M/s Sea Liners (Petitioner) VS Fed. of Pakistan and Others (Respondent)

INTHEHIGHCO T OT'SINDH

ATKA CHI .)

(Consfitarlonal

( I

,,,iir ltt l,'t C.P. No, D - ((. ol2i22

M/r Sea Lltrers, A Propdetorship concern, Having its offic€ at Room No. 904, 9n Floor, Uni Plaza, I.I. Chundrigar Road, Karachi - Pakistan;

Thrcugh its Prcpdetor, Mr Almed S/o Abdul Ghani. PETITIONER

US

l. Federetior of Pakfutotr, Thrcugh Secretary, Ministry ofFinance & Revenue, Firance Division, Pakistan Islamabad - Pakistan;

2.Cblef Collector of CurtoEs, Appraisement (South), 8u Floor, Custom House, KaEchi - Pakistary

3.Additioorl Collector / Llcenlhg Au orlty, Collectorate of Customs Apprai (West) 2nd Floor, Custom House, EduljeeDinshaw Road, Kamchi - Pakistan;

4.AddltloDslCollector, Collectorate of Customs (Exports) Custom House, Karschi - Pakistar; RESPONDENTS

PA

Respectfully Sheweth

]N THE HIG { COURT OF SINDH AT KARACHI

C.P.No.D-66O9 oI2022

M/s.Sea Liners ,..........v/s.....'...."Federation of Pakistan & others

Date Order with Signature of Judge

PRESENT

MR. JIJS\ICE AQEEL AHMED ABBASI, CJ

MR, JUSTICE ABDIJL MOBEEN LAKHO, J

1.For orders on Mi .No .28436 I 2023 2.For hearing of Mi c.No.28437 12023 3.For hearing of case

13-O3 -2024

Nlr's.Muhamtlrad Janr I & Sarosh Jamil. Advocates for the Petitioner Mr'.Khalecq Ahmed, Respondent No 4 Mr.Saleh Muhamma and Mr.Faheem Raza, Advocates lbr the (Cusloms DcPartm t).

ORDER

Through ins petition, the petitioner has irnpugned the Order-in- I - 106/93-P-n(CHAL# 1588) dated 28.052022 and 0r'igiual No.APPG Order-in-Appeal 03.10.2022 passed in Appeal No.09/2022. rvhcrcby' petitioner (M/s Sea accolding to learned ounsel for the petitioner, the license of Liners) (Proprietor aushad Ahrned sorr of Abdul Ghani) lbL Clearing arttl Forrvarding Agent been revoked on the basis of an FIR No.l&P/ l -202 I datcd 28.01.2021. where aecording to learned counsel for the petitioner'. aloug rvilh (he e\P()der.)1 the culsi rnent the petitioner has been penalized in aclvance ancl licensc ofthe petitio has been tevoked on the allegation ofviolation olScctiolr 6, 7 and 8 of Con ol of Narcotics Substances, 1997 (Act xXV ol 1997) punishable under S! ction 9(c) inspite of the fact that main case is still pendiDg before the Special C] (C.N.S.) Karachi in Case No.36 of 2021. in wlrich the Furt-ll petitioner has obtai bail. horvever. the rnatter is not being proceeded lbt' fred various reasons ln( Iuding non-availability of case property involved in lhc alleged crirne.

2.Leirned cou ,] for the Petit ioner in addil ion to aforesaid grourrds subttr its lsel that in vicw o[ the allegations against the expofler. the petitiolrer's liccttrc has also beer cancelled through irrrpugned Order-in-Original and Order-il-Appeal as

refel.red to hereina ove. Per learned counsel, the petitioner is merely a clearing

and fonvarding agent, who has been issued icense in tcrms of Rule 103 ol'the Customs Rules,200l after having completed ll the corlal fornalilies and has nol yiolated any of tlre tenrrs of the license hor withteld any inlbrnration or' docurnents, rvhich are required to be mainta ed or given by lhe clearing agent lo the Custorns Authorities, but inspite ofsuch the petitioner's license has beel revolied. Leamed coursel fbr the petitioner submits that admittedly, out of 05 consigrments of pink salt, 03 consignmen ontainers \vere duly exanrined by Custorns Autlrorities as rvell as ANF and als by Sniper Dogs, however, neilher incl irrinating material nor any narcotic subst nce was fbuncl, rvhereas, the \\'holc shipment was reportedly reached 09 destin tions/ports, where such containers rvere dorvnloaded and uploaded and eventu ly reached to the final destination. WIrereas, as per allegation of the prosecutio , at Netherland the subject uarcotic sul:stance rvas found in such consignme t, however, inspite ol lapse ol' considerable time, neither any material has produ:ed in Court nor the case property has been made available to connect e accused persons in the afbresaid crime includiug the petitioner. According t learned counsel for the petitioner, the petitioner has no role or nexus whatsoe in the shipment ofthe consignrnent, as according to learned counsel, the petition is a clearing and forwarding agent.

rvho has limited role in the process to the ex t ofverifoing and iurnishing the reqLrisite documents i.e. shipping documents .D. etc., which in the instant n'ratter rvere duly f'urnished and no deficiency in thi regard or any violation of license

I

has been tbund by the Respondcnts, w s, petitioner being a clearing and ,l lbrrvarding agent (not the exporter) cann otherwise be held liable fbr any l offeDce if any cornrnitted by exporter. In uppon of his contention, learned courrsel lor the petitioner has placed reli nce in the cases of M/s.Forootl Ch em i cul Co. (Pt't.) Lt d.,.....t'/s......,Co| I or of Cuslo ts & olhe$ rcpo e irt 2015 I'TD 2432 otl lll/s.Docks Pri Linited....,v/s.,.... Federntiol ol Pakisltl & othe$, rcpo e in 2015 PTD 9 8.

3.On 29.02.2024, when the rnatter as fixed in Coufi, the atbresaid contention rvas duly recorded in the order, whereas, further reliance rvas i'rlsu placed by learned counsel for the petiti er in the case ol l'l/s, I dri l)rolhcrs.....t'/s..... Federulio of Pokislo & olhe$, reportel i 2010 P'l'l) I22t whereby, accolding to learned couns for the petitioner, the controversy agitated through instant petition relating to iability of the clearing Agent, has already been decided by the Division ch of this Court in the aforesaid iudgtnents, rvhercas, learned cor.rnsel for Re pondent (Customs Depanmenl) irs well as learned D.A.C. had requested for ti to examine the said.ludgrnent and to assist this Court on the next date ofhearin

4.Today, when tlte matter was taken up hearrng. learned counsel tbr the Respondert (Customs Department) could not trovert the aforesaid factLral ancl legal position, however, subtnits that the cts of the instant case arc little different irom the facts of the aforesaid cases for the reasons that in one ol lhc above cited cases, the license of the petiti was revoked merely on the basis ol FIR, whereas, in anothet case, the petit er was acquitted from the cfime, horv*.er. in lhe irlstar)t case trial is still pendi g. In response to such contentiolt, learlled coullsel lbr the petitioner has sublni that the case of the petitioner is firlly covered by the afore cited judgments, rvherein principle rvitlt regalcl to lirbility of a clearing and forwarding agent respect lf any consignl])eDt ltils been decided, and has been categorically ld that in case of any of'fence or violation of Customs Act, 1969 by impor or exponer, the clearil)g and fbrwarding agent cannot be held liable for s oflence u'"less tlrere is solne dirccl involvenent or lnaterial available on record establish the conncclion \\'i1h ll1( alleged offence. According to leamed counsel for tlre pelitioner, the critrinal casc is baseless particularly against the petition€r, no material whatsoever has lTeen produced by the Respondents either before th Special Court-ll (C.N.S.) Karachi ol this Court during trial nor the petitioner ha been confronted in the sltow cause notice issued to the petitioner and similarly, n Order-in-Original and Order-in- Appeal no adverse order has been passed a inst the petitioner by the Custorlls Authorities. There has been no alleged viol tion of thi provisions oi'Cuslon'ts Act, 1969 particularly, Rule 103 of Rules. 2001 by the petitiorter', therefbre, it has been prayed that the revoc on of the license of the petitioner, rvho has been engaged irr this business since 1994 and has never been involved in any criminal activity whatsoever nor c rged with any offence punishable under the Custorns Act, 1969 for violating tenns ofthe license (Rule 103 oI Customs Rules, 2001), may be declared as il l, as livelihood ol'lhe pelilioncr has been stopped through itnpugned orders assed bl the ResPondents. ll hirs been prayed that since the petitioner is still ntesting the crintinal case. rvltich rnay be directed to be decided in accordance with larv at early date, however, in the nreanwhile, the license ofthe petitioner y be restored so that the petilioller rnay be in a position to earn his livelihood.

5.Heard learned counsel for the partie perused the record and have also exarniued the case law as well as relevant isions of Custonls Act, 1969 and Rule I03 of Customs Rules, 2001, which rima facie reflects that there is no material available or confronted to the petiti ,ner which may directly connecl the petitioner lvith the alleged crime nor there eems any violation of Rrrle 103 ol \ Customs Rules,200l, therefore, we are oft opinion that instant case is coveled

b1' r:atio of aforecited judgrnents. Accordi ly, whil€ setting-aside the impugned Orders, instant petition is allowed and the spondents are directed to restore the Iicense of the petitioner within l5 days the daie ofreceipt of copy of this order. [t is, however, further clarified tha such restcration ofthe license ofthe petitioner would have no bearing or e t on the merits of the case before thc Special CourtJI (C.N.S.), which sha be cided on its own merits in accor.dance wilh law

CHIEF JUSTICE

GE

Nasir