IN THE HIGH COURT OF SINDH, KARACHI.

C. P. No.D-4031 of 2013

Present: Mr. Justice Syed Hasan Azhar Rizvi,

Mr. Justice Muhammad Junaid Ghaffar.

Pak Afghan Cargo Services (Private) Limited …………….. Petitioner

Versus

The Deputy Collector of Customs & others ………….. Respondents

J U D G M E N T

Date of hearing: 06.11.2013 & 07.11.2013.

Date of Order: 09.12.2013

Petitioner: Through Mr. Shakeel Ahmed, Advocate.

Respondents: Through Ms. Masooda Siraj along with Mr. Kausar Hussain, Appraiser,

Mr. Saeed Ahmed Memon, Standing Counsel on behalf of Federation of Pakistan.

Muhammad Junaid Ghaffar,J:- Through the instant petition the petitioner has challenged the action of Respondent No 1, whereby the name and User ID of the Petitioner company has been blocked/suspended and has invoked the Constitutional jurisdiction of this Court under Article 199 of the Constitution of Pakistan, 1973, and has prayed as follows:-

i. To declare that the act of respondent Nos.1 & 2 for suspending/blocking the petitioner’s license of Custom Bonded Carrier/Transport Operator bearing No.2222, without issuing any show cause notice and affording the opportunity of hearing is ab-initio illegal, unlawful bad in eye of law, so also in violation of Rule 651 of the Customs Rules 2001, read with Constitution of Pakistan, 1973.

ii. To declare that the act of respondent Nos.1 & 2 for suspending the petitioner’s license No.2222, without observing/following the statutory provisions of the Customs Act, 11969 and the Rules and the rules made there-under is ab-initio illegal, unlawful bad in eye of law and liable to be set-aside/quashed/cancelled.

iii. To restrain the respondents, their employees/agent working under them or on behalf of them from initiating any further /subsequent proceeding against the petitioner on the basis of fake & forged FIRs.

iv. To pass the order directing the respondents to restore the petitioner’s License of Customs Bonded Carrier/Transport Operator bearing No.2222, without further delay, as well as to vacate the blockade of the petitioner’s License.

v. Cost of case may be awarded to the petitioner,

vi. Any other relief(s) which this Hon’ble Court may deem fit and proper under the circumstances of the case”.

2. Briefly, the facts leading to the filing of the instant petition are that the petitioner had applied for license to act as a Custom Bonded Carrier/Transport Operator for Afghan Transit Trade. The petitioner was granted the said license under Rule 639 of the Customs Rules 2001, on the recommendation of a committee comprising of, Collector of Customs (Appraisement), Collector of Customs (Preventive), Collector of Customs (Port Qasim) and Director of Intelligence & Investigation, FBR, in a meeting held on 23.06.2012. The said license/permission was granted vide letter No.APPG/LA/5-28/2012 dated 30.06.2012. The petitioner was required to fulfill certain conditions and to furnish a bank guarantee of Rs. 15,000,000/- (Rupees fifteen million) and a revolving insurance guarantee of Rs. 5,000,000/- (Rupees five million) in addition to lease agreement and copy of registration books of the Vehicles. According to the memo of petition the petitioner had complied with all such conditions. It is further stated that the petitioner made an application for registration of vehicles for transportation of US Military Cargo on “One Trip” basis and the respondents No. 1 & 2 had allowed such application for transportation of US Military Cargo to the petitioner on the basis of letter dated 01.7.2013 issued by US Consulate General Karachi. It is further stated that subsequently the petitioner came to know that the respondents No. 1 & 2 have lodged two separate FIRs bearing No. MCC/MISC/57/2013/R&B (A) (W), and MCC/MISC/62/2013/ R&D/ (A) (W) against the officers of the petitioner company on the allegation that the petitioner had fraudulently obtained the above registration/permit for transportation of US Military Cargo, as according to the respondents the above referred letter of US Consulate was fake and forged. According to the petitioner after registration of the said FIRs the officers of respondents No. 1 & 2 conducted a raid on the office of the petitioner and also seized the files /record lying in the office of the petitioner. It is further stated that without any prior notice or intimation the transport license of the petitioner has been blocked in the computer system and hence all the business operations of the petitioner have come to a standstill and the petitioner, having left with no other remedy, has filed the instant petition.

3. Mr. Shakeel Ahmed learned counsel for the petitioner, contended that it was mandatory for the respondents to issue a notice or provide adequate opportunity to the petitioner before any blocking of the license/user ID could have been done by the respondents. It was further contended that no due process of law has been followed by the respondents and the impugned action is also in violation of Article 10-A of the Constitution of Pakistan, 1973. The learned counsel contended that the respondents were required to issue notice before any order for blocking or suspension could be passed against the petitioner and per learned counsel in fact no suspension order was in field and it is only the blocking of the user ID of the petitioner which is in field which has seriously prejudiced the petitioner. Learned counsel also referred to a letter dated 19.10.2011 issued by the respondent No. 5 to respondents No. 1 & 2 in respect of another bonded carrier/transport operator, in which it was observed that lodging of the FIR is not a conclusive justification of guilt and suspension of business in this manner may not be a correct approach. Per learned counsel the petitioner was also entitled for the same treatment. Learned counsel for the petitioner also relied on order dated 6.11.2012 passed by a Division Bench of this Court in CP No. D-3830/2013, wherein in an identical situation this court had restored the license of transport operator by relying upon the above referred letter dated 19.10.2011. Learned counsel accordingly prayed that the instant petition be allowed and the order of blocking the user ID of the petitioner be set-aside.

4. The respondents have filed comments and it has been stated that 2 FIRs dated 11.09.2013 and 24.09.2013 have been lodged against the petitioner company and its directors for violation of the provisions of Sections (2) 16,19, 32, 79, 155 (B),(C),(D)(E) & (F) and 192 of the Customs Act 1969 punishable under clause 8, 14, 10-A, 77, 86 & 89 of Section 156 (1) of the Customs Act, 1969. It has been further stated that the petitioner is involved in the fraudulent transportation of Afghan Transit Trade (Commercial Cargo) in the garb of non-commercial consignments belonging to the US Military. It is further stated that the permission granted to the petitioner for transportation of US Military Cargo was obtained on the basis of forged and fabricated letters which has been confirmed by the US Consulate General vide their letter dated 09.09.2013 and therefore, the above referred FIRs were also lodged against the petitioner. A preliminary objection has also been raised on behalf of the respondents that the instant petition has not been filed by the authorized person as one Mr. Tariq Gul who claims to be a Director of the Petitioner company is in fact, not a director of the petitioner company in the records of the respondents and as such has no locus-standi to file the instant petition on behalf of the Petitioner company. In nutshell, the case of the respondents is that since criminal proceedings have been initiated against the petitioner on the basis of FIRs referred above as such the transport license of the petitioner has been blocked and the petitioner is not entitled for the grant of relief prayed for in the instant petition.

5. Ms. Masooda Siraj Advocate, appearing on behalf of the respondents contended that the petitioner had violated the rules under which the license was issued to the petitioner and the action of the respondents was justified within the four corners of the rules and the Act. It was further contended that in term of Section 155 (E) & (F) of the Customs Act, 1969 the action taken by the respondents was justified and on the basis of these submissions the learned counsel for the respondent has prayed for dismissal of the instant petition. It was also contended by the learned counsel for the respondents that subsequent to filing of the instant petition a show cause notice dated 28.10.2013 has also been issued to the petitioner, for violating Sections 32, 121 read with 129 of the Customs Act 1969 and Rules 641 of Chapter XI of Chapter XXV punishable under Rules 651 of the Customs Rules 2001 and the same is pending for adjudication, hence the petitioner must avail the remedy available under the departmental hierarchy.

6. We have heard both the learned counsel and have gone through the record with their assistance. The learned standing counsel has adopted the arguments of the learned counsel for the respondents. By consent of the parties the matter was taken up at Katcha Peshi stage for final disposal.

7. First we would like to address the objection raised by the learned counsel for the respondents regarding maintainability of the instant petition, as according to the learned counsel, the petition has been filed by a person who is not a director of the petitioner company, hence the said person had no authority to file the instant petition. In this regard the learned counsel placed reliance on copies of FORM 29 dated 12.3.2012 issued in terms of section 205 of the companies ordinance 1984, in which the name of the person who had filed the instant petition was not shown. In response, the learned counsel for the Petitioner also referred to FORM 29, but dated 16.5.2012 filed before this court along with a statement dated 02.11.2013 in which Mr. Tariq Gul, who has filed the subject petition is shown as a Director of the Petitioner Company. We have gone through both FORMs 29 and it seems that the respondents are not in possession of the current/latest copy of FORM 29 issued on 16.5.2012 or their record has not been updated, as according to the current/latest copy of FORM 29 Mr. Shaukat Gul, the previous director has resigned and in his place, Mr. Tariq Gul has been inducted as a director who has filed the instant petition. Moreover, the other Director (as this only a 2 Director company), has also given authority to Mr. Tariq Gul to file and pursue the instant petition on behalf of the company. Such authority is annexed with the Vakalatnama on the court file. Therefore we are of the view that the director who has filed the subject petition had sufficient authority to institute the same, hence the objection raised by the learned counsel for the respondents is hereby repelled as the same is misconceived, and it is held that the instant petition has been competently filed.

8. It appears that the petitioner company which is a transport operator was granted a license of transport operations under Sub-Chapter XI of Chapter XXV of Afghan-Pakistan Transit Trade Rules. The eligibility criteria of the transport operator are contained in Rules 638 and approval of Licence is governed by Rules 639. It appears that admittedly, the petitioner was eligible in terms of the above rules and had fulfilled the requisite formalities and consequently was granted a license in terms of the above rules which is not in dispute. The responsibilities of such bonded transport operators are contained in Rule 641. According to this procedure, different vehicles of the transport company are registered with the respondents for transportation of Afghan commercial and non-commercial cargo in terms of Rule 599 (a & d) of Chapter XXV of the Customs Rules 2001 and in terms of the said rules, the petitioner was granted permit in respect of various vehicles, copies of which are enclosed with the memo of petition as annexures C-A to C-8 at pages 25 to 39. Again issuance of such permits has not been denied by the respondents. However, after registration of the FIRs due to blocking of user ID, the petitioner has not been allowed to carry on its transport business on the basis of such permits granted to the petitioner though they were valid till 31.10.2013 when the impugned action of blocking of the User ID was taken by the respondents. It is also an admitted fact that no notice was issued to the petitioner prior to blocking of the user ID of the petitioner nor any order was ever passed for suspension of the license of the petitioner. On perusal of Rules 638 to 641 of Customs Rules 2001, it transpires that unlike the rules of licensing contained in chapter VIII (rule 90 to 106) of the Customs Agent Licensing Rules, there is no provision for immediate suspension of a license, pending finalization of the proceedings against the licensee. However, despite absence of such enabling provision, an immediate action has been taken against the petitioner whereby the User ID has been blocked. It would be advantageous to reproduce the relevant Sub Rule (4) of Rule 102 of the Customs Agent Licensing Rules, which governs such suspension as an immediate action;

“The licensing authority, in case where immediate action is considered necessary against the licensee, suspended his license forthwith after recording reasons in writing pending the final action under the act and rules made thereunder.”

It is clear from the above sub-rule that even if the Licence of the Custom Agent is required to be suspended immediately, such suspension can only be done after recording reasons in writing pending the final action. We have noticed that the above provision is available only in the rules framed in respect of the licences issued to the Customs Agents in terms of Chapter VIII of the Customs Rules 2001 and is missing in the rules framed for issuance of license to transport operators under Rules 638 to 641 of the said Rules. Therefore, apparently the action taken by the respondents does not seem to be backed by any provisions of the rules or the Act. We have also gone through the provisions of Section 155-F of the Customs Act referred to by the learned counsel for the respondents, and have noticed that even under this provision, which though pertains to issuance and cancellation of a unique user ID exclusively for the person using the customs computerized system, User ID cannot not be suspended without recording reasons in writing for such immediate suspension. Therefore the issuance of notice or recording of reasons is a sine-qua-non, before any adverse action of either blocking the name or the suspension of license can be initiated against the Petitioner.

9. The issue of suspension of license of a Custom Agent under the then Custom Agents (Licensing) Rules, 1971, which are more or less pari materia to the Rules of 2001 as contained in Chapter VIII, came under discussion before a learned Single Judge of this Court in the case of Messrs K.G. Traders and another Vs. Deputy Collector of Customs and 4 others reported as P L D 1997 Karachi 541. Under the Rules of 1971, Rule 21 provided for suspension of license of a Custom Agent where such immediate action was necessary pending a final action under Rule 19 of the Rules of 1971. In that case the license of a custom agent was suspended by invoking Rule 21 of the Customs Agent (Licensing) Rules, 1971 pending enquiry and a further action under Rule 19 of the said Rules. The said suspension was challenged in a Civil Suit before this Court and the leaned Single Judge held as follows:

“ 15. Rule 19 of the Customs Agents (Licensing) Rules enables the Licensing Authorities to revoke or suspend the license of a Clearing Agent upon nine grounds enumerated in different clauses of sub-rule (1). The action being of a punitive nature the licensees are required to be given an opportunity of being heard. Rule 21 under which the impugned action is said to have been taken; however, provides that Licensing Authority may, in cases where immediate action is considered necessary against a licensee, suspend his license forthwith pending final action under Rule 19. A comparison of the two provisions tends to support Mr. Tariq Ali’s contention that a show cause notice is not a prerequisite for taking action under Rule 21. Indeed there are situations when some immediate remedial action is required to be taken on an emergent basis, and it is therefore, possible in such cases to dispense with the requirement of prior notice as held by the Honorable Supreme Court in the case of AbulA’laMaudodi v. Government of West Pakistan PLD 1964 SC 673.

16. Nevertheless such actions being of an exceptional nature and involving denial of a most salutary principle of natural justice, a provision enabling such action must be strictly construed. The rule indeed itself required that the powers under Rule 21 can only be invoked where immediate action is considered necessary; the word ‘necessary’ as distinguished from ‘expedient’ or ‘desirable’ seems to exclude subjective discretion. Such necessity must be objectively determined. I, therefore, find great substance in the contention of Mr. MazharLari to the effect that Rule 21 could only be invoked if it can objectively shown that there was urgency and it was necessary to take immediate action. It is indeed evident from the record that the F.I.R was lodged in October, 1996 and the defendants became aware of the factum of removal of oil about seven months ago. They allowed five months to lapse before issuing impugned Circular. No explanation whatsoever has been furnished to justify such leisurely treatments of the matter. The show cause notice, on which reliance is being placed by Syed Tariq Ali defendants alleging the complicity of the plaintiffs in the illegal removal, was issued on 25.01.1997. Yet for two months no action taken against the plaintiff. Another way of looking at the matter is that whereas the impugned circular was issued on 24.03.1997 the plaintiffs complained that they have not yet been given any show cause notice and this fact has not been denied by the defendants. Obviously when the Rule empowers the Authorities to dispense with the requirement of a notice in the case of immediate necessity, it is coupled with a duty to issue such notice as soon as practicable and within a reasonable time. In the above circumstances, I am clearly of the view that prima facie no justification for invoking rule 21 is made out and the plaintiffs were entitled to a show cause notice before any action cancelling their licenses could have been taken.

17. I also find force in the contention the invocation of Rule 21 was male fide. It was pointed out by Mr. Mazhar Lari that an order passed under Rule 19 is appealable before the Collector of Customs under Rule 22. However, instead of apprising the plaintiffs of the ground upon which their licenses are suspended, examining their defense on merits and enabling them to prefer an appeal against an adverse order in the hierarchy of Custom Authorities the Licensing Authority has chosen to invoke rule 21 without any justification and with the object of depriving the plaintiffs to avail of a mode of redress. I am, therefore, inclined to hold that prima facie no action would be taken under rule 21.”

This judgment of the learned Single Judge was challenged by the Collector of Customs in H.C.A.No.213 of 1997 and a learned Division Bench of this Court vide judgment dated 01.06.1999 was pleased to dismiss the same and the findings of the learned Single Judge were maintained.

10. In the case of Japan Shipper Vs. Deputy Collector of Customs (Appraisement) and another reported in 1989 C L C 74 a Division Bench of this Court while dealing with the same issue i.e. Rules 19 and 21 of the 1971 Rule, was pleased to hold as under:

“ In this petition, the petitioner, a licensed customs agent, has challenged the order dated 24.05.1987 or respondent No.2, Assistant Collector of Customs (Appraisement) Karachi purporting to be acting for respondent No.1, Deputy Collector of Customs (Appraisement) who is the licensing authority under the Customs Agents (Licensing), Rules 1971. By the impugned order, the licence granted to the petitioner has been suspended with immediate effect under rule 21 of the Licensing Rules of 1971. The impugned order has been attacked mainly on two grounds, namely, that the order has been passed by the Assistant Collector of Customs, who is not the licensing Authority and secondly that the licence of the petitioner has been suspended without any show cause notice.

Mr. Imamally Kazi, learned Deputy Attorney General, appearing for the respondent, very fairly and frankly, conceded that the impugned order cannot be sustained as the same violates the principles of natural justice. In fact the learned Deputy Attorney General informs that a proper show cause notice has now been given to the petitioner and further proceedings will be taken by the Licensing Authority in accordance with law and the applicable rules.

In the circumstances, the impugned order dated 24.05.1987 suspending the Customs Licence of the petitioner is declared to have been passed without lawful authority and to be of no legal effect. The Licensing Authority is; however, free to take action against the petitioner in accordance with law and the applicable rules.”

11. Similarly, the provisions of section 13 of the Customs Act 1969, govern the grant of licence to a private warehouse owner and the provisions of Section 13 of the Customs Act, 1969, which are more or less analogous to the provisions of Section 155 F (proviso specially) of the Customs Act, 1969, Rule 21 of the then Customs Agents (Licensing) Rules 1971, and Rule 102(4) of the 2001 Rules. For a clear understanding the provisions of section 13 of the Customs Act are reproduced as under;

“ 13. Power to licence private warehouses.--(1) At any warehousing station, the Collector of Customs may, from time to time, licence private warehouses wherein dutiable goods may be deposited.

(2) (Every application for a licence for a private warehouse shall be made in such form as may be prescribed by the Collector of Customs.

(3) A licence granted under this section may be cancelled by the Collector of Customs for infringement of any condition laid down in the licence or for any violation of any of the provisions of this Act or any rules made thereunder, after the licensee has been given proper opportunity of showing cause against the proposed cancellation).

(4). Pending consideration whether a licence cancelled under sub-section (3), the Collector of Customs may suspend the licence.”

A Division Bench of this Court in the case of Saman Diplomatic Duty Free Bonded Warehouse Vs. Central Board of Revenue and others reported as P L D 1999 Karachi 170 while examining the provisions of section 13 of the Customs Act 1969 has held as under:

“It would, thus, been seen that upon a plain reading of subsection (3) of section 13, it is quite clear that a licence issued under subsection (2) cannot be cancelled unless the licensee is given a proper opportunity for showing cause against the proposed cancellation. Thereafter subsection (4) empowers the Collector of Customs to suspend the licence during the pending of the proceedings under subsection (3), the petitioner’s licence can be suspended under subsection (4). In any event, it is settled that where a particular provision of law which is aimed at depriving citizens of their rights as to property or person, is silent as to prior notice before commencement of the proceedings, such notice shall be read into that provision of law. This reflects the maxim “audi alteram partem” (no man shall be condemned unheard). In this regard reference can be made to Commissioner of Income Tax, East Pakistan v. Fazlur Rehman PLD 1964 DC 410.

Consequently, in view of all the above circumstances the impugned order dated 14.06.1998 is struck down as being in violation of section 13(3) and (4) of the Customs Act, 1969. The respondents are directed to decide the matter in accordance with law after giving the petitioner full opportunity of being heard. In consequences of the above the petitioner shall be entitled to carry on their lawful business till such time as the proceedings under section 13(3) of the Act are pending. Of course this would not debar the Customs Authorities from suspending the petitioner’s licence under section 13(4) during the pendency of such proceedings if the facts and investigations into the matter so warrant.”

12. The same view has been subsequently followed by another Division Bench of this Court in the case of Messrs A.H. International (Pvt.) Ltd. Karachi Vs. Assistant Collector of Customs and 3 others reported as 2003 P T D 2798 while interpreting Section 13(3) of the Customs Act, 1969 as well as Rules 239 & 240 of the Customs Rules, 2001.

13. It appears that in the instant matter the rules governing issuance of licence to Transport Operators do not provide for any action of suspension of the licence pending any action under the Rules or the Act against such licencees, as are available in Section 13(4) of the Customs Act, 1969 as well as in Rule 21 of the then Custom Agents (Licensing) Rules 1971 and Rule 102(4) of the Customs Agents (Licensing) Rules, in Chapter VIII of the Customs Rules, 2001; despite this, the licence of the Petitioner has been blocked / suspended. Needles to mention, that even otherwise, in the Customs Act there is no provision of blocking a person’s name or registration number or it’s User ID. We have come across several cases wherein invariably the name or User ID of a person is blocked in computer, despite there being no provision under the Act or the Rules for such blocking, which is not appreciable and the department must act strictly in accordance with law and the procedure while dealing with this sensitive issue.

14. The judgments referred above, have categorically held, that even where the powers and authority to suspend the licence as an immediate measure, under exceptional circumstances are available, the same are to be exercised after following the mandate of law and the principles of natural justice. The reason for such observation is that the suspension of a licence like the one in the instant matter is an extreme penal action as it puts a complete halt to the business of such person which can cause incalculable harm to such person, for which there is no redress, even if later the order of suspension is withdrawn. If such suspension continues for a longer period, it may eventually destroy its business totally. In such a situation it is incumbent upon the concerned authority to exercise such powers sparingly and only when the situation demands it as an extreme exigency. It is needless to state that even when such authority is exercised, the same should be done through a reasoned order and the aggrieved person should be informed forthwith, and the action which is to follow for which the immediate suspension has been done, must be completed and decided within the shortest possible time. We have noticed that in the instant matter, no such exercise was carried out before blocking the operations of the licence of the Petitioner, (admittedly there is no order and it’s only the blocking in computer) and consequently all the business operations of the Petitioner have been put to a complete halt and the Petitioner has been deprived of its fundamental rights and has already incurred losses owing to such an extreme action which cannot be quantified. The only reason which has been put forth by the respondents for blocking the Transport Licence of the Petitioner is, that the Petitioner has submitted forged and fake letters on behalf of US Consulate, consequently two F.I.Rs have been registered against the Petitioner, and therefore the name of the Petitioner has been blocked and it has been restrained from conducting any further business operations. We are afraid that merely registration of F.I.R, which is at the very initial stage of the proceedings, cannot be the only basis for taking such an extreme action against the Petitioner. Even otherwise, the respondent No.5 (FBR) vide its letter dated 19.10.2011, (though in respect of another Transport Operator), has already directed the field Collectorates that lodging of F.I.R is not a conclusive justification for guilt and suspending of the business operations of a licencee on the basis of F.I.R is not the correct approach. Further, this court vide its order dated 06.11.2012 in CP No D-3830/2013, (though by consent) has already restored the licence of a transport company in similar circumstances on the basis of letter dated 19.10.2011 issued by Respondent No 5. Therefore, in view of the above, the respondents have no justification to suspend / block the business operations of the Petitioner in the manner it has been done. The learned counsel for the Respondents has also drawn attention to the show cause notice which was issued on 28.10.2013 subsequent to filing of the instant petition and on perusal, we have noticed that the entire case made out even in the show cause notice revolves around on registration of criminal case against the Petitioner. Though we will restrain ourselves from commenting on the merits of the case, as it may prejudice the parties, however we may observe that the said show cause notice has been issued in terms of Section 32, 121 and 129 of the Customs Act, 1969 and so also in terms of Rule 641 of the Customs Rules, 2001 punishable under Rule 651 of the said Rules. We have noticed that none of these provisions as referred to in the show cause notice, confer any authority on the respondents to suspend / block the licence of the Petitioner, pending any action as above.

15. Therefore, in view of hereinabove, we are of the opinion that the respondents in the given facts and circumstances of the instant case had no lawful authority to suspend / block the operations of the Petitioner as a Transport Company to handle the Afghan Transit Goods and as such the same is hereby set aside and the respondents are directed to restore the licence and allow the Petitioner to conduct its business operations as a Transport Operator duly registered under Rules 638 & 639 of the Customs Rules, 2001. However, this shall not preclude the respondents from carrying out and finalizing the proceedings already commenced on the basis of show cause notice dated 28.10.2013 in accordance with law and to take any further steps under the Act or the Rules so warranted.

16. The petition stands allowed as above.

Judge

Dated: 09.12.2013