GHULAM ABBAS Versus THE STATE

Ghulam Abbas was tried under section 156(1)89 of the Customs Act by the learned Special Judge Customs, Lahore, for being in possession of smuggled goods. In view of the confession made by Ghulam Abbas, he was convicted under the said section and sentenced to pay a fine of Rs.3,500 or in default thereof to undergo simple imprisonment for four months.

2. The prosecution case in brief is that on 31‑3‑1978 at about 4‑30 p.m., Abdul Rauf S.I. P.W. 1 apprehended Ghulam Abbas accused in Misri Shah near his residence. From his possession 12 pieces of gloves P1/1‑12 and 16 woollen Chadars P2/1‑16 of foreign origin were taken into possession vide memo. P.A. The police officer recorded complaint Exh. P . B . , which he transmitted to Police Station Misri Shah for registration of the case. The police officer also arrested the accused. Whilst in custody, the accused led the police officer to his residence in Taj Pura, from where 398 pieces of gloves Exh. P3/1‑398 and 3 woollen Chadars Exh. P4/1‑3 of foreign origin were taken into possession vide memo. P.C. The total value of the case property was found to be Rs.7,170.

3. The accused was charge‑sheeted on 9‑12‑1978. The evidence of the prosecution and the defence was recorded. Towards the conclusion of the case, the accused made a confessional statement of his guilt, whereupon he was convicted and sentenced by the learned Special Judge, Customs, Lahore, as stated in para 1 above.

4. I have heard the arguments of the learned counsel for the appellant and the State and have also perused the record. It appears that though the alleged smuggled goods were taken into custody by the police on 31‑3‑1978, they were not transmitted to the Customs, with the result that no notice under section 180 of the Customs Act was served on the appellant, within the prescribed period stated in section 168(2) of the Customs Act, for the confiscation of the said goods. In view of this lapse, the appellant filed a Constitutional petition (Writ Petition 1912 of 1979) in this High Court for the return of the goods, which was accepted on 22‑5‑1979 and the goods were 'ordered to be returned to the appellant. The Customs, which was al, party to the writ proceedings, did not seriously assert that the goods were smuggled. Further, since gloves and woollen Chadars are not stated in the goods listed in clauses (i) and (ii) of subsection (s) of section 2 of the Customs Act, 1969, nor are they listed in an notification issued by the Federal Government under subsection (s) of section 2 of the Act, nor it is the case of the prosecution that the goods recovered were brought into the country by any unauthorised route, so as to bring it within the category of smuggled goods under clause (iii) of subsection (s) of section 2 of the Act, the said goods cannot be treated as smuggled goods. In this connection Zafar Mahmood Paul v. The State 1981 P Cr. L J 66, may be referred.

5. Notwithstanding the confession having been made by the appellant, if on the facts on the record it As, found that no case is made out against the appellant, or' that the trial Court has no jurisdiction to try the case, the appellant is entitled to an acquittal Regarding the seized goods in question, they are neither mentioned in section 2(s) of the Customs Act, nor in any notification issued thereunder. The same, therefore, cannot be treated as smuggled goods. No offence under section 156(1)89 of the Customs Act is made out. In this connection, Mubarak Ali v. The State 1981 P Cr. L J 986 may be referred. When goods, not being smuggled goods, as referred to in item 89 of subsection (1) of section 156, which are chargeable with a duty which has not been paid, or with respect to the importation or exportation of which any‑ prohibition or restriction has been contravened, or with respect to which there has been a fraudulent evasion or attempt at evasion of any duty chargeable thereon, are found in possession of any person, who cannot lawfully explain its possession, he is liable for the offence under item 90 of subsection (1) of section 156 of the Customs Act. This was a case, therefore, under section 156(1)90 of the Customs Act and not under section 156(1)89.

6. Offences with respect to goods listed or notified under section 2(s) fall under section 156(1)8, if they are smuggled into or out of Pakistan, and with respect to goods not so listed or notified, fall under 156(1)9, if they are imported or exported from Pakistan by avoiding payment of an y duty liable thereon, or in violation of any prohibition or restriction which is imposed by or under the Customs Act or any other law relating to its importation or exportation. See Abdul Rauf Khan v. Collector, Central Excise & Land Customs Peshawar and 3 others 1980 S C M R 114, Sh. Salim Ali v. The State 1980 PCr.LJ 509 and Syed Shabbir Ahmad Shah v. Pakistan through the Secretary to the Government of Pakistan Ministry of Interior/ Defence, Islamabad and 3 others P L D 1979 Kar.

68. In the same manner, offences with respect to goods listed or notified under section 2(s), fall under section 156(1)89 if they are dealt with or found in possession of a person, who cannot lawfully account for his action, and with respect to goods not so listed or notified, which are chargeable with a duty which has not been paid, or with respect to the importation or exportation of which any prohibition or restriction has been contravened, or with respect to which there has been a fraudulent evasion or attempt at evasion of any duty chargeable thereon, fall under section 156(1)90, if they are dealt with or found in possession of a person, who cannot lawfully account for his action.

7. The upshot of the above discussion is that the conviction of the appellant under section 156(1)89 is not correct. He should have been dealt with under section 156(1)90 of the Customs Act by the Customs Authorities. The learned Special Judge, Customs, had no jurisdiction to try the case under section 156(1)90 of the Act. The appellant is, therefore, entitled to an acquittal.

8. For the foregoing reasons, this appeal is accepted and the conviction and sentence of Ghulam Abbas, appellant, is set aside.

M.B.A./G‑115/L ???????????????????????????????????????????????????????????????????????????????? Appeal accepted.