Briefly the facts of the case are that an F.I.R No.36/2018 dated 27.11.2018 under sections 2(s), 16, 32(1), 156(1)
(8) (9) (14), 157 and 178 of the Customs Act, 1969 was registered at police station I & P Cell, MCC, Customs House, Lahore, precisely with the allegat ion that on 27.11.2018 on checking of a consignment by ANF, Lahore at Allama Iqbal International Airport, Lahore, it was found that the consignment consisting of 200 cartons was being exported to USA by M/s. Imroze Impex (SMC-Pvt) Ltd, Lahore through Airway Bill No.125 8461 6851 and commercial invoice No.1800069 with declared description of "salt" and unloaded at SAP Export Shed AFU, Lahore.
The ANF found that 30 Cartons out of 200 cartons contained "Ketamine" weighing 154.5 kg and other 17 cartons were packed with salt. The stance of the prosecution is that the accused attempted to export/smuggle the Ketamine (powder form) valuing three carore rupees approximately , under the garb of salt by way misdeclaring the correct description of the goods on the Export Documents. Hassan Ali (petitioner in Criminal Revision No.36369/2019), when arrested, disclosed that Lin Zhi Wei (petitioner in Criminal Revision No.36593/2019) had handed over the said consignment to him at his office situation in House No.449, Sector-D, Phase-V , DHA Lahore, for its import to USA. On pointation of said Hassan Ali, when customs team reached at the office of Lin Zhi Wei, further 1600 grams Ketamine and empty bottles of Ketamine Injection (Ketrol) weighing 35 kg were recovered from him.
2. After registration of F.I.R and formal investigation, challan was submitted in the court, where Lin Zhi Wei and Hassan Ali (accused persons) filed two separate applications under section 265-K Cr.P.C. to seek their acquittal mainly on the ground that "Ketamine" does not fall within the definition of "smuggle" within the meaning of Section 2(s) of the Customs Act, 1969, therefore, no offence was constituted. The learned Special Judge (Customs, Taxation & Anti-Smuggling), Lahore, vide consolidated order dated 11.04.2019 dismissed both the applications and the said order has been assailed through Criminal Revisions No.36593/2010 and 36369/2019, which are being decided through the instant order .
3. I have heard the arguments of learned counsel for the parties at full length and examined the record.
4. The moot point involved in both these cases is whether "Ketamine" is included in the definition clause of section 2(s) of the Customs Act, 1969 or is covered by any Notification, etc. as required by Section 2(s) or 156(2) of the Customs Act? Before proceeding further , the relevant clause is reproduced hereunder:- 2(s) "smuggle" means to bring into or take out of Pakist an, in breach of any prohibition or restriction for the time being in force [, or en route pilferage of transit goods] or evading payment of customs duties or taxes leviable thereon,-
(i) gold bullion, silver bullion, platinum, palladium, radium, precious stones, antiques, currency , narcotics and narcotic and psychotropic substances; or
(ii) manufactures of gold or silver or platinum or palladium or radium or preciou s stones, and any other goods notified by the Federal Government in the official Gazette, which, in each case, exceed [one hundred and] [fifty thousand rupees] in value; or
(iii) any goods by any route other than a route declared under section 9 or 10 or from any place other than a customs-station.] and includes an attempt, abetment or connivance of so bringing in or taking out of such goods; and all cognate words and expressions shall be construed accordingly;] The parties are in agreement that so far as above reproduced section 2(s) of the Customs Act, 1969 is concerned, the word "Ketamine" is not mentioned therein, however , the stance of prosecution/Customs Departm ent is that "Ketamine" is covered by the prohibitions stated in SRO 566(1/2005) dated 6th June, 2005 issued under section 2(s)(ii) and 156(2) of the Customs Act, 1969. The learned Deputy Attorney General while admitting that directly and specifically the word "Ketamine" is not mentioned anywhere in the above SRO as well, then referred clause 8 of SRO 566(1/2005), the same is reproduced hereunder:- "Chemicals and precursors whose import and export is prohibited under the T rade Policy in force"
And argued that in Appendix "A" of the Trade Policy , 2016 the use of words "Toxic Chemicals" would cover "Ketamine"
5. To evaluate this aspect I have gone through Appendix "A" of the Trade Policy , 2016 and observe that "Toxic Chemicals" have been further elaborated and the prosecution/Customs Department is unde r the impression that use of words "corresponding alkylated or protonated salts aminoethyl akyl (Me, Et, N-Pro or i-Pr) hosphonothioltes and e.g. VX: O-Ethyl S-2- diisopropylamino ethylmethl phosphonothiolate" would include "Ketamine" . It is thus obvious that the entire case of the prosecution revolves around the definition or interpretation of words "corresponding alkylated or protonated salts aminoethyl akyl (Me, Et, N-Pro or i-Pr) hosphonothioltes and e.g. VX: O-Ethyl S-2-diisopropylamino ethylmethl phosphonothiolate" , otherwise, it is clear position that directly and specifically the word "Ketamine" as an item or subject, has not been used in the entire Customs Laws including SRO or the Export Policy , etc. Reference to the words "phosphonites" , "amino" or ethyl " groups and "corresponding protonated salts" , may not be sufficient for the prosecution to draw its own meaning and draw an inference that these words would mean inclusion of "Ketamine" as well, because "phosphonites" are chemicals that contain phosphorus along with other elements; "amines" and "ethyl" groups contain carbon, whereas, "phosphorus or carbon are not essential components of "Ketamine" and it is comprised of hydrogen, oxygen, nitrogen and chlorine, alone. Therefore, it will be totally unjust to add our own meaning to a provision of law, which otherwise, carries ambiguous or no meaning at all. The legal position is also very much clear that whenever a statute requires interpretation, it shall be interpreted in a way which favoured the accused person and the prosecution or the state and where two interpretations of a statute are possible, then such interpretation shall be adopted which must run in favour the accused. Reliance is placed on the case "PROVINCE OF PUNJAB through Secretary Punjab Public Prosecution Department and another versus MUHAMMAD RAFIQUE and others" (PLD 2018 SC 178). A learned Division Bench of this Court in the case "AMAD HUSSAIN versus THE STATE" (PLD 1995 Lahore 250) held that doubt or ambiguity is to be resolved in favour of the accused. Whereas, the instant case as a matter fact is not a case of ambiguity , rather clearly a word "Ketamine" is missing in all the relevant statute and it has no- where been defined in clear and specific terms.
6. Another important aspect is that only an act or action which breaks a particul ar law and requires a particular punishment or the doing of an act or action which a penal law forbids to be done or omitting to do what it commands, is called an offence and naturally each offence carries its own punishment. But, it is equally settled that before attributing an act or action of any person to cover the definition of an offence, it is incumbent for the state to put the factual position as clear and unam biguous as one can imagine, meaning thereby , legislation must be loud and clear , leaving no doubt that what act or action would be an offence. Keeping this position in mind, here in this case what to talk of unclear or ambiguous legislation, no legislation whatsoever has been made to bring "ketamine" with the list of banned or prohibited items. It has been noticed that the Federal Board of Revenue (FBR) has placed a letter No.C.No.CUS/APT/FIR/01/2019/410 dated 02.12.2019 on this file, the relevant paragraphs No.4, 5 and 6 of the said letter are reproduced hereunder:- "4. In the present case a huge quantity of Ketamine was being smuggled to the USA in the garb of salt. Ketamine is federally regulated in the USA and UK unlike in Pakistan where it is available over the counter for a mere 80-100 rupees. The United States classified Ketamine in Schedule III drugs as a controlled substance in 1999 in the Controlled Substances Act. In Hong Kong, since 2000. Ketamine is regulated under Schedule of Hong Kong Chapter 134 Dangerous Drugs Ordinance. It can only be used legally by health professionals, for university research purposes, or with a physician' s prescription. In Pakistan its import as raw material is also controlled and subject to certification from Drug Regularity Authority .
5. Ketamine misuse is becoming increasingly popular as recreational drug in Southeast Asian countries such as Taiwan, Malaysia, China, and Pakistan. Recently , it's emergence as a club drug different from other club drugs (e.g. MDMA) is due to its anesthetic properties at higher doses. The use of ketamine as part of a "post clubbing experience" has also been documented. In Hong Kong, it is termed as "poor man' s cocaine". It is due to these reasons that there is a recent hike in seizures of ketamine while being smuggled to other countries.
6. Moreover , mixing the drug with other depressants like alcohol and heroin intensifies the dangers of respiratory depression which can be deadly . In Oct, 2015, the Nation reported the death of eleven young men who overdosed and died after injecting ketamine bought over the counter at local drug stores. Speculations are that the number of ketamine related deaths are much highe r than on record. In August, 2019, the Malaysian customs authorities seized ketamine worth $162 million belie ved to have been shipped from Pakistan. The lacks of legal regulation in Pakistan regarding this drug is therefore not only marring the reputation of Pakistan in the international world but also helping increase the number of users of this fatal drug in Pakistan."
In the wake of above position, when all factual and legal position as well as drastic impact of ketamine was well within the knowledge of persons sitting in the hierarchy , it cannot be said that Federal Board of Revenue was taken by surprise about the status or impact of "ketamine" . Despite that no step was taken to properly legislate and bring ketamine within the prohibited or banned items' list. Therefore, without there being any specific and purposeful legislation, by no stretch of imagination anyone dealing with "ketamine", can be hauled up on the pretext of committing a crime within Pakistan. Therefore, the word "Ketamine" which otherwise is alien to the Customs Act, cannot be imported and that too to the detriment to the accused. Consequently , it is held that "Ketamine" is not an item which may said to be prohibited material or narcotic drug under any law for the time being in force in Pakistan.
7. Another aspect of the matter is that Section 17 of the Export Policy Order , 2016, in clear terms provides that any export made without compliance with the requirements of this Order or made on the basis of false or incorrect particulars shall be treated as contraventi on of the provisions of the Act, and Appendix-D to the said Export Policy Order , 2016 requires submission of End-User-Certificate, and in this case admittedly the said Certificate was submitted by the petitioner but in the said Certificate it has not been mentioned that the exported goods included "Ketamine" and this fact could not be denied by learned counsel for the petitioners, therefore, it is clearly a case of concealment of fact, submitting a false statement and document electronically , which is an offence falling within the ambit of Section 32 of the Customs Act, the relevant portion whereof, is reproduced hereunder:-
32. [False] statement, error , etc.- (1) If any person, in connection with any matter of customs,-
(a) makes or signs or causes to be made or signed, or delivers or causes to be delivered to an officer of customs any declaration, notice, certificate or other document whatsoever , or
(b) makes any statement in answer to any question put to him by an officer of customs which he is required by or under this Act to answer , 90[or] [(c) submits any false statement or document electronically through automated clearance system regarding any matter of Customs.] [knowing or having reason to believe that such document or statement is false] in any material particular , he shall be guilty of an offence under this section.
The punishment for the above of fence is provided in section 156(14) of the said Act i.e.:- Offences Penalties Section of this Act to which offence has reference 1 2 3 If any person commits an of fence under
(i) sub-section (1) or sub-section
(2) of section 32;such person shall be liable to a penalty not exceeding one hundred thousand rupees or three times the value of the goods in respect of which such of fence is committed, whichever be greater; and such goods shall also be liable to confiscation; and upon conviction by a Special Judge he shall further be liable to imprisonment for a term not exceeding three years, or to fine, or to both;32 Therefore, irrespective of the fact whether "Ketamine" is prohibited good or narcotic, the legal position would still remain that by submission of wrong, false or incorrect document (End User Certificate), prima facie the petitioner are guilty of commission of an offence under the Customs Act, therefore, the order dated 11.04.2019 passed by learned Special Judge (Customs, Taxation & Anti-Smuggling), Lahore, dismissing applications of the petitioners do not suffer from any illegality , irregularity or jurisdictional defect to warrant interference. Both these criminal revisions are therefore, dismissed .