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Special Criminal Appeal No.4 of 1980, decided on 27th May 1986.

‑‑‑Ss. 2, 156(1)(89) & 171‑‑Accused charged for displaying blue films on V.C R.‑‑Accused not found in exclusive possession of notified item at relevant time‑‑Notice under section 171, Customs Act. 1969, also not served on accused‑‑Conviction set aside.

P L D 1979 Kar. 86; P L D 1978 Kar. 774; 1984 P Cr. L J 3096; 1983 P Cr. L J 1976 and 1984 P Cr. L J 2185 ref.

‑‑‑Ss.2(s) & (a) and 156(1)(9)‑‑Smuggling‑‑Items neither specified in clause (9) of S.156(l) of Act nor notified by Government under S.2(s) & (a) thereof at relevant time‑‑Items, held, would not come within mischief of smuggling.

Sulleman Kassam for Appellant.

Jalaluddin Baloch for the State.

Date of hearing: 27th May, 1986.

This is an appeal against the judgment, dated 1 i‑10‑1980 of Special Judge Customs and Taxation, Karachi, whereby appellant has been convicted under clause 89 of section 156(1) of the Customs Act, 1969 and sentenced to undergo R.I. for 6 months and to pay a fine of Rs.5,000 or in default to further undergo R.I. for 5 months.

The case of prosecution in brief is that on 12‑1‑1979 at 0115 hours S.H.O. Drigh Colony received information that in Roshanabad near Buffalo shed of Mehboob Ali accused Aziz Ahmed was exhibiting blue print picture on V.C.R. and was charging Rs.10 per head from the public. He reached there and saw that blue print was being displayed by accused. He secured T:V. and V.C.R. and also arrested 47 persons. The case under section 292, P.P.C. was registered against all the accused. A separate case under section 156(89) of the Customs Act was registered against the appellant.

Appellant in this statement stated that he was watching blue print film in Wara of Mehboob Ali like other, persons when police came, and arrested them. He examined Muhammad Younis, Muhammad Anis, Muhammad Ashraf and Muhammad Aslam in his defence.

Prosecution in support of the case examined Muhammad Arif Assistant Controller of valuation. He stated that value of V . C .R . is 48.500 P.W.2 Nasim Ahmed is Mashir and he stated that he saw present accused displaying blue print film on V.C.R. where 40 or 50 persons were present and witnessing the film. They all were arrested and T.V. V C.R. and‑Cassette were secured by the police and such Mashirnama Exh.4‑A was prepared which he signed P.W.3 Muhammad Sadiq S.H.O. has corroborated his first information report as stated above. He has also produced F.I.R. as Exh.5/B. D.W.1 Muhammad Younis has stated that he purchased Philips T.V. set from one Zakir. He has produced receipts as Exh.9/A and 9/B. He has also stated that he purchased VX.R. from one Muhammad Farooq and produced receipts as Exh. 9/C: He has also produced customs duty receipt and other documents as Exh .9/ D anal 1 /3. He further states that V . C .R . was taken away by Mehboob. D.W.2 Muhammad Anis and D.W.3 Muhammad Ashraf are attesting witnesses of the receipts of the V.C.R. and T.V. D.W.4 Muhammad Aslam has stated that he was arrested by the police from the place of incident. He has, denied to have taken money from persons.

I have heard Mr. Suleman Kasim learned counsel for the appellant. He has argued that at the relevant time V C.R. was not notified item, therefore, the court has wrongly taken the cognisance of the case. He has referred to the notification dated 5-10-1973. He also stated that Government by notification, dated 23-5-1985 declared the VCR as notified item he has referred to the cases reported in PLD 1979 Kar. 86, P L D 1978 Kar. 774, 1984 P Cr. L J 3096. It is contended by the learned counsel that notice under section 171 of the Customs Act was not served, therefore, trial is illegal. He has referred to the case reported in 1983 P Cr. L J 1976 and 1984 P Cr. L J 2185.

Mr. Jalaluddin Baloch appearing for the State does not support the conviction. He has stated that exclusive possession of the V . C . R . has not been proved from the appellant.

It is an admitted position that 47 persons were arrested from Wara of Mehboob Ali and all were challaned under section 292 P .P . C . The allegation against the appellant is that he was displaying the V .C .R. He was challaned for that offence. The offence under Customs Act is completed when appellant is found in possession of the notified item. The exclusive possession has not been proved. It is also admitted position that notice under section 171, Customs Act was not served on the appellant. In case of Hussani v . The State reported in 1984 PCr.LJ 3096. It was held that items which are neither specified in clause 9 of section 156(1) nor notified by the Government under section 2(s) and (a) of the Customs Act at the relevant time will not come within the mischief of smuggling. I also refer to the case of Shaukat Hussain v . Zulfiqar Ahmad S. H.O , P.S. Mozang and two others on the point of search and seizure. Mr.Suleman Kasim has further invited my attention that the V.C.R. has also been returned by the Collector of Customs. He has produced photostat copy of the order.

Four the reasons stated above the appeal is allowed. Appellant is on bail. His bail bond stands cancelled.

M.Y.H. Appeal allowed.

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