SC sets aside verdicts of Customs Appellate Court, IHC
TERENCE J SIGAMONY
ISLAMABAD: The Supreme Court set aside the verdicts of the Customs Appellate Tribunal and the Islamabad High Court regarding an attempt to smuggle foreign currency within the meaning of Section 2 (S) of the Customs Act, 1969.
A three-member bench, headed by Chief Justice of Pakistan Yahya Afridi, heard an appeal filed by the Collector of Customs, Islamabad, against the order of the Islamabad High Court (IHC).
According to the facts, the respondent, Javed Iqbal Malik, on 17.11.2017, was proceeding to travel abroad from Benazir Bhutto International Airport, Islamabad, on a flight destined for Sweden. At the relevant time, State Bank of Pakistan Notification No. F.E.1/2015-SB dated 01.06.2015 prescribed a limit of USD10,000 for carrying foreign currency in cash out of Pakistan.
The Customs authorities had received information regarding an attempt to take a substantial quantity of foreign currency abroad through the said flight and, accordingly, their staff posted at the International Departure Hall was alerted. The respondent proceeded through the departure process and crossed the baggage declaration counter, Customs baggage search counter, ANF search counter and FIA immigration counter, where such an amount could have been disclosed. His luggage was checked, his boarding card was issued, and an exit stamp was affixed to his passport. He thereafter reached the last ASF checking/ scanning counter, situated after the immigration counter, where his jacket was scanned and USD40,000 was detected concealed in the inner pocket thereof.
The ASF staff thereupon informed the Customs authorities, who reached the spot and conducted the requisite search, resulting in the recovery and seizure of the said foreign currency. The respondent was arrested after service of notice under Section 171 of the Customs Act, 1969, and FIR No. 66/2017 was registered on the same date. The matter was thereafter placed before the Collector of Customs (Adjudication), Islamabad, who, vide Order-in-Original No. 42/2018 dated 26.04.2018, ordered outright confiscation of the recovered foreign currency.
The respondent, aggrieved thereof, preferred an appeal before the Customs Appellate Tribunal, Islamabad. The Customs Appellate Tribunal, vide judgment dated 05.09.2019, set aside Order-in-Original No. 42/2018 dated 26.04.2018.
The Collector of Customs challenged the said judgment through a reference before the Islamabad High Court, which, on 10.08.2023, answered in the negative. Hence, the department approached the apex court.
The controversy before the Supreme Court was whether, in the facts and circumstances of the case, the respondent’s conduct amounted to an “attempt” to take the foreign currency out of Pakistan within the meaning of “smuggle” under Section 2 (S) of the Customs Act, 1969, notwithstanding that the currency was detected and recovered at the last ASF checking counter before his departure. The judgment noted that the respondent had progressed through the successive stages of the international departure process, including the baggage declaration, Customs baggage search, ANF search and FIA immigration, and had thereafter obtained his boarding card and an exit stamp recorded in his passport. He was intercepted only when he reached the last ASF checking/ scanning counter after immigration, where USUSD40,000 was detected in the inner pocket of the jacket worn by him.
It said that the respondent was not merely in possession of foreign currency at an earlier stage of his journey. He had embarked upon and substantially completed the process of international departure, and the currency was detected only at the last ASF checking point after immigration clearance.
The Supreme Court; therefore, set aside the judgments of the Appellate Tribunal and the IHC and restored the Collector of Customs’ order.
