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Petition No. 374 of 1964, decided on 3rd March 1965.
, S. 19 read with Central Government Notification No. 66‑C, dated 19‑12‑54‑"Across any customs frontier"‑Exports of goods from East Pakistan‑ to West Pakistan by air‑Taking goods out of Pakistan "across Customs frontier".
Fakir Muhammad Punjabi v. The Federation of Pakistan and two others P L D 1958 S C (Pak.) 118 rel.
S.19 read with Central Government Notification No. 66‑C, dated 19‑12‑54‑Trade of imported films between two wings not "prohibited" but "regulated" by Notification‑Notification does not interfere with Constitution of Pakistan (1961), Art. 6, Fundamental Right No. 8.
Haji Ghulam Zamin and Abul Hossain v. A. B. Khondkar and others P L D 1965 Dada 156 ref.
, Art. 98‑Notification under S. 19, Sea Customs Act (VIII of 1878) challenged as having been issued without lawful authority‑Relief not available in departmental appeal under S. 188, Sea Customs Act (VIII of 1878)‑Petition under Art. 98 maintainable.
Art. 6, Fundamental Right No. 8 and Art. 98‑"Inter‑Provincial trade"‑Matter of Fundamental Right‑Can be enforced by petition under Art. 98.
Ram Chandra Palai and others v. State of Orissa and others A I R 1956 S C 298 distinguished.
H. H. Choudhury, A. H. Mirza and II. K. Chowdhury for Petitioner.
A. Hossain, R. Huq and A. Azim for Respondents.
Date of hearing: 26th January 1965.
‑This Rule has been issued upon the respondents, namely, (1) The Assessing Officer, Custom's Office, Air Freight Dacca, (2) The Collector, Central Excise ‑ and Land Customs, Dacca, and (3) The Collector, Central Excise and Land Customs, Agrabad, Chittagong, to show cause why the order dated the 24th June 1964, passed by respondent No. 1 refusing to allow the petitioner to take the film Patal Bhafrabi to West Pakistan should not be declared to have been made without any lawful authority and as such of no legal effect and further why they should not be directed to cancel, withdraw or rescind the aforesaid order and allow the petitioner to despatch the said Film to West Pakistan.
The facts of the case are that the petitioner, Mr. Roshanally L. Ramji, on the 24th June 1964, booked for despatch to Karachi by Pakistan International Airlines a film of Indian origin called Patal Bhairabi. The respondent No. 1 on the same day passed an order refusing to allow the film to be taken to West Pakistan in the absence of any permit issued by the Chief Controller of Imports and Exports. The order presumably has been passed on the authority of Notification No. 66‑C, dated the 19th December 1954, issued by the Central Government. This notification reads as follows:-
"In exercise of the powers conferred by section 19 of the Sea Customs Act, 1878 (VIII of 1878), and in supersession of this . . .(Sic) 9th October 1954, the Central Government is pleased to direct that, except in accordance with and subject to the conditions of a permit issued by the Chief Controller of Imports and Exports no exposed cinematographic film of standard size (35 mm) of foreign origin, including prints thereof, imported into the provinces other than East Bengal shall be taken by Sea, Land or Air out of such Province, and brought into East Bengal, nor shall any such film or prints thereof, imported into East Bengal be so taken out and brought in the Provinces other than East Bengal."
The petitioner has challenged the vires of this notification in this case.
It is first of all contended that the notification in question could not be issued under section 19 of the Sea Customs Act as in sending the film from East Pakistan to West Pakistan the petitioner was not either importing it into or exporting it out of Pakistan. Section 19 of the Sea Customs Act is in the following terms.
"19. Power to prohibit or restrict importation or exportation of goods.‑The Central Government may from time to time, by notification in the official Gazette, prohibit or restrict the bringing or taking by sea or by land goods of any specified description into or out of Pakistan across any customs frontier as defined by the Central Government."
The question that falls for determination is : Whether in taking the film in question from East Pakistan to West Pakistan it was to go "across any .customs frontier as defined by the Central Government". The self‑same question came up for consideration by the Supreme Court in the case of Fokir Muhammad Punjabi v. The Federation of Pakistan and two others (P L D 1958 S C (Pak.) 118). In holding that a notification of the kind with which we are concerned could be issued in respect of gold under section 19 of the Sea Customs Act, it was observed:
"Section 19 of the Sea Customs Act, as adapted after independence, reads as follows:
The Central Government may from time to time, by Notification in the official Gazette, prohibit or restrict the bringing or taking by sea or by land goods of any specified description into or out of the Provinces and the Capital of the Federation across any customs frontier as defined by the Central Government."
No customs frontier referred to in the above section was defined after Independence, but the Notification of the old Government of India (India, F D (C R) Notification No. 1‑X, dated the 1st April 1937) with adaptation was in force at the date when the gold was seized, which runs as follows :‑ .
"In pursuance of entry 19 of List I of the Seventh Schedule to the Government of India Act, 1935, the Governor‑General hereby defines the customs frontier for the purposes of that entry as the frontier whether one or more than one, whether sea or land, whether exterior or interior, of Pakistan." .
The learned Attorney‑General appearing on behalf of the State stated that this was the definition of the customs frontier which was in force and no other customs frontier had been defined. So according to this Notification the frontier of Pakistan was the customs frontier, and the relevant frontier for the purpose of this case would be the frontier with India. Owing to the peculiar geographical position where the two wings of the country are about 1,200 miles apart with the foreign territory of India intervening, the taking of goods by land or air from one wing of Pakistan to another necessarily involves the crossing of the Indian frontier at one point or another and therefore the customs frontier. The scheduled route, by' which the Orient Airways plane was to take the appellant with the gold, was across this frontier and would infringe the notification, if it was to be taken without permit as in the present case. The first ground urged by the appellant, is, therefore, not tenable."
Mr. Hamidul Huq Chowdhury has laid emphasis on the change of the wording of section 19 to distinguish this case from the instant case. In our view, the substitution of the words "the Provinces and the Capital of Federation" by "Pakistan" does not make any difference 'in regard to the question before us. Regard being had to this decision we are unable to accept the contention that under section 19 of the Sea Customs Act anyone by taking anything from East Pakistan to West Pakistan by air does not take it out of Pakistan "across any Customs frontier" as defined by the Central Government.
Learned Advocate for the petitioner has relied upon the case of Swan and Finch Company v. United States 47 United States Supreme Court Reports (Lawyers' Edition) at page 984 to point out that export which is nothing but what is meant by the words "taking out of Pakistan" connotes severance of some goods from the mass of things belonging to this country with an intention of uniting them to the mass of things belonging to another Country. As, however in the instant case this will not be effect of taking the film in question from East to West Pakistan, it could not be prevented by the notification in question issued under section 19 of the Sea Customs Act. We may observe that this argument is nothing but a repetition of what has been said before and which could not be accepted in view of the clear decision of the Supreme Court in the reported decision, already referred to.
Mr. Hamidul Huq Chowdhury has then argued that the notification in question interferes with the right of freedom of trade guaranteed by the Constitution. The eighth fundamental right granted by the Constitution has been worded thus :
"8. Freedom of Trade, Business or Profession.‑Every citizen, possessing such qualifications, if any, as may be prescribed by law in relation to his profession or occupation, shall have the right to enter upon any lawful profession or occupation, and to conduct any lawful trade or business:
Provided that nothing in this, paragraph shall prevent‑--
(a) the regulation of any trade or profession by a licensing system; or
(b) the regulation of trade, commerce or industry in the interest of free competition therein; or .
(c) the carrying on, by the Central or a Provincial Government or by a corporation controlled by any such Government, of any trade, business industry or service, to the exclusion, complete or partial, of other persons."
It has been contended that the right of freedom of trade is subject only to the restrictions which have been mentioned in the proviso, and as the notification does not fall within the same, it is ultra vires. Learned Advocate has argued that the notification prohibits free trade between the different parts of Pakistan in regard to imported films and cannot be said to have regulated the trade in respect of the same. In support of this contention, reliance has been placed on the Special Bench decision of this Court in the case of Ha/1 Ghulam Zamin and Abul Hossain v. A. B. Khondkar and others (P L D 1965 Dacca 156). Before we proceed to examine this decision, it is necessary to state that the respondents in their affidavit, in justification of the issuance of the notification, have stated that this notification had to be issued as a measure of parity in foreign exchange allocations between the different wings of Pakistan; otherwise the foreign articles that will arrive on East Pakistan quota will all find their way to West Pakistan due to its better purchasing power, and as a result of that East Pakistanis will be deprived of their legitimate quota of foreign exchange allocation. in .the Special Bench Case, the question that arose was whether a notification issued by the Central Government setting up a Committee for allotment of quotas of "Pan" for transport from East to West Pakistan by air was ultra vires in view of the constitutional right to carry on trade freely. The notification in question was in the following terms:---
"Centre to Regulate Betel Leave Trade"
"Rawalpindi, Jan. 1.‑‑‑The Inter‑regional trade in betel leave (pan) between the two wings of Pakistan has so far been controlled by the Pakistan International Airlines Corporation."
"As trade and commerce between the Provinces is the responsibility of the Central Government under the Constitu tion and it is necessary to reorganise this trade on efficient and rational lines, the Ministry of Commerce, which is responsible for inter‑provincial trade, will hence forward handle this work."
"According to a Press Note of the Ministry of Commerce, it has been decided to set up, with immediate effect, a committee to devise procedure for allotment of quotas of the Pan for transportation from East to West Pakistan by air, and to actually allocate quotas to deserving parties. The composition of the committee will be as follows:
"Committee Members"
(i) Mr. A. B. M.. Khandker, Controller of Imports and Exports, Government of Pakistan, Chittagong (Chairman).
(ii) Mr. Helaluddin Ahmad, Director, Trade and Commerce, Government of East Pakistan (Member).
(iii) Mr. Siddiqur Rahman, Deputy Director, Export Promotion Bureau (formerly Department of Trade Promotion and Commercial Intelligence) Government of Pakistan, Dacca (Member‑Secretary).
"The existing arrangements for the Inter‑regional trade in Pan will continue till 1st February 1964, by which time the Pan Allocation Committee would have taken decision with regard to the reorganisation of this trade.
All correspondence on the subject should be addressed to the Deputy Director, Exports Promotion Bureau (formerly Department of Trade Promotion and Commercial Intelligence), Government of Pakistan, Pakistan Secretariat, Ramna, Dacca‑PPA."
Murshed, C. ‑J. in upholding the contention that the notification did not seek to regulate or introduce a licensing system in regard to Pan trade between the two provinces has observed as follows:
"94. Thus, it is evident that "regulation" is distinct from "restriction". It is also distinct from "prohibition". It is furthermore distinct from the expression "control". It is practically the antithesis of an unguided system of permits and quotas. Regulation, therefore, is not synonymous either with the term "prohibition" or the expression "restriction" or with the word "control". Although regulation may involve a certain amount of prohibition, restriction and control, but the concept of regulation is totally distinct from the connotation of the terms "prohibition", "restriction" and "control". Regulation carries with it the idea of guidance for the proper functioning of a state of affairs. It carries with it a concept of imparting a suitable course and direction to a thing. Furthermore, regulation is co‑related to an objective and anything which lacks point and direction and is governed by an unrestricted discretion is not regulation but unmitigated "control".
"96. Let us now turn back to the notice which has been impeached before us. The impugned notice has been attacked on the ground that it does not amount to an attempt to regulate Inter‑Provincial trade and commerce by a system of licensing. What it seeks to do is to make allotment of quotas by methods of granting permits to parties on an ad hoc basis."
"97. We have somewhat elaborately discussed the permis sible limits of regulation of trade and commerce within the meaning of the Constitution. From what we have stated above the contention of the petitioners directed against the impugned notice must be upheld. Furthermore, it will be seen that there is another grave objection in respect of the impugned notice. It purports to impose a complete "control" of Inter‑Provincial Pan' trade. But to what purpose whatsoever. If reference may be made to a Press Note (Annexure "F") issued by the Ministry of Commerce and published in the Dawn, dated January 2, 1964, it would be found that there is an announce ment with regard to the setting up of a Committee to devise procedure for allotment of quotas of Pan for transportation from East to West Pakistan by air and to actually allocate quotas to "deserving parties". There is no attempt to define, specify or classify such "deserving parties". The purpose is to "re‑organise this trade on efficient and rational lines". "Re -organisation" does not necessarily mean "regulation" and "allotment of quotas" to undefined "deserving parties" is not "regulation by a system of licensing". The impugned notice (Annexure C') merely speaks of "re‑organisation". "Further more, in the impugned notice applications are invited from traders "in some agricultural and commercial items" who need not be necessarily dealers in Pan' business. The order amounts to an exercise of a undiluted power of "control" with regard to a particular business. It is true that the word "regulation" has been used at some places in the Ordinance. But there has been no pretence in the impugned notice to any regulation in accordance with what is understood by that expression in the Constitution. We, therefore, hold that the impugned notice is void and illegal and ultra vires the provisions of the 8th Clause of the said Bill of Rights guaranteeing freedom of trade and commerce."
We have already seen that the respondents, in justification of the Notification, have asserted that this was issued to ensure enjoyment of benefits of foreign goods according to their allotted shares by the two Provinces of Pakistan. In this view of the matter, we do not think that the contention of the learned Advocate that by the impugned notification trade between the two wings in regard to imported films has been prohibited and not regulated can be accepted. This being the position, we are unable to uphold this contention also of learned Advocate for the petitioner.
We may, however, add that Mr. Asrarul Hossairi has questioned the maintainability of this application on two grounds. It has been contended that as the petitioner has not availed of the right of appeal provided by section 188 of the Sea Customs Act the petition is not maintainable: The petitioner claims that the notification in question has been issued without lawful authority by the Central Government. Such a relief cannot be had in a departmental appeal provided by the above section. The next point urged is that a claim of carrying inter‑provincial trade is not a matter of Fundamental Right and therefore this application which seeks to enforce the same is not maintainable. Reliance in this connection has been placed on the case of Ram Chandra Palai and others v'. State of Orissa and others (AIR 1956SC298). This decision has no applicability to the present case. In that case the petitioners who filed applications under Article 32 of the Indian Constitution impugned some provisions of the Orissa Acts Nos. XXXVI of 1947 and I of 1949 on the ground inter alia that they were violative of the right of inter‑State and intra‑State trade guaranteed by Article 301 of the Indian Constitution. It was in this connection that the following observation was made:
"Nor need we pause to consider the last contention urged on behalf of the petitioners that the impugned Acts violated the guarantee of freedom of inter‑State and intra‑State trade or business embodied in Article 301 of the Constitution. In the first instance, it is not a fundamental right conferred by Part III of the Constitution which can be enforced by a petition under Article 32. Moreover, Article 305 as it stood before the amendment and the amended Article 305 which came into effect after the Constitution (Fourth Amendment) Act, 1955, afford a complete answer to this contention of the petitioners."
We do not see how this decision helps the respondents in urging that the present application under Article 98 is not maintainable.
As we have not been able to accept any one of the points raised by the learned Advocate for the petitioner, the Rule isle discharged but we leave the parties to bear their own costs.
Mr. Humayun Kabir Chowdhury prays for a certificate under Article 58 of the Constitution that this is a fit case for appeal to the Supreme Court inasmuch as substantial questions arise as to the interpretation of the Constitution. We feel that the certificate prayed for should be granted. We accordingly certify this case to be a fit case for appeal to the Supreme Court under Article 58 of the Constitution.
‑I agree.
S. Q. Rule discharged.
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