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Criminal Miscellaneous Applications Nos. 225, 895, 306 of 1976; 260 of 1975; 85, 467 and 725 of 1974, heard on 25th January 1978.

Ss. 2(s) & 156(9)‑Mere fact of importation or exportation of certain goods being prohibited by law ‑Does not amount to smuggling‑Goods in order to be smuggled, held, must either be specified in cl. (9) or be notified by Federal Government under S. 2(s)(a) as such‑Chavas not notified as such nor falling under cl. (9) Held further, cannot be subject‑matter of smuggling even though such may amount to an offence under S. 156(9)‑Proceedings quashed‑Criminal Procedure Code (V of 1898), S. 561‑A.

S. Sami Ahmed, Abul Khair, A. A. Alwi, Azizullah Shaikh, Khalid M. Ishaq and Muzaffar Hussain Shah for Petitioners.

Usman Ghani Rashid, Addl. A: G. for the State.

Dates of hearing : 22nd, 23rd, 24th and 25th January 1978.

.---‑In these seven identical matters, the applicant in each case is standing trial before the Special Judge, Customs for the offence of smuggling of charas under section 158(8) of the Customs Act, 1969 read with sections 7 and 38 of the Dangerous Drugs Act, 1930 and the prayer is for quashment of the said proceedings.

2. Before I come to the parties' contentions, it will be more appropriate to refer to the relevant law. Clause (8) of section 156 of the Customs Act, 1969 makes smuggling an offence and provides as punish ment upon conviction by the Special Judge, imprisonment for a term not exceeding 10 times the value of such goods, and if the Special Judge in his discretion, so orders, also to whipping. Smuggling is defined in clause (s) of section 2 of the Act, which reads as follows :‑---

(s) Smuggle means to bring into or take out of Pakistan in breach of any prohibition or restriction for the time being in force, or evading payment of Customs duties or taxes leviable thereon,‑----

(a) Gold bullion, silver bullion, precious stones, currency, manufactures of gold or silver or precious stones or any other goods notified by the Federal Government in the official Gazette in each case exceeding one thousand rupees in value ; or

(b) any other goods by any route than a route declared under sec tion 9 or 10 or from any place other than a customs station.

and includes an attempt, abetment or connivance of so bringing in or taking out of such goods ; and all cognate words and expressions shall be construed accordingly.

3. Clause (9) of section 156 of the Customs Act provides that if any goods other than the goods referred to in clause (8) are imported into or exported from Pakistan in violation of any prohibition or restriction on the importation or exportation of such goods imposed by or under any law, such goods are liable to confiscation and any person concerned in the offence shall be liable to a penalty not exceeding two times the value of the goods.

4. Section 7 of the Dangerous Drugs Act, 1930, provides that no one shall import into Pakistan or export from Pakistan any dangerous drug save in accordance with the rules made by the Central Government for that purpose and in accordance with the conditions of any licence required to be obtained under those rules. Section 38 of this Act provides that all prohibitions and restrictions imposed by or under this Act on the import into Pakistan or export from Pakistan shall be deemed to be prohibition and restrictions under section 19 of the Sea Customs Act, 1878. This section 19, the equivalent of which in the Customs Act, 1869 is section 16, provides that the Central Government may from time to time by notification in the official Gazette prohibit or restrict the bringing of and taking out of Pakistan of any goods of specified description.

5. In these cases the allegation against the applicants is that they had attempted to smuggle out of Pakistan charas which is a dangerous drug within the meaning of the Dangerous Drugs Act, 1930 and they have, therefore, committed an offence of smuggling under clause (8) of sec tion 156 of the Customs Act, 1969. The case of the applicants is that the offence under clause (8) of section 156 is limited to goods which are specified in sub‑clause (a) of clause (s) of section 2 of the Customs Act or such goods as are notified by the Federal Government under this clause and since admittedly charas was at the relevant time not a notified item under this clause, no offence of smuggling has been committed by the applicants. It was further pointed out that this lacuna in the law was not put right until a later notification by the Federal Government under this clause notifying charas as an item the export and import of which is prohibited.

6. The Additional Advocate‑General on behalf of the State argued that clause (s) of section 2 contemplates not two but three kinds of goods, namely;

(i) the goods exported or imported in breach of any prohibition or restriction for the time being in force ;

(ii) gold bullion, silver bullion, precious stones, currency, manufactures of gold or silver or precious stones; and lastly

(iii) goods notified by the Federal Government in the official Gazette under sub‑clause (a) of clause (s) of section 2.

To my mind clause (s) refers only to goods specified therein and other goods notified by the Federal Government. It does not refer to goods the importation or exportation of which is prohibited elsewhere, which situation is governed by clause (9) of section 156. If the goods are one not specified in this clause or notified by the Federal Government under this clause, notwithstanding that its export or import may be JA prohibited or restricted by any law, there cannot be any offence of smuggling in respect thereof. This is clear from clause (9) of section 156 which makes an offence to import or export goods in violation of any prohibi tion or restriction on the importation or exportation of such gods imposed by or under this Act or any other law. Clause (9) makes it clear that it will not include goods which come within clause (8) of section 156 and, there fore, merely because importation or exportation of goods is prohibited by any law, it will not follow that its importation or exportation will amount to smuggling in the absence of its inclusion under a notification by the Federal Government under sub‑clause (a) of clause (s) of section 2 of the Act. Clauses (8) and (9) of section 156 must run parallel for the goods covered by the former are excluded from the latter. If these clauses are not so read they will be destructive of each other. To give an example, if an import policy prohibits import of furniture, such import will be in contravention of law and if it is, as was argued by the learned Additional Advocate General, punishable under clause (8) of section 156, it will make its clause (9) redundant. The law clearly contemplates two separate cate gories of goods, one under clause (s) of section 2 and the other goods the import or export of which is prohibited under any other law or for that matter under any other section of the Customs Act, and the offence of smuggling is limited to the former category. I am further fortified in this view by the fact that the Federal Government, at a later date deemed it necessary to notify charas an additional item under said clause (s) of sec tion 2. Therefore, the fact that importation and exportation of charas is prohibited under the Dangerous Drugs Act, 1930 which will be deemed to be c prohibition or restriction notified under section 16 of the Act, in the absence of inclusion of charas as one of the items notified under clause (s) of sec tion 2, there cannot be any smuggling of charas though of course it is an offence under clause (9) of section 156.

7. The result therefore, is that this application is allowed.

S. A. H. Application allowed.

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