1. ' SYED ZAWWAR HUSSAIN JAFFERY, J.-The above bail applications are being dispose of by common order as the applicants/accused are facing trial in Special Case No, 43 of 2006 before the learned Special Judge (Customs & Taxation). Karachi pursuant to F.I.R No,SI/Misc/204/06 Exp lodged by the Customs Authorities. The applicants had sought pre- arrest bail from the trial Court or 12-1-2006 and later on the same was recalled arid applicants were remanded to judicial custody on 24-11- 2006. Applicants/ accused had approached this Court and filed bail application No, 50/06 which was disposed of as not pressed with direction that the applicants may approach the trial Court for adjudication for fresh points raised by them after their arrest. The bail application of the applicants was filed in the trial Court which was dismissed on 12-2-2006. Hence applicants have filed these bail applications for seeking bail in special case No,43/2006.
2. ' The brief facts of the prosecution as disclosed in the F.I.R. Are that the applicant obtained duty and tax remission for export (DTRE) approval for import of 600000 yards of 100% polyester dyed printed fabrics for export arid for exporting 300000 pieces of 100% polyester dyed printed shawls. Applicant Abdul Wahid Bandukda filed application dated 11-7-2005 and sought such approval on 2-9-2005.
3. Applicant filed goods declaration for quantity of 100% polyester shawls and 100% man made Shawls with reference to aforesaid DTRE approval. As per report Customs Authorities conducted physical examination of the consignment whereupoft it was discovered that the consignment consists of cut pieces of fabrics and chadar/dupata and the declaration was incorrect particularly not in accordance with DTRE approval. It is further alleged that the applicant made mis- declaration in order to cause loss to Govt, to usurp duty tax under the DTRE scheme. It is further alleged that the applicant attempted to evade duty/ tax to the tune of Rs,3,70,370. Therefore case has been registered against applicant for committing offence under sections 32 and 32-A of' the Customs Act, 1969 read with DTRE Rules.
4. ' After due investigation interim charge sheet was filed in Court having jurisdiction on 24-8-2006 against the applicants.
5. ' Mr. Rasheed A Razvi, learned Advocate for the applicant has contended that this case has been falsely registered against the applicant with mala fide intention in order to disgrace and humiliate the applicants. Applicants moved application for per-arrest bail before the learned Special Judge and interim bail was granted but after hearing the learned counsel for the respective parties bail application was rejected on 24-11-2006 on the ground that the case for bail has not been made out and applicants were remanded to judicial custody. Applicant Hied post arrest bail application in the trial Court which was also dismissed. The applicant has remained on bail for more than 5 months and during trial they have never misused the concession of bail and cooperated with the investigating agency. Applicant Abdul Wahid has not caused any loss to the exchequer. Applicant has filed indemnity bond and post-dated cheque in the sum of Rs,2,561,688 at the time of obtaining DTRE approval. Applicant is not guilty of the alleged offence nor has submitted any misdeclaration. The consignment was exactly declared to the Customs Authorities and it is only case of non-conformity with DTRE approval but investigating agency has registered false case of misdeclaration by wrong terming the case as of cut pieces Chadar Dupata instead of Shawls and has drawn arbitrary distinction in respect of goods. It is further urged that no offence under section 32 or 32-A of the Customs Act has been committed. It is further urged that the offence allegedly committed by the applicant would be punishable under Section 156(14) of the Customs Act and same would not fall within the prohibitory clause of section 497 Cr.P.C. It is further argued that the applicant was exporting goods in accordance with DTRE approval but goods declaration itself reflects that majority of Shawls being exported were 100% polyester Shawls in different sizes and some of the Shawls had peco work on its edges which were requested by the buyer. It is further urged that under the DTRE scheme the user is liable to pay the relevant duties/ taxes for the import of goods. Applicant matched the goods with goods declared but only objection is that such goods are not exactly in conformity with DTRE approval. The learned counsel has drawn my attention to Rule 207-E Chapter 12 of Customs Rules 2001 and contended that any discrepancy, irregularity or violation of law is to be reported by the Duty Suspension Audit Officer to the relevant adjudication officer and if exportation of such goods do not match with the DTRE approval does not by itself constitute criminal offence. It is therefore contended that the F.I.R. Has been lodged malafidely for the purpose of creating harassm ent by the Customs Authority. He further contended that adjudication proceedings are pending in relation to show-cause notice dated 2-8-2006. Applicant has filed his reply on 13-9-2006 and rejoinder has been filed by the Customs authority/I.O., dated 14-11-2006. Mr.Razvi has pointed out that as per Show-Cause notice dated 2-8-2006 it is sated that on physical examination of the goods it was revealed that goods intended for export were 4.5 to 5 meter pieces of 100% polyester printed fabrics and small pieces of Chadar Dupata packed in bales as against' declaration of 100% polyester dyed printed Shawls embroidery work and the declaration was not incorrect because physically there were only unstitched cut pieces of fabrics and chadar/dupata of polyester cotton. The learned counsel further submitted that in rejoinder to show- cause notice the I.O. In para. 3 at page 125 (annex-j-3) has admitted that the matter relates to mis-declaration and no question of dyed and printing is involved and in para.7 of the rejoinder it is further stated that from the examination report the discrepancy found therein was agreed by the representative of the clearing agent and it is a matter of record that the goods found during course of physical inspection were in accordance with the declared goods of goods declaration but the same were not in gross violation of DTRE approval. He further pointed out that in para 10 of the said reply it is conceded that the competent authority has taken cognizance in the instant case is not supported by any law and the exportation Audit of DTRE approval is the responsibility of Regulatory Collector but in the instant case adjudication is not based on past exportation audit rather than on account of mis-declaration by the exporter under sections 32 and 32-A of the Customs Act.
6. 1969. Mr.Razvi submits the applicant was not intending to evade any duty or tax and if any dues are assessed by the competent authority, the applicant is ready to pay the same. The applicant never intended to defraud and misuse the DTRE scheme. Therefore, the allegation of fraud or evading duty is false as applicant has not committed the alleged offence. The applicant has been involved by some group of persons as the applicant was performing as Chariman of Alternate Disputes Resolution Committee constituted by the C.B.R. Under the Sales Tax Act for resolution of Sales Tax Disputes relating to crimes. The applicant was enjoying high position and trust and his integrity is recognized by the C.B.R. Applicant/ accused has not committed the alleged offence and the instant case requires further enquiry. Mr. Razvi has filed printed copy of DTRE Rules unreported judgment in Spl. Cr. Bail No,47/2001- Farooq e Azam Cheema vs. Customs and intelligence Dept, and another wherein it has been held that basic question which cannot be pressed in mind of the court while considering question of bail is whether grant of bail is necessary in the interest of justice. As general policy of law is to allow bail rather to refuse it in exceptional cases, as observed in the case of Manzoor vs. The State (PLD 1972 SC 81). The learned counsel has also relied on the same authority at page 84 that bail should not be withheld as punishment. He has also placed reliance on unreported Bail order in Spl. Bail Appln No,49/05.
7. ' Mr. Muhammad Jameel learned counsel for applicant Muhammad Iqbal has adopted the argument of Mr. Rasheed A Razvi. He additionally argued that the applicant being a clearing agent only provided services and processed documents with the Customs Department and has no direct or indirect concern with the physical import export of goods. The prosecution initially admitted that the goods found during the course of physical examination were in accordance with the contents of the goods declaration. He pointed out that as per sections 207,208 and 209 and agent represents the principal and only by direct evidence it could be shown that he committed some criminal activity and for there should exist mens rea or criminal intent. Therefore he cannot be penalized under the general provisions of Customs Act, 1969. It is further contended that the agent is not required to carry out any investigation as to correctness of the document and it would be wrong to suggest that merely because the agent who submits documents for release of goods he must have some guilty knowledge. The applicant is working as agent of importer exporter since 1984 and has never been involved in any misdeclaration or any criminal case. There is no evidence against him but it is only wrongly stated in the F.I.R. No attempt has been made by the applicant (Muhammad Iqbal Ismial) to cause loss to the Govt, exchequer. The learned counsel further submitted that as per charged sheet no overt act for committing fraud has been assigned to the applicant and case of the applicant requires further enquiry into his guilt. He further submitted that as per sections 32 and 32-A of the Customs Act maximum punishment is upto 10 years and minimum is 5 years or fine. Therefore it is yet to be determined that the trial Court shall punish the applicant or impose fine. Therefore the case is out of prohibition contained in Section 497(1) Cr.P.C.
8. The learned counsel has relied upon the following cases.
(1) Messrs Anchor Clearing Services v. The Collector of Customs (Appraisement) 2005 PTD (Trib.)
9. 196-
(2) Muhammad Shafiq v. State 1999 PCr.LJ 830 Unreported Order in Cr. Bail No,410 of 2004 Sohail Qureshi v. The State
(3) Unrepprted order in Cr. Bail No,515 of 2004 Rahan Iqbal v. The State.
(4) Unreported case in Cr. Bail No,615 of 2005 Tabir Malik v. The State.
(5) Unreported case in Cr. Bail No,776 of 2004 Riyat Muhammad v. State.
(6) Unrepcrrted case in Cr. Bail No, 1148 of 2004 Muhammad Rafiq v. State.
(7) Unreported case in Spl. Cr. Bail No,62 of 2006 Arshad Yakub v. The State.
(8) Hussain Hakani v. The State (2000 PCr.LJ 161).
10. ' Mr. Akhtar Ali Mehmood learned DAG has vehemently opposed the grant of bail to the applicants and submitted that the applicants have committed offence under sections 32(1) and 32-A(i)(ii) of the Customs Act. 1969 r/w DTRE Rules. It is further Urged that on physical examination of the case it reflects that the goods attempted to be exported are 4.5 to 5 meter length pieces of 100% polyester printed fabrics and small pieces of chadar dupata in bales as against declaration of 100% polyester dyed printed shawl but on physical examination the goods were found only cut pieces of fabrics. Therefore misdeclaration has been made by applicant Abdul Wahid Bundukda with the connivance of co-accused Muhammad Iqbal. Learned DAG has also relied upon the unreported judgment in Cr. Bail Appn. No,36/06 Raja Muhammad Zarat vs. State. I have heard the learned counsel for the respective parties and examined the material placed on record and case laws cited at the bar.
11. ' Admittedly F.I.R. Was recorded on 6-6-2006 and the description was made as 100% polyester dyed printed shawls in embroidery work. The goods were declared to be prepared/manufactured from raw material imported free of duty and tax against DTRE approval. As per F.I.R. Actual description is shown as pieces of fabrics and chadar dupata of polyester. The Customs Authorities have ascertained value of goods as US $ 60.197 valued at Rs,3,611,820 and loss of revenue is shown Rs, 3,70,370. The Customs Authorities seized the declared goods and other documents i. e Form F Invoice dated 25-5-2006 and registered the F.I.R. Applicant Abdul Wahid Bundukda has already deposited amount of security in the sum of Rs,2,561,688 at the time of obtaining DTRE approval.
12. While examining the contents of the F.I.R. And interim challan there are certain contradictions which indicate that the consignment is not in conformity with DTRE approval but it is yet to be determined whether it was misdeclaration on the part of the applicants by wrongly terming the goods of cut pieces chadar/ dupata instead of shawls. It is yet to be determined whether the goods declared were . Different from actual consignment by the competent Court of law. The entire case is based on documentary evidence which has already been collected by the prosecution as such in my opinion there is no likelihood of tampering with the prosecution evidence at all. It is yet to be determined by the trial Court that applicant No, 1 has mis-declared the consignment or any violation has been made of DTRE Rules. As per DTRE Rules it is prefect scheme to avoid baseless of seeking refunds and duty drawback framed by C.B.R. Applicant Abdul Wahid Bundukda was working as Chairman of Alternate Disputes Resolution Committee constituted by C.B.R. under the Sales Tax Act for resolution of sales tax disputes relating to the agreements and was also working as Member of Advisory Committee relating to income tax and Coordination Committee relating to sales tax. The applicant obtained duty and tax permission for export (DTRE approval) for import as well as export by filing application, dated 11-7-2005 and DTRE approval on 2-9-2005. Applicants also filed goods declaration for quantity of 100% polyester shawls and 100% men made shawls with reference to aforesaid DTRE approval. The customs authorities conducted physical examination of the consignment whereupon it was discovered that the consignment consists of pieces of fabrics and chadar/dupata. The shawls are chadar/dupata with embroidery work always to be prepared in pieces but not in the shape of bale (Than). It is yet to be determined .Whether the applicants have evaded duty/ tax of the alleged amount and Committed the offence under sections 32 and 32-A of the Customs Act, 1969 r/w DTRE Rules. It is also yet to be determined by the trial Court whether some changes in A the description of the goods was of cosmetic nature which was approved by the buyer, therefore, some amendment was made in description of the consignment and it is yet to be determined whether 99 defiance/ nonperformance of DTRE Rules entails any criminal liability. The applicant has already furnished guarantee and in case any claim is found against him adjudicating authority can levy such amount. It is yet to be decided by the trial Court whether applicants/ accused have committed the offence under section 32 of the Customs Act which carries maximum punishment of 3 years whereas section 32-A has been applied simultaneously to make the case graver. Applicant Muhammad Iqbal as clearing agent has not played any role except he processed documents as directed to him by the exporter.
13. ' For the foregoing reasons, I am of the view that the applicants have made*out a case for grant of bail. Therefore, I grant bail to the applicants in the sum of Rs,500,000- each with P.R. Bond in the like amount to the satisfaction of the trial Court.
14. ' These are the reasons of my short order dated 9-1-2007.