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Petition No. 336 of 1966, decided on 26th June 1967.

S. 167(8)(6), read with Imports and Exports (Control) Act (XXXIX of 1950), S. 3 (3) Import of goods‑Carrying contractor's barge found to contain bags of imported wheat in excess of what appeared on records‑Entire quantity of grin carried by barge unloaded from ship bringing grain imported by Government‑First Information Report lodged on behalf of Government treating excess bags as pilfered‑Held No contravention of Government orders, in circumstances, and barge not liable to confiscation.

Kamal Hussain, R. Huq and Altaf Hussain for Petitioner.

Md. Nurul Huda, Deputy Attorney General and K. H. Rashid for Respondent. ,

Dates of hearing : 20th and 22nd June 1967.

‑‑In this application under Article 98 of the Constitution the petitioner has challenged the validity of an order of confiscation passed by the Collector of Customs, Chittagong under section 167 (8) (b) of the Sea Customs‑Act read with section 3 (3) of the Imports and Exports (Control) Act.

The petitioner is a limited liability Company having been incorporated under the Companies Act, 1913, and has been carrying on business as a first class carrying contractor. It started operating as an Inland Water Transport Carrier in the year 1963, and has been enlisted as a contractor of the Food Department. On the 4‑9‑65 the Controller of Movement and Storage, Govern ment of East Pakistan, Food Department, Khulna asked the petitioner to move 6,500 maunds of wheat out of 1,63,332 maunds of wheat imported by the Government of Pakistan and carried by S. S. "Michelin" which was scheduled to arrive at Chalna Anchorage on the 6‑9‑65. In accordance with this instruc tion the petitioner's barge "Narsingdi" in due course of business carried 3,011 bags of wheat ex S. S. "Michelin" from the Mangla Port on account of the Government of East Pakistan during the period 18‑9‑65 to 20‑9‑65. On the 1‑10‑65 after discharge of the aforesaid bags of wheat the Preventive Officer, Sea Customs, Khulna detained the petitioner's barge "Narsingdi" on the ground that it carried excess bags of wheat from the Chalna Port: On the 9‑3‑66 the petitioner received a Memorandum dated 1‑3‑66 from the Collector of Customs (the respondent) containing an allegation that the aforesaid barge "Narsingdi" had carried 47 bags of wheat weighing 98 maunds in excess of tallied number of 3,011 bags of imported foreign wheat carried by S. S. "Michelin" at Chalna Port during the period 18‑9‑65 to 20‑9‑65, and among others, the petitioner thereby committed an offence punishable under section 167 (8) (b) of the Sea Customs Act, 1878 and the petitioner was asked along with others to explain within fifteen days from the date of the receipt of the Memorandum as to why the seized wheat should not be confiscated and why penal action should not be taken against them under section 167 (8) (b) of the Sea Customs Act, 1878 for violation of section 19 of the Act read with section 3 (3) of the Imports and Exports (Control) Act, and why the seized barge "Narsingdi" should not be confiscated under the Sea Customs Act. The petitioner submitted its explana tion on the 15‑9‑66 wherein it said that it had no knowledge whatsoever of the excess bags of wheat alleged to have been loaded on its barge "Narsingdi", and that the barge was merely carrying what was placed on it. The petitioner further informed the respondent that the case regarding the excess cargo on "Narsingdi" was also being investigated under F. I. R. 1305 dated 29‑9‑65 by Port Police, Chaloa under police station Rampal. The explanation having been found unsatisfactory the respondent by his order dated the 8‑7‑66, hereinafter called the impugned order, held that the aforesaid 47 bags of wheat had been imported without the requisite Import Licence and they were, therefore, confiscated outright under section 167(8) (b) of the Sea Customs Act read with section 3 (3) of the Imports and Exports (Control) Act. The barge "Narsingdi" was also confiscated under section 168 of the Sea Customs Act. The petitioner as owner was, however, given an option of payment of a fine of Rs. 1,00,000 to redeem the barge.

Learned Advocate for the petitioner, Mr. Kamal Hussain has contended that on the facts disclosed in the aforesaid Memorandum (Annexure "C" to the petition) which contains the allegations, and other relevant records the accusation against the petitioner has not been made out and the impugned order, there fore, is not legally sustainable.

On a careful consideration of the aforesaid Memorandum (Annexure "C" to the petition) and the statements made in the affidavit put in on behalf of the respondent it appears clear that S. S. "Michelin" according to its manifest carried 7145 tons out of a consignment of 8955 tons of wheat which arrived at Chittagong in S. S. "Capistrano" and which was imported from the United States of America by the Government of Pakistan under contract No. 9613 dated 1‑6‑65 and Purchase Authorisation No. 15‑176, and that the order for the import of the wheat had been placed by the Government of Pakistan through the Embassy of Pakistan, Food Division, Washington (Vide, Annexure‑ "H" to respondent's affidavit). When S. S. "Michelin" arrived with her cargo of wheat at Chalna Anchorage the petitioner's barge "Narsingdi" carried the bags of imported wheat in accordance with the aforesaid instruction of the Controller of Movement and Storage. It was, however, found that the barge "Narsingdi" bad on it 47 bags of the imported wheat in excess of the tallied number, viz., 3,011 bags. Annexure "C" to the petition which contains the allegations against, among others, the petitioner mentions the fact that the excess 47 bags of wheat found on the barge "Narsingdi" formed part of the bags of the imported foreign wheat ex S. S. "Michelin" at Chalna Port. This position is further clarified from the F. I. R. dated 21‑9‑65 that was lodged by the Chief Inspector of Movement, Chalna Anchorage with the Officer‑in‑Charge, Police lines, Mangla Port, Khulna and which is to be found in the blue file of Chalna Custom‑House, 1965‑66 (last page). The records of the case containing the aforesaid First Information Report have been produced before this Court in obedience to an order of this Court to certify the records of the case. The said First Information Report discloses the fact that the aforesaid excess 47 bags of wheat had been loaded on the barge from S. S. "Michelin".

In the facts and circumstances of the case mentioned above it is apparent that S. S. "Michelin" had carried a quantity of American wheat imported by the Government of Pakistan, an while some of this wheat was being loaded on the barge "Narsingdi" somehow 47 bags of wheat were put on it in excised, of what appeared on the records kept by the bargemen as well as the Stevedore‑in‑Charge of loading the cargo and the representative of the Food Department. Admittedly the entire quantity of wheat including the excess 47 bags of wheat were wheal legally by the Government of Pakistan, and therefore, section 167 (8) (b) of the Sea Customs Act does not apply. The said section reads as follows :‑

(b) If any goods, the importation and exportation of which is for the time being prohibited or restricted under this Act, be imported into or exported from Pakistan contrary to such prohibition or restriction; or if any attempt be made so to import or export any such goods; or such goods shall be liable to confiscation; and any person concerned in any such offence shall be liable to a penalty not exceeding five times the value of the goods.

If any such goods be found in any package produced to any officer of Customs as containing no such goods; or

if any such goods, or any dutiable goods be found either before or after landing or shipment to have been concealed in any manner on board of any vessel within the limits of any port in Pakistan, or any air‑craft, railway train or other means of conveyance in rise for entry into or exit from Pakistan, and if the goods are such and in such quantity as would normally be imported or exported for bona fide personal use,"

"18 and 19 such goods shall be liable to confiscation; and any person concerned in any such offence shall be liable to a penalty not exceeding five times the value of the goods

except that in the case of the export of special goods, such goods shall be liable to confiscation; and any person concerned in any such offence shall on conviction before a Court, be liable to imprisonment for a term not exceeding six years and not less than one month, and shall also be liable to fire."

The charge sheet (Annexure "C" to the petition) as well as the said First Information Report lodged by the Chief Inspector, of Chalna Port show that it was entirely a case of allegation of "pilfe rage of Government food-grains" for, the excess 47 begs of what admittedly had been imported by the Government of Pakistan. It appears that S.S. "Michelin" arrived at Chalna Anchorage with the imported wheat, and the bags of wheat were loaded on to different vessels including the barge "Narsingdi" for being carried inland to Mohespara and Khulnaghat. Admittedly the wheat had been loaded on "Narsingdi" from S. S. "Michelin" which again admittedly carried part of the wheat imported by the Government. Subsequently it was discovered that the said barge had 47 bags of wheat in excess of that was mentioned in the three sets of records kept by the bargemen, the Stevedore and the Food Department. Consequently the authorities concerned treated its as a case of pilferage of Government food-grains, and lodged a First Information Report to that effect. In these circumstances there can be no question of contravention by the petitioner of any order issued by the Central Government under section 3 read with section 19 of the Sea Customs Act and, therefore, no ques tion of the confiscation of barge "Narsingdi" arises.

Mr. Nurul Huda, learned Deputy Attorney General, has sought to contend that the aforesaid 47 bags of wheat found on the petitioner's barge had been imported illegally without the requisite permit. This contention is not supported by facts. The records of the case, on the contrary, as we have noticed already, tell a different tale. In the facts and circumstances of the case we are of opinion that the said 47 bags of wheat had been legally imported by the Government and they had legally entered Pakistan, and what the barge "Narsingdi" did was merely :o allow the persons responsible for clearing the cargo from S. S. "Michelin" to put the imported bags of wheat on the barge. As such the petitioner does not come within the mischief of section 167(8) (b) of the Sea Customs Act read with section 3(3) of the Imports and Exports (Control) Act.

We accordingly make the Rule absolute, and declare that the aforesaid impugned order of the Collector of Customs, Chittagong dated the 8‑7‑1966 has been passed without lawful authority and is of no legal effect. Having regard to the facts and circumstances of the case we make no order as to costs.

‑I agree.

Rule made absolute.

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