' Applicant Rifaqat Ali, who is detained in Crime No,P-1488/90-I, under section 156(1)(8) of the Customs Act, 1969, applied for bail before learned Special Judge (Customs and Taxation), Karachi, but without success. He has now approached this Court with the same prayer.
2. On 23-11-1990, M. Aslam Awan, Senior Preventive Officer of Pakistan Customs received a secret information to the effect that applicant who was scheduled to arrive from Dubai by Flight No,LH- 634 of Lufthansa Airlines would attempt to smuggle a huge quantity of gold into the country.
Consequently a strict watch was maintained and at 4-30 a.m. The applicant was intercepted in Customs Examination Hall, Terminal No,1, Karachi Airport, who was asked to declare if he was carrying contraband gold in his baggage to which he replied in negative. Nothing objectionable was found in the baggage belonging to applicant. Before taking the personal search of the applicant he was informed about his right to be taken to a Gazetted Officer of Customs or a Magistrate, but he declined to avail of this opportunity. The personal search of the applicant was taken in presence of Mashirs Ashraf Manda and Manzoor Murad and 500 Tolas of gold valued at Rs,17,50,000 was recovered which was wrapped with plastic tape around his shins. A notice under section 171 of the Customs Act, 1969, was then served upon the applicant. After usual investigation the applicant was sent up to stand trial.
3. I have heard Mr. Abdul Hafeez Pirzada, learned counsel for the applicant and Mr. Jalaluddin Baluch, learned counsel for the State. The latter has opposed the bail application.
4. Mr. Pirzada, learned counsel for applicant has referred to several points, but eventually confined his arguments in the main to three contentions, namely,
(i) That there was non-compliance of sections 158 and 159 of the Customs Act, 1969, and consequently the search which resulted into the alleged recovery was illegal.
(ii) That the applicant being a 'carrier' and not a 'real beneficiary' was entitled to the grant of bail.
(iii) That the applicant being a sick person within the meaning of first proviso to subsection (1) of section 497, Cr.P.C. Had a good case for bail.
5. As to first of the contentions raised on behalf of the applicant, I have carefully examined the F.I.R.
Which makes it clear that before taking the personal search of the applicant an opportunity in terms of section 159 of the Customs Act, 1969, was provided to him and it was on his refusal to avail of this opportunity that his personal search was taken in presence of Mashirs. The F.I.R. Also recites that the search was taken in presence of Mr. A.S. Behan, Assistant Collector (Customs) Karachi who is a Gazetted Officer. The only fact that Mr. Behan was not cited as a witness for the prosecution or his 161, Cr.P.C. Statement was not recorded during the course of investigation is hardly relevant at this stage, and that too when the applicant had refused to be taken before a Gazetted Officer of Customs or a Magistrate. The observations made in the case of Syed Abdul Nabi v. The State reported in PLD 1988 Lah. 146, are, therefore, not attracted to the facts of the present case.
6. There is also nothing on record to show that the applicant was a 'carrier' and not a 'real beneficiary'. On the other hand the charge-sheet indicates that the applicant is a habitual offender which is clear from the following extract:-- "Investigation of the case has been carried out and it has been revealed that the passenger/accused is a regular trafficker (Khepia), who has been shuttling between Karachi and Dubai with very abnormal short stays abroad such as one day. This was his fourth trip when he was apprehended by the Customs. The frequency of visits with short stay of one day abroad (in all four trips) is self-evident of the fact that he has been visiting Dubai only to bring in contraband goods/gold."
7. In such a situation the cases reported as Noorul and others v. The State 1976 SCMR 190, Ghazi Shah etc. v. The State 1983 SCMR 727, Jamshed Iqbal alias Billo v. The State 1986 P Cr. L J 2309, and Ahmed Ali Khan v. The State 1988 P Cr. L J 370, which are cited on behalf of applicant are not relevant.
8. As to the third contention, there is no foundation whatsoever for it. The first proviso to subsection
(1) of section 497, Cr.P.C. Is an exception to the general rule of not releasing an accused on bail whose case is covered by the prohibitory clause of section 497, Cr.P.C. On a careful examination of this proviso, it would appear that it is not every sickness which entitles an accused person to the grant of bail. The applicant had a depressive reaction. According to Dr. Modi the depressive illness can be classified into,
(i) Manic-Depressive Psychosis,
(ii) Endogenous depression,
(iii) Reactive depression,
(iv) Neurotic Depression, and
(v) Involutional Depression.
' No details about the illness of the applicant are available on record. The certificate to the effect that the applicant is impatient or is unable to attend the Court for the time being, does not serve the required purpose. In this view of the matter, the cases reported as Banaras v. The State 1978 SCMR 191 and Muhammad Ashraf Khan v. The State 1990 P Cr. L J 169 which are relied upon by learned counsel for applicant are of no help to him.
9. No case for bail is made out and the application for bail is accordingly dismissed.