PLJ 2023 Tr.C. (Note) 59
[Customs Appellate Tribunal, Bench-I, Karachi]
Present: Abdul Jabbar Qureshi, Member Judicial-I,
and Abdul Basit Chaudhary, Member Technical-I
MUHAMMAD NISAR GHUMAN--Appellant
versus
COLLECTOR OF CUSTOMS (ADJUDICATION-I), KARACHI and another--Respondents
Customs Appeal No. K-559 of 2018, heard on 29.11.2021.
Customs Act, 1969 (IV of 1969)--
----Ss. 2(S), 16, 139, 156(i)(8) 171(8)--Baggage Rules, 2006, R. 2(b) & 3--Imports and Exports Control Act, (XXXIX of 1950) S. 3(1)--Recovery of foreign currency--Excess of permissible amount--Seizetion of currency and travelling documents--Issuance of show-cause notice--Disclosure of currency by appellant to customs officials--No concealment of foreign currency--Oral declaration--Modification in judgment--There was no concealment of foreign currency and said currency was recovered and seized after disclosure by Appellant to Customs Officials that he possessed foreign currency and there existed no “intent” to smuggle foreign currency outside Pakistan--There was neither any misdeclaration nor any attempt to conceal foreign currency in view of facts and circumstances of case--In absence of intent being established by Department, question of confiscation of currency on grounds of attempt to smuggle doesn’t arise--Impliedly oral declaration made by Appellant in terms of Section 139 of Customs Act, 1969, read-with Rules 2(b) and 3 of Baggage Rules, 2006, is required to be accepted by officers--At time of passing order such provisions of law are not considered by Adjudicating Authority which is against natural justice and law--Appeal disposed of.
[Para 6, 17, 19 & 20] A, B, C & D
1980 PCr.LJ 186 & PLD 1986 SC 192 ref.
Mr. Zil-ul-Hassan, Advocate for Appellant.
Nemo for respondents.
Date of hearing: 29.11.2021.
Judgment
Abdul Jabbar Qureshi, Member Judicial-I.--By this judgment, we intend to dispose of Customs Appeal No. K-559/2018 filed against Order-In-Original No. 538/2017-18 dated 16.01.2018 passed by the Collector of Customs (Adjudication-I), Karachi.
2. Brief fact of the case are that the FIA.staff posted at International Departure handed over the passenger Muhammad Nisar Ghuman with the information, that the said passenger is in possession of foreign currency i.e Euro 11500/- (equivalent to US $ 13660, approximately). Hence US $ 13,660, were found in excess of permissible amount by the State Bank of Pakistan. The passenger was asked whether, he was carrying foreign Currency or otherwise. In response the said passenger replied that he was in possession of 11500/- Euro in presence of musheers namely Mr. Irfan Asghar and Mr Saleem Akram SPOs. The currency so recovered was seized alongwith the travelling documents for violation of Section 2(s) & 16 of the Customs Act, 1969. Punishable under clause (8) of Section 156(i) ibid read with Section 3(1) of Imports of Exports Control Act, 1950 and Notification No. F.E. 1/2013-SB. dated 01.06.2015, under the cover of a musheernama prepared on the spot. Three representative samples were also drawn. An inventory to this effect was also prepared under the signature of musheers and passenger. Notice under Section 171 of the Customs Act, 1969 was also served upon above named passenger to this effect. The passenger namely Muhammad Nisar Ghuman was released on personal bond.
3. A show-cause notice was issued and the case sent for adjudication. The learned Collector of Customs (Adjudication-I) Karachi has passed an Order-In-Original No. 538/2017-18 dated 16.01.2018 as under:-
Mr. Shahid Maroof (SPO) represented the detecting agency and reiterated the charges leveled in Show Cause Notice. The case cannot be kept pending for an indefinite period due to time limitation given in Section 179 of the Customs’ Act, 1969 and has to be decided on the basis of available record. No one appeared on behalf of respondent nor any written reply has been received in this office from their side to rebut the allegations in the show cause notice. This shows that respondent had no interest to contest the case in spite of reasonable opportunity provided to him. I am therefore, of considered view that the charges of smuggling as leveled in show cause notice are established. I therefore order outright confiscation of Euro 11500/- for violation of Section 2(s) & 16 of the Customs Act, 1969 punishable under clause (8) of Section 156(1) ibid, read with Rule 11 of the Baggage Rules 2006 notified vide SRO-666 (1) 2006 dated 28.06.2006 and Section 3(1) of the Imports & Exports (Control) Act, 1950 and Notification No. F.E. 1/2015-SB dated 01.06.2015 with allied rules framed by Stale Bank of Pakistan.
4. The appellant being aggrieved with the aforesaid impugned Order-in-Original No. 538/2017-18. dated 16.01.2018 passed by learned Collector of Customs (Adjudication-I), Karachi on the following grounds:--
i. That: neither any Show-Cause Notice, nor any Order-in-Original was issued or served to the appellants and without providing any opportunity of hearing, the impugned order was passed, which is unjust and against the principle of natural justice.
ii. That the respondents had failed to consider that, applicant is a law abiding citizen and he had duly declared before the Customs officers the fact that he was carrying the said foreign currency, subsequently seized by the Customs and that the applicant knew of no restriction whatsoever on taking out foreign currencies from Pakistan. The appellant at no point of time concealed the fact of his possession of foreign currency.
iii. That the Order-in-Original was passed in a hasty and perfunctory manner by the Respondent No 2 without considering into the factual as well as the legal position of the case.
iv. That the respondent while passing the impugned older failed to consider that the appellant was entitled to get back US $ 10000 from the quantum of seized currency in terms of Foreign Exchange Notification No. F.E. 1/2015-SB dated 01-06-2015.
v. That an application for issuance of certified copies of Order-In- Original and Show Cause Notice has been submitted before the Respondent No. 1. The certified copies of the said documents shall be submitted before Hon’ble Tribunal whenever issued by Respondent No. 1.
vi. That the action of the respondents to deprive the appellant from his legal rights in the currency in question which is contrary to the principle of natural justice and Article-4 (2) of the Constitution of Islamic Republic of Pakistan 1973 which is reproduced below for ready reference “no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law”. Thus the misuse of process of law on the part of respondents tantamount to mis-conduct and violation of constitutional guarantees in respect of rights of the citizens.
vii. That the act of the respondent is based on mala fide intention. The Honorable Supreme Court of Pakistan in the one of Walayat Al Mir V. PIA Corporation (SCNR 1995 P. 850) has discussed and held that Exercise of………. Mode…………….. While exercising discretion Authority should not act arbitrarily unreasonably and complete disregard of relevant rules and regulations………. Discretion to be exercised has to be judged and considered in the background of facts and circumstances of each case………. discretion is not be exercised on whims, caprices and mood of authorities………. exercise of discretion is circumscribed by principles of justice and fairness………. authority exercising discretion should take into consideration and advance aim and object of enactment, rule or regulation under which it was authorized to act: it should not act in complete negation the object of such law, rule, regulation or established policy otherwise it could not be fair, reasonable and just exercise of power………. pre-conditions imposed for exercise of discretion should be honored and respected unless for valid reasons, they have to be discarded.
viii. That without limitation runs against the cold and illegal order. Since the outrightly confiscation of whole amount involved in the instant case and without issuing any show cause notice or without providing any hearing opportunity to the appellant is void an illegal therefore delay in filing appeal is condonable and no limitation runs against the said order.
5. We have examined the record of the case and heard the arguments of the rival parties, after careful scrutiny of the record it has been observed that the Appellant submitted well reasoned legal arguments in support of his plea. That on the other hand Order-in-Original failed to elaborates the legal point that according to clause (i) of the Notification No. F.E.2/98-SB dated 21.07.1998 notified by the State Bank of Pakistan in terms of Section 8(2) of the Foreign Exchange Regulations Act, 1947, where under such notification the confiscation of the foreign currency is to be made over and above the permissible limit of US$ 10,000/-.
6. The core issue involved in the instant case is that there was no concealment of foreign currency and the said currency was recovered and seized after disclosure by Appellant to Customs Officials that he possessed foreign currency and there existed no “intent” to smuggle foreign currency outside Pakistan. The foreign currency was seized from Appellant when FIA staff posted at International Departure handed over the passenger Muhammad Nisar Ghuman with the information that the said passenger is in possession of foreign currency i.e Euro 11,500/- (equivalent US$ 13,660 approximately) US$ 3660 were found in excess of permissible amount of State Bank of Pakistan.
7. The case against the Appellant is that of “attempt” to “smuggle” currency outside Pakistan within the meaning of Section 2(s) of the Customs Act, 1969 beyond the limit prescribed by the State Bank of Pakistan, which is a breach of the restriction under Section 16 of the Customs Act, 1969. The relevant provisions of are as follows:
“2(s) “smuggle” means to bring into or take out of Pakistan, in breach of any prohibition or restriction for the time being in force, or evading payment of customs-duties or taxes leviable thereon, (i) gold bullion, silver bullion, platinum, palladium, radium, precious stones, antiques, currency, narcotics and narcotic and psychotropic substances; or (ii) manufactures of gold or silver or platinum or palladium or radium or precious stones, and any other goods notified by the Federal Government in the official Gazette, which, in each case, exceed one hundred and fifty thousand rupees in value; or (iii) any goods by any route other than a route declared under Section 9 or 10 or from any place other than a customs-station and includes an attempt, abetment or connivance of so bringing in or taking out of such goods; and all cognate words and expressions shall be construed accordingly;
16. Power to prohibit or restrict importation and exportation of goods.- The Federal Government may, from time to time, by notification in the official Gazette, prohibit or restrict the bringing into or taking out of Pakistan of any goods of specified description by air, sea or land.”
8. The issue of attempt to smuggle came up before the learned Sindh High Court in “Ehsan Elahi Malik vs. State” [1980 PCr.LJ 186]. This was a case that included a false declaration by (he accused. The learned Sindh High Court held:
“It is in evidence that the appellant had purchased a ticket for going to Hong Kong, he checked-in at the Swiss Airline Counter, he was given the boarding card and the baggage tags and finally he was asked by the Customs Officer to make a declaration. In this declaration in writing, which is on record as Exh. 31, the appellant suppressed the information regarding the huge quantity of foreign currency in his possession and the precious stones carried by him. Having regard to all these facts it is clear that but for the interception by the Customs Officials the appellant had done everything in his power to lake out of Pakistan the contraband articles. The Court is entitled to infer the existence of a fact regard being had to the common course of natural events and human conduct. There is nothing on record to indicate that the appellant could have retracted his steps from the commission of the offence. There is, therefore, no force in this submission that the evidence does not establish the case of attempt to smuggle.”
9. The meaning of attempt to smuggle was then considered by the august Supreme Court in case of Central Board of Revenue v. Khan Mohammad [PLD 1986 SC 192]. This was the case of a citizen of Afghanistan who arrived in Pakistan, in transit to UK, through Torkham Land Customs Station. He travelled to Islamabad and the foreign currency in his possession was checked by Customs Officials at Islamabad. But he had left behind visa related documents in Peshawar and thus couldn’t continue, his onward journey from Islamabad. He returned to Peshawar and booked a flight from Peshawar to Karachi. Before embarkation on his flight in Peshawar, he was intercepted by Peshawar Customs Officials and foreign currency seized from him. The august Supreme Court held the following in paragraphs 8 and 9:
“Attempt to smuggle has not been defined in the Act but clause (8) of Section 156 makes the attempt to smuggle also punishable by virtue of the aforesaid definition of the word “smuggle” which is inclusive of an attempt to bring in or take out goods coming within the mischief of the main provisions. The classic analysis of the course of conduct of a culprit from the stage of conception to consummation of crime has laid down four distinct stages, namely, (i) intention, (ii) preparation, (iii) attempt, and (iv) completed act. As observed by Sir H.S Gour in his commentary on the Penal Law of India, the first of the aforesaid four stages, the Criminal Codes of all countries exempt from punishment. The Penal Code of Pakistan punishes the second stage of certain offences, by constituting them separate and distinct offences. The third, namely, attempt, marks a distinct advance in the development of criminality, so that it is punishable everywhere. Ordinarily then, law allows locus poenitentia only up to the second stage after which it regards the evelopment of the scheme as to far advanced to remain unpunished. But this has led, as the reports of cases indicate, to an important question as to when the preparation ends and an attempt begins”
“The case in which mere preparation to commit an offence has not been made punishable presents the problem to determine whether the act or omission committed by the culprit constitutes merely preparation or amounts to attempt. Often times in such cases the transition between what is preparation and an attempt is so gradual as to be imperceptible. The preparation to commit an offence consists in devising or arranging the means and measures necessary for the commission of the offence. It implies the taking of previous measures necessary for the crime. But it is difficult to give an abstract definition of the term “attempt”, in a juridical context, for it is largely a mixed question of law and fact depending upon the circumstances of each particular case. Lord Parker, C.J. in Devey v. Lee has pointed out that the term has been described variously in the authorities but he has preferred to adopt the definition given in Stephen’s Digest of the Criminal Law, 5th Edition (1894), which is as follows:
“An attempt to commit a crime is an act done with the intent to commit that crime,’ and forming part of a series of acts which could constitute its actual commission if it were not interrupted.”
“Another definition referred to in this case was from Archbold’s Criminal Pleading, Evidence and Practice, which reads as under:
“It is submitted that the actus reus necessary to constitute an attempt is complete if the prisoner does an act which is a step towards the commission of the specific crime, which is immediately and not merely remotely connected with the commission of it, and the doing of which cannot reasonably be regarded as .having any other purpose than the commission of the specific crime.”
“It seems that the modern view of attempt does not make it necessary that the interruption which aborts the consummation of the crime should be the penultimate act for the completion of the crime.
“9. Applying the aforesaid principles to the present case we are of the firm view that the acts done by the respondent before he was intercepted at Peshawar Airport did not constitute attempt to smuggle the alleged foreign currency out of Pakistan but at best the stage reached was that of mere preparation to commit that offence. As already discussed even if there is undoubted evidence of intention to commit the offence on the part of the offender and of preparation to carry out that intention the law does not make the person entertaining such intention or doing such acts of preparation culpable, so far as the offence of smuggling is concerned. Because there is always in such cases a possibility of change of mind or locus poenitenlia to give up the prosecution of the criminal intent beyond the stage of preparation. We, therefore, agree with the learned Judges of the High Court, that the mere act of hoarding internal flight from Peshawar to Karachi was not an act of such an approximate nature as would amount to an attempt to smuggle, although it might constitute preparation to commit that offence.”
10. The express “Attempt” has been defined in Black’s Law Dictionary as follows:
“An overt act that is done with the intent to commit a crime but that falls short of completing the crime. Attempt is an inchoate offence distinct from the intended crime. Under the Model Penal Code, an attempt includes any act that is a substantial step toward commission of the crime, such as enticing, lying in wait for, or following the intended victim or unlawfully entering a building when a crime is expected to be committed Model Penal Code S ‘5.01”
11. Advanced Law Lexicon, Reprint 2009, has defined “attempt” while reproducing dicta from laws reports, and the relevant part is as follows:
“an intention to do a thing combined with an act which falls short of the thing intended.
“Preparation to commit an offence is not attempt. Covert or overt acts preceding to committing an offence with an intention to commit the offence amount to attempts. Intention to commit a particular offence, some act necessarily done towards the commission of the offence and proximity of such act to the intended result constitute ‘attempt’. State of Maharashthra v. Mohd. Yakub, AIR 1980 SC 1111, 1115, 1114, 1117.”
12. While defining “attempt” the learned Lahore High Court held the following in “Abdul Salam v. State (1984 PCr.LJ 1133).
“An act, in order to be a criminal attempt, must be immediately, and not remotely, connected with and directly tending to the commission of an offence. Merely to make preparations for the commission of an offence is distinct from an attempt to commit the offence. In order to constitute an attempt, there has, therefore, to be some overt act on the part of the offender which if not frustrated, would lead to the commission of the offence.”
13. In the instant case, the question before me is;
“has the department been able to establish intent on part of the Appellants, on a balance of probabilities, to smuggle foreign currency out of Pakistan”
14. Intent in relation to an “attempt to smuggle” foreign currency at an airport may be established in one of two ways: there can be a mis-declaration by an individual travelling outside Pakistan establishing dishonest intent; or intent may be inferred in view of the facts and circumstances of the case where there is positive evidence of concealment of foreign currency coupled with other attendant circumstances. However, no objective test can be employed to presume intent to commit such offence merely because an individual arrives at the airport carrying foreign currency in excess of the limit prescribed by the Federal Government or State Bank of Pakistan.
15. An attempt to smuggle is not a strict liability offence and the state is under an obligation to establish mens rea. For purposes of Section 2(s) read together with Sections 16 and 17, the Department would need to establish guilty mind on a balance of probabilities. In the absence of an objective test for presuming intent, in case of a frequent traveler who has a history of declaring foreign currency which confirms his knowledge of the law and the permitted legal limit of foreign currency that can be carried but of Pakistan or in case of a repeat offender, together with positive evidence of concealment, it may be possible to establish intent on a subjective basis.
16. It is not unreasonable to assume that a traveler, especially an infrequent or uninformed one, might not be aware of the limit prescribed by the State Bank of Pakistan at a given time. And even a frequent traveler might suffer from a mistake of fact regarding the quantum of foreign currency he is carrying. Given that this is a matter of the state enforcing a civil right against the citizen, it places a higher burden on the state to disclose the limit of permissible foreign currency that can be carried, so that neither the citizen falls within the shackles of law inadvertently nor the state unjustly enriches itself due to a mistake committed by the citizen. It would not be onerous for the state to require every international traveler to make a mandatory disclosure of foreign currency on a form that states that maximum permitted quantum of currency that can be carried, for purposes of Section 139 of the Customs Act, at the time of check in or at the immigration counter etc. A false declaration would then automatically infer guilty intent. However, unfortunately no such practice is in place at the Ports or Airports.
17. In the instant case, the Department has failed to establish intent in view of the record. The Appellant disclosed the presence of foreign currency to Customs Official when question was put to him about the possession of foreign currency. Thus, there was neither any misdeclaration nor any attempt to conceal the foreign currency in view of the facts and circumstances of the case. In the absence of intent being established by the Department, the question of confiscation of currency on grounds of attempt to smuggle doesn’t arise.
18. The currency has been included in sub-clause (i) of Section 2(s) of the Customs Act, 1969. After equating the said definition with the State Bank of Pakistan’s notification, it is clear from the context that in accordance with the foreign currency circular. State Bank of Pakistan permitted to take out maximum amount of US$ 10,000 on a foreign trip. Therefore, I am clear in my mind without having any element of doubt that, upto limit of US$10,00.0/- provisions of Section 2(s) of the Customs Act, 1969 are not attracted.
19. That identical cases already decided by the Adjudication Authority, vide Order-in-Original No. 02/2013 dated 25.07.2013, Order-in-Original No. 01/2012 dated 01-06-2013, Order-in-Original No. 16/2009dated 08.09.2009, Order-in-Original No. 17/2003 dated 24-06-2003, Order-in-Original No. 22/2003 dated 30-09-2003, Honorable Supreme Court of Pakistan decided through Judgment reported in 2005 SCMR 492, “a facility allowed to some and denied to one is the discrimination” and also against the Article 25 of the Constitution of Pakistan. In present case there is no evidence to establish the element of mens rea (guilty mind) or intent or attempt to smuggling on the part of the Appellant and he cannot be saddled with the offence of smuggling leveled against him in the subject impugned show-cause notice as well as impugned Order-in-Original, Admittedly, there is no charge of mis-declaration or mis-statement, within the provisions of Customs Act, 1969, hence impliedly the oral declaration made by the Appellant in terms of Section 139 of the Customs Act, 1969, read-with Rules 2(b) and 3 of the Baggage Rules, 2006, is required to be accepted by the officers. Therefore, neither it is a case of smuggling, within the meaning of Section 2(s) nor it is a case of restriction within the meaning of Section 16 of the Customs Act, 1969 read with Section 3 of the Import and Exports (Control) Act, 1950. Therefore, the charge framed for the aforesaid provisions of law is automatically liable to be dropped even as per mentioned in show cause notice as well as Order in Original.
20. In pursuance of the above discussion herein above, I am of the firm view that at the time of passing order/judgment such” provisions of law are not considered by the Adjudicating Authority which is against the natural justice and law.
21. We hereby modify the Judgment/Order in Original to the extent that the currency in excess of US$ 10,000/- be confiscated and the Respondent should returned US $ 10,000/- to the Appellant.
22. The appeal is disposed of in the above terms.
(Y.A.) Appeal disposed of
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