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Writ Petition No. 215 of 1956, decided on 25th November 1957.
, S. 3 (3) read with S. 2 (c)‑Sea Customs Act (of 1878), S. 19‑Section 19 of the Sea Customs Act applies to goods brought by air.
Held, that under section 3 (3), Imports and Exports (Control) Act (XXXIX of 1950), section 19 of the Sea Customs Act, (VIII of 1878) and all the provisions of that Act apply to goods brought by air by virtue of the definition of "import" given in section 2 (c) of the former Act.
Where, therefore, 22 chiffon and nylon sarees, import of which was prohibited, were brought by air into Pakistan the order confiscating the goods and imposing a penalty under Schedule to section 167, was not illegal.
Syed Sharifuddin for Petitioner.
Faiyaz Ali, Attorney‑General for Respondents 1 and 3.
Muzafar Hussain, Advocate for Respondent No. 2.
---‑ The petitioner, Lt. Col. S. N. Raza, has challenged the order passed by the Collector of Customs, res pondent 2, on 4th August 1955, under items (8), (4C) and (73) of the Schedule to section 167 of the Sea Customs Act, 1878, whereby his goods have been confiscated and a penalty of Rs. 2,000 has been imposed on him. He has also challenged the order of the Central Board of Revenue, respondent 3, dated 27th February 1956, passed in appeal against the order of the Collector of Customs.
The facts, shortly put, are these:‑
On 16th July 1955, the petitioner who was a Military Secretary to the then Governor‑General of Pakistan, got down at Mauripur Airfield along with the Governor‑General. He declared eight packages as his personal baggage in the Baggage Declaration Form. Seven out of the eight packages were cleared by him on the same day ; he did not clear the eighth package, which was an attache case, on the ground that he had mislaid its key. The attache case admittedly was examined by the Customs on 2nd August 1955, in the presence of Maj. Umar, and was found to contain the follow ing articles :‑
22 Chiffon and nylon Sarees,
4 Blouses,
3 Pairs of socks,
3 Ties,
1 Shirt,
1 Pair of woollen trousers.
Mr. Sharifuddin, the learned Advocate for the petitioner, raised four‑fold contentions before us. I propose to mention these contentions briefly, though in view of the point urged by Mr. Attorney‑General for the respondents, it would not be necessary to decide all these points, except the point regarding the violation of the principle of natural justice.
It was contended by Mr. Sharifuddin that section 16 of the Aircraft Act, XXII of 1934 was invalid and ultra vires, as it confers legislative powers on an external authority, i.e., the Central Government to declare that any or all the provisions of the Sea Customs Act, 1878 shall apply to the import and export of goods by air. His contention was that inasmuch as under section 16 of the Act, the Central Government had power to apply the Sea Customs Act "with such modifications as may be specified in the Notification", the section was ultra vires. In support of this contention he relied on the well known case Sobho Gianchandani v. Crown (P L D 1952 F C 29). This authority was followed by Wahiduddin, J. in the case of Muhammad Ali and Sons (P L D 1957 Kar. 320).
The next contention on behalf of the petitioner was that in order to apply the provisions of the Sea Customs Act, 1878, under which the petitioner has been convicted, it was necessary that the Central Government should have acted under section 16 of the Aircraft Act XXII of 1934 by having issued a notification applying the provisions of the Sea Customs Act to the import and export of goods by air.
The third contention was that the rules framed under the notification dated 23rd March 1937, and known as Aircraft Rules, 1937, are not valid rules inasmuch as they do not comply with the method provided under sub‑clause (3) of section 5 and section 14 of Aircraft Act, 1934.
All these three contentions raised by Mr. Sharifuddin have no application so far as the present petition is con cerned. The petitioner, as would appear from the order of the Collector of Customs dated 4th August 1955, had been found to have contravened the notification of the Government of Pakistan, Ministry of Commerce and Educa tion, dated 11th June 1951. It appears from the noti fication that it is dated 12th June 1951 and not 11th June 1951. The relevant portion of the order reads as under :‑
"The import of chiffon and nylon Sarees and blouses is restricted vide Government of Pakistan, Ministry of Com merce and Education (Commerce Division) Notification No. 335/260/24, dated 11th June 1951, except under a licence issued under section 3 of the imports & Exports (Control) Act, 1950, read with section 19 of the Sea Customs Act.
The learned Attorney‑General for the respondents contended that chiffon and nylon were prohibited goods, which could not be imported without a licence under section 3 (3) of the Imports & Exports (Control) Act, 1950 and that under the said section 3 (3) all the provisions of the Sea Customs Act, 1878, having become applicable, the conviction of the petitioner under items 8. 40 and 73 of the Schedule to section 167 of the Sea Customs Act was not illegal. In order to appreciate the contention of the learned Attorney‑General, the relevant provisions of section 3 of the Imports & Exports (Control) Act, 1950, may be re. produced :‑
"(1) The Central Government may, by order published in the official Gazette and subject to such conditions and exceptions as may be made by or under the order, pro hibit, restrict or otherwise control the import or export of goods of any specified description, or regulate generally all practices including trade practices and procedure connected with the import or export of such goods, including the submission of applications for licences under this Act, the evidence to be attached to such applications, and the grant, use, transfer or sale or cancellation of such licences.
(2) No goods of the specified description shall be imported or exported except in accordance with the con ditions of a licence to be issued by the Chief Controller or any other officer authorised in this behalf by the Central Government.
(3) All goods to which any order under subsection (1) applies shall be deemed to be goods of which the import or export has been prohibited or restricted under section 19 of the Sea Customs Act, 1878, and all the provisions of that Act shall have effect accordingly except that section 183 thereof shall have effect as if for the word 'shall' therein the word 'may' were substituted."
Mr. Sharifuddin, the learned Advocate for the petitioner, contended that, inasmuch as the goods in respect of which a notification under subsection (1) of section 3 of the Imports & Exports (Control) Act has been made shall be deemed to be the goods of which the export and import has been pro hibited or restricted under section 19 of the Sea Customs Act, the prohibition or restriction cannot be extended to goods which have been brought by air. His contention was that if the prohibition or restriction was to be deemed to be under section 19 of the Sea Customs Act, which speaks only of goods brought by sea or land, the prohibition cannot apply to goods brought by air. There is no force in this contention. In order to examine the contention of Mr. Sharifuddin whether the prohibition will apply to goods brought by air or not, all that is necessary is to substitute the meaning of "import" and "export" in subsection (3) of section 3 as given in section 2 of the Imports & Exports (Control) Act, 1950. Subsection (3) of section 3 would then read as under :‑
"All goods to which any order in subsection (1) applies shall be deemed to be goods of which bringing into, and taking out of, the Provinces .by sea, land or air has been prohibited or restricted under section 19 of the Sea Customs Act, 1878, and all the provisions of that Act shall have effect accordingly
I have no doubt that section 19 of the Sea Customs Act, and all the provisions of that Act would apply to the goods JA brought by air also.
It has not been contended before us by the learned Advocate for the petitioner that chiffon and nylon are (not ) prohibited articles under the notification made under sub section (1) of section 3 of the Imports & Exports (Control) Act, 1950. If the goods brought by the petitioner are those whose import is prohibited, there is no doubt that the provisions of the Sea Customs Act, would be attracted, and the order confiscating the goods and impos ing a penalty under Schedule to section 167 would not be illegal.
The last contention of Mr. Sharifuddin was that the order impugned is against the principle of natural justice inasmuch as the petitioner was not given notice to show cause against the penalty sought to be imposed upon him. In support of his contention he relied on the case of Collector of Customs, Madras (A I R 1957 Mad. 496). In that case no notice was given to the appellant before proceeding was taken to impose a penalty on him. In this case, Mr. Attorney‑General has produced a copy of the show‑cause notice. Mr. Sharifuddin, the learned Advocate for the petitioner did not contend after the copy of notice had been shown to him in Court by the learned Attorney‑General that the same was not served on his client. In view of this fact, we do not see that there was any denial of natural justice to the petitioner.
For the reasons given above, we dismiss the petition with costs, and withdraw the order of injunction.
A. H. Petition dismissed.
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