MUHAMMAD ILYA S Versus THE STATE

ORDER

1. The applicant who is facing trial under section 156(1)(8) of the Customs Act read with section 16 has applied for grant of bail. It is contended by the learned counsel for the applicant that the applicant at the time of his arrest by the Custom Officers was searched in contravention of section 159 of the Customs Act and as such the alleged recovery of U.S. Dollars from his person needs further enquiry. The learned counsel for the State on the other hand contended that alleged violation of provisions contained in section 159 of the Customs Act could not invalidate the search and defect if any in carrying out the search is curable under section 537, Cr.P.C. It is quite unnecessary to go into the details of the above contention at this stage as the trial is still pending and expression of any final opinion at this stage by this Court may affect the trial of the accused. Suffice it to say here that there is nothing in F.I.R. or other material so far collected by the prosecution agency in the case which could show that before taking personal search of the accused/applicant he was informed about his right to be searched before a Magistrate or before a Gazetted Officer of the Customs or that the accused/ applicant had given up his above right. The allegations in the F.I.R. show that the accused /applicant was searched immediately on being intercepted by the Customs Officer and the alleged personal search yielded additional U.S. Dollars in addition to 1,050 U.S. dollars which were granted to applicant by State Bank of Pakistan. The applicant denies recovery of additional U.S. dollars from his person and as such in the circumstances of the case the fact regarding recovery of foreign currency from the person of applicant at this stage needs further enquiry. The view taken by me finds support from the case of Ferozur Rehman Batla v. The State 1980 P Cr. L J 663 in which a learned single Judge of this Court as he then was) granted bail to the accused /applicant on account of omission on the part of Custom Authority to comply with the provisions of sections 139 and 142 of the Customs Act which made the case of accused fit for further enquiry. The following observation in the above case may be reproduced here which are relevant:‑

2. "It appears to me that as reflected in the F.I.R. the goods of the applicant were taken possession of by the S.P.O. immediately on their being unloaded and the applicant was interrogated. Section 142 of the Customs Act makes provision for making the true declaration under section 139 of the Appropriate Officer and for detention of dutiable articles at the request of the passenger until he leaves the country. It is, therefore, clear that if such a declaration is made to the Appropriate Officer, the mere fact that certain goods are brought at the Airport which are subject to‑payment of duty or the import of which is prohibited or restricted will not constitute an offence punishable under section 156(1), clause (1) of the Customs Act. The term 'appropriate officer' has been defined in section 2(b) as follows:‑ "appropriate officer' in relation to any functions to be performed under this Act, means the officer of Customs to whom such functions have been assigned by or under this Act."

3. It was, therefore, urged on behalf of the applicant that he would have been clearly connected with the commission of the offence if he had been allowed to take his beggage to the Customs Counter and had failed to make the necessary declaration with a view to having the goods cleared without disclosing the fact that they were prohibited or restricted goods.

4. It will not be proper to probe or to assess the evidence at this stage whether the applicant was allowed to proceed to the appropriate officer for making the necessary declaration. However, the circumstances of this case seem to require further enquiry to be held into this matter to determine the guilt of the applicant who was apparently a passenger on a scheduled flight to Karachi. The question whether the explanation of the applicant is consistent with the facts of the prosecution case will also be matter for the trial Court to assess."

5. I accordingly grant bail to the applicant in the sum of Rs.50,000 with one surety and P.R. bond in the like amount to the satisfaction of the trial Court.

6. M.Y.H./M‑355/K ??????????????????????????????????????????????????????????????????????????????? Bail granted.