1999 PLP 2038 (MLD)

S. 497

Customs Act (IV of 1969), S. 156(1)(8)

Bail

Delay of five hours in lodging the F.I.R. in view of the circumstances of the case was natural- Original notice given to accused under S. 171 of the Customs Act, 1969 had shown the quantity of heroin recovered from the possession of accused being 5 Kgs.

Medical Board consisting of three Doctors of National Institute of Cardiovascular Diseases had opined that the disease of Hypertension by which the accused was suffering was not detrimental to life and had suggested certain medical treatment to him

Bail on merits as well as on medical ground was disallowed to accused in circumstances. Ghulam Hyder Lakho for Applicant. S. Mamnoon Hassan, Dy. A.-G for the State Applicant seeks bail in Crime No. DEC-039/98-JTC for the offence under section 2(s), 156(1)(s) of Customs Act. Mr. S. Raghib Hassan, S.P.O. Customs House, Karachi while performing his shift duty during Aay time at International departure Jinnah Terminal Complex, Quaid-e-Azam International Airport on 20-3-1998 at about 15-00 hours intercepted applicant a Spanish passenger holding Passport No.37211388-X, who was just leaving for Geneva via Zurich by Swiss Air Flight No.SR-395/SR-940. He was asked to declare as to whether he was having any contraband goods specially narcotics in his baggage or on his person to which he replied in negative. Thereafter, on the search of his baggage comprising two Emcora Brand suitcases, a Samsonite brand black brief case and a cardboard carton was made in presence of Mashirs M/s. Zahid Hussain and K.M. Tabasum and upon further minute examination white heroin powder duly wrapped in assorted polythene packets was found concealed in the false top and bottom of two suitcases and briefcase. Nothing was recovered from cardboard carton. Heroin powder, so recovered was found to be 5.0 k.g and was seized alongwith above articles and Mashimama was prepared. Three representative samples were taken from the seized heroin and were sealed and signed by the above witnesses. One of this samples was sent to National Institute of Health, Islamabad for chemical analysis and the remaining two samples were deposited with Customs House, Karachi. Applicant was arrested and served with notice under section 171 of Customs Act, 1969. The applicant on enquiry further disclosed that three suitcases had been deposited with Sheraton Hotel and the same were recovered under Mashimama and were examined in presence of witnesses Nisar Ahmed and Zahid and nothing incriminating was recovered thereof. It is contended by Mr. Ghulam Hyder Lakho that by this time neither final challan has been produced nor Chemical Examiner's report has yet been obtained. He next contended that there is delay of 5 hours in lodging the F.I.R. for which no explanation of any sort has been offered and that the notice under section 171 of Customs Act discloses quantity of 5 grams only which contradicts the quantity of 5 Kgs. mentioned in the F.I.R. and by that the case against applicant requires further enquiry. According to Mr. Ghulam Hyder Lakho nothing is said to have been recovered from personal search of applicant at the time of search whereas acknowledgement receipt issued by seizing officer shows that the Pakistani currency, dollars as well as Swiss coins were recovered and were handed over to the applicant. According to him applicant is an old man and is suffering from high blood pressure and is also a heart patient and was referred from medical examination by the trial Court and in consequence whereof a Board consisting of three doctors of national Institute of Cardiovascular Diseases had opined that applicant suffering from uncontrolled hypertension, needs adjustment of medication. Mr. Ghulam Hyder Lakho vehemently argues that this disease is detrimental to life and refers to page 162 of Guyton and Hall Textbook of medical physiology whereby it is said that the hypertension is a dangerous disease and results in many other complicated diseases. On enquiry learned counsel failed to produce any case-law on the above contention. Mr. S. Mamnoon Hassan, learned Deputy Attorney-General vehemently opposes the above submission of applicant's counsel and argues that huge quantity of heroin has been secured from the belonging of applicant a foreign smuggler. Irrespective of the above passport and ticket were also seized by which he wanted to leave Pakistan. According to him he neither replied to the notice under section 171 of Customs Act nor had even taken the plea that heroin was 5 grams only. He next contends that alleged offence is punishable with 14 years and is covered under propitiatory clause of section 497, Cf.P.C. and is not entitled to the relief of bail. So far medical certificate of doctors is concerned, he argues that the same is self-explanatory and does not mention that the said disease is detrimental to life. The contention that F.I.R. is lodged with 5 hours' delay, hence applicant deserves bail, has in fact no force for the reasons that same was registered at Custom House about 20 miles from place of recovery and it would be natural to consume such time in travelling all along. So far next contention is concerned, original notice under section 171 of Customs Act shows that the quantity of heroin recovered from he possession of applicant is 5 Kgs, which was alleged to be smuggled. Apparently there seems to be an interpolation in the copy of notice produced alongwith bail application, which, on the face of it, shows that a point has been added at the bottom in-between 0 and

5. This interpolation washes away the above contention. So far medical ground, on which the bail has been sought is concerned, Board consisting of three doctors of National Institute of Cardiovascular Diseases had opined that the disease, viz. Hypertention, by which the applicant is suffering, is not detrimental to life and suggested certain medical treatment. Accordingly applicant does not deserve bail on merits as well as medical ground as such bail application is dismissed. N.H.Q./Q-17/K Bail refused