1. ' This is a revision under section 185-F of the Customs Act, 1969 by the applicant Muhammad Bashir who seeks quashment of the proceedings of a case under section 156(1), clause (8) of the same Act pending in the Court of Special Judge (Customs & Taxation), Karachi.
2. ' Absconding accused .Ghulam Kadir was found in posession of charas weighing 26 pounds lying concealed in his jacket and his brief-case on 11-9-1973 at m. v. Chenab, berth No, 26, West Wharf, Karachi. The applicant was also found in possession of 26 pounds of charas which was secured from his cabin on board the ship. Subsequently a case of smuggling under the Customs Act was registered and challenged against the applicant and 4 other co-accused including the absconding accused before the Special. Judge (Customs & Taxation), Karachi. Pending trial the applicant moved the trial Court under section 249, Cr. P. C. For his discharge which application was dismissed by the impugned order dated 7-7-1976, hence this revision.
3. ' The contention of the learned counsel for the applicant, inter alia, in support of this application is that in absence of notification by the Federal Government under section 2(s), notifying charas as one of the goods which are prohibited or restricted from being brought into or taken out of Pakistan, no offence under section 1541) clause (8) has been committed by the applicant and therefore, the entire proceedings of the trial are illegal. It was contended on behalf of the State that charas was a 'Dangerous Drug' under the provisions of the Dangerous Drugs Act and by section 7 of the said Act there was a ban on the import into or export from Pakistan of the said article.
4. Section 7 of the Dangerous Drugs Act, 1930 provides that no one shall import into Pakistan or export from Pakistan any dangerous drugs save in accordance with the rules made by the Central Government for that purpose and in accordance with the conditions of any licence required to be obtained under those rules. Section 33 of this Act further provides that all prohibitions and restrictions imposed by or under this Act on the import into Pakistan or export from Pakistan shall be deemed to be prohibitions and restrictions under section 19 of the Sea Customs Act, 1978. The Sea Customs Act, 1978 has however been repealed with effect from 1-1-1970 and has been replaced by the present Customs Act, 1969. The provisions contained in section 19 of the repealed Act were reenacted in section 16 of the present Customs Act, which provide that the Central Government may from time to time by notification in the official Gazette prohibit or restrict the bringing of and taking out of Pakistan of any goods of specified description. Now as stated earlier section 38 of the Dangerous Drugs Act, 1930 provides that all prohibitions and restrictions imposed by or under this Act on the import into Pakistan or the export from Pakistan shall be deemed to be prohibition and restriction imposed under section 19 or section 134 of the Sea Customs Act and the provisions of that Act shall apply accordingly. In view of the combined effect of the aforesaid provisions it was the case of the State that the prohibitions contained in the Dangerous Drugs Act on the exportation of charas from Pakistan, by vitrue of section 38 should be deemed to be prohibitions and restrictions under the re-enacted provisions of section 16 of the Customs Act. Therefore the export of charas from Pakistan constitutes an offence of 'smuggling' as defined by section 2(s) of the Customs Act. The admitted position however is that no notification prohibiting or restricting the bringing into or taking out of Pakistan of charas was issued under section 2(s) of the Customs Act at the relevant time, viz. The date of alleged commission of the offence on 11-9-1973. Charas was included as a category of goods under section 2(s) by a subsequent notification issued on 15-7- 1975 and narcotics were treated as banned item for the purpose of clause (s) of section 2 of the Customs Act.
5. ' The short question for consideration in this revision therefore is, whether a prohibition under section 16 of the Customs Act would be attracted in the case of goods which are not separately notified as banned under section 2(s) of the Customs Act to constitute the offence of smuggling. If the answer is in the negative, obviously the applicant cannot be said to have committed the offence of smuggling of charas on 11-9-1973. A Division Bench of this Court in the several Constitutional. Petitions and Criminal Miscellaneous Applications considered this question and Mr. S. Nasiruddin learned counsel for the applicant has placed on record a copy of the judgment in the case of S. Ch. Niaz Ahmad Syed v. State (vide Cr. Misc. Application No, 235/895/306/76 and 260/75, 85/467/ 25/74). It would be best to quote from the judgment of the D. B. Written by Fakhruddin G.
6. Ebrahim as under :- "To my mind clause (a) refers only to goods specified therein and other goods notified by the Federal Government. It does not refer to goods the importation or exportation of which is prohibited elsewhere, which situation is governed by clause (9) of section 156. If the goods are one not specified in this clause or notified by the Federal Government under this clause, notwithstanding that its export or import may be prohibited or restricted by any law, there cannot be any offence of smuggling in respect thereof. This is clear from clause (9) of section 156 which makes an offence to import or export goods in violation of any prohibition or restriction on the importation or exportation of such goods imposed by or under this Act or any other law. Clause (9) makes it clear that it will not include goods which came within clause (8) of section 155 and, therefore, merely because importation or exportation of goods is prohibited by any law, it will not follow that its importation or exportation will amount to smuggling in the absence of its inclusion under a notification by the Federal Government under sub-clause (a) of clause (s) of section 2 of the Act. Clauses (8) and (9) of section 156 must run parallel for the goods covered by the former are excluded from the latter. If these clauses are not so read they will be destructive of each other."
7. I respectfully agree with the observations o f the D. B. Cited above and hold that in the absence of a proper notification issued under section 2(s) of the Customs Act no offence of smuggling can be made out against the applicant even though for the purposes of section 16 eharas prohibited article. I might add that the perusal of the table contained in section 156 shows that against item No, 9, in column 3 are mentioned sections 15 and 16 as the sections of Customs Act to which the offence under clause (9) has reference, whereas for the offence of smuggling at clause (8) in column 3 the word 'general' has been mentioned. It is therefore clear that the A prohibitions contained in section 16 are not attracted in the case of an offen of smuggling punishable under clause (8) of section 156(1) of the Customs Act. The offence at best could fall under clause (9) of section 156.
8. ' In the result this revision application succeeds and consequently the proceedings of the case against the applicant before the trial Court are hereby quashed. If the applicant is in custody he shall be released immediately if not required in any other case and if he is on bail, his bail bond shall stand cancelled.