1. ' The applicant is accused of having attempted to smuggle Pak. Currency of Rs,63,00,000 (Rupees sixty-three lacs) and of having violated section 2(s) of the Customs Act, 1969 punishable under section 156(1)(8) of said Act. The F.I.R. Was registered by Mr. M. Bilal Farooqui, Preventive Officer Customs House, Karachi on 4-11-1992. Bail application moved by the applicant was dismissed by the learned Special Judge (Customs and Taxation), Karachi on 22-11-1992.
2. ' The facts as given in the F.I.R. Are that on 4-11-1992, while the complainant was present on duty at International Departure Hall of Jinnah Terminal Complex at Quaid-e-Azam International Airport, he was approached by one Mujahid Hussain A.S.O. Of Airport Security Force and handed over a letter to him, contents whereof disclosed that the Airport Security Force staff posted at International Hold Baggage Machine had intercepted a passenger Adil Jiha (the present applicant). On the search of the said passenger a sum of Rs,63,00,tXX) kept by him in the pocket of his jacket and partly kept in three cotton belts tied round his waist were recovered. The currency was seized in presence of witnesses Iftikhar Ahmed, Inspector, Airport Security Force and Amanat Ali S.I. Notice under section 171 of the Customs Act was served on the applicant, who now seeks bail.
3. ' The contention of Mr. Sohail Muzaffar, learned counsel for the applicant is that the complainant who is a Customs Officer, is neither a Seizing Officer, nor an eye-witness and he had not even intercepted the passenger. The officer of Airport Security Force who had seized the currency is not a Customs Officer in terms of section 3 or 6 of the Customs Act and as such the seizure and arrest is illegal. It is further contended that Airport Security Force officers are not notified to arrest a passenger or seize the goods under the Customs Act. The search of a passenger according to him, is to be conducted under section 159 of the Customs Act. Before taking search, the person to be searched is to be informed about his right to be taken to a gazetted officer of Customs or Magistrate and if such person so desires take him without unnecessary delay to the nearest Magistrate before searching him and may detain him until he can be so taken. It is next contended that the applicant, who is a foreign national, was carrying the Pakistani currency did not hold either a ticket or other travelling documents, was arrested from outside the terminal and it is incorrect that he was arrested from the International Departure Lounge at Quaid-e-Azam International Airport. It is further contended that in order to prove that the applicant was intending to leave Pakistan while carrying Pak. Currency beyond the limit prescribed by law, and thereby making himself liable for an offence of smuggling, it has to be proved that such passenger was in fact leaving Pakistan and was holding valid ticket or a boarding card. In applicant's case his luggage was lying in Hotel Embassy. If he had any intention to smuggle the amount of Pakistan, he could have got the amount converted into foreign exchange and would not have taken risk of carrying bulk amount in Pak. Currency. Learned counsel has referred to the following judgments in support of his above contentions:--
(1) Nabo Jan v. The State 1981 P Cr. L J 951,
(2) Muhammad Ilyas v. The State 1988 P Cr. L J 1351,
(3) Harikisan v. State of Maharashtra AIR 1962 SC 911,
(4) Unreported order of Supreme Court of Pakistan in Criminal Petition No,80-K of 1992.
4. ' Mr. Farrukh Zia Shaikh, learned Advocate appearing for the State has opposed the grant of bail and has argued that the applicant is charged with an offence of having attempted to smuggle Pak currency as defined in section 2(s) of the Customs Act which is punishable under section 156(1)(8) to imprisonment for 14 years. It is also argued that the applicant could not have entered the Departure Lounge unless he was holding a ticket of an Airline by which he was to travel. It is next contended that the applicant cleverly passed on the ticket and other documents to his brother Samer Jiha who left by Emirates Flight EK-601 on 4-11-1992. It is lastly contended that the applicant had links with co-accused Iqbal of Jeddah Jewellers Karachi, who is absconding. The Passport of the applicant shows his frequent visits to Pakistan, that an attempt to smuggle Pak currency was foiled and that on search, said currency was seized in accordance with law.
5. ' I have heard the arguments of the learned counsel and perused the record. The interim charge sheet filed before the Court shows that the Pak currency of Rs,63,00,000 was recovered from the Jacket and cotton belts tied round the waist of applicant. He was arrested from the Departure Lounge, entry to which area could be made only by a person intending to travel by a flight, after his passport and ticket is checked at the entry gate. Without a ticket, he could not have been checked in the departure area. Applicant's brother Samer Jiha also travelled by same Emirate flight EK- 601/4-10-1992 by which applicant was to leave and his scat was confirmed. This fact is borne out by the passenger manifest of Emirates Flight EK-60/4-10-92. There is evidence collected during investigation that applicant and his brother Samer Jiha visited Pakistan 12 times within less than 5 years and had contacts with absconding accused Iqbal of Jeddah Jewellers of Sadar Karachi.
6. Mere non-recovery of ticket from applicant at the time of his arrest would not conclusively establish that he was arrested from outside the airport and not from the departure lounge.
7. ' The interim charge sheet submitted before the Court also shows that before conducting his search, the Investigating Officer afforded an opportunity to him whether he wished to be searched before a Magistrate or a gazetted officer but he did not express so. Without observing that the search and seizure was in accordance with law, it may suffice to say that prima facie, there appear* no illegality in the procedure adopted during search, seizure or arrest. The case-law referred by applicant's learned Advocate, is not attracted in the instant case. In Nabo Jan's case 1981 P Cr. L J 951, the accused who was bound for Riyadh, could not leave Pakistan on account of closure of counter of airline and his briefing was refused. It was held that the question as to the effect of the circumstances that applicant was refused boarding on the flight would seem to require further enquiry and bail was granted.
8. ' In the case of Muhammad Ilyas 1988 P Cr. L J 1351, before making personal search, the accused was not informed about his right to be searched before a Magistrate or before a Gazetted Officer.
9. This, coupled with the fact of recovery of foreign exchange, in addition to what was granted to Lim by State Bank of Pakistan, seemed to require further enquiry and bail was granted.
10. ' In AIR 1962 SC 911, a judgment in appeal, the Bombay High Court in a Habeas Corpus petition, seeking production of petitioner for setting him at liberty, refused to issue such writ. It was held by the Supreme Court of India as under:-- "In order that the detenu should be in a position effectively to make his representation against the order, he should have knowledge of the grounds of detention, which are in the nature of the charge against him setting out the kinds of prejudicial acts ' which the authorities attribute to him."
11. ' In said case, petitioner was detained under section 3(1)(a)(ii) of the Preventive Detention Act of 1950. It was held that there was no sufficient compliance with the requirements of the Constitution, the detention was declared illegal and order of detention was set aside.
12. ' In Criminal Petition No,80-K of 1972, the gold allegedly recovered was claimed by one of the accused to have been imported in Pakistan. Main accused who had admitted ownership of gold was released on bail by the High Court. In these circumstances, the petitioner was granted bail.
13. ' As earlier stated, none of these authorities are relevant, nor support applicant's contentions.
14. Applicant's case is covered by the prohibitory clause o section 497 of Cr.P.C. And there appear no reasonable grounds to believe that he is not guilty of an offence punishable with imprisonment for 14 years. I find no merit in the application and the same is dismissed.