P L D 1958 Supreme Court (Pak (PLP)

AMIRUDDIN AHMAD, J.‑--This is an appeal by Special Leave of this Court by four persons against the order of the High Court of East Pakistan at Dacca rejecting their application for revision under section 439 of the Code of Criminal Procedure of their conviction under section 4 of the Prevention of Smuggling Act, 1952, and a sentence of rigorous imprisonment for two years and a fine of Rs. 500 imposed on each of them. They were originally tried by a Magistrate 1st Class at Bogra and were convicted and sentenced as above on two counts for possessing and attempting to smuggle to India 7,465 tolas of silver, equi valent to about 2 maunds, in contravention of section 3 of the Prevention of Smuggling Act, 1952. The facts of the case about which there is no serious dispute are as follows. One day before they were arrested, viz., on 13th July 1955, the Superintendent of Police, Bogra, got secret information that the appellant Taheruddin Chowdhury and men of his party were carrying a huge quantity of silver bullion towards Panchbibi border for smuggling the same to India. He at once communicated with the Station Master, Bogra, and sent a message to the Station Master, Panchbibi Railway Station, and to the Inspector of Border Police, who with a police force went to the Panchbibi Railway Station and waited for the arrival of the train by which the appellants were reported to be travelling. At midnight, the police found the four appellants in a III Class compartment lying on the bunk with four third class tickets from Bogra to Parbatipur and an excess- fare booking of luggage ticket, covering the articles in possession of the four. There were three Horlick's Milk packets, one under the head of each of the three appellants, while all the four tickets and the luggage ticket were with the fourth appellant, Mansur Rahman. They had not booked the luggage at the Bogra Railway Station but were carrying them un booked in their compartment when they were detected and charged excess fare for which a ticket was given. It appeared from the luggage ticket that the goods covered by it were described as miscellaneous goods On opening the packets, it was found that they contained silver bullion, weighing 7,465 3/4e tolas or about 2 maunds valued at several times more than Rs. 5,000 which was seized by the police. This was when the train was halting at Panchbibi Railway Station which is within five miles zone from the border of the Province of East Pakistan and four miles from the Indian Border. The usual investigation followed and a charge‑sheet was submitted against the four appellants for illegal possession and carriage of silver. The trial Magistrate, after taking evidence, charged them on two counts, namely, for possession and for attempt to smuggle silver bullion to India in contravention of section 3, punishable under section 4 of the Prevention of Smuggling Act, 1952, and at the conclusion of the trial convicted and sentenced them as stated before. The conviction on the second count was based on the finding that as the next railway station after Panchbibi was Hilly where the railway line is about four cubits from the Indian border, and as they had no permits for possession and movement of the silver bullion, they attempted to smuggle the silver to India. On appeal before the Sessions Judge of Bogra, an objection was taken to the joint trial of the four appellants, but the Sessions Judge held that as all the tickets were in the hand of one man and the entire quantity of silver was covered by one luggage ticket in the hands of that man, the appellants were in joint possession of the silver. The Sessions Judge, however, set aside the appellants conviction on the first count, but upheld their convictions and sentences on the second count, affirming the facts found against the appellants by the trial Court. The relevant portions of the Prevention of Smuggling Act, 1952, under which the appellants were convicted may be stated here to see whether the facts found against the appellants constituted a contravention of section 3 punish able under the Act. The Act, which received the assent of the Governor‑General on the 14th December 1952, pro vided by section 1, subsection (3) that "it shall come into force in such areas and on such dates as the Central Government may, by notification, direct". By Notification No. 335/654, dated the 22nd December 1952, the Central Government directed that the said Act shall come into force in all area within five miles of the border of the Province of East Bengal and by Notification No. 335/654/4, dated the 27th December 1952, they further notified the first day of January 1953 as the date from which restrictions on possession and movement of notified commodities as provided in section 3 should come into force in areas within five miles of the border of East Bengal, and by a further notification of the same date, No. 335/654/5, directed that all the powers of the Central Government under the Act with regard to restrictions on possession and movement of the notified commodities shall be exercisable by the Govern ment of East Bengal within' the territories under its jurisdiction. Under section 2 of the Act "notified com modity" means "any commodity which the Central Government may, from time to time, declare, by notification, to be a commodity to which the provisions of this Act shall apply". Section 3 of the Act provides for restric tion on possession and movement of notified commodities as follows :‑-- "As from the date notified for this purpose, no person shall‑

(a) have in his possession or under his control any quantity of any notified commodity in any area to which this Act applies, or (b) move, carry, take or send by any means whatsoever, any notified commodity to any place out of any area to which this Act applies, unless such person complies with such conditions as may be prescribed." The area to which this Act applies, as has already been said above, is a five‑mile zone from the border of the entire province. By Notification No. 3342‑Comerl., dated the 4th May 1953, a number of commodities were declared to be "notified commodities" by the Government of East Bengal to which the provisions of the Prevention of Smug gling Act, 1952, were to apply and in Item (9) of the notification "silver, gold or bullion, including ornaments" was included. Section 11 of the Act authorised the Central Government (and under its delegated powers the Provincial Government) by notification, to make rules for the purposes of the Act. Section 12 authorised the said Government to exempt, by notification, any person or class of persons from all or any of the provisions of this Act subject to such condi tions, if any, as may be specified in such notification. By Notification No. 3343‑Comerl, dated the 4th May 1953, made under section 12 of the Prevention of Smuggling Act, the Government of East Bengal exempted all persons in respect of possession or control of, among other things, gold and silver in the form of ornaments, coins and bullion from the provisions of clause (a) of section 3 and from the provisions of clause (b) of section 3 all persons for the purpose of bona fide personal use or use of the members of the family in respect of, among other things, geld and silver in the form of ornaments and bullion not exceeding Rs. 5,000 in value. By another Notification No. 3 344‑Comerl, dated the 4th May 1953, rules for the purpose of regulating possession or control, movement, carrying, taking or sending of "notified commodities" were made by which, among other things, gold and silver in bullion and ornaments of and above the value of Rs. 5,000 could only be dealt with under section 3 (b) under permit issued by, the District Magistrate or any official authorised by him to this behalf and in accordance with conditions in such a permit. From the above statement of the sections, rules and notifications it is clear that movement, carriage, taking or sending by any means whatsoever to any place outside the five‑mile zone, whether it be towards the Indian border or towards the Pakistan side of the zone of any "notified commodity", without permit, is an infringement of section 3 of the Act ; and so far as silver is concerned, if it is of a value exceeding Rs. 5,000, it is a contravention and if the value is Rs. 5,000 or less there will be no contra vention if the accused should show that the silver was required for their bona fide personal use or use of the members of their family. The object of the Act is to prevent smuggling both into and out of Pakistan. Throughout the trial, the appellants never pleaded or attempted to make out a case that they had a permit or that the value of the silver seized by the police from them was less than Rs. 5,000 or that they required it for personal use. In support of the appeal before us it was urged that there should not have been a joint trial of the four appel lants, as each carried his packet on his own account. In view of the definite finding that they were in joint posses sion of all the silver arrived at by both the trial Court and the lower appellate Court on the facts relied on by them, and the absence of any plea of personal use, we see no substance in this ground. The next ground urged was that as the appellants were travelling from Bogra in Pakistan to Parbatipur, also in Pakistan, as evidenced by the tickets held by them, both of which places are outside the five‑mile notified zone, the mere fact that they were passing by train through the notified area, did not amount to an offence under section 3 (b) of the Act. On the analysis of various sections of the Act and notifications thereunder, as stated above, we are of the opinion that once a "notified commodity", which is held by a person, not exempted under the Act, is in the notified area, its movement, carriage or taking or sending to any point outside the notified five‑mile zone, whether in Pakistan or outside Pakistan, is equally hit by the pro visions of section 3 (b) of the Act. The appellants were admittedly taking the silver bullion from Panchbibi in the area to which the Act applies to Parbatipur, outside the area, and therefore, this act of the appellants constituted an offence under the Act. By section 5 of the Act, even attempts to contravene any provision of section 3 or abetment of such contravention amounts to an offence under section 4 of the Act. On the facts proved against them, the appellants were guilty of contravention of section 3 (b) of the Act. The last ground urged was that they were charged with attempting to smuggle the silver bullion to India out of Pakistan and this was the offence ‑for which their con viction and sentences were upheld by the Sessions Judge on appeal, but that there was no evidence to support this charge. The conviction for attempting to smuggle the silver into India is founded on a suspicion that as the railway line is only a few cubits from the border of India near the next station Hill, the appellants must have intended to throw the silver packets across the border to India, We think there is justification for the exception taken by the appellants to the finding that they attempted to smuggle the silver bullion to India out of Pakistan, near Hill Station, as there is no material on the record to justify this inference. But if the appellants are taken at their own word as is evident by their tickets which show that they were going with the silver to Parbatipur the offence of carrying of the silver or attempting to carry it to a place out of the border zone, without a permit, is complete. There is no doubt that the charge, as framed on the second count, is defec tive, inasmuch as it mentions an attempt to smuggle the bullion to India out of Pakistan, and the mention of the place to which they were attempting to smuggle the silver out of the prohibited area is merely speculative. We have, therefore to see whether any prejudice has been caused to the appellants by the defect in the charge. The facts of the case are quite simple, most of which are admitted or not controverted and have been clearly brought out in evidence and all available defence has been taken. There was, therefore, no chance of the appellants being prejudiced in their defence on account of the defect in the charge, and they knew that the gist of the offence was their attempt to take the silver out of the notified area. The offence under section 4 of the Act has been brought home to the appellants and we see no reason to interfere with the conviction or the sentences. The appeal is accordingly dismissed. A. H. Appeal dismissed.