This application for bail was filed on behalf of the applicant after the learned Special Judge (Customs and Taxation), Karachi declined to grant bail to the applicant on 12-6-1995 in a case arising out of an F. I. R. No. 150 of 1995, dated 20-1-1995 registered under section 156(1)(8) of the Customs Act, 1969.
2. It may be unnecessary to reproduce all the facts of the case as narrated in the F.I.R. Except the relevant part assailed by the learned counsel and which follows as under:-- "Subsequently personal search of the passenger was also conducted after observing legal formalities as have been laid under section 159 of the Custom Act in the presence of above witnesses under the supervision of I.P.S. Mr. Aftab A. Kazi. The personal search, so conducted, led to the recovery of 07 Nos. Small packets made up of paper, adhesive tapes from the pair of "Balance" brand Jogger shoes worn by the passenger at that time.
It may be advantageous to reproduce herein under section 159 of the Customs Act, 1969 which is stated to have been violated by the concerned officers of the Customs.
159(1).---When any officer of Customs is about to search any person under the provisions of section 158, the officer of Customs shall inform such person 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 gazetted officer of customs or Magistrate before searching him, and may detain him until he can be so taken.
(2) The gazetted officer of Customs or the Magistrate before whom such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person and record reasons for doing so, or else direct search to be made.
(3) Before making a search under section 158, the officer of Customs shall call upon two or more persons to attend and witness the search and may issue an order in writing to them or any of them so to do, and the search shall be made in the presence of such persons and a list of all things seized in the course of such search shall be prepared by such officer or other person and signed by such witnesses.
(4) A female shall not be searched except by a female."
A bare perusal of this section reveals that---
(i) The officer of Customs shall inform such person about his right to be taken to a gazetted officer of Customs or Magistrate;
(ii) If such person so desires, then he has to be taken without unnecessary delay to the nearest gazetted officer of Customs or Magistrate before searching him.
(iii) The gazetted officer of Customs or, the Magistrate before whom such person is brought shall if he sees no reasonable ground for search, forthwith discharge the person and record reasons for doing so or else direct search to be made.
The F.I.R. In this case is totally silent to radiate:
(i) Whether desire of the applicant regarding his personal search was sought or not?
(ii) What was the reply of the applicant/accused?
(iii) Whether he desired to be searched by a gazetted Custom officer or the Magistrate?.
(iv) Whether I.P.S. Mr. Aftab A. Kazi was a gazetted officer of Customs as required under section 159 of the Customs Act, 1969?
5. The requirement of law as embodied in section 159 of the Customs Act are mandatory and they cannot be treated as legal formalities as stated in the F.I.R. And charge-sheet. Therefore, they are required to be specifically mentioned in the F.I.R. Or in the charge-sheet. The contents of the charge-sheet are merely reproduction of the contents of the case embodied in the F.I.R.
6. These were the reasons that application for bail was allowed and the applicant was admitted to bail in the sum of Rs.1,00,000 (Rupees one lac only) with P.R. Bond in the like amount because in view of the above discussion, the matter was attracted by section 497(2), Cr.P.C. And required further enquiry.
Copy of this order be sent to Collector of Customs, Karachi so that the concerned officers be given specific instructions neither to ignore the mandatory requirements of section 159 of the Customs Act, 1969 nor they be treated as formalities.