Find a Lawyer

Special Criminal Bail Application No. 9 of 1979, decided on 21st May, 1979.

-- Ss. 5 & 497 read with Customs Act (IV of 1969), Ss. 161 (5) & 185-C Vii)-Provisions of S. 497, Cr. P. C.-Directly applicable in cases tried under Customs Act, for all intents and purposes-Contention that S. 161 of Customs Act having made special provisions for grant of bail to offenders charged for offences under Customs Act, application of S. 497. Cr. P. C. excluded -Contention, held, erroneous and powers vesting in Special Judge regulated by S. 497, Cr. P. C.

--- S. 497-Applicant charged under S. 156 (1) (8), Customs Act, about 20 years of age-Applicant, held, not entitled to be shown any consideration in matter of bail-Customs Act (1V of 1969), S. 156 (1) (8).

Muzafar Hassan for Applicant.

Mrs. Rashida Patel for the State.

On 23rd February, 1979, a first information report was recorded at the instance of Mr. Ayub Khatri, Preventive Officer, Customs House, Karachi, on behalf of the State at the Customs House, Karachi, alleging that in pursuance of creditable information regarding an attempt to smuggle wrist watches of foreign origin by one Muhammad Rafiq due to arrive from Dubai by air, the aforesaid passenger on arrival at Karachi Airport was intercepted by the Customs Intelligence and his baggage consisting of two suit-cases, etc. was searched which revealed 231 wrist watches of foreign origin concealed therein. These goods were seized and accused Muhammad Rafiq was arrested accordingly. On these allegations, after the usual investigation, the present applicant has been sent up for trial in the Court of Special Judge (Customs and Taxa tion) Karachi. Applicant's request for bail has been rejected by the trial Court by its order dated 21st April, 1979.

2. The bail application on behalf of the applicant was mainly pressed before the Court below on the ground that the applicant is a young man of 20 years and is a student. Repelling this contention learned Special Judge referred to the provisions of section 497 (1). Cr. P. C. and held that since the fact that the applicant was 20 years old according to the first proviso of section 497 (1), Cr. P. C. no ground was made out for admitting the applicant to bail. Learned counsel for the applicant assailed the view taken by the learned Special Judge and contended that the Customs Act contains sui generis provisions dealing with the question of bail pending trial of an accused person for offences under the said Act and, therefore, the application of section 497 (1), Cr. P. C. is excluded. In this behalf learned counsel relied on sub section (5) of section 161 of the Customs Act which reads as follows:-

"(5) When any person is taken under subsection (4) before the Special Judge, he may, on the request of such person, after giving the prosecution an opportunity of being heard, admit him to bail on his executing bond, with or without sureties, or refuse to admit him to bail and direct his detention at such place as he deems fit:

Provided teat nothing herein contained shall preclude the Special Judge from cancelling the bail of any such person at a subsequent stage if, for any reason, he considers such cancella tion necessary, but before passing such order he shall afford such person an opportunity of being heard, unless for reasons to be recorded he considers that the affording of such opportunity shall defeat the purposes of this Act."

It was urged that no fetters were placed upon the jurisdiction of the Special Judge as were placed on the power of the Court to grant bail under section 497 (1), Cr. P. C. and that the matter of bail lay within the judicial discretion of the Special Judge. The argument is erroneous for more than one reasons. In the first place the Custom Act itself makes the provisions of the Code of Criminal Procedure applicable by virtue of section 185-C which is in the following terms: -

"185-C.-(1) The provisions of the Code of Criminal Procedure, 1898 (Act V of 1898), so far as they are not inconsistent with the provisions of this Act, shall apply to the proceedings of the Court of a Special Judge and such Court shall be deemed to be a Court of Session for the purposes of the said Code and the provisions of Chapter XXII-A of the Code, so far as applicable and with the necessary modifications, shall apply to the trial of cases by the Special Judge under this Act."

Additionally, section 185-B expressly confers exclusive jurisdiction on the Special Judge and the Special Appellate Court to entertain -any application and pass orders under inter alia Chapter XXXIX of the Code of Criminal Procedure, which includes section 497. The combined effect of these two sections is that for all intents and purposes the pro visions of section 497 are directly applicable in cases tried under the Customs Act. Even, otherwise the provisions of the Code of Criminal Procedure would be attracted by virtue of section 5 of the said Code, subject of course to the Customs Act, 1969. Section 5 of the Code of Criminal Procedure provides as under: -

"(1) All offences under the Pakistan Penal Code shall be investi gated, enquired into, tried and otherwise dealt with according to the provisions hereinafter contained.

(2) All offences under any other law shall be investigated, enquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, enquiring into, trying or otherwise dealing with such offences."

3. Thus it will appear that the provisions of the Code of Criminal Procedure could be applicable to the investigation and trial of offences under Customs Act to the extent they are not repugnant to the provisions of the latter Act. Section 161 of the Customs Act on which reliance has been placed contains the legal provisions regarding the powers of arrest of the persons reasonably suspected of having committed offences under the said Act and on the other hand there is nothing contained therein which may be repugnant to any of the provisions of section 497 of the Code of Criminal Procedure. I have, therefore, come to the conclusion that the powers vesting in the Special Judge are regulated by section 497, Cr. P. C. There is, therefore, no force in the first contention of the learned counsel.

4. On the merits learned counsel reiterated the grounds urged before the trial Judge and in this behalf produced a certified copy of the certificate purporting to be issued by the Principal Head Master of AlAmal Secondary School, Sharjah (U. A. E.) to the effect that the applicant is a student of this school. Learned State Counsel on the other hand, opposing the application disputed the genuineness of the certificate and urged that there is abundant evidence against the applicant of the commission of the offence charged. I have perused the certificate and I agree with the learned Special Judge that the certificate gives no indication of the nature and the class of the school in which the appli cant is pursuing this studies. The applicant being of the age of 20 years is not entitled to be shown any consideration in the matter of bail. There is, therefore, no ground for his release on bail as he has been charged under section 156(1) (8) which prescribe maximum imprisonment up tot 10 years.

5. For the foregoing reasons I reject the application.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.