1. ' Applicant Ayaz Ahmed, who is facing his trial before Special Judge (Customs and Taxation), Karachi for the offence under section 156 (1)(8)(14)(77) of the Customs Act, has applied for bail pending his trial. The application for grant of bail moved by the applicant before the trial Court was declined by order dated 27-7-2002.
2. ' The prosecution case against the applicant and co-accused in F.I.R. Lodged by Ashfaq Ali Khan official of Directorate of Intelligence and Investigation is as follows:-- "That the Director General of Intelligence and Investigation (Customs & Excise), Karachi received an information that Messrs Shakir Enterprises, registered as Importer with Registration No,W-49684 with active connivance and abatement of Muzaffar Hussain, Arshad and Khadim Hussain are smuggling "Kenya Black Tea" by misdeclaring its description, value weight and classification under the guise of import of "Raw Wool (unwashed)". In pursuance of such information, surveillance was mounted and on 25-6-2002 three consignments declared as Raw Wool (unwashed) were detained, imported by Messrs Shakir Enterprises Quetta vide IGM No, 1127/02, dated 24-6-2002, Index Nos.105, 106 and 107 in three 40 feet Container Nos.UMLU-618263-1, TGHU-720041-4 and UMLU803844-9 for transshipment to Quetta Dry Port Messrs GAC Cargo Systems Pakistan (Pvt.) Ltd.
3. Karachi filed transshipment permits. On 29-6-2002, inspection of aforesaid three containers were conducted at K.I.C.T. In presence of Muhammad Aslam Shaikh, Operation Incharge of Messrs GAC Cargo Systems Pakistan (Pvt.) Ltd. And applicant Ayaz Ahmed son of Farooq Ahmed, owner of Messrs Immediate Cargo Services, Karachi, on inspection, original seals of containers were found removed, detailed examination was conducted, which resulted in recovery of 440 bags of Kenya Black Tea of 70 Kgs., totalling 92,400 Kgs. Valuing Pak. Rs,1,07,96,544 involving duty and taxes to the 4une of Rs,56,689. The tea of aforesaid weight alongwith transshipment documents were seized under the memo. Of seizure and inventory prepared on the spot in violation of the provisions of sections 2(s), 16, 32(1)(2) and 178 punishable under clauses (8), (14) and (77) of section 156 (1) of the Customs Act was found. The notice under section '171 was served upon Khalid Mohiuddin, Operation Officer, K.I.C.T. Karachi and were given under the Supardari."
4. ' During the preliminary investigation, it was found that applicant Ayaz Ahmed is working for Messrs Shakir Enterprises, Quetta who delivered him the import documents through accused Muzafar Hussain, Arshad and Khadim Hussain for smuggling of Kenya Black Tea under the guise of import of "Raw Wool" (unwashed). It was also revealed that earlier about 37 consignments declared as "Raw Wool" were transported to Quetta Dry Port through Messrs Taze Raftar Cargo. The role of the said Transport Company in the commission of offence is under investigation. Applicant was arrested on 30-6-2002 and notice under section 171 of the Customs Act was served on him. Interim charge- sheet has been submitted on 15-7-2002. Bail application preferred before the trial Court, as stated earlier was dismissed vide impugned order. The pplicant is a Clearing Agent, who has received documents from the importer and handed over the same to Cargo Agent for transshipment to Quetta Dry Port.
5. ' I have heard Mr. Muhammad Anwar Tariq, learned counsel for the applicant and Mr. Sy ed Tariq Ali, learned Federal Counsel for the State.
6. ' Learned Federal Counsel has vehemently opposed the bail application by contending that the allegation against the applicant is that he attempted to smuggle the Black Kenya Tea under the guise of transshipment and the offence of smuggling or attempt to smuggle is punishable with imprisonment of 14 years and he referred order dated 9-8-2002 recorded by me in Special Criminal Bail Application No,24 of 2002 (Dawood Paracha v. The State), wherein the applicant therein was charged for an attempt to smuggle contraband goods, such as "Alcoholic Drinks"
7. (Whisky) in guise of consignment of "beverages and mineral water", the application was dismissed as the smuggled goods were notified items under section 2(s) of the Customs Act. 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 156 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."
8. ' Mr. Syed Tariq Ali tried to argue on the basis of S.R.O.491(1)/85 dated 23-5-1985 issued under subsection (ii) of clause (s) of section 2 and subsection (2) of section 156 of the Customs Act, 1969, notifying the goods as prohibited items and argued that the Tea so imported fall under the item at Serial No,10 "Foodgrains" and "Food items" all sorts". Though in the same breath, he concedes that Coffee, Tea, mate and spices are classified in Chapter 9 of the Customs under the Heading.
9. Nos.0902.4010 and 0902.4090, dutiable items mentioned therein:- HS Code Description CD ST Total Taxes Units
(1) (2) (3) (4) (5) (6)
10. 0902.4010 Tea dust 25% 15% (52.38%) Kg.
11. 0902.4090 Others 25% 15% (52.38%) Kg.
12. On these facts, such a contention is difficult to accept, Tea cannot be taken as Foodgrains and Food Items all sorts.
13. ' Section 2(s) defines smuggling as bringing in or taking out of Pakistan any dutiable or prohibited goods, which are;
(i) specified in sub-clauses (1) and (2) of section 2(s) or
(ii) notified by the Federal Government under sub-clause (ii) ibid or
(iii) any goods brought in or taken out through unauthorized routes.
14. ' The Tea is not specified in sub-clause (i), nor that can be taken in first part of sub-clause (ii). Sub- clause (ii) contains two parts (a) manufactures of Gold, Silver or Platinum or Palladium or Radium, precious stones and (b) any other goods notified by the Federal PC, Government in the official Gazette, which in each case exceed Rs,50,000 in value.
15. ' In order to be "smuggled goods", the goods qualifying either of the two conditions, laid down in the controlling part have also to fall in one of the categories listed in sub-clauses (i) and (ii) of section 2(s). Therefore, to contend that imported cargo of "Black Tea" is a smuggled item, same has to be found notified item in a notification issued by the Federal Government for the purpose of later part of clause (ii) of section 2(s) to attract the penal consequences of section 156(1)(8). In absence of a notification for the purpose of sub-clause (ii), bringing in Pakistan of "Black Tea" may offend other provisions of Act but not to attract clause (8) of section 156.
16. ' I am bound to follow the view taken by the Division Bench referred to above as followed by Zafar Hussain Mirza, J. (as he then was) in Muhammad Bashir case (supra). It may also be stated that perusal of the table contained in section 156 shows that against item No,9, in Column No,3, are mentioned, sections 15 and 16 as the sections of the Customs Act to which the offence under clause (9) has reference, whereas, for the offence of smuggling at clause (8) in column No,3, the word "general" has been mentioned. Therefore, it is clear that the prohibitions contained in section 16 are not attracted in case of an offence of smuggling punishable under clause (8) of section 156(1) of the Customs Act. The offence at best could fall under clause (9) of the section 156, whereas, the offences punishable under clauses (14) and (77) are punishable with imprisonment of three years and fine, thus the case does not fall within prohibitory clause. Therefore, the applicant is entitled for the concession of bail, which is granted pending his trial provided, he furnishes surety in the sum of Rs,5,00,000 with P.R. Bond of like amount to the satisfaction of the trial Court.