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Special Criminal Bail Application No. 27 of 1979, decided on 3^rd October, 1979.

(a) Customs Act (IV of 1969) ----

--‑‑Ss. 139, 142 & 156 (1), (8)‑Goods of a passenger on a scheduled flight taken possession of by Custom authorities immediately on their being unloaded and passenger put under interrogation Passenger being entitled to make true declaration under S. 139 to appropriate officer and for detention of dutiable articles at his (passenger's) request until he left country, and mere fact of certain dutiable goods or contraband having been brought at airport, held, does not constitute an offence under S. 156 (1) if declaration under S. is 139 made by such passenger.

(b) Criminal Procedure Code (V of 1898) ---

--‑‑ S. 497 read with Customs Act (IV of 1969), Ss. 139, 142 & 156 (1), (8)‑Petitioner seeking bail on grounds: (i) petitioner a genuine passenger arriving at Pakistan Airport with bona fide intention to make a proper declaration under S. 139, Customs Act before ap propriate officer and surrender goods under, S. 142, Customs Act to be detained until he left Pakistan; (ii) petitioner having purchased goods iii question from a foreign country for import into other fore ign country for his employer but his employer having not reached airport of destined country so as to produce import documents petitioner obliged to return to his own country to stay with his family but before approaching Customs counter for necessary pro cedure, his baggage taken over and he himself put under arrest -Probe into or assessment of evidence on point whether applicant allowed or not allowed to proceed to appropriate officer for making necessary declaration being not proper at bail satage and circum stances of case seeming to require further inquiry to determine guilt of passenger, bail allowed.‑.[Evidence].

Muhammad Hayat Junejo for Applicant.

Mrs. Salima Nasiruddin for the State.

The applicant is facing trial in the Court of Special Judge, Customs, Karachi under section 156 (t), clause (8) of the Customs Act, 1969. The facts alleged by the prosecution are that as a result of credible informa tion‑ that a passenger named Ferozur Rahman (the applicant) would be arriving from Hong Kong via Dubai by PIA Flight P K 228 bringing contraband goods Mr. K. D. Memon, Senior Preventive Officer organized a vigil at the Karachi Airport. On 21‑8‑79 at about 10‑35 p. m. the aforesaid PIA flight arrived at Karachi Airport and the above‑named passenger was spotted. His baggage comprising 5 suit‑cases and one hand‑bag was apparently segregated on the same being brought out from the hatch of the plane. The applicant was asked by the S. P. O. to declare whether he was in possession of any "objectionable goods" to which he replied in the negative. Thereafter, the suit‑cases were opened with the keys obtained from the applicant and on examination revealed contraband goods of foreign origin consisting of 2000 wrist watches, 90 Rolls of artificial silk cloth, 648 items of artificial jewellery in all worth Rs. 1,33,861. The goods were seized and the applicant was arrested. On completion of the investigation the Customs has presented a charge‑sheet in the trial Court on 3‑9‑79. Before the challan was submitted the applicant moved for his release on bail before the trial Court but his request has been rejected.

The learned counsel for the applicant submitted before me that the applicant was a genuine passenger arriving at Karachi with the bona fide intention to make a proper declaration under section 139 of the Customs Act before Appropriate Officer and surrender the goods under section 142 of the Customs Act to be detained until he left Pakistan again‑ It was submitted that the applicant is an employee of a national of Dubai and bad purchased the goods from Hong Kong for import into Dubai but when the applicant reached Dubai the goods were not allowed to be taken inside as the owner of the goods was not present at the Airport as planned who would have had the necessary import documents. Since the applicant's family resides at Karachi he tied no other alternative but to bring the goods to Karachi for being deposited as the Airport in accordance with the provision mentioned above. But before he could approach the Customs Counter for the necessary procedure, his baggage was taken over immediately on being taken out from the aircraft and he was arrested. It was accordingly contended that no offence was made out against the applicant.

The learned trial Judge rejected the applicant's request for bail mainly on the consideration that the applicant had no import licence in his possession and there wag nothing en the record to show that he made the required declaration for surrendering the goods under sec tions 139/142, Customs Act. The learned Judge also took into consideration the fact that the goods were shown to be of the value of Rs. 7 lacs and the fact that the offence of smuggling is a grave offence tending to undermine the national economy.

It was argued that in the challan the value of the goods has been shown much less at Rs. 1,33,861 and that in any case the gravity, of the offence alleged‑ is no consideration for refusing bail. Learned counsel also contended that the bar contained in section 497, Cr: P. C. against grant of bail in offences punishable with imprisonment for 10 years or more was not applicable in the present case in view of the fact that there is a separate provision as regards the grant. of bail contained in sec tion 161(6) of the Customs Act which being the special law would displace the application of the general provisions contained in the Criminal Procedure Code. It was also pointed out that the Supreme Court of Pakistan has granted Special Leave to Appeal to consider this question in another case.

It is not necessary in the circumstances of the present case for me to examine the contention of the learned counsel whether the provisions of section' 497, Cr. P. C. would apply in the matter of grant of bail under' the Customs Act. I have perused the investigation papers submitted before me by the learned counsel for the State. 1t appears to me that as reflected in the F. I. R. the goods of the applicant were‑ taken possession of by the S. P. O. immediately on their being unloaded and the applicant was interrogated. Section 142 of the Customs Act makes provision for making the true declaration under section 139 to the Appropriate Office and for detention of dutiable articles at the request of the passenger until he leaves the country. It is, therefore, cleat that if such a declara tion is made to the Appropriate Officer, the mere fact that certain goods are brought it the Airport which are subject to payment of duty or the import of which is prohibited or restricted will not constitute an offence punishable under section 156 (1), clause (8) of the Customs Act. The term ‑ appropriate officer" has been defined in section 2(b) as follows:‑.

appropriate officer' in relation to any functions to be performed under this Act, means the officer of Customs to whom such func tions have been assigned by or under this Act:"

It was, therefore, argued on behalf of the applicant that the would have been clearly connected with the commission of the offence if he had been allowed to take his baggage to the Customs Counter and had failed to make the necessary declaration with a view to having the goods cleared without disclosing the fact that they were prohibited or restricted goods.

It will not be proper to probe or to assess the evidence at this stage whether the applicant was allowed to proceed to the appropriate of for making the necessary declaration. However, the circumstances of this case seem to require further enquiry to be held into this matter to determine the guilt of the applicant who was apparently a passenger on a scheduled flight to Karachi. The question whether the explana tion of the applicant is consistent with the facts of the prosecution case will also be a matter for the trial Court to assess.

For the foregoing reasons, I would grant bail to the applicant in the sum of Rs. 15,000 with one surety and P. R. in the like amount to the satisfaction of the trial Court or the Nazir of this Court.

Bail allowed.

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