MARK FRANCIS HARRIS Versus THE STATE

This is an application under section 561‑A, Cr.P.C. filed by the petitioner for quashment of proceedings pending against him in the Court of Special Judge Customs, Karachi, under section 16 of the Customs Act, 1969, read with section 7 and 38 of the Dangerous Drugs Act, 1930, punishable under Clause (viii) of section 156(1) of Customs Act, 1969.

2. The case commenced with the F.I.R. No.P‑388/87‑2 lodged by Habibur Rahman, Inspector Preventive Service Customs House, Karachi, on 26‑1‑1987 at 5‑00 p.m. It reads as under:

"A credible information had been received that an Australian national would be carrying contraband Charas and would be arriving from Bombay by P.I.A. flight No.PK‑275 in transit to Colombo. In pursuance of the aforesaid information strict vigil was maintained at the incoming passengers from Bombay and their baggage. Eventually two suit cases bearing baggage tag No.0013‑0922 and 0013‑6623 were found lying near the conveyor belt. Simultaneously, the Australian passenger namely Mark Francis Harris was also spotted and on enquiry he produced his travelling documents which established his ownership with the suit cases. The suit cases were opened by him and were examined by the undersigned in presence of two independent Musheers namely Akbar Khan and Bashir Ahmed which resulted in the recovery of Charas weighing 36 Kgs. gross. The contraband Charas alongwith the travelling documents including containers were seized under the cover of a Musheernama prepared on the spot.

During the preliminary investigation the passenger claimed that he was not bound for Pakistan and that he was in transit to Colombo. His status of being in transit was no doubt correct, nevertheless the fact remains that the contraband Charas he was in possession was in the process of transhipment through Pakistan which constituted an offence under section 7 of the Dangerous Drugs Act, 1930. By virtue of section 38 of the said Act, the contravention is deemed to be an offence under section 16 of the Customs Act, 1969. The Charas being a notified item under section 2(a) of the Customs Act, 1969 was punishable under clause (8) of the section 156(1) of the Customs Act, 1969. Thus, the passenger named above was arrested and served with a notice under section 171 of the Customs Act, 1969.

F. I. R. is lodged accordingly.

Further investigation is in progress."

3. After due investigation the Customs submitted a final charge- sheet against the petitioner for an offence of smuggling punishable under section 156(1)(8) of the Customs Act, 1969 in respect of Charas being 36 kgs. gross which has been notified as a contraband item under section 2(s) of the Customs Act.

4. The petitioner filed an application for quashment of proceedings against him, vide Case No.21/87 pending in the Court of Special Judge, Customs, Karachi, under section 265‑K, Cr.P.C. before the learned Special Judge (Customs and Taxation), Karachi, who dismissed it on 6‑6‑1987.

6. Mr. Rustom J.E. Kaikabad, learned counsel for the petitioner invited my attention to section 156(1)(8) of the Customs Act, 1969, which reads as follows:‑--

"Section 156(1).‑‑ Whoever commits any offence described in column No.1 of the Table below shall in addition to and not in derogation of any punishment to which he may be liable under any other law, be liable to the punishment mentioned against the offence in Column No.2 thereof:

Offences Section of this Act of which, offence has reference.

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1 2 3

General

(1) If any person contravenes Such person shall be any provision of this Act liable to a penalty not or any rule made there‑ exceeding (twenty‑five under, or abets any such thousand rupees). contravention or fails to comply with any provision of this Act or any such rule with which it was his duty to comply, where no express penalty has been provided elsewhere for such contravention or .failure.

(8) If any goods be smuggled Such goods shall be General into or out of Pakistan. liable to confiscation and any person concerned in the offence shall be liable to a penalty not exceeding ten times the value of the goods; etc.

;,,: b, . . etc.

‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑ to contend that the petitioner had not smuggled any contraband goods into Pakistan or out of Pakistan inasmuch as he being a transit passenger enroute to Colombo from Bombay neither could leave the Customs barrier nor actually came in contact with the suitcases or in any manner attempted to take them out of the transit lounge. He also emphasised that the petitioner had no visa for entry into Karachi and hence he could in no circumstances leave the Customs barrier of the Karachi Airport. The case thus, according to him, falls outside the purview of the Customs Act, and hence the Special Judge (Customs and Taxation), Karachi, had no jurisdiction in the case. The learned counsel sought to support his contentions by the following decisions.

1985 P Cr. L J 1573 and 1980 P Cr. L J 771.

7. The learned Deputy Attorney‑General, on the other hand, vehemently opposed the application. He submitted that it was premature inasmuch no evidence had been recorded by the trial Court and hence no tentative opinion can even be formed of the petitioner having not committed the offence with which he is charged. The learned Deputy Attorney‑General also contended that in all the cases cited by the learned counsel for the petitioner, it was after due trial that the benefit of doubt had been given to the accused. In none of the said cases it has been held that the accused in such circumstances could not be proceeded against in accordance with law.

8. I have given due consideration to the contentions of the learner counsel for the parties and I am clearly of the view that it cannot at this stage be held that the charge against the petitioner is wholly groundless and that there is no probability of his being convicted for any offence. The case against the petitioner is the outcome of the spy information, as is specifically mentioned in the F. I. R., any the recovery of the contraband item was made from the suitcases which allegedly belonged to the petitioner. It could not be expected from the prosecution to disclose at this stage the modus operandi through which the smuggling was sought to be effected. The learned counsel for the petitioner has clearly developed his arguments on the supposition rather admission that the suitcases from which the Charas was recovered belong to the petitioner yet it could not according to him, be said to have been smuggled simply for the reason that the petitioner was a transit passenger and that he did not admittedly possess Pakistan visa. It could not, however, be denied that as a matter of fact the said contraband item had in fact been brought into territories of Pakistan. It is, however, to hold at this stage, when no evidence has come on record, that the petitioner had no intention to smuggle the said goods in Pakistan is manifestly out of question.

9. For the foregoing reasons, the application is held to be devoid of force and it is dismissed accordingly.

M. Y. H./ M‑426/ K Petition dismissed.