended that in accordance with the past practice, the Plant Protection Department had obtained a report, dated 19-5-2003 from PCSIR Laboratories and issued a release order on the same day. He added that the HEJ in its report, dated 9-5-2003 had also indicated in the remarks column that the given samples of "betel nuts" were found to have a low microbiological load within the specified limits for food items and in spite of such report and the representation made, the Collector did not release the goods as a result of which the petitioner filed the present petition. He further submitted that pursuant to this Court's order, dated 16-7-2003 Microbiological Analysis of the samples was carried out by the Aga Khan Laboratory on 15-9-2003 which clearly stated that "the sample submitted is bacteriologically satisfactory". He vehemently contended that in view of the several reports the goods should be ordered to be released as the only requirement under the law is that the goods must be fit for human consumption which had been confirmed by the reports of various laboratories. He added that the betel nuts were a raw material and not the final product and as such:, the question of its being edible in the present form did not arise but would arise after the betel nuts have been processed and made ready for sale/distribution in the market or to the consumer. He stressed that the betel nuts were in the free list of items which can be imported by any one. The list of edible products is given in Annexure'Fof Import Policy which excludes betel nuts which fall under HS Code_ 08-02 and therefore, the arguments of the Collector that betel nuts cannot be imported are not sustainable. 13. Mr. Raja Qureshi, learned counsel for the petitioners in C.P. Nos. D-1132, D-1133 and D-1134 of 2003 contended that according to the PCSIR Report the betel nuts imported by his clients were fit for human consumption and should have been released by the Collector. He submitted that the Court had to decide two questions, namely; (a) whether 9.10% infestation makes the entire consignment unfit for human consumption or (b) whether 9.10% infestation can be removed by appropriate process to make the remaining 90.90% fit for human consumption. However, he conceded that (i) at the present stage 9.10% cannot be segregated visually from the entire consignment; (ii) 9.10% can be segregated after cutting each betel put into two parts to ascertain whether the cut betel nut is infested or not; (iii) monitoring of separation is not possible; (iv) that the question before the Court is a microbiological question and not a question of law.
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While referring to the invoice, dated 27-4-2003 in one of his cases he pointed that the petitioner had imported 'betel nuts split 90/95 PCT good cut and according to the Phytosanitary Certificate issued by the Department of Agriculture Bangkok the consignment had been inspected and found free from quarantine posts and substantially free from other injurious pests and was considered to conform to the Phytosanitary Regulation of the importing country (thereby meaning Pakistan) and as such, the goods having been cleared by the Agriculture Departments of the two countries there was no impediment in its clearance. 14. Mr. Haider Iqbal Wahniwal, learned counsel for the petitioner in C.P. No, D-934/2003 adopted the arguments of Messrs Awan and Qureshi and reiterated that the Collectorate should have followed the past practice and cleared the goods after the Plant Protection Department had issued a Clearance Certificate. With regard to the term "95% good cut", he explained that the term means that after the betel nuts are cut 95% would be found to be good by visual examination and that the value of the betel nut is determined on the basis of cutting the betel nuts and visually finding out the percentage of the good betel nuts and the infested betel nuts. He referred to the HEJ Report, dated 25-6-2003 in his case which stated that betel nuts infested with insects was 6% while betel nuts without Infestation was 94% which report was in conformity with the Invoice, dated 10-5-2003 which describe the goods as "600 bags Thai split betel nuts quality 95 pet good cut". He added that HEJ report means that there are no live insects; however, it is infested by insects but there is not insect by itself in the betel nut. 15. Mr. Muhammad Saleem, learned counsel for the petitioner in C.P. No, D--914 of 2003 also adopted the arguments of Messrs Awan and Wahniwal and contended that the petitioner imported five betel nut consignments for processing in the Export Processing Zone where the Customs laws are not applicable. He reiterated that the insects are not inside the betel nuts but the effects of infestation are present which would increase with the passage of time. He explained that -the betel nuts are sold after undergoing the process of quality and valuation which is done by cutting every betel nut in two pieces, visually examining the quality of the cut betel nut on the basis of which it is valued and then sold. He added that the sorting is done after cutting and that the petitioner would carry out the process and then export the good quality cut betel nuts in packets which would be printed with the date of its manufacture and the date of its expiry. He suggested that Customs Officers be appointed to monitor the sorting of the betel nuts whereafter the betel nuts which are found not to be infested with insects may be released. 16. Mr. Yawar Faruqui, learned counsel for the Collector of Customs, contended that the arguments advanced by all the learned counsel in several petitions were contrary to the provisions of the. Customs Act, the Import. Policy Order 2000-2003 and the Microbiological Analysis Report of the betel nuts and consequently consignments could not be released as they were edible products not fit for human consumption. He submitted that according to the Pakistan Customs, Tariff, betel nuts are covered under the head 0802,9010 which is confirmed by the Bills of Entry filed for clearance of the goods under ,Classification 0802,9010 as Edible product and that all edible products which are not fit for human consumption are Banned Items (Negative List) in Appendix 'Aof the Import Policy issued under Paragraph 6 of the Import. Trade and Procedures Orders, 2002-2003 which restricts the import of such items. 17. After referring to the various reports and clarifications issued by HEJ in respect of the Microbiological Analysis conducted by it of various consignments, he submitted that the Collector would have no objection if the goods were as released in list of the HEJ Report, dated 28-4-2003 provided the observations of HEJ as were followed strictly. 18. With regard to Mr. Saleem Samo's arguments that the goods were imported for processing in the Export Processing Zone and the Collector of Customs did not have the jurisdiction to take any action in respect thereof. Mr. Yawar Faruqui contended that under S.R.O. 450(1)/2001, dated 18-6-
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2001, Rule 226 the Collector has the power to deal with or issue instructions in respect of goods, inter alia, on the ground of public hygiene or health or phyto-pathological consideration. 19. Exercising his right of reply Mr. Babar Awan, learned counsel for the petitioners in C.P. No, D-703 of 2003 submitted that in Writ Petition No,10390 of 2003 (Bilal Brothers v. Collector etc.) the Honourable Lahore High Court by order, dated 24-7-2003 had ordered release of the consignment of the betel nuts as PCSIR Lahore and the Department of Plant Protection had found the consignment fit for human consumption which the Collectorate had detained on the ground that they were awaiting the fate of another consignment lying at Karachi Port and the consequent Petition No, 1857-L of 2003 filed against the Judgment by the Collector of Customs before the Honourable Supreme Court of Pakistan was dismissed. On the basis of the above order he vehemently contended that in the present cases also the betel nuts had been found fit for human consumption and they should be released immediately. He added that the suggestion given by Mr. Yawar Farooqui, learned counsel for the Collector of Customs was not practicable and that there was no one more qualified than the experts who had given the reports which should be followed. 20. After hearing the learned counsel on 16 and 17 September, 2003, judgment in the petitions was reserved. On 19-9-2003, the Official Assignee appeared personally and submitted a Report, dated 19-9-2001 alongwith a covering letter, dated 17-9-2003 from Ms. Shahida Qureshi. Senior Assistant Manager, Clinical Microbiological Department. Aga Khan University Hospital, Karachi, enclosing three Microbiology Reports, dated 17-9-2003 in respect of the samples taken from the consignments involved in C.P. Nos. D-703, D-704 and D-770 of 2003 respectively which had been submitted for analysis to the Aga Khan Laboratory. On comparison of the Analysis Reports, dated 15-9-2003 and the reports, dated 17-9-2003, we found a drastic difference between the analytical results and the opinions stated therein which were totally contrary to each other. According to the comments in the Reports, dated 17-9-2003 the samples tested by the Aga Khan Laboratory were stated to be "microbiologically unsatisfactory". Consequently, we issued notice to all the parties/counsel for further hearing in the matter on 23-9-2003. A notice was also issued to Ms. Shahida Qureshi of the Aga Khan Hospital. 21. On 23-9-2003 when the matters were taken up. Messrs Kamal Azfar, Saadat Yar Khan, Mazhar Jafri and Dr. Babar Awan, Advocates for the petitioners in C.P. Nos. D-703, D-706 and D-770 of 2003 were called but none appeared. However, Adeelur Rehman. Petitioner in C.P. No,D-703 and D-770 of 2003 appeared in person and filed an application, dated 23-9-2003 signed by one Haji Shafiqur Rehman, Attorney, with reference to C.P. Nos. D-703, D-704 and D-770 of 2003 requesting for adjournment as his lawyer was unable to attend the Court. The application included the following statement. "That we received the Court notice regarding the further hearing on 23 September 2003 today at 3.30 p.m." 22. This statement was apparently incorrect because the hearing on 23rd September, 2003 had started at 9.00 in the morning. Further, the petitioners had engaged four counsel; three of whom had their Chambers in Karachi and were served with notice of hearing for the said date but apparently they did not consider it necessary to appear. The counsel in other petitions tagged with the three petitions were, however, present. 23. Pursuant to the notice issued to Aga Khan University Hospital, Ms. Shahida Qureshi. Senior Assistant Manager, Clinical Microbiology Department, Aga Khan University Hospital and Dr. Rumina Hasan. Sectional Head, Clinical Microbiology Laboratory, Aga Khan University Hospital appeared before us accompanied with their counsel Mr. Liaquat Merchant, Advocate. The Court enquired from Ms. Qureshi and Dr.Rumania Hasan to check the Reports, dated 15-9-2003 and 17-9-2003 and let the Court know which one of the two sets was genuine. After scrutinizing the two sets of Reports, both
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Ms. Qureshi and Dr. Hasan stated that the Reports, dated 17-9-2003 were genuine and the Reports, dated 15-9-2003 were fake as they did not bear the signatures of the authorized persons. They added that the Reports, dated 17-9-2003 contained the initials of Technologist Noreen Saeed and Consultant Dr. Nasim Sabir with whose initials they were conversant. They further stated that they had no idea as to who had put the initials as Technologist and issued the Reports, dated 15-9-2003. 24. Ms. Qureshi further stated that with the letter, dated 17-9-2003 she had sent two sets of Reports i,e, on "Sample A" and "Sample B". The Court asked the Official Assignee to check his file and verify whethe he had received two sets of Reports in each of the three petitio s. After going through his record, he found another set of Report in respect of "Sample B" in respect of each of three petitions. The sa e were taken from the Official Assignee and shown to Ms. Quresh and Dr. Rumina Hasan, who after examining the same confir ed that they were the genuine Reports of "Sample B" issued by the Ag. Khan Laboratory. The Reports were marked as Annexures 'H', `K& 'I,respectively and attached with the Official Assignee's Report, dated…
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