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Criminal Bail Application No. 1400 of 1976, decided on 8th December 1976

‑‑‑ S. 497‑Petitioner accused of carrying bank drafts issued and drawn by banks outside Pakistan without making declaration at time of departure from Pakistan‑Question whether offence committed fell within preview of S. 156(x), Land Customs Act or S. 23(3) of Foreign Exchange Regulation Act, yet to be decided‑Petitioners admitted to bail, in circumstances. Customs Act (IV of 1969), S.,156(8) and Foreign Exchange Regulation Act (VII of 1947), S. 23(3).

Muhammad Hayat Junejo for Applicant.

Suleman Memon, Addl. A.‑G. for the State.

The applicant is accused in a case under section 156 (8) of the Customs Act in the Court of Special Judge (Customs & Taxation), Karachi.

The prosecution case is that on 27‑11‑1976 the applicant, who is an Engineer, was leading a delegation to New York by P. I. A. Flight No. PK‑711. He filed the prescribed declaration form in which he mentioned carrying traveller cheques of the value of 500 US dollars issued by the State Bank of Pakistan. However, on searching his brief case it was found that he was, in addition, carrying two bank drafts of U. S. dollars 2002 and 4000, which he had failed to declare. Accordingly, a case was registered against him under section 156 (8) of the Customs Act and he was taken into custody on 27‑11 1976. The applicant applied for bail before the learned Special judge (Customs & Taxation), Karachi but his application was rejected by the learned Judge on 1‑12‑1976

The first contention raised by Mr. Mohammad Hayat Junejo learned counsel for the applicant, was that the applicant was admittedly not carrying any gold, silver, precious stones or currency but was merely carrying bank drafts issued and drawn by banks outside Pakistan. Consequently, the alleged offence did not amount to smuggling of the currency to fall under section 156 (8) of the Customs Act in view of definition of smuggling contained in clause (s) of section 2 of the Customs Act but fell under section 23 (3) of the Foreign Exchange Regulations Act under which it is punishable with 3 years' R. I.

The next contention of Mr. Mohammad Hayat Junejo was that by putting a label of section 156 (8) on a case which otherwise patently fell within the Foreign Exchange Regulation Act would not change the nature of the offence and the prosecution cannot be allowed to defeat the provision of the Foreign Exchange Regulations Act by resorting to such a wrong device.

Mr. Suleman Memon, learned Additional Advocate‑General, however, opposed the bail on the only ground that the investigation of the case was not complete and, therefore, the bail should not be granted.

I fail to understand as to what further investigation is required in this case nor was the learned Additional Advocate‑General able to throw any light on this point. Be that as it may, it is not disputed that the applicant is an Engineer and was leading a delegation. It is also not disputed that the bank drafts were issued and drawn on banks outside Pakistan. Having regard to the provision of clause (s) of section 2 of the Customs Act, therefore, it is yet to be established whether carrying of the two bank drafts issued in the above circumstances would amount to smuggling within the purview of section 156 (8) of the Customs Act or would more appropriately fall under section 23 (3) of the Foreign Exchange Regulation Act. Keeping in view the above circumstances of the case, therefore, I find that this is a fit case for bail. I accordingly order that the applicant be released on bail on his furnishing one surety in the sum of Rs. 20 000 with P. R. in the like amount to the satisfaction of the Nazir of this Court.

Petition allowed

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