JAHANZAIB vs ADDITIONAL COLLECTOR OF CUSTOMS (ADJUDICATION), COLLECTORATE OF ADJUDICATION, DRY PORT, FAISALABA

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JAHANZAIB VS ADDITIONAL COLLECTOR OF CUSTOMS (ADJUDICATION), COLLECTORATE OF ADJUDICATION, DRY PORT, FAISALABAD Ss. 2(s), 16, 18, 156(2) & 157(1)(2)---SRO 499(I)2009 dated 13.06.2009---Lawfully registered vehicle, confiscation of---Phrase “shall be liable to confiscation” and “shall be confiscated”---Scope and distinction---Principle of proportionality---The words “shall be liable to confiscation” as used in S. 157 of the Customs Act, 1969 are not synonymous to “shall be confiscated”, therefore, do not mean automatic confiscation---In the circumstances, in the present case, the Customs Appellate Tribunal (Tribunal) was not justified to deprive the applicants from the goods in question; who should have been given opportunity to produce evidence and their point of view should have been given due consideration, which was lacking---The plain meaning of the words “shall be liable to confiscation” are that the conveyance may be confiscated in a proper case, otherwise the legislature would have used the words “shall be confiscated”---To make a thing liable to confiscation amounts to adeclaration that the thing is available for confiscation---The use of the words “shall” here in the context only means that in a case the Court considers proper, it will have power to order the confiscation of the conveyance---The phrase “liable to be confiscated” indicates a discretionary power vested in the authority to decide whether confiscation is warranted based on the facts and circumstances of the case; it does not impose a mandatory requirement but rather provides an option for the authority to consider ; said phrase invokes the principle of proportionality, requiring the authority to weigh the severity of the offense, the intent, and any mitigating factors before deciding on confiscation---The exercise of discretion implies adherence to principles of natural justice, such as issuing ashow cause notice, providing an opportunity to be heard, and ensuring fair adjudication ; it allows authorities to evaluate the case, consider alternative penalties, or even waive confiscation if justified---Whereas the phrase “shall be confiscated” denotes amandatory requirement that leaves no room for discretion---Once the specified legal conditions are satisfied, confiscation becomes obligatory and must be carried out ; which indicates that the legislature has already deemed confiscation proportional to the violation, removing the need for further evaluation by the authority---Since the action is mandatory, the opportunity to contest may be limited to challenging the grounds for the mandatory action, not the authority's discretion , which reflects a clear legislative intent to make confiscation compulsory under the specified circumstances---The phrase “shall also be liable to confiscated” as provided in S. 157(2) of the Customs Act, 1969 does not mean that vehicle should be confiscated automatically---Said discretion must be exercised upon the principles of natural justice---According to one of the principles now well-accepted, no person should be deprived of his property by way of penalty unless it is clear that he is responsible for assisting or furthering the commission of the offence committed and no innocent person should be unjustly punished or deprived of his property---The phrase “shall be confiscated” means shall stand confiscated---Keeping in juxtaposition both phrases with each other, the derivative conclusion is that Legislature has provided two different modes to be applied for confiscation in two different situations---The phrase “liable to confiscation” has not been equated with the term “shall be confiscated” and in case where an article is made only liable to confiscation, a discretion is given but such discretion has to be exercised on sound judicial principles------Therefore, the proposed questions was answered in affirmative i.e. in favour of applicant and against the respondent/department---Special Customs Reference Application was allowed.

JAHANZAIB vs ADDITIONAL COLLECTOR OF CUSTOMS (ADJUDICATION), COLLECTORATE OF ADJUDICATION, DRY PORT, FAISALABAD Ss — 2026 PTD 738 LAHORE-HIGH-COURT-LAHORE

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