The question that has been r4iscd in this revision application filed under section 185-F of the Customs Act, 1969, read with section 561-A, Cr. P.C. Relate to the interpretation of sections 139 and 142 of the Customs Act, 1969.
2. The facts are simple and may be briefly summed up. On 20-11-198'% Khursheed Oamar, Senior Preventive Officer received secret information that one Muhammad Tahir would attempt to smuggle sizable quantity of gold/palladium contained in a brief-case into Pakistan from Dubai. A strict vigilance was, therefore, maintained and eventually at 3-50 p.m. Khursheed Qamar S.P.O.
Along with other members of customs party went on board after P.IA. Flight No.P.K.-214 landed and parked at Bay No.14, at Karachi Airport. The disembarkation of passengers was stopped and passenger Muhammad Tahir was spotted. The brief-case,, which was found in his possession was opened with the keys and was examined in presence of Mashirs Nawaz Ali Bugti and M. Salahuddin, which resulted in the recovery of 80 slabs of palladium, bearing foreign marks, weighing one ounce each. The travel documents of Muhammad Tahir, the present applicant were also seized and he was taken into custody. The applicant was served with a notice under section 171 of the Customs Act, 1969, and a case being Crime No.P-4019/87-111 was registered against him. After usual investigation the applicant was sent up to stand trial for the offence under section 156(1)(8) of the Customs Act, 1969, in the Court of Special Judge (Customs and Taxation) Karachi. The applicant moved an application under section 265-K, Cr. P.C. Before the Special Judge seeking his acquittal on the ground that his prosecution was per se illegal, as he was not afforded an opportunity to make a declaration in terms of sections 139 and 142 of the Customs Act, 1969. The prayer was, however, refused vide order, dated 2-9-1989. The applicant preferred a revision application before this Court, being No. 9 of 1989, which was dismissed by Allah Dino G. Menton. J. Who, however, directed the Special Judge to examine at least complainant Khursheed Qamar and one Mashir within two months. The compliance was made and thereafter the applicant repeated his application under section 265-K, Cr. P.C., but without success. This order, dated 12-9-1990 is the subject-matter of the present revision application.
3. I have had the benefit of very careful arguments on both the sides. Mr. Baloch, who appeared on behalf of State has, however, submitted that the case is at the concluding stage and all steps which tend to push the final issue in the background must be discouraged.
4. Section 205-K, Cr. P.C. Relieves the Court from the necessity of going on with the trial, if from the evidence available on record, it is convinced that a criminal charge cannot be sustained and there is no probability of the accused being convicted of any offence. The language in which this section is couched makes it clear that a Court has got powers to acquit the accused even if the witnesses are not examined.
5. Mr. S. Sami Ahmed, learned counsel for the applicant has contended with force that the facts, as disclosed in F.I.R., even if accepted as gospel truth, do not constitute an offence under section 2(s) punishable under clause (8) of section 156(1) of the Customs Act, 1969. He has endeavoured to show that according to the own showing of the prosecution, the search was conducted while the applicant was still on board along with other passengers and this was done without affording him an opportunity to make a declaration in terms of sections 139 and 142 of the Customs Act, 1969.
Section 139 of the Customs Act, 1969, creates an obligation upon every passenger or member of crew to make a declaration of the contents of his baggage in the following manner:--- "Declaration by passenger or crew of breeze.-- The owner of any baggage whether a passenger or member of the crew shall, for the purpose of clearing it, make a verbal or written declaration of its contents in such manner as may be prescribed by rules to the appropriate officer and shall answer such questions as the said office may put to him with respect to his baggage and any article contained therein or carried with him and shall produce such baggage and any such article for examination."
6. 1f the owner of any baggage fails to make a correct declaration of its contents or refuses to answer any questions put to him by the appropriate officer with respect to his baggage or any of its contents including articles carried with him or fails to produce the baggage or any such article for examination, he shall be liable to a penalty not exceeding three times the value of goods in respect of which no declaration or incorrect declaration has been made or in respect of which he refuses or fails to answer any question or which he fails to produce for examination; and such goods shall also be liable to confiscation. Clause (70) of section 156(1) of the Customs Act, 1969, is self-explanatory. This clause, however, provides only civil penalties and if the owner of such baggage is found in possession of the goods falling within the mischief of section 2(s) of the Customs Act, 1969, he shall also be liable for penal offence under clause (8) of section 156(1) of the Customs Act, 1969 The case of Muhammad Rafiq v. The State reported in 1980 P Cr. L J 318, illustrates this difference in the following words: "A plain reading of the language employed in the two items also makes it clear that they were not intended to deal with the same subject-matter. Section 139 creates an obligation upon every passenger or a member of a crew to make declaration of the contents of his baggage and to answer questions with respect to the baggage as well as its contents including article carried with him. The failure to do the aforesaid things or the failure to produce the baggage or any such article for examination is liable to penalties and confiscation as provided by item 70. On the other hand if the passenger commits the offence of smuggling as defined in section 2(s) of the Act in relation to his baggage, clearly his act would be punishable under clause (8), irrespective of whether in the commission of the offence he has also contravened the provisions of item 70."
7. If we analyse and break up the provisions of section 139 of the Customs Act, 1969 it will be clear that structurally it is divisible into three parts, namely:
(i) The owner of any baggage whether a passenger or member of the crew shall, for the purpose of clearing it, make a verbal or written declaration of its contents in such manner as may be prescribed by rules, to the appropriate officer;
(ii) the owner of any baggage, whether a passenger or member of the crew shall answer such questions as the said officer may put to him with respect to his baggage and any article contained therein or carried with him; and (i.e) the owner of any baggage, whether a passenger or member of the crew shall produce such baggage and any such article for examination.
Obviously, therefore, the first part provides a basis for the remaining two, and postulates that for the purpose of clearing any baggage a verbal or written declaration of its contents in such manner as may be prescribed by rules is necessary. There are no rules for making a verbal declaration. The passengers (Non-Tourists) Baggage (Import) Rules, 1983, however, lay down the procedure for availing concession by making declaration in writing. By Customs General Order No.9/1983 as amended vide No.29/83, 22/84 and 9/85, the procedure to make declaration was simplified and form `A' and currency, declaration part of form F.M. Were merged into one form, which became; effective from 1-7-1983. The passengers are, therefore, required to make declaration in the revised form mentioned above.
8. Admittedly the search was conducted while the applicant was still on board along with other passengers. Section 158 of the Customs Act, 1969, empowers appropriate officer to search any person while he is on board, if he has reason to believe that such person is carrying about himself goods liable to confiscation or any documents relating thereto or smuggled platinum, any radioactive mineral, gold, silver, or precious stones, etc. The act of smuggling which also includes an attempt, abetment or connivance for bringing in or taking out goods will be complete only after reaching the customs barriers and making a declaration as required under section 139 of the Customs Act, 1969. Complainant Khursheed Oamar (P.W.1), who is a Senior Preventive Officer has given the procedure in this behalf in the following words: "From aircraft the passengers first come to Immigration Hall. From Immigration the passengers go to Customs Examination Hall. At Customs Examination Hall every passenger is asked whether he has any contraband item with him or not. He is also asked to declare about any item on which duty is levied. In case the Customs Officer is not satisfied with the declaration of passenger, then the search is taken, and if any contraband item is recovered or any item on which the duty is to be charged is recovered, then said item is seized and duty is charged. It is a fact that the passengers who arrive, they are first taken to the Immigration Department and after completing the formalities of immigration they enter the Customs Hall where we become competent to interrogate the passengers and take their search, in case we suspect them to be carrying anything contraband item or any item on which duty is to be charged. It is there that question of declaration arises."
9. Section 142 of the Customs Act, 1969, further lays down the procedure for temporary detention of baggage in the following words: "Temporary 'detention of baggage.-- Where the baggage of a passenger contains any article which is dutiable or the import of which is prohibited or restricted and in respect of which a true declaration has been made under section 139, and about which the appropriate officer is satisfied that these were not imported with the intention of consumption in Pakistan. He may, at the request of the passenger, detain such articles for the purpose of being returned to him on his leaving Pakistan."
10. Reading section 139 together with section 142 of the Customs Act, 1969, it is apparent that mere possession of an article which is dutiable or which is a prohibited or restricted item, is not an offence so long as a true declaration has been made under section 139 of the Customs Act, 1969. In case the contention of Mr. Baloch, learned counsel for the State is upheld and it is maintained that the process of importation of prohibited goods is complete as soon as they reach the border and the aircraft touches the land, then the provisions contained in sections 139 and 140 the Custom:, Act, 1969, will be reduced to a dead letter, which. In turn would mean that they are being rendered futile. The prudent course is, as pointed out in Abdul Latif Khan v. The Province of East Pakistan and others reported in PLD 1970 Dacca 350, wherein it was observed: Another recognized principle of interpretation of statutes is that, effect should be given to every part and every word of the statute. Hence, as a general rule, the Courts should avoid a construction which renders any provision meaningless or inoperative and must lean in favour of a construction which will render every word operative rather than one which may make some words idle and nugatory."
11. So far I have been discussing the case untrammelled by any authorities on this specific issue, though there is abundant authority including that of our own High Court for the proposition that the mere presence of prohibited goods in the baggage of a passenger without affording him an opportunity to make declaration under section 139 is not sufficient to warrant conviction under clause (8) of section 156(1) of the Customs Act, 1969. In Ferozur Rahman Batla v The State reported in 1980 P Cr. L J 003, Zaffar Hussain Mirza, J. As he then was examined the provisions of section 139 in juxtaposition to the provision contained in section 142 of the Customs Act, 1969, and observed as follows: "It appears to me that as reflected in the F.I.R. The goods of the applicant were taken in possession of by the S.P.O. Immediately on their being unloaded and the applicant was interrogated. Section 142 of the Customs Act makes provision for making the true declaration under section 139 to the Appropriate Officer and for detention of dutiable articles at the request of the passenger until he leaves the country. It is, therefore, clear that if such a declaration is made to the Appropriate officer, the mere fact that certain goods are brought at the Airport which are subject to payment of duty or the import of which is prohibited or restricted will not constitute an offence punishable under section 156(1), clause (8) of the Customs Act."
12. The case of Abdul Salam v. The State reported in 1984 P Cr. L J 1137, also supports this view, wherein it was observed by M.S.H. Qureshi, J. (as he then was) that the fact that a passenger has brought some banned item in the baggage upto the customs point, will not constitute the offence of attempt to smuggle in the absence of evidence that he had given a false declaration or refused to make a declaration or had secreted the goods in a manner as to avoid detection.
13. The last judgment on this point was given by Saeed-uz-Zaman Siddiqui,, J. (the present Chief Justice) of this Court in the case of Masood v. The State reported in 1987 MLD 1602 wherein following observations were made: "The learned trial Judge while convicting the appellant failed to notice that mere presence of gold in the baggage of appellant was not sufficient to hold that he was guilty of offence of smuggling or an attempt to smuggle gold as in the event of a true declaration of such contraband gold under section 139 of the Act the appropriate officer had the discretion to detain such articles for the purpose of being returned to him on his leaving Pakistan:
14. I had the advantage of full arguments on this subject and on a careful review of the case-law on the point, I am clearly of the view that the facts disclosed in F.I.R. Duly supported by Khursheed Qamar, S.P.O. (P.W.1) and Muhammad Salahuddin Mashir (P.W.2), even if accepted on face value do not constitute an offence under section 2(s) of the Customs Act, 1969, and since there is clear violation of sections 139 and 142 of the Customs Act, 1969, the case pending against the applicant in the Court of Special Judge (Customs and Taxation) Karachi, is bound to terminate in acquittal.
Accordingly the revision application is accepted and the impugned order is set aside. The application made on behalf of applicant under section 265-K, Cr.P.C. Is allowed and he is acquitted from the charge. The applicant who is on bail is discharged from his bail bond.