Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: Ch. ABID SAEED and others VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Shabbir Ahmed Title: Ch. ABID SAEED and others vs THE STATE Case No.:Criminal Bail Applications Nos.30, 31, 32, 33 of 2001Criminal Bail No,30 of
2001Criminal Bails Nos.31 to 33 of 2001 Date of Judgment:2002-01-18 Reported As: 2002 P Cr. L J 1818 Result: Order accordingly Judgment ORDER ' I intend to dispose of all the above special bail applications by single order as above applications are the outcome of F.I.R. No, Appg.56-DC-L/2001, dated 3-11-2001 recorded by Sardar Muhammad Yousuf in respect of two containers, which were intercepted in the following circumstances:-- ' The Director of the Directorate of Intelligence and Investigation (Customs and Excise), Karachi received an information that Choudhry Abid and Tahir in association with Private Bonded Carriers, Messrs AlTajjir & Co. (Pvt.) Ltd. CHAL No,436, Karachi with other culprits are smuggling electronic' goods, cigarette paper, silk yarn fabrics and miscellaneous items under the garb of waste paper under the facilities of transhipment and are disposing contraband goods from their private godowns at S.I.T.E. In the local market by breaking open the seals of the containers at Karachi. On the basis of the information two teams were constituted by the Director and a strategy worked out under the supervision of Assistant Director who mounted surveillance on the consignments of Private Bonded Carriers Messrs Al-Tajjir & Co. (Pvt.) Ltd. CHAL, Karachi for transshipment from KPT, Karachi to Faisalabad Dry Port under T.P. Nos.674/30 and 675/31, dated 30-10-2001 declared as (waste paper all sorts), imported vide IGM No,1794/01, dated 29-10-2001, Index Nos.34 and 35 in the name and style of Messrs Apex International Business Commercial Area Millat Road, Faisalabad in two 40 ft. Containers Nos.HDMU-6228561 and HDMU 6177206, loaded at Trailer Reg. No,LS-3543 and LS-3783 respectively. ' During the surveillance on 1-11-2001 the Trailer Regd. No,LS-3783 lodged with the consignment of waste paper destined for Faisalabad Dry Port under T.P.675/31, dated 30-10-2001 instead of proceeding to its destination was noticed dumped at Plot No, F-407 Zia More, S.I.T.E., Karachi,
---
## Page 2
whereas the other consignment under T.P. No,634/30, dated 30-10-2001 transported for Faisalabad Dry Port loaded on Troller No,LS-3543 after taking a short deviation was parked in front of the Gate No,18, West Wharf, Karachi. The constituted teams kept discreet watch over the two consignments so that the actual culprits involved in the commission of the offence could be apprehended. On 2- 11-2001 the members of the team headed by the Assistant Director Khalid Mehmood noticed that three persons entering the gate of the Plot No,F-407, Zia More, S.I.T.E., Karachi. The three persons namely Choudhry Abid Saeed, occupant/tenant of the open area of the aforesaid plot (applicant in Special Criminal Bail No,31 of 2001), Malik Ali Asghar, Manager (applicant in Special Criminal Bail No,32 of 2001) and Abid Raza (applicant in Special Criminal Bail No,33 of 2001) were intercepted in presence of two witnesses namely Saeed Farooq, Investigating Officer and S.Z.A. Khawar, A.O. The statement under section 163 .Of the Customs Act was served upon Ch. Abid Saeed before commencement of the search. The trailer bearing Reg. No,LS-3783 loaded with 40 ft. Container No,HDMU-6177206 was found parked in the open area of the aforesaid plot. Choudhry Abid Saeed, Malik Ali Asghar and Abid Raza were asked to declare the contents of the container and as to why the container was not transported to its destination, all the three persons could not reply satisfactorily, however, Ch. Abid Saeed produced photo copies of T.P. No,675/31, dated 30-10-2001 alongwith invoice and bill of lading in support of the lawful possession of the consignment. The seals of the container were not found. In presence of the two witnesses cursory examination of the container was conducted and it was found that instead of waste paper, contraband cigarette paper, washing machine, Fridge and Aluminum Foil of foreign origin were recovered. Since it was not possible to search the container thoroughly without proper facilities, the contraband goods and container loaded on Trailer No,LS-3783 alongwith three persons with witnesses were escorted to the office of the Directorate-General of Intelligence and Investigation (Customs and Excise), B- 70, K.D.A., Scheme No,1, Karsaz Road, Karachi, against proper Mushirnama prepared on the spot and duly signed by the witnesses. In the meantime the other surveillance team was directed to intercept the other consignment transhipped under T.P.No,674/30, dated 30-10-2001 loaded on Trailer No,LS-3543 driven by Abdullah parked outside the Gate No,18, West Wharf,. Karachi in presence of two witnesses namely Fakhar Ali Shah, E.O. And Abdul Hakim Baloch sepoy the driver was asked to produce the documents in support of the lawful possession of the consignment to which he produced a copy of Brinks sealing certificate No,122500 dated 1-11-2001, however, the seal was not found on the container, he further disclosed that he was hired to transport the container to Plot No,F-407, Zia More, S.I.T.E., Karachi. The trailer alongwith Container No,HDMU-6228561 with driver Abdullah was also escorted to the office of the Directorate-General of Intelligence and Investigation (Customs and Excise), B-70, K.D.A. Scheme No,1, Karsaz Road, Karachi against proper Mushirnama prepared on the spot and duly signed by the witnesses. ' The search/examination of the containers took a long passage of time due to lack of de-stuffing facilities available in the absence of labour and lifter etc., however, in presence of two witnesses namely Saeed Farooqi, Investigating Officer and SZA Khawar, A.O. And Ch. Abid Saeed, Malik Ali Asghar, and Abid Raza and Container No,HDMU-6177206 loaded on trailer Reg. No,LS-3783 brought from the open area of Plot No,F-407, S.I.T.E., Karachi, was thoroughly examined on 2-11-2001, which resulted in the recovery of contraband cigarette paper, aluminum foil, old and used two washing machines, one fridge, one grinding machine and one deferential. The aforesaid persons could not produce any legal document in support of the lawful possession and the import thereof, the contraband goods, container and trailer alongwith photocopy of T.P.No,675/31, dated 30-10-2001, invoice bill of lading with Ch. Abid Saeed, Malik Ali Asghar and Abid Raza were taken into custody against proper Mushirnama and inventory prepared on the spot and duly signed by the witnesses. The signature of three accused persons namely Ch. Abid Saeed, Malik Ali Asghar and Abid Raza were obtained over the inventory of the goods.
---
## Page 3
' The second consignment in 40 ft. Container No,HMDU-6228561 loaded on Trailer No,LS_3543 was also examined/searched in presence of same witnesses under arrested accused persons Ch. Abid Saeed, Malik Ali Asghar, Abid Raza and Abdullah driver of the trailer, which resulted in the recovery of smuggled cigarette papers, aluminum foils, raw silk, fabrics/elveteen. T.Vs. Bearings, split air- conditioners and other miscellaneous electronic goods of foreign origin. The smuggled goods were weighed in presence of the accused persons which came to 19330 kgs. And 22910 kgs. Respectively. The three under arrest accused and driver of the trailer could not produce any legal document in support of the lawful possession of the import thereof. The smuggled cigarette papers, aluminum foils, raw silk, fabrics/velveteen T.Vs. Bearings, split air-conditioners and other miscellaneous electronic goods of foreign origin, Container, No,HDMU-6228561, Trailer No,LS3543, brinks sealing Certificate No,122500 dated 1-11-2001 and photocopy of T.P. No,674/30, dated 30-10-2001 were taken into custody against proper Mushirnama and inventory prepared on the spot duly signed by the witnesses, the signature of the under-arrest accused persons and trailer driver were obtained on the inventory. Notice3 under section 171 of the Customs Act, were served upon the accused persons. The accused persons have violated the provisions of sections 2(s), 16, 157(2) and 178 punishable under clauses (8) and (77) of section 156(1) of the Customs Act. ' During preliminary investigation, it was revealed that the private bonded carrier Messrs Al-Tajjir & Co. (Pvt.) Ltd., Karachi owned by accused Syed Shams Ahmed Burney were solely responsible for the transhipment of consignment cleared under transport permit to its destination, but due to novel modus operandi the contraband goods imported under the garb of waste paper taken out from the containers and disposed of in the local market whereas the waste paper as declared in the import documents were stuffed in the containers for custom examinations at Dry Port, Faisalabad. It was further revealed that during investigation of under-arrest accused Ch. Abid Saeed that the electronic and miscellaneous goods were smuggled in partnership with one Tahir. The under-arrest accused driver Abdullah disclosed the name of the other driver of the Trailer No,LS-3783 Abdul Razzak. ' On the basis of the aforesaid information, inquiry was conducted. Interim charge-sheet has been submitted before the Special Judge (Customs and Taxation), Karachi. ' Applicants applied for concession of bail pending their trial before the Special Judge (Customs and Taxation), Karachi by separate applications, which were dismissed by order, dated 22nd November, 2001. Hence the present applications for bail pending their trial. ' I have heard learned counsel for the applicants and the State and also perused the papers. Mr. S. Tariq Ali, Federal Counsel has opposed the applications. ' Mr. Sohail Muzaffar, learned counsel, argued with vehemence that the case of the applicants require further inquiry and has raised the following points in support of such plea:-- (I) That in absence of Notification notifying 'police station for the customs in terms of clause (r) of subsection (1) of section 4, Cr.P.C. By the Provincial Government, therefore, report against the applicants and all the proceedings initiated and taken on such report would be coram non judice as Customs Officer in absence of any notification notifying the police station for the purpose of custom cannot initiate or register an F.I.R. (ii) That the consignment being transhipment and destined for Dry Port, Faisalabad, as such, if there was any misdeclaration, the Custom Officer has no jurisdiction in terms of Customs General Order No,15 of 1989, dated 21-10-1989. The transhipment is regulated by Public Notice No,2/96(A), dated 26-6-1996, which is known as Custom Transhipment of Imported goods to the Custom Port Procedure, 1996, regulating the procedure for transhipment. In case any misdeclaration has been noticed, it is for the Custom Officials at the port of the destination to take action and the Custom Officers on noticing any misdeclaration or breakage of seal has to reseal and escort the same and
---
## Page 4
hand over the consignment to the Custom Officials at the Dry Port. Any action taken at Karachi by Customs Officer would be without jurisdiction. ' Mr. Sohail Muzaffar has referred two judgments of Division Bench of this Court involving misdeclaration/suspecting contraband discovered in respect of such consignment at the port of Karachi. On the basis of Custom General Order No,15 of 1989 applicable to transhipment. (i) Famous Corporation v. Collectorate of Customs Appraisement, Karachi 1989 MLD 2322. The facts were that the petitioner had imported certain consignment of rubber scrap. They want to clear the same at the Dry Port, Lahore in terms of a public notice, dated 12th June, 1988. The case of the respondent was that they have information that the above consignments contravenes the law. The contention of the petitioner was that in terms of para. 2 of the above public notice, the information is to be conveyed by the Custom House, Karachi, to the Dry Port by telex or telephone, and therefore, the Customs Officer at Dry Port can examine the above question and can take action in accordance with law against the petitioner if factually they have made any contravention. The petition was disposed of with the direction that Karachi Custom House may convey the information to the Dry Port Authority and there, the Customs Officers can examine the question whether there has been factually and contravention of the Customs Law or any other law and may take action against the petitioner if so warranted. If the consignment has already been examined by the Customs Officers at Karachi, the same may be resealed and may be forwarded to the Dry Port alongwith the report, if any. (ii) Hameedullah v. Directorate of Customs Intelligence 1992 CLC 57. The Division Bench concluded that Bill of Lading indicates an upcountry destination via Karachi, then in that case the consignment cannot be detained at Karachi. However, if any misdeclaration or suspected contravention is discovered in respect of such consignments, the information is to be conveyed to the respective Collector of Customs or Deputy Collector of Customs, Incharge of Dry Port or the Directorate of Intelligence at the Dry Port. ' Mr. S. Tariq Ali, learned Federal Counsel contended that it is not a case of misdeclaration but a case of smuggling of contraband goods. The traller was found in a plot in S.I.T.E. Area containing contraband or unpaid duty items. Thus, the provisions of section 2(s)(ii) is fully attracted, which defines smuggling. Therefore, he contended that the cases referred by the learned counsel for the applicants have no application to the present case. He also contended that this is not a case of en route checking, whereby an officer of Customs or Central Excise and Sales Tax not below the rank of Deputy Superintendent may on reasonable suspicion regarding substitution of goods by tempering seals while the conveyance is en route, check that rivets, locks, seals and labels of the transport unit are intact. Report of such re-checking required to be sent to Collector (Appraisement) by the concerned Collectorate. Mr. S. Tariq Ali, learned Federal Counsel is right in his submission. It is not a case of detention of msideclaration or violation of law at Custom Port or Station nor a case of en route checking of conveyance under para. 14 of Public Notice No,2 of 1996, dated 26-3-1996, called the Customs Transhipment of Imported Goods to Custom Ports Procedure, 1996. ' Reverting to the first contention the submission of Mr. Sohail Muzafar, learned counsel for the applicants, was that in absence of any notification under section 4(1)(s) by the Provincial Government notifying "Police Station" for Customs, the entire proceedings emanating from the report, including inquiry conducted, proceedings taken or initiated are without jurisdiction. He supported his contention by referring case of Muhammad Nawaz v. The State PLD 1999 Lah. 18, wherein the learned Single Judge of Lahore High Court, after examining the provisions of sections 4(1)(s), 5(2), 154 and 156 of Code of Criminal Procedure concluded that the Director-General of Intelligence and Investigation has no power to declare its Region Office, Lahore headed by Director of Intelligence and Investigation as "police station". In absence of the notification under section 4(1) (s) of the Code by appropriate Government establishing Police Station for Customs, no F.I.R. Under
---
## Page 5
the provisions of section 154 of the Code of Criminal Procedure can be registered or got registered in the Directorate of Intelligence and Investigation and the same was struck down. The learned' Judge made applicable the provisions of Criminal Procedure Code into the proceedings initiated on a report recorded under the Customs Act, 1969 by taking refuge of section 5(2) of the Code, with caption trial of offences against other law, which mandates that all offences under any other law shall be investigated, enquired into, tried and otherwise dealt with according to the same provision, but subject to any enactment for the time being enforced, regulating, the manner of place of investigating, enquiring into, trying or otherwise dealing with such offences. (Emphasis underlined). ' Perusal of the underlined provision of subsection (2) of section 5, Cr.P.C. Which excludes the applicability of provisions of the Code, to all enactments containing such provision regarding manner of investigation, inquiring into and dealing with such offence. It is now well-settled that where a statute has created a special offence and lays down a special procedure for investigation and trial of such offence, it is that procedure, that must be followed and not ordinary procedure (State v. Hamtho 1971 SCMR 686. ' With utmost respect, I am unable to subscribe to the view taken by learned Judge. Perhaps the provisions of section 161 of Customs Act were not brought to the notice of the learned Judge. The Customs Act is a special enactment within the meaning of section 41 of Pakistan Penal Code, where the statute creates a special offence and lays down special procedure for investigation/inquiry as well as for trial of such offences and the special forum for trial then such procedure must be followed and not ordinary procedure and the Courts, except, Special Court established under the Act would have no jurisdiction in the matter of trial. The question that requires determination is whether the Act contains the provisions regulating the procedure for investigating or inquiring into such offences. Sections 161, 162 and 163 of the Act contain the provisions in respect of procedure regulating report, arrest, seizure, search, inquiry, remand and submission of challan, whereas section 185-A pertains to taking of the cognizance in respect of offences under the Act by the Special Court. ' It would be advantageous to place the provisions of the Act and the Code of Criminal Procedure in juxtaposition regulating the procedure for inquiry/investigation, including arrest, seizure, report, remand and submission of charge-sheet and cognizance of cases as follows:-- Customs Act, 1969 Section 161(1)Power of arrest.--- (1) Any Officer of Customs authorized in this behalf who has reason to believe that any person has committed an offence under this Act may arrest such person. (2) Any person duly empowered for the prevention of smuggling who has reason to believe that any person who has committed offence of smuggling under this Act may arrest such person. (3) Every person arrested under this Act shall be taken forthwith before the nearest office of Customs authorised by the Collectorate of Customs to deal with cases, or if there is no such officer of Customs within a reasonable distance, to the Officer-in-Charge of the nearest police station.Criminal Procedure Code Section 54, Cr.P.C. When police may arrest without warrant.- -- (1) Any Police Officer may, without an order from a Magistrate and without a warrant, arrest: ' Firstly, any person who has been concerned in any cognizable offence or against whom a reasonable complaint has been made or credible information has been received, or a reasonable suspicion exists of his having been so concerned. ' Secondly, any person having in his possession without lawful excuse, the burden of proving which excuse shall lie on such person, any implement of housebreaking.
---
## Page 6
(4) When any person arrested under this Act is taken before an officer of Customs or the Officer-in-Charge of a police station, as required by subsection (3) or when such officer of customs or officer- in-Charge of a police station himself arrests any person under this Act, such officer or Officer-in-Charge shall, if the offence is bailable admit him to bail to appear before the Special Judge having jurisdiction or, if the offence is non- bailable, have him taken in custody to the Special Judge or, if there is no Special Judge within a reasonable distance, to the (nearest Judicial Magistrate) within twenty-four hours of such arrest, excluding the time necessary for the journey from the place of arrest to the Court of the Special Judge or, as the case may, of such Magistrate. (5) When any person is taken under subsection (4) before the Special Judge, he may, on the request of such person, after pursuing the record, if any, after giving the prosecution an opportunity of being heard, admit him to bail on his executing a bond, with or without sureties or refuse to admit him to bail and direct his detention at such place as he deems fit: ' Provided that nothing therein contained shall preclude the Special Judge from cancelling the bail of any such person at a subsequent stage if for any reason, he considers such cancellation necessary but before passing such order he shall afford such person an opportunity of being heard, unless for reasons to be recorded, he considers that the affording of such opp9rtunity shall defeat, the purposes of this Act (6) When such person is taken under subsection (4) before a Magistrate, such Magistrate may, after authorizing his detention in such. Custody, at such place and for such period as he considers necessary or proper for facilitating his earliest production before the Special Judge,' Thirdly, any person who has been proclaimed as an offender either under this Code or by order of the Provincial Government. ' Fourthly, any person in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing. ' Fifthly, any person who obstructs a Police Officer while in the execution of his duty or who has escaped or attempts to escape from lawful custody. ' Sixthly, any person reasonably suspected of being a deserter from the armed forces of Pakistan. ' Seventhly, any person who has been concerned in, or against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists of his having been concerned in any act committed in Pakistan, would have been punishable as an offence and for which he is under any law relating to extradition or otherwise, liable to be apprehended or detained in custody of Pakistan. ' Eighthly, any released convicted committing a breach of any rule made under section 565, subsection (3); ' Ninthly, any person for whose arrest a requisition has been received from another Police Officer, provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears therefrom that the person might lawfully be arrested without a warrant by the officer who issued the requisition. Section 59, Cr.P.C. "59. Arrest by private persons and procedure on such arrest.--- (1) Any private person may arrest any person who in his view commits a non- bailable and cognizable offence, or any proclaimed offender, and without unnecessary delay, shall make over any
---
## Page 7
direct his production before the Special Judge, on a date and time to be fixed by such Magistrate or direct such person to he forthwith taken to, and produced before, the Special Judge and he shall be so taken. (7) Nothing in subsection (5) or subsection (6) shall preclude the Special Judge or the Magistrate from remanding any such person to the custody of the officer of customs or the Officer-in- Charge of a police station holding inquiry against that person if such officer makes a request in writing to that effect and the Special Judge or the Magistrate, after pursuing the record, if any, and hearing such person, is of the opinion that for the completion of inquiry or investigation it is necessary to make such an order, provided that in no case the period of such custody shall exceed fourteen days. (8) When any person arrested under this Act is brought before an officer of customs or the Officer-in-Charge of a police station, as required by subsection (3) or when such Officer of Customs or Officer-in-Charge of a police station himself arrests any person under this Act such officer, shall if he is an Officer of Customs, record the fact of arrest and other relevant particulars in the register mentioned in subsection (12) or, if he is an Officer-in-Charge of a police station, record such fact in the register ordinarily maintained by him, and shall immediately proceed to inquire into the charge against such person and if he completes the inquiry within twenty-four hours of his arrest, excluding the time necessary for journey as aforesaid, he may, after producing such person before the Special Judge or the nearest Judicial Magistrate make a request for his further detention in his custody. (9) While holding an inquiry under subsection (8) the Officer of Customs shall exercise the same powers as are exercisable by an Officer-in-Charge of aperson so arrested to a Police Officer or, in the absence…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.