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Criminal Appeal No. 72 of 1985, decided on 14th April, 1986.

‑‑ S. 156(1)(89)‑Smuggling‑Seizure of contraband goods‑Value of contraband goods (Charas) recovered from possession of accused not found to be exceeding Rs. 10,000‑First information report showing value of 'Charas' estimated at Rs. 8,000 but this fact also remaining unsubstantiated at trial‑Offence not falling within, meaning of cl. (89) of S. 156(1) of Customs Act, 1969 in circumstances conviction and sentence set aside.

Jehanzeb Rahim for Appellant.

Raza Ahmad Khan, Deputy Attorney‑General for the State.

Dates of hearing : 13th and 14th April, 1986.

The prosecution case against the appellant is that on 20‑12‑1.982, under the instructions 'of Said Akber Khan, the then Deputy Superinten dent Customs a Nakabandi' was held by Arshad Mahmood, Inspector Central Excise near village Chamkani on G. T. Road to intercept Suzuki Van No. MR‑6404. The Suzuki Van, driven by the appellant, was stopped and on preliminary search it was found that some special cavities were made therein for hiding contraband 'Charas'. The vehicle was then brought to the Office of the Deputy Superintendent, Customs situate at Railway Station, Peshawar where on a thorough search of the vehicle, 20 K.Gs. of Charas' was recovered from it which was taken into possession vide recovery memo. Exh. P. W. 3;1. The appellant Yaqub Khan who was driving the vehicle was arrested and served with a notice under section 171 of the Customs Act, 1969. The present case against the appellant was, therefore, registered vide F. 1. R., Exh. P. W. 5/2, on 20‑12‑1982 at 7‑10 p.m. in Police Station, Chamkani at the instance of Said Akber Khan, Deputy Superintendent Customs. A sample of the 'Charas' was also sent to the Chemical Examiner for opinion and his report was found in the positive.

At the trial, it was fully established from the evidence of Said Akber Khan, retired Superintendent Customs (P. W. 5), Arshad Mahmood, Inspector Central Excise (P. W. 6), H. A. Abbasi, Custom Inspector (P. W. 1) and Mohammad Salim. Sepoy Customs (P. W. 3) that 20 Kilo, grams of contraband 'Charas' was recovered from the hidden cavities of the Suzuki Van No. MR‑6404 which was driven by the appellant.

The accused when examined at the trial denied the recovery of the 'Charas' in question from his possession. He also denied the service of notice upon him under section 171 of the Customs Act. He stated that he was innocent and falsely charged and in fact he was not driving the Suzuki in question nor did he own the same and the driver was let off by the Customs authorities and that he was apprehended simply because he was travelling in the Suzuki Van as a passenger.

In view of the evidence produced by the prosecution, the learned Special Judge (Customs) came to the conclusion that the case against the appellant stood proved beyond any shadow of reasonable doubt and, therefore, the appellant was convicted under section 156(1)(89) of the Customs Act, 1969 and sentenced to six years' R. I. and a fine of Rs: 1,00,000 (one lac), in default whereof to further R. 1. for one year.

The appellant Yaqub Khan has come up in appeal to this Court against his conviction and sentence.

In support of the appeal it is contended that the conviction of the appellant was illegal as there was no evidence to prove that the value of the contraband 'Charas' recovered from the appellant exceeded Rs. 10,000. It may be mentioned that by the Finance Ordinance, 1982 (Ordinance XII of 1982),. clause (89) of section 156(1) of the Customs Act, 1969 was sub stituted and it was provided that where the value of the seized goods exceeded ten thousand rupees, the accused shall be liable, upon conviction by a Special Judge, to imprisonment for a term not exceeding six years and to a fine not exceeding ten times the value of such goods, The con tention on behalf of the appellant is not without force that under the aforesaid amended provision of law it must have been established by the prosecution that the value of the contraband 'Charas' exceeded Rs. 10,000. From the perusal of the record, it is clear that there is no evidence worth the name to prove the value of the contraband 'Charas'. Although in the F. I. R. the value of the 'Charas' recovered from the Suzuki Van was estimated at Rs, 8,000 but even this fact remained. unsubstantiated at the., trial. Assuming that the value of the 'Charas' in question was Rs. 8,000 even then the offence would not fall within the meanings of clause (89) of section 156(1) of the Customs Act, 1969 whereunder the value of the smuggled goods, being an important factor, must be proved by convincing evidence.

For the aforesaid reasons, since the prosecution has failed to establish that the value of the contraband 'Charas' was in excess of Rs. 10,000 the appellant could not be convicted for an offence under section 156(1)(89) of the Customs Act. The appeal is accordingly accepted and by setting aside the conviction and sentence of the appellant, he is acquitted of the charge. He is to be set at liberty forthwith if not wanted in any other case. The fine if paid may also be refunded to him.

M. Y. H. Appeal accepted.

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