2003 P Cr (PLP)

HS Code Description CD ST Total Taxes Units (1) (2) (3) (4) (5) (6) 0902.4010 Tea dust 25 % 15 % (52.38 %) Kg. 0902.4090 Others 25 % 15 % (52.38 %) Kg. On these facts, such a contention is difficult to accept, Tea cannot be taken as Food grains and Food Items all sorts. 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. 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) I manufactures of Gold, Silver or Platinum or Palladium or Radium, precious , stones and (b) any other goods notified by the Federal Government in the official Gazette, which in each case exceed Rs.50,000 in value. 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. I am bound to follow the view taken by the Division Bench referred to above as followed by War 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(i) 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. Bona of like amount to the satisfaction of the trial Court. H.B.T./A-440/K Bail granted.