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Petitioner: MUHAMMAD NAWAZ and anothers VS Respondent: THE STATE and 2 others
Court Name: Lahore High Court Judge(s): Ch. Muhammad Nasim Title: MUHAMMAD NAWAZ and anothers vs THE STATE and 2 others Case No.: Writ Petitions Nos.79 and 6734 of 1998 Date of Judgment:1998-05-21 Reported As: PLD 1999 Lahore 18 Result: Petition accepted
JUDGMENT
JUDGMENT ' This judgment is intended to dispose of the following two writ petitions wherein the same questions of facts and law are involved:- (i) Writ Petition No,4279 of 1998 titled as 'Muhammad Nawaz etc. v. The State. (ii) Writ Petition No,6734 of 1998 titled as 'Anjam Sheraz v. The State etc.' 2. The epitomized facts of both the writ petitions are almost the same while there is difference of proposed relief about which the separate prayer has been made in each writ petition. The facts of the matters are that Muhammad Nawaz petitioner No,1 of Writ Petition No,4279 of 1998 is the proprietor of M/s. Fancy Traders 5-Bull Road, Lahore, Jamal-ud-Din Rana petitioner No,2 is the proprietor of M/s. Subhan Traders, Bull Road, Lahore and Anjam Sheraz petitioner No,3 is employed as an Examiner in the Customs Department in the Central Board of Revenue and is presently posted at Dry Port, Lahore. Muhammad Nawaz and Jamal-ud-Din Rana petitioners Nos.1 and 2 imported the goods which were received in Pakistan in container number Anil 981362. They were received in Dry Port, Lahore. They filed two bills of entry containing separate No,4075 and 4076 through Waheed Ahmad Custom Clearing Agent, Lahore. The same were examined by Anjam Sheraz petitioner No,3 of Writ Petition No,4279 of 1998 who has also filed Writ Petition No,6734 of 1998. The assessm ent report prepared by Anjam Sheraz petitioner was approved by the Principal Appraiser who submitted the same before the Deputy Collector Customs, Lahore. Petitioners Nos. 1 and 2 were directed to pay the duty alongwith fine at 5% which was deposited by them on 3-2- 1998. The goods were out of charge of the Custom Authorities and the aforesaid petitioners/importers were allowed to remove the same from Dry Port, Lahore. However, on 3-2- 1998 Deputy Director Intelligence working in the relevant Directorate General, Intelligence and
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Investigation (Customs and Excise), Lahore supervised a raid with his subordinates namely Muzaffar Abbas Naqvi and Malik Muhammad Latif both Senior Intelligence Officers as well as Maqsood Hussain, Mubashir, Muhammad Din Pehalwan and Ghulam Mujtaba sepoys in the Dry Port, Lahore after receiving secret information that the goods had been grossly misdeclared in terms of quantity and description with whom Customs Staff and others had connived to evade the Government Revenue. Expressing about the commission of offence under sections 156(1)-8, 14, 81, 82, 86 and 178 of the Customs Act, 1969 (hereinafter called as Act for brevity sake), Abdul Ahad Khan, Superintendent Customs Intelligence, Lahore got recorded First Information Report No,6 dated 3-2-1998 on the basis of section 161 of the Act (Book No,3) at Directorate General Intelligence and Investigation (Customs and Excise), Lahore. The goods were taken into possession by the Intelligence Officers on 4-2-1998 when the inventory was prepared which allegedly included some of the banned items mentioned in Notification dated 23-5-1985 issued under section 2(s)(ii) of the Act. 3. Feeling aggrieved Muhammad Nawaz, Jamal-ud-Din Rana and Anjam Sheraz petitioners filed Writ Petition No,4279 of 1998 wherein they contended that the seizure in the form of inventory showed that the goods were not prohibited or banned within the meaning of section 2(s) of the Act as those had not been notified under section 16 of the Act by the Federal Government and that the offence under section 156(1)-8 of the Act had been added with mala fide intention in order to exaggerate gravity of the offence so that they were deprived of their right of seeking the indulgence of the Court. They filed the aforesaid writ petition to get declared that an offence under section 156(1)-8 of the Act was not made out against them as they have not smuggled into or out of Pakistan the goods. They averred that the goods were imported at the duly declared Customs Port Lahore under section 9 of the Act and the Customs Area duly specified under section 10 of the Act, that the bills of entry were duly filed at the Custom Port by the Clearing Agent, that thereafter the case had been duly examined and that the goods were assessed to Custom Duty which had been duly paid. They maintained that the goods were neither prohibited nor banned under section 2(s)(ii) read with section 16 of the Act as according to the Import Policy Order for the year 1997 all the goods detailed in the Seizure Report could be imported against the free list. They maintained that there was no legal or factual justification to add the offence under section 156(1)-8 of the Customs Act, 1969. They prayed for the issuance of the writ about the proposed declaration mentioned supra. 4. Anjam Sheraz petitioner mentioned above also independently filed Writ Petition No,6734 of 1998 to obtain a declaration to the effect that the registration of case F.I.R. No,6 dated 3-2-1989 under sections 156(1)-8, 14, 81, 82, 86 and 178 of the Customs Act, 1969 is without jurisdiction, without lawful authority, illegal and void against him and that all the consequential proceedings were also void, mala fide without jurisdiction and without lawful authority. According to him he was employed as an Examiner in the Customs Department in the Central Board of Revenue and was presently posted at Dry Port, Lahore. He contended that the aforesaid F.I.R. Desired to be quashed was registered on the allegation that he had not carried out examination of a container in which goods were imported by M/s. Fancy Traders, 5-Bull Road, Lahore and M/s. Subhan Traders of Bull Road, Lahore, that the goods have been found in excess of import documents and that the Examination Report was got prepared from him by the importers and the Clearing Agent to evade the duty and taxes on the imported goods. He maintained that he examined the imported goods contained in Container No, APLU 981362 on 28-1-1998 while in the aforesaid F.I.R. No,6 the number of container was mentioned as APLU 981340. He pleaded that the Appraiser, on the basis of the Examination Report made by him (writ petitioner), assessed the duty and taxes on the imported goods and the assessm ent was passed by the principal Appraiser and that since some goods were in excess the Deputy Collector imposed 5% fine on the value of the goods. According to him both the importers
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after the assessm ent of the duty and taxes had deposited a total sum of Rs,4.69.366 on 3-2-1998 and thus the goods were out of charge after the payment of duty and taxes under section 83 of the Act. He asserted that before the removal of the goods from the Dry Port premises a raiding team of the Directorate General Intelligence and Investigation (Customs and Excise), Lahore headed by a Deputy Director proceeded in the matter and lodged the impugned F.I,R. No,6, dated 3-2-1998 while the goods were seized and the Seizure Report and Inventory was prepared on 4-2-1998 from the premises of the Dry Port which is the Customs Station Port when neither the importers nor their representatives were associated. He contended that whole of the proceedings conducted by the Deputy Director of the office of Directorate General Intelligence and Investigation (Customs and Excise) I & P Branch, Lahore from taking into possession of the Container No, APLU 981340 of the goods delivered and the seizure of the goods were illegal, without jurisdiction and without lawful authority. He pleaded that the complainant and the Team Members were not Officers of the Customs authorised to lodge the report and that under sections 3 and 4 of the Act the powers to discharge the duty were conferred. He maintained that the powers to proceed under sections 32, 156(1)-8, 14, 81, 82, 86 and 178 of the Act were not conferred on the respondents who could not discharge the duty of the Officers of Customs under the above provisions of the Act whereupon the lodging of the F.I.R. Was wholly illegal, without jurisdiction and without lawful authority. He maintained that the Directorate General Intelligence and Investigation (Customs 'and Excise), Lahore have not been conferred the powers under sections 32 and 179 of the Act who could not proceed in the matter even though they were entrusted with certain powers by the Central Board of Revenue vide Notification dated 22-4-1982. He maintained that the limits of the Dry Port were notified by the Central Board of Revenue vide Notification No,S.R.O.1250(1)73, dated 24-8-1983 and the staff of the Directorate of Intelligence and Investigation (Customs and Excise). Lahore have no statutory jurisdiction to enter in to Port Area, conduct the raid and make seizure of the goods unless the same were examined, evaluated. Assessed out of charge and taken out of the Dry Port premises and that all the proceedings were illegal, coram non judice and of no legal effect. He maintained that the allegations in the F.I.R. Were wholly baseless as the importers deposited all the taxes as assessed by the Custom Authorities and deposited into Government treasury at Dry Port Lahore. He took up the specific stand that the Directorate of Intelligence and Investigation (Customs and Excise), Lahore was never notified as "Police Station" within the meaning of section 4(1)(s) of the Code of Criminal Procedure and that the F.I.R. Could not be registered there and the investigation could not be conducted. He maintained that the goods imported by the importers were not the smuggled goods and that for the worst the case would fall within the purview of misdeclaration to be dealt with under section 32 punishable under clause (14) of section 156(1) of the Customs Act, 1969 and that also after the registration of the proper F.I.R. By the competent Authority. He added that at the time when he examined the goods contained in Container No, APLU 981362 the same were found in accordance with the invoice and packing list and that he performed his duties strictly in accordance with the rules. He pleaded that the subject-matter of the F.I.R. Was Container No, APLU 981340 and not Container No, APLU 981362 which contained the goods and were examined by him whereupon the appraiser had assessed the duty and taxes. He stated that no goods could be seized unless the same were liable to confiscation under the law. He maintained that the provisions of sections 173 and 168 of the Act were violated because no notice was served upon the importers, Consequently he prayed for the issuance of the proposed relief. 5. In both the writ petitions the separate reports comments were submitted which contained the same type of defence. It was mentioned in the aforesaid reports and comments that it was a case of misdeclaration in terms of quantity and description of goods wherein the importers with the help of the Clearing Agent and the Customs Staff had evaded the Government Revenues. According to the respondents they had intimated the Additional Collector Dry Port, Lahore vide letter dated 28-1-
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1998 with respect to Container No, APLU 981362 that the same was either misdeclared or incorrectly stated which may be desealed/opened in the presence of the staff of the Directorate of Intelligence and Investigation (Customs and Excise) (Regional Office), Lahore. It was pleaded that F.I.R. No,6 was registered by the competent Directorate authorised in the matter by the Central Board of Revenue and that all the proceedings conducted thereof were justified and legal. It was also expressed that the petitioners of both the writ petitions had not come with clean hands to seek justice who had deliberately misstated the facts and that they had not adopted and exhausted the legal forum to get redressed the grievance. 6. I have heard the learned counsel for the parties and gone through .The record before me. Learned counsel for the petitioners argued that Notification dated 23-5-1985 issued under section 2(s)(ii) has to be read with section 16 of the Act, according to which the Import Policy was issued and the goods were not banned and, thus, not smuggled. He added that the duty and the fine at 5% assessed by the Collector of Customs was paid and that there was no evasion of duty and, thus, the goods were not smuggled. He maintained that even though vide Notification dated 22-4- 1982 the Officers of the Directorate of Intelligence and Investigation (Customs and Excise), Lahore specified in column No,2 of the concerned table were declared as the Officers of the Customs to exercise the powers and discharge the duties under the provisions of the Act specified in column No,3 of the said table within the area of their respective jurisdiction, they were not "Appropriate Officers" referred to in various provisions of the Act being the Officers of Customs mentioned in the corresponding entry in column No,3 of the table. He clarified that the officers of the Directorate of Intelligence and Investigation (Customs and Excise) (specified) in column No,2 of the table were declared as the Officers of Customs, who could perform the duties of Appropriate Officers in case of their transfer in the other cadre wherein the Collector, Additional Collector, Assistant Collector, Superintendent, Principal Appraiser, Inspectors/Preventive Officers/Appraisers worked and that both the powers could not be exercised by the Officers of the Directorate of Intelligence and Investigation (Customs and Excise), Lahore and vice versa by the Officers of the Collect orate i,e, Collector, Deputy Collector etc. Etc. Mentioned above. According to him specific sections were mentioned in notification dated 22-4-1992 under which the Deputy Director as well as Director of Intelligence and Investigation.(Customs and Excise) could exercise the powers which were under sections 26, 48, 60, 90, 91, 92, 139, 157(2), 158, 159 to 168(1)(3) and (4), 171, 173, 175, 198 and 199 and that they could not act beyond that. It was specifically asserted that the Directorate of Intelligence and Investigation (Customs and Excise) was not a "Police Station" and that any direction was simply illegal, without jurisdiction and without lawful authority which was liable to be ignored. He maintained that the Police Stations were established either by the Federal Government or by the Government of the concerned Province and not by the Director General Intelligence and Investigation (Customs and Excise), Islamabad. He emphasised that under section 4(s), Cr.P.C. "Police Station" means any post or place declared generally or specially, by the Provincial Government in this behalf and that under section 5(2) of the Code of Criminal Procedure all offences under any other law shall be investigated,, inquired into, tried and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. He added that under sections 3 and 4 of the Act read with section 2(b) containing the definition of "Appropriate Officer" and section 2(o) containing the definition of "Officers of Customs", the exercise of powers and the discharge of duties have to be carried out provided that the Central Board of Revenue may by general or special order impose such limitation or conditions on the exercise ci such powers and discharge of such duties as it thinks fit. He continued that there was no F.I.R. In the eyes of law containing No,6, dated 3-2-1998 registered at the Directorate of Intelligence and Investigation (Customs and Excise), Lahore and, thus, the matter cannot be further processed
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with. He laid the emphasis that it may be a case of misdeclaration to be taken up by the Collector of Customs who is empowered under section 179 of the Act keeping in view the quantum of price of goods. He continued that the information about the commission of any offence under the Act or any attempt has to be given in writing to the Officer-in-charge of nearest Customs House, or Customs Station under section 192 of the Act or if there is no such Customs House or Customs Station to the Officer In charge of the nearest Police Station and if the Officers-in-Charge of a Police Station has received any information he shall as soon as possible communicate it to the Officer-in-charge of the Customs House or Customs Station. He maintained that it is a case of transgression of authority on the part of the Directorate of Intelligence and Investigation (Customs and Excise), Lahore and that F.I.R. No,6, dated 3-2-1998 is liable to be quashed having been recorded without jurisdiction and without lawful authority. On the contrary learned counsel for the respondents laid the emphasis that the petitioners have come to the Court with unclean hands who tried to make evasion of Customs duty by playing the trick with the connivance of the Custom Staff who were criminally liable in the matter. He referred to order, dated 5-3-1994 and order dated 11-5-1994 issued by the Directorate General of Intelligence and Investigation (Customs and Excise), Government of Pakistan, Islamabad whereby it was directed to receive complaints and issue F.I.Rs, in the prescribed form, to maintain the register of arrest and detention and to proceed further in the matter of investigation. He emphasised that in view of these letters the Officers of the Directorate of Intelligence and Investigation (Customs and Excise) could register the F.I.R., assign the number to it and initiate the investigation as well as proceedings. He also referred to Notification dated 10-3-1990 issued by the Central Board of Revenue Government of Pakistan whereby functions mentioned in Annexure 'B' were assigned to be performed by the Directorate General of Intelligence and Investigation (Customs and Excise), Islamabad. According to him vide Annexure 'B' the Directorate General of Intelligence and. Investigation (Customs and Excise) were authorised "to perform enforcement duties and to carry out preventive operations throughout the country related to smuggling, evasion of Federal taxes through clandestine removal of dutiable goods, misdeclaration, valuation frauds, fraudulent claims of refund and rebate etc. And to detect and investigate cases cognizable under the Prevention of Smuggling Act, 1977. He referred to Notification dated 22-4-1982 whereby the Officers of Directorate of Intelligence and Investigation (Customs and Excise) were authorised to discharge the duties of Officers of Customs under the provisions of Act specified in Column No,3 and Notification dated 20-9-1984 whereby the functions of the Appropriate Officers were assigned to the Officers of Customs regarding the provisions of the Customs Act mentioned in corresponding entry of the table. According to him the Officers of the Directorate of Intelligence and Investigation (Customs and Excise) were also the Appropriate Officers and the proceedings have rightly been conducted. He added that due to the evasion of the Custom Duty the goods were "smuggled" within the purview of section 2(s) of the Act and that the Notification dated 23-5-1985 was issued by the Federal Government and obviously by the Finance Ministry while the Import Policy was issued by the Federal Government through the Commerce Ministry under section 16 of the Act and that the items mentioned in Notification dated 23-5-1985 were banned even today. He added that many of the items incorporated in Inventory on 4-2-1998 were restricted/banned according to Notification, dated 23-5-1985 and that the provisions of section 156(1)-8 of the Act are prima facie applicable. He added that the petitioners of both the petitions tried to evade the Custom Duty and thus they were not entitled to the discretion of this Court especially when the efficacious remedy of defending themselves before the learned Custom Judge was available to them. 7. My view is that the reasoning adopted by the learned counsel for the petitioners has to prevail. First of all I would like to give my verdict on the topic as to whether the F.I.R. No,6, dated 3-2-1998 could be registered/lodged in the Directorate of Intelligence and Investigation (Customs and
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Excise), Lahore. My answer is in the negative. For reaching at this conclusion I have to refer to section 4(1)(s) of the Code of Criminal Procedure according to which "Police Station" means any post or place declared generally or specially by the Provincial Government in this behalf to be a Police Station and includes any local area specified by the Provincial Government. Section 154 of the Code of Criminal Procedure deals with the First Information Report under the caption information in cognizable cases and provides that every information relating to the commission of a cognizable offence if given orally to an Officer In charge of a Police Station, shall be reduced to writing by him or under his direction and be read over to the informant; and every such information, whether given in writing or reduced into writing as aforesaid shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such Officer in such form as the Provincial Government may prescribe in this behalf. According to Rule 17 of the Punjab Anti-Corruption Establishment Rules, 1985 under the caption Police Station of the establishment "cases shall be registered by the establishment having the jurisdiction". A specific reference can be made to the Police Stations of Criminal Investigating Agency and the Police Stations of Anti-Narcotic Force which have been established by the Federal Government. The Director General of Federal Investigating Agency. The Inspector-General of Police of a Province, the Director Anti-Corruption Punjab themselves cannot establish/constitute a Police Station under their respective control, administration. However, they can recommend in this regard to the Federal Government and concerned Provincial Government in appropriate cases. Likewise the Director General of the Directorate of Intelligence and Investigation (Customs and Excise), Islamabad cannot establish/constitute any Police Station for particular area and any such order/direction in the matter can safely be termed as without jurisdiction, without lawful authority and consequently in executable and ineffective. The admitted position is that the Directorate of Intelligence and Investigation (Customs and Excise) of every region in the country has not been declared as a "Police Station" by the Federal Government of Pakistan. The mere fact that the order dated 5-3- 1994 has been issued by the Directorate General of Intelligence and Investigation (Customs and Excise), Islamabad with respect to the receiving of complaints and issuance of F.I.Rs, in the prescribed form and to maintain the register of arrest and detention etc. Etc. Has no legal force being without lawful authority. No provision of law has been produced before this Court empowering the Directorate General of Intelligence and Investigation (Customs and Excise) Islamabad to declare its regional office, Lahore being headed by the Director of Intelligence and Investigation (Customs and Excise) as the Police Station. This being the factual and legal position, no F.I.R. Within the purview of section 154 of the Code of Criminal Procedure can be registered or got registered in the Directorate of Intelligence and Investigation (Customs and Excise), Lahore Region, Lahore. It shall not be out of place to refer to section 5(2) of the Code of Criminal Procedure. According to it under the caption trial of offences against other laws it is narrated "that all offences, under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. The mere issuance of the aforesaid order dated 5-3-1994 from the Directorate General of Intelligence and Investigation (Customs and Excise), Islamabad is not an "enactment" for the purpose of holding that the Directorate of Intelligence and Investigation (Customs and Excise), Lahore is a "Police Station". It would be relevant to refer to section 192 of the Customs Act, 1969 which provides that "any person who comes to know of the commission of any offence under this Act, or an attempt or likely an attempt to commit any such offence, shall, as soon as, may be given information thereof in writing to the Officer In charge of the nearest Customs House or Customs Station or if there is no such Customs House or Customs Station, to the Officer In charge of the nearest Police…
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