FOZAIL MERCHANT Versus STATE

ORDER

This is an application for bail made on behalf of applicant Fozail Merchant, who is detained in Crime No.DEC-41/92, QAP, under section 156(1)(8) of the Customs Act, 1969. The bail application made on his behalf was rejected earlier by learned Special Judge (Customs and Taxation) Karachi, vide order, dated 3-9-1992.

2. On 7-7-1992 at 2 a.m. Irfan Ahmad, Preventive Officer, Pakistan Customs, Karachi, lodged F.I.R. against the applicant stating therein that on 6-7-1992 while he was on duty at the International Departure Hall, Terminal III, Quaid-e-Azam International Airport, Karachi, the applicant produced his baggage consisting of two suit-cases and one hand carry bag at the customs counter for the purpose of checking. When Irfan Ahmad, Preventive Officer was about to question the applicant who appeared to be a suspect, co-accused M. Ismail Shaikh, a Senior Preventive Officer, Pakistan Customs made a gesture from a short distance asking him (Irfan Ahmad P.O.) to facilitate the applicant who was known to him. It was on account of this request that the applicant who was bound for Dubai by Emirates Airlines was shown courtesy and he was allowed to proceed for remaining formalities. Irfan Ahmad, Preventive Officer, however; suspected the applicant and he alongwith his colleague Saeed Malik questioned him at the International Departure Lounge. The applicant became nervous and this aroused the suspicion of Irfan Ahmad, Preventive Officer, who after seeking permission from his Senior Officers proceeded to the aircraft and asked the applicant to come out. The two suit-cases belonging to applicant were taken out of the hold after separating them from other baggage lying there. The suit-cases were opened from the keys which were found beneath the seat occupied by the applicant, which led to the recovery of Rs.2,47,65,500 (Rs. two crores forty-seven lacs sixty-five thousand and five hundred only) in Pakistani currency. Such inventory was prepared on the spot. The applicant who was arrested was served with a notice under section 171 of the Customs Act, 1969. During the course of investigation M. Ismail Shaikh, Senior Preventive Officer, Pakistan Customs, was also taken into custody and after usual investigation both the accused were sent up.

3. I have heard Mr. A.Q. Halepoto, learned counsel for applicant and Mr. Ikram Ahmad Ansari, learned DA: G. for State. The latter has opposed the bail application.

4. The following items of evidence collected during the course of investigation prima facie connect the applicant with this crime:--

(i) That the applicant was travelling on the ticket of his brother Usman/N.

(ii) That Irfan Ahmad, Preventive Officer had seen two suit-cases with the applicant when he approached to the customs counter, which he disowned subsequently.

(iii) That the applicant when contacted in the International Departure Lounge became confused and nervous.

(iv) That the air ticket also showed that two packages were briefed by the Airlines Staff.

(v) That the two suit-cases were separated from other baggage, which were opened from the keys found by P.W. Kenneth Marshal from beneath Seat No.31/A, of the aircraft where the applicant was sitting.

(vi) That the search of suit-cases led to the recovery of huge amount, viz. about 2-1/2 crores, in Pakistani currency.

(vii) That two name stickers of Singapore Airlines bearing the name of Usman/N were recovered from one of the said suit-cases.

(viii) That the applicant had made nine trips to Dubai from 1-1-1992 till the time he was arrested.

(ix) That the applicant had the active support of co-accused M. Ismail Shaikh, Senior Preventive Officer, Pakistan Customs.

5. At the stage of bail the Courts are not expected to embark upon a detailed examination of evidence. The elaborate documentation of merits is to be avoided and one should abstain from pronouncing the view whatever regarding the evidence and the quality thereof. It is only prima facie opinion that is required at this stage and where there is prima facie evidence of commission of an offence falling within the prohibitory clause of section 497, Cr.P.C., bail should be refused unless the case falls within the mischief of first proviso or third proviso to subsection (1) of section 497, Cr.P.C. It may also be kept in view that the richer the accused, the more easier it is for him to tamper the evidence, the less it is desirable that he should be released on bail.

6. Mr. A.Q. Halepoto, learned counsel for the applicant has said everything that he can say on behalf of his client, but I am satisfied that in spite of his strenuous argument he has not been able to bring the case out of prohibitory clause of section 497, Cr.P.C. The fact that no luggage tickets were secured from the possession of applicant is by itself not sufficient to show that currency notes worth about Rs.2-1/2 crores were foisted upon him. The applicant had sufficient time at his disposal and he could have destroyed the luggage tickets if he wanted to do so.

7. No case for bail is made out and the application filed under section 497, Cr.P.C. read with section 185-F of the Customs Act, 1969, on behalf of applicant seeking bail is dismissed.

N.H.Q./F-230/K ?????????

Bail refused.