The petitioner is charged under sections 156(1) (8) (89), 157, 167 and 2(s) of the Customs Act, 1969.
His prayer for bail having been refused by the learned Special Judge on 24-5-1982, he has moved this application for the grant of bail.
2. The prosecution case, as disclosed in the F. I. R. Lodged by Abdul Majid Deputy Superintendent Customs Mobile Squad-11, Peshawar, on 18-5/1982 at 10-00 a.m., is that on a- secret information that heroin was to be smuggled out of the country via Quetta in a motor-car bearing No. 3707. PRE the Customs Officers, made arrangements to intercept the aforesaid car near Swabi octroi post.
The- car in question arrived at the aforesaid place at 10-00 a.m., it was chased by the Customs Officials in their own vehicles and at a distance of 1 Km from Swabi on Topiroad the car in question was made to stop. On the search of the car nothing was recovered but when the mudguards, doors and the seats of the car were checked, 41 Kgs. Of heroin-powder contained in 41 bags was recovered. The value thereof was assessed at Rs. 12,30,000 in the local market. The accused petitioner disclosed that the heroin belonged to one Sher Agha Kuchi who was a resident of Afghaistan; at present residing at Khajori (Bara) Khyber Agency and he (the petitioner) had to deliver the 'heroin' to one Mushtaq at Quetta for which he was to be paid Rs. 30,000 as fare. He admitted ownership of car No. 3707 PRE which he himself was driving. In the notice served upon the accused-petitioner, he has been charged under sections 156(1) (8) (89), 157, 167 and 2(s) of the Customs Act, 1969 for smuggling 41 Kgs. Heroin powder.
3. The learned Special Judge refused bail on the ground that the heroin powder was recovered from the motor car driven by the accused himself, The estimated value of the 'heroin' was calculated at about Rs. 12,30,000 in the local market and more than one Crore in the international market. That the investigation of the case was not yet complete and the persons named by the accused allegedly involved were yet to be traced out.
4. The learned counsel for the petitioner argued that the petitioner was not the owner of the smuggled goods but was a carrier thereof and this fact is sufficient to lessen his liability and to make him entitle to the concession of bail. He also argued that the case falls under section 156(89) of the Customs Act, 1969 which is punishable with 6 years' R. I. And is not covered by the prohibitory provisions of section 497(1), Cr. P. C. He contended that the case did not fall under section 156(1) (8) and hence the learned Special Judge was not justified in refusing the bail. In support of his.
Contention he relied on Nazir Muhammad and 3 others v. The State (1976 SCMR 145), but in the said case, without expressing any considered opinion as to the nature of the offence, it was held that from the notice issued by the Customs Authorities it appeared that the provisions of section 156(8) were not invoked which involved a penalty of 10 years' R.1: but rather the notice was served under item (89) of the said section which offence is punishable with only 6 years' rigorous imprisonment. The learned counsel also referred to Noorul and others v., The State (1976 SCMR 190), wherein it was held that at the time of commis--sion of the offence the real beneficiary of the goods i.e. The owner disappeared while the petitioner in that case was only his paid servant which indicated that the offence committed by the accused-petitioner was not at par with the offence committed by the owner of the smuggled goods. It was also observed that the investigation had already been completed and challan submitted to the Court. In this view of the matter, the accused were allowed bail by the Honourable Supreme Court. But in the case in hand barring the solitary statement of the accused petitioner himself that he was merely serving as a carrier and that the actual owner of the heroin powder was one Sher Agha Kuchi of Afghanistan at present resident of (Bara), there is noevidence to show that the accused petitioner was not himself the owner of the smuggled goods particulary when the car from which recovery was effected admittedly belonged to him and he himself was driving the car. The circumstances of the case indicate that section 156(8) may be attracted which is punishable with 10 years' R. I. In some other cases cited by the learned counsel, the offence was found punishable under section 156(89) and hence the concession of bail was extended.
5. The case is still under investigation and the persons named by the accused-petitioner have not been traced out. The value of the 'heroin powder' in the local market is mentioned Rs. 12,30,000 and is more than one crore in the international market. On his own showing the 'heroin powder recovered from the petitioner was being smuggled out of the country via/ Quetta.
6. The learned Assistant Advocate-General argued that even if section 156(89) was to apply, there was no lawful excuse for the accused petitioner to acquire possession of the heroin in question and he being concerned in carrying, removing, keeping and concealing the same was entirely responsible for the smuggled goods and that in the circumstances the accused petitioner cannot claim bail as a matter of right though the offence may not be punishable with death or imprisonment for life. The learned Assistant Advocate-General also relied on Muhammad Aslam v.
The State (1976 P Cr. L J 388) wherein the bail was declined for the reason that even if the offence was punishable with 6 years' R.1. And not falling within the embargo placed by section 497(1), Cr. P.
C. On grant of bail yet .The case being one of smuggling and the margin of profit in "business" of smuggling being so high that the smugglers do not care being arrested specially when they can hope to get released on bail within a short time.
7. In view of the fact that a huge quantity of heroin powder has been recovered from the possession of the accused-petitioner which he was admittedly carrying to Quetta for onward smuggling out of the country, and without going into the question whether the offence falls within the scope C .Of item (8) or (89), the circumstances of the case do not justify the release of the accused-petitioner on bail at this stage. Particularly when the case is under investigation and the challan has not been put in Court. Therefore, for the above reasons, I do not consider it a fit case for releasing the petitioner on bail. The petition is dismissed.