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Criminal Appeal No. 323 of 1972, decided on 29th November 1974.
‑‑ S. 23‑‑Sentence‑‑Appellant under genuine misapprehension being entitled to import contraband articles‑Offence committed about five years ago and appellant suffering sufficient material and mental loss‑Fine of Rs. 5,000.00 already paid‑Sentence of imprisonment remitted in circumstances of case.
The State Bank of Pakistan v. Abdus Sattar and another 1968 S C M R 283 rel.
Khalid M. Ishaque for Appellant.
Naimuddin for Respondent No. 1.
Nooruddin Sarki for the State.
Date of hearing: 29th November 1974.
This appeal under section 23A (6) of the Foreign Exchange Regulations Act 1947 is directed against the judgment dated 30‑11‑1972 of learned First Additional Sessions Judge and Foreign Exchange Tribunal, Karachi, where by he convicted the appellant under section 23 of the Foreign Exchange Regulations Act of 1947 and sentenced him to six months' R. I. and to pay a fine of Rs. 5,000 and confiscated the betel‑nuts in favour of the Government lying with the Customs authorities.
2. The facts briefly are that appellant is a businessman of import and export under the name and style of Premier trade Agency on Newnham Road, Karachi, He applied for .the issue of a licence for the import of miscellaneous provisions of all sorts against surrender of Bonus Vouchers. He was issued a licence by Chief Controller (Import and Export). The licence itself shows "that the appellant could import miscellaneous provisions all sorts N. O. S. including saffron, excluding meat all sorts and in all forms, caned or bottled provisions or in retail packing". It is the case of the appellant that there was no restrictions on the licence that the appellant could not import betel‑nuts against the said licence and that under bonus voucher scheme then in force, betel‑nuts was not a banned item, because the notification did not mention betel‑nuts as a banned item and that the appellant in his application to Habib Bank Ltd. had clearly mentioned that 'the foreign exchange, was required for import of betel‑nuts. This fact is not denied by the other side. Therefore, later on the appellant, however, imported betel-nuts against the said licence and in Karachi they were seized by the Customs authorities and later on a complaint was filed and he was convicted and sentenced as above.
3. I have heard Mr. Khalid Ishaque, Advocate for the appellant, Mr. Naimuddin, Advocate for the State Bank of Pakistan and Mr. Nooruddin Sarki, Advocate for the State. It may be noted that the learned counsel for the appellant at the very outset made a submission with regard to remission of the sentence of imprisonment he, therefore, did not challenge the conviction of the appellant. In this regard he submitted that the appellant is a businessman, the offence pertains to the year 1969 and he has sufficiently suffered already due to long litigation as well as the pay ment of fine of Rs. 5,000 and confiscation of the betel‑nuts and that the appellant was under genuine misapprehension that he could, under the licence issued, import the betel‑nuts. He relied on "The State Bank of Pakistan v. Abdus Sattar and another (1968 S C M R 283) wherein their Lordships of that Supreme Court maintaining the conviction under section 23 of the Foreign Exchange Regulations Act (VII of 1947) remitted the sentence of imprison ment but enhanced the sentence of fine one of the considerations being that seven years have elapsed since the default was made. Both Mr. Naimuddin learned counsel for the State Bank of Pakistan and Mr. Nooruddin Sarki for the State submitted that they will support the conviction but raise no objection if the sentence of imprisonment, in the circumstances, is remitted.
4. In view of straightforward submission of the learned counsel for the appellant with regard to remission of the sentence as well as the fact that the offence has been committed in the year 1969 and the appellant has now must have suffered sufficient material sad mental loss, I accept this plea or the learned counsel for the appellant with regard to remission of the sentence of imprisonment but uphold the conviction and sentence of fire as well as confiscation of the betel‑nuts as held by the Court below in favour of the Government.
5. The result is, subject to above modification this appeal stands dismissed.
Appeal partly accepted,
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