LIAQAT ALI AND 2 OTHERS Versus THE SPECIAL JUDGE CUSTOMS, LAHORE

ORDER

This is a petition under section 561‑A, Cr.P.C. by Lia4uat Ali, Muhammad Sharif and Anwar, petitioners, for the quashment of a case pending against them and three others under section 165(1)8 of the Customs Act in the Court of the learned Special Judge, Customs, Lahore.

2. The brief facts of the case are that on 22‑2‑1987 Liaquat Ali, Muhammad Sharif and Anwar, petitioners, alongwith Sabir, Muhammad Hussain, Bashir son of Gulls, Bashir son of Sardar Ali and Zaffar, co‑accused, were attempting to smuggle Charas to India, when a Nakabandi party headed by Muhammad Aslam Inspector/S.H.O. Police Station, Khudian picketed at Bridge Khurram on B.R.B. Canal, which was about 2 to 3 miles from the Indo‑Pakistan Border, identified them in the light of torches. It appears that each person was carrying a bundle on his head. On seeing the Nakabandi party, all the smugglers ran away, except Liaqat Ali, petitioner, who was apprehended at the spot. One bundle which Liaquat Ali, petitioner, was carrying on his head and which he had thrown on the ground was found to contain 1 maund and 2 kilograms of Charas. The seven bundles which the other seven persons had thrown at the spot were also found to contain 1 maund 2 kilograms of Charas each.

3. During investigation Sabir Ali and Muhammad Hussain, co‑accused, were discharged by the police, through the order of a Magistrate at Kasur, who was not competent to deal with the case, Ultimately, challan was filed against Liaquat Ali, Muhammad Sharif and Anwar, petitioners, and Zaffar, Bashir son of Gulla and Bashir son of Sardar, co‑accused under sections 156(1)8 and 9 of the Custom Act before the learned Special Judge, Customs, Lahore, and another under Article 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979, in the ordinary criminal Court.

4. The petitioners submitted an application under section 265‑K Cr.P.C. before the learned Special Judge, Customs, Lahore, for acquittal, on the basis that no case stood made out against them under sections 156(1)8 and 9 of the Customs Act, which was rejected on 12‑11‑1987. Being aggrieved by the said order, the petitioners preferred a quashment petition (Cr.M. 277/Q‑87), which is now before me for disposal.

5. On behalf of the petitioners it is submitted that Muhammad Aslam, Inspector/S.H.O., Police Station, Khudian, was not competent to arrest Liaqat Ali, petitioner and the other co‑accused or seize the contraband charas or issue notices to them under section 171 of the Customs Act. In this connection S.R.O. 913(1)/86, dated 5th October, 1986, is referred. It is further submitted that the charas recovered being a product of Pakistan and not of foreign origin, no offence either under section 156(1)8 or 156(1)89 Customs Act stands made out. It is also strongly submitted that according to the FIR the petitioners were apprehended at a place 21 to 3 miles from the Indo‑Pakistan Border and it cannot, therefore, be said that at the time they were apprehended, they were attempting to smuggle charas over the Indo‑Pakistan Border. In this respect Muhammad Sharif v. The State 1981 Law Notes 264 has been cited. It is next contended that no notice under section 171 of the Customs Act was served on the petitioners or the other co‑accused by the Police Inspector and, therefore, all the proceedings stand vitiated. In this connection Muhammad Siddiq v. The State 1987 P Cr. L J 1091 is referred. Lastly, it is submitted relying upon section 192 of the Customs Act, that the Police Inspector, who received secret information of smuggling, was duty bound to communicate it to the Officer‑in‑charge of the nearest Custom House or Customs Station and had no power to investigate the case himself.

6. I have heard the arguments of the learned counsel for the petitioner, the Customs Authorities and the State.

7. On behalf of the petitioner it is submitted that Mohammad Aslam, Inspector/ S.H.0., Police Station Khudian, was not competent to arrest the petitioners and the other co‑accused or seize the contraband charas from them. In this connection S.R.O. 913(1)/86, dated 5‑10‑1986 is referred to show that the Inspector of Police was not entrusted powers under section 163 (4)(a) and (b) to arrest a person or seize goods in the border belt. I am afraid I cannot accept the view of the learned counsel for the petitioners. The power of arrest is given under section 161 of the Customs Act. Under subsection (1) of section 161, any officer of Customs who is authorised in this behalf and who has reason to believe that any person has committed an offence under the Customs Act, can arrest such a person. Under S.R.O.913(1)/86, dated 5‑10‑1986, the Central Board of Revenue has entrusted the power given under section 161 (1) and (2) to all police officers not below the rank of Sub‑Inspector, within their respective jurisdictions. The Inspector/ S.H.O., Police Station Khudian, thus had the power of arresting the petitioners. As regards the power of the said police officer to seize the contraband Charas, it is submitted on behalf of the petitioners that section 163 of the Customs Act did not give him such a right and the seizure of Charas is thus illegal. I must submit that sections 162 and 163 of the Customs Act do not apply in the instant case. Both these sections refer to the seizure of goods or documents from closed or specific premises. Under section 162, such premises can be searched on the basis of a warrant of search issued by a Judicial Magistrate. Section 163 relates to seizure of goods or documents from such premises without a search warrant, where there is danger that they may be removed before a search can be effected under section 162. Subsection (4) of section 163 of the Customs Act specifically relates to the search of closed or specific premises within the five miles border belt of Pakistan, specially in relation to goods which are notified by the Federal Government under this subsection and where it is feared that they may be exported. Since the charas seized from the petitioners was not to be recovered from any closed or specific premises situated within the border belt, section 163(4) of the Customs Act did not apply to the case. Rather, section 168 was applicable, which authorises any appropriate officer to seize any goods liable to confiscation under the Act. Under S.R.O.913(1)/86, dated 5‑10‑1986 all officers of the police not below the rank of Sub‑Inspector, within their respective jurisdictions, have power under section 168(1) and (3) not only to seize goods liable to confiscation under the said Act, but also documents or things which in their opinion would be useful in any proceedings under the Act. The Inspector/S.H.O. of Police Station Khudian, therefore, had the power to seize the charas which was recovered from Liaqat Ali, petitioner.

8. It is also contended on behalf of the petitioners that as no notice was served by the Inspector/S.H.O. of Police Station, Khudian on all the petitioners, when they were apprehended, the proceedings stand vitiated. There are conflicting authorities in the said connection. In Hizbullah v. The State and another P L D 1984 Quetta 1, it has been held that any defect in pretrial proceedings does not defeat the trial, as it is curable under section 537 Cr.P.C., unless prejudice has been caused to the accused. Since evidence has yet to be led in the case, I would leave this matter to the learned Special Judge, Customs, for determination, as this is a matter within his jurisdiction to decide.

9. It is also contended that as the charas recovered from Liaqat Ali, petitioner, is a product of Pakistan and not alleged to be of any foreign origin, no offence under section 156(1)8 or 9 of the Customs Act is made out. In this connection it is submitted that Bridge Khurram on the B . R . B . Canal, where the charas was seized, was outside the five miles border belt and even assuming, though not admitting, that the place of occurrence was within the border belt, the fact that it was 21 to 3 miles away from the Indian border, does not lead to the inference that the goods were being smuggled out of Pakistan. In this connection, Mohammad Sharif v. The State 1981 Law Notes Lah. 264 has., been referred. For the purposes of section 156(1)8 of the Customs Act it is not necessary to show that the goods are of foreign origin. It is sufficient to show that the "goods" are being smuggled out of or into Pakistan. It is obvious that the "goods" must be one or more of those listed in section 2(s), or which are notified under this section. As regards Mohammad Sharif's case (supra), the learned Single Judge was dealing with the case of import of betel leaves, which was a notified smuggled item, and since the accused were apprehended two to three miles away from the border and there was no evidence to show that they had actually brought the goods from the border, it was held the possibility that some other persons had brought them over the border and then passed them on to the accused to carry the same within the country, could not be excluded. In this view of the matter, it was held that the offence under section 156(1)8 of the Customs Act was not made out. The present case is not one of import, but of attempted export. Whether it be one of import or attempted export, the question whether an offence is one under section 156(1)8 is one of fact. The fact that an accused is apprehended with smuggled goods within the border belt, does lead as a strong inference that the offence is one under section 156(1)8, just as much as one apprehended with such goods without the border belt leads to the inference that the offence falls under section 156(1)89 of the Customs Act. However, other factors have also to be taken into consideration. The type of goods, the place where they are normally bought or sold, their general availability, use and consumption in the city or in the border belt, their character, namely, whether they are of the type normally smuggled out of or into Pakistan, the place where the accused normally reside and work for gain, the place where the accused are apprehended and other relevant circumstances, all taken together, can only show whether the accused are smuggling goods into or out of Pakistan, irrespective of the fact whether they are apprehended within or without the border belt. As suggested by the learned counsel for the Customs Authorities, there is no blind rule that if a person is arrested with smuggled goods within the border belt, that an offence under section 156(1)8 stands committed, or that if he is arrested outside the border belt, an offence under section 156(1)89 is committed, though, on first impressions, such an inference may fairly be drawn, which, with or without other fact or facts may prove decisive. Since evidence has yet to be led in the present case, I would not pre‑empt any opinion in the matter. I would leave it to the learned Special Judge, Customs, to decide this question of fact, on the basis of evidence adduced before him.

10. It is lastly urged that the Inspector/S.H.O. of Police Station Khudian had no authority to investigate the case, for his only duty under section 192 of the Customs Act was to communicate the information to the Officer Incharge of the nearest Customs House or Customs Station. I do not agree with his view. The object of section 192 is only to ensure that offenders under the Customs Act are dealt with under the law, so that where adjudication proceedings have to be taken up for the confiscation of the goods or the imposition of penalties, etc. that the same can be carried out by the Customs Authorities. In the instant case the Inspector/ S. H. O. Police Station, Khudian arrested the petitioners under section 161 of the Customs Act. Under section 161(3) of the Customs Act, all the petitioners had to be taken forthwith to the nearest officer of Customs authorised by the Collector of Customs to deal with such cases, or, if there was no Officer of Customs within a reasonable distance, to the Officer Incharge of the nearest Police Station. Since the Inspector/S.H.O., Police Station, Khudian was himself the Officer Incharge of the nearest police station, the question of taking them to an officer of Customs did not arise. Section 161(4) relates to the power of the officer of Customs or Officer Incharge of a police station to release persons on bail. Since the petitioners in the instant case did not move the Inspector/S.H.0., Police Station, Khudian for bail, any transgression of this provision of law does not arise. As regards the powers of investigation, the same are contained in section 161 (7) and (8) of the Customs Act. They provide powers to both the Officer of Customs and the Officer Incharge of a Police Station to investigate the case. In these circumstances, no illegality appears to have been committed by the Inspector/ S.H.O. of Police Station Khudian in investigating the case.

11. The upshot of the above discussion is that no illegality appears to have been committed, of a nature which vitiates the trial, or for which the case against the petitioners can be quashed.

12. Without going on the record as having given any finding in the matter, I would dismiss this petition and would direct the learned Special Judge, Customs, Lahore to proceed further with the case.

M . B . A . / L‑25 / L Petition dismissed.