' Applicant Fareed Khan son of Kushrang is detained in Crime No,34/92 for an offence punishable under section 156(1)(8) of the Customs Act, 1969. His bail application was rejected by the trial Court vide order dated 7-6-1992. He has, therefore, repeated his bail application before this Court with the same prayer.
2. The prosecution case is that complainant Mansoor Hasan Farooqi, Prevention Officer, Customs House, Karachi had information that some Pakistani nationals are smuggling gold to Dacca. On 16- 5-1992 he alongwith his staff was keeping a watch on the outgoing passengers of Bangladesh Airline Flight No,BG-032 bound for Dacca. The applicant was spotted who was having Pakistani Passport and had completed all the formalities and was awaiting boarding at the passengers' lounge in terminal III of Quaid-e-Azam Airport. His baggage was checked in presence of Mashirs namely Muhammad Aziz Khan and Abdul Samad but no incriminating goods were recovered.
Thereafter, his personal search was conducted which resulted in recovery of 18 pieces of gold from the pair of shoes worn by the applicant. The same was secured under the Mashirnama and the applicant was got off-loaded. After placing the applicant under arrest a notice under section 171 of the Customs Act was also served upon him and thereafter F.I.R. Was lodged.
3. I have heard Mrs. Ismat Mchdi, learned counsel for the applicant and Mr. M. Ilyas Khan, learned counsel for D.A.-G. For State. Mr. M. Llyas Khan has opposed the bail application.
4. Learned counsel for the applicant has submitted that the manner and the circumstances under which the alleged recovery was made cast serious doubt regarding veracity of the alleged recovery and, therefore, strong doubt is created and the benefit of doubt should be resolved in favour of the applicant. In other words, the learned counsel has pointed out several aspects of the alleged recovery for which there is no explanation. Learned counsel submits that Flight No,BG-032 of Bangladesh Airline was scheduled to depart at 11-35 p.m. On 16-5-1992. As such all passengers are required to be seated in Aircraft at least 20 to 30 minutes before the take off. In the present case it is surprising to note that the recovery is made just five minutes before the actual take off of the aircraft. It has further been pointed out that judicial notice can be taken of the formalities which are to be completed by an outgoing passenger. It is submitted by the learned counsel that the passenger first has to cross the custom barrier, thereafter office of the concerned airline is approached, where an official takes the baggage of the passenger and issues boarding pass. The passenger thereafter on the strength of his ticket coupled with boarding card passes through Airport Security Force and X-Ray screening area. Thereafter, the passenger awaits boarding while remaining in the departure lounge. What the learned counsel wanted to point out was that the baggage had already been taken by the Airline's office and the applicant was without baggage while sitting in departure lounge but yet the Seizing Officer claims to have checked the baggage of the applicant in the departure lounge which obviously was not possible. Learned counsel further submits that as per the Mashirnama of recovery, boarding pass as well as ticket and passport of the applicant are not shown to have been secured. It has also been argued that even otherwise the provisions of section 159 of the Customs Act have been completely violated, inasmuch as the applicant was never given the option to be searched in presence of the Magistrate or Gazetted Officer. Learned counsel submits that, just as a formality it is mentioned in the F.I.R. That such option was given but there are strong circumstances to show that such option was never given. In this regard learned counsel has submitted that in all 10 persons were arrested by the Customs Authorities and out of them report was lodged against six persons only, while the remaining four were let off. Learned counsel points out that subsequently on 21-6-1992 F.I.R. Was registered against those four persons in absentia.
Though they were not present when the report was registered, but still the Seizing Officer has mentioned in the F.I.R. That the option was given to those persons. Lastly it has been contended that even if the alleged recovery was made from the applicant, then on their own showing the prosecution has termed these persons as carriers while the real beneficiary was somebody else.
5. I have carefully applied my mind and have taken into consideration all the aspects of the case. I have also gone through the record and material available. At the very outset, it has been noted that initially 10 persons were arrested at one and the same time but case has been registered separately against each of them. It is confirmed from the Seizing Officer, Mansoor Hasan Farooqi, who was present in Court alongwith Mr. M. Ilyas Khan, Advocate that four of the accused persons have been let off by him after issuing notice under section 171 of the Customs Act to those persons.
The Seizing Officer was unable to give satisfactory explanation as to how he could pick and choose to arrest some of the accused and let off the others. The argument of the learned counsel that after passing customs barrier the baggage is handed over by the passenger to the Airline office and thereafter the boarding pass is issued has also been confirmed, from Mr. M. Ilyas Khan and the Seizing Officer. It was inquired from the Seizing Officer that once the baggage of the applicant was submitted to the office of the Airline and the applicant was without baggage while sitting in the departure lounge, how could he examine the baggage of the applicant in the departure lounge, as mentioned by him in the F.I.R. I observe here that the Seizing Officer could not furnish any explanation to this effect. The Seizing Officer was again asked to explain how he had given the option to the four accused persons of being searched in the presence of the Magistrate or Gazetted Officer, as mentioned by him in the F.I.R. Registered on 21-6-1992 when the four accused were not before him. In this regard also the Seizing Officer could not give any explanation.
Obviously this will go to show that the Seizing Officer has merely complied with the requirements of the option as given under section 159 of the Customs Act in a mechanical manner just to complete the formalities, and as such this valuable right was denied to the accused. The right which is given to the accused under section 159(1) of the Customs Act, 1969 is not only a valuable right but at the same time it is the mandatory provision and any failure on the part of the Seizing Officer, to inform about this right to the accused renders his search illegal and in such circumstances even the conviction and sentence of an accused cannot be sustained. In this regard the learned counsel for the applicant has relied upon a case reported in Syed Abdul Nabi v. State 1988 CLC 29. In this case under section 156(1)(8) of the Customs Act, the applicant was smuggling gold coin and Indian currency to India and he was detained by the Customs Authorities and the Customs Officer conducted the search of his person but he did not comply with the requirements of section 159 as he did not inform the accused of his valuable right of being searched either before Gazetted Officer or a Magistrate. On account of non-compliance it was held that the search was illegal and accordingly the conviction and sentence of the accused was set aside and he was acquitted. In this reported case at page 32 placitum "b" it has been held that "the object of section 159 is to prevent high handedness being committed by the Customs Officers and innocent persons being falsely involved. In a genuine case the person acquitted would like to seek protection of a Senior Officer of Customs or the Magistrate where he could also plead his case. The said section is intended to meet such a case, for if the gazetted Officer of the Customs or the Magistrate sees no reasonable grounds for search, he may discharge that person and record reasons for doing so; otherwise he would direct for search to be made in the presence of two witnesses".
6. It, therefore, appears that section 159 is a mandatory section and its compliance is to be strictly complied by the Seizing Officer. In the present case, as already mentioned, the Seizing Officer has just complied with the requirements of this section in a mechanical manner just to complete this formality of having given the option, but in fact no such option was given, which I have already discussed above. Raced with this position the search of the applicant becomes illegal and consequently what has been illegally recovered cannot be used as evidence against the applicant.
On this ground alone the case of the applicant requires further inquiry.
7. Apart from the above it is to be noted that the applicant was detained in the departure lounge when he was without his baggage yet the Seizing Officer claims to have checked and searched his baggage in the departure lounge. Even in the Mashirnama it is very clearly mentioned that the applicant was in the departure lounge when the baggage was checked. This is not possible as the applicant had already handed over the baggage to the airline office before entering the departure lounge. On further perusal of the Mashirnama it is completely silent regarding recovery of the travelling documents from the applicant. Passport, ticket, boarding pass etc. Are not shown to have been secured in this Mashirnama. Only a general term has been used that the travelling documents were seized. Furthermore, I find that all the 10 F.I.Rs, are virtually carbon copies, excepting for the names of the accused, passport number and quantity of gold arc different and the rest of the material is in the same context. I further find that four of the co-accused were let off by the Seizing Officer and in this regard the learned counsel for the applicant has argued that if some of the accused persons are found innocent and let off by the Customs Authorities, then that by itself creates doubt about the co-accused also, and the benefit of this should also be given to the co-accused. No doubt it is true and is also an admitted position that four of the accused persons have been let off by the Seizing Officer. Subsequently on 21-6-1992 F.I.Rs, have been registered against those four persons and, therefore, it cannot be said that the four accused thus let off are not accused.
8. Taking into consideration all the circumstances of the case and the peculiar features of the case, a doubt arises whether the applicant had actually completed the travelling formalities or not. In other words if the travelling formalities were not completed then the applicant was not in the departure lounge and in that event it is yet to be determined whether offence will fall under section 156(1)(8) or 156(1)(89) of the Customs Act, 1969. In the light of the above discussion, I am of the considered view that the case of the applicant requires further inquiry within the meaning of section 497(2), Cr.P.C. Accordingly bail is granted to the applicant on his furnishing one surety in the sum of Rs,3,00,000 and P.R. Bond in the like amount to the satisfaction of the trial Court.