ABDUL HAMID AND 2 OTHERS Versus THE STATE

Abdul Hameed, Abdul Malik and Abdul Shakoor were tried by the learned Special Judge, Customs, under sections 156(1), 89 and 178 of the Customs Act for being in possession of 95 packets of opium weighing six maunds and sixty yards of K.T./4000 cloth of Japenese origin. The learned trial Judge, by his judgment dated 12‑11‑1980, held that as the' opium recovered was not proved to be of foreign origin, no offence under section 156 (1) 89 read with section 178 of the Customs' Act stood made out, but that as regards the foreign cloth, the offence under the said section stood proved and he accordingly sentenced them to six months' rigorous imprisonment each with a fine of Rs.1,000 each or in default thereof to undergo further simple imprisonment for one month each.

2. The brief facts of the case are that on 3‑12‑1978, Mr. Noor Khan Niazi, Superintendent Customs P.W.4, in pursuance of secret information received, formed a raiding party which consisted of himself, Baqir Hussain Senior Intelligence Officer P.W.2, Javed Iqbal Customs Inspector P.W.5, two sepoys, Ghulam Qadir driver, and two members of the public, namely, Mohammad Sadiq P.W.3 and Mohammad Hussain. They picketed themselves at railway crossing Nishatabad at 6‑00 p.m.

On 4‑12‑1978 at about 01‑00 a.m. truck No. HA 7055 was seen coming from the side of Shahkot. The raiding party signalled it to stop, but it did not do so. The raiding party got the level crossing closed and apprehended the truck. Abdul Hameed, accused, was found driving the truck, whilst Abdul Shakoor and Abdul Malik, accused, were sitting beside him on the front seat. As there was no arrangement of light at the place of picket, the raiding party brought the truck and the three accused to the Customs Office at Peoples Colony, Faisalabad. Behind the driver's seat was a secret enclosure, which was dismantled, and from it 95 packets of opium and two thans of K.T. 4000 cloth made in Japan and bearing the seals of the Afghan Customs Authorities were recovered. The net weight of the opium was found to be six maunds and cloth measured sixty yards. The total value of the opium and the cloth, as stated in the complaint Exh.P.A. recorded by Baqir Hussain, Senior Intelligence Officer P.W.2, was Rs.6,85,800. The opium was packed and sealed in eight bags, four samples were taken out of it, of which two were sent to the Chemical Examiner for examination.

3. All the three accused admitted that they were apprehended by the raiding party and that their truck was checked, but they denied that opium or foreign cloth was recovered from it. They did not claim the case property to be theirs. They imputed their false involvement to the false statements made by the witnesses. They stated that the opium and the cloth was already lying in the office of Customs, when their truck was taken there, which was then falsely planted on them. None of the accused produced any evidence in their defence.

4. I have heard the arguments of the learned counsel for the appellants and the Customs Authorities. The only submission raised on behalf of the three appellants is that it does not stand conclusively proved that the value of the foreign cloth alleged to be recovered from the appellant was of the value of Rs.1,000 or over. In this connection, complaint Exh.P.A. only refers to the value of the opium and the truck as Rs.4,80,000 and Rs.20,000 respectively, but does not refer to the value of the foreign cloth. The challan, however, gives the value of the opium and cloth both together as Rs.6,81,800. Assuming I were to deduct Rs.4,80,000, being the value of the opium, and Rs.2,00,000, being the value of the truck, as given in the complaint Exh . P . A . , the value of the opium would work out to Rs.1,800. Baqir Hussain Senior Intelligence Officer P.W.2, however, stated that the total value of the opium and the cloth was Rs.6,81,800. In cross‑examination he stated that he had given the price of the opium and the cloth on the basis of what it would have fetched in the foreign market after it had been smuggled out. This obviously means that the valuations given by him are on the high side. Mohammad Sadiq P.W.3 did not mention anything about the value of the Japanese cloth. Noor Khan Niazi, Superintendent Customs P.W.4, also did not mention anything in the examination‑in‑chief about the value of the cloth. However, in cross‑examination, he mentioned that the market value of the cloth recovered from the appellants was Rs.20 per yard. He denied the fact that the rate of the said cloth in question was Rs.15 per yard. Javed Iqbal, Customs Inspector P.W.5, did not mention anything about the value of the cloth in his examination‑in‑chief . However, in cross‑examination he stated that its market value was Rs.1,200 and that it was not got assessed from the Appraiser.

5. The important question is what is the value of the Japanese cloth. The offence for which the appellants have been convicted is section 156 (1) 89 of the Customs Act. The case is, therefore, not one of smuggling, but of being in possession of smuggled goods. It is not shown that any of the appellants are the first importers. It must, therefore, be assumed that they are subsequent buyers and that the goods were intended to be sold locally. According to section 25 of the Customs Act, the value of any imported goods in the CIF price of the same, excluding any duties or taxes payable in Pakistan by the first buyer. In any case, it is not the market price or the sale price of the ultimate or final seller. The ITP List No.1 of 1983 showing C & F Prices of Items imported under Personal Baggage, lists under item 13, "CLOTH" A (ii) cotton tetron (K.T.). The C&F price stated next to it is Rs.15 per meter. This list was effective from 1‑9‑1983. If the C & F value of cotton tetron in 1983 was Rs.15 per meter, it could not have been higher in 1978. According to Javed Iqbal, Customs Inspector P.W.5, the market value of the Japanese cotton tetron was Rs.1,200. It is obvious that this market value is the price of the ultimate or final seller, which value would be the CIF value of the goods, plus duties etc. payable in Pakistan by the first wholesale buyer plus a margin of his profit. After the duties payable and the margin of profit are all deducted, the value of the cloth would be about Rs.1,000 or less Since this is a marginal case, it was necessary for the prosecution to have produced the Customs Appraiser or the ITP list of 1978 giving the C & F price of cotton tetron (K.T.). This was not done. The appellants are, therefore, entitled to the benefit of doubt.

6. For the foregoing reasons, this appeal is accepted and the conviction and sentence of the appellants are set aside. They are on bail. Their bail bonds shall stand discharged.

M.B.A./A‑242/L ????????????????????????????????????????????????????????????????????????????????? Appeal accepted.