IN THE HIGH COURT OF SINDH CIRCUIT COURT LARKANA

Constitutional Petition No. D- 125 of 2023

PRESENT:

Mr. Justice Adnan Iqbal Chahdhry,

Mr. Justice Zulfiqar Ali Sangi,

Petitioner : M/s United Cargo Goods Transport Company

through Ms. Dil Khurram Shaheen Advocate.

Respondents : Federation of Pakistan & others,

through Mr. Oshaque Ali Sangi, Asst. Attorney

General, along with M. Daud Pirzado, Additional

Collector Customs.

Mr. Asif Hussain Chandio, Counsel for the

respondent No.2 to 4.

Date of Hearing : 01.03.2023.

Date of Decision : 01.03.2023.

O R D E R

Adnan Iqbal Chaudhry, J.- The petition was filed at Karachi but has been sent to this Court by order of the Hon’ble Chief Justice presumably because the impugned action took place at Jacobabad.

2. The petition has essentially been brought for the release of goods and vehicle seized at the Customs check-post, Jacobabad, allegedly for the offence of smuggling. Learned counsel for the Petitioner submits that though the allegation of smuggling is false, the Petitioner is ready to secure the value, duty and taxes for releasing the goods and the vehicle pending proceedings. As per the seizure report dated 13-02-2023, a huge quantity of dry-fruits and spices of Iranian and Afghanistan origin were being smuggled/transported from Quetta over a truck; hence the seizure under section 168 of the Customs Act, 1969.

3. Today, comments have been filed by the Respondents to submit that GDs in respect of the goods produced by the driver were all 22 months old, hence smuggling was apparent; that the goods and the vehicle are liable for confiscation; that FIR No. 05/2023 was lodged at Customs Office Sukkur on 13-02-2023 for the offence of smuggling; and that adjudication proceedings have also been initiated by show-cause notice dated 27.02.2023 under section 180 of the Customs Act, issued both to consignees/owners of the goods as per the GDs and the Petitioner as owner of the vehicle transporting the same, calling upon them to satisfy why the said goods and vehicle should not be confiscated.

4. For releasing the seized goods, learned counsel for the Petitioner submits that under section 181 of the Customs Act, the option to pay fine in lieu of confiscation is available only after an order is passed for confiscation; and by the time the show-cause notice dated 27.02.2023 is decided, the goods being perishable in nature, would diminish in value. However, as we see it, firstly, by way of SRO 499(I)/2009 dated 13.06.2009 issued under the first proviso to section 181 itself, the option to pay fine in lieu of confiscation is not available for smuggled goods falling under section 2(s) of the Customs Act. Secondly, under section 181 of the Customs Act, only the ‘owner’ of the goods can come forth to pay fine in lieu of confiscation. Admittedly, as per the biltis and GDs relied upon by the Petitioner himself, he is not owner of the goods but the carrier/transporter thereof.

5. If the ‘owner(s)’ of the seized goods apprehend that their goods may diminish in value pending the adjudication proceedings before the Customs, it is for them to approach the Collector of Customs for sale of the goods in terms of section 169(4) read with section 201 of the Customs Act so as to mitigate their loss, i.e. if such goods are not prohibited for sale.

6. Regards the release of the vehicle pending proceedings for its confiscation, a remedy is available to the Petitioner before the appropriate officer of Customs under the proviso to section 157(2) of the Customs Act. It will then be for such officer to consider whether clause (b) of SRO 499(I)/2009 is attracted to the facts of the case insofar as the vehicle is concerned.

7. With the above observations, this petition is dismissed while directing the Collector of Customs (Adjudication) Quetta, Camp Office Hyderabad, to decide show-case notice dated 27.02.2023 in accordance with law in three weeks time.

JUDGE

Qazi Tahir PA/*