2005 PLP 1234 (YLR)

This is an application for bail before arrest, submitted on behalf of applicant Maqsood A. Memon, Senior Preventive Officer, Pakistan Customs, at Karachi. Briefly stated the prosecution case is that one Muhammad Mehmood, imported goods and the Bill of Entry was filed through Clearing Agent, Messrs Al-Hamd Cargo, on 31-1-2005. A declaration was made that 85 packages of personal effects were imported from Dubai. The goods were examined and cleared by the applicant Maqsood Memon, Senior Preventive Officer, Pakistan Customs, on Ist February, 2005. Director General of Customs, Intelligence and Investigation received information that a misdeclaration was made and actually Indian imitation jewellry, pan parag etc., valuing at Rs.11,09,417 were imported. A raid was made. The goods were inspected and the information was found correct. The inspection started on 3rd February, 2005 at 16 hours and ended on 4th February, 2005 at 0330 hours. The F.I.R. was recorded on 8-2-2005. It was stated in the F.I.R. that the smuggled goods were cleared in connivance with the customs staff which included the applicant Maqsood A. Memon, S.P.O. Mr. M. A. Kazi, learned counsel for the applicant has submitted that the applicant/accused Maqsood A. Memon, inspected and cleared the goods on 1-2-2005 and thereafter the container remained in possession of K.P.T. and Sea Board Services at Berth No.17 and there is every possibility of substitution of the goods. He has further submitted that there is delay of 4 days in recording the F.I.R. He has contended that it is a case of further inquiry and consequently the interim bail before arrested may be confirmed. Mr. M.A. Kazi, was specifically asked about the mala fide on the part of prosecution to which he has replied that due to departmental intrigue and jealousy, he is being harassed and implicated in this case. Mr. Mehmood Alam Rizvi, learned Standing Counsel, has opposed the bail application for the reason that the goods were initially examined by the applicant in the capacity of Senior Preventive Officer, and total customs duty collected by him was Rs.15,960 showing the imported goods as personal effects which is totally incorrect. He has contended that the applicant has committed an offence punishable under section 32-A(1) of the Customs Act, which reads as under:-- 32-A. Fiscal Fraud:

(1) if any person, in connection with any matter related to customs:

(a) causes to submit documents including those filed electronically, which are concocted, altered, mutilated, false, forged, tampered or counterfeit to a functionary of customs; (b) declares in the bill of entry or bill of export or electronically filed customs declaration, the name and address of any exporter or importer which is physically non-existent at the given address; (c) declares in the bill of entry or bill of export or electronically filed customs declaration, an untrue information regarding description, quantity, quality, or origin and value of goods; (d) alters, mutilates or suppresses any finding of the customs functionary on any document or in the computerized record; or (e) attempts, abets or connives in any action in relation to offences mentioned in clauses (a), (b), (c) and (d) above. He shall be guilty of an offence under this section. He has specifically drawn my attention to Clauses (c) and (e) of the above section and has contended that the applicant connived in relation to the offences mentioned therein. He has pointed out that the offence under section 32-A is punishable under Clause 14-A of section 156 of the Customs Act, which provides the sentence which may extend to 10 years but shall not be less than 5 years or to fine or to both. Mr. Mehmood Alam Rizvi, has further submitted that there is no mala fide on the part of the prosecution to falsely implicate the applicant in this case and general allegation of mala fide on the part of customs official has been levelled which is not sufficient to grant bail before arrest, as it is incumbent on a person seeking bail before arrest to show mala fide on the part of prosecution. I have considered the contentions raised by the learned Advocates for the parties and have perused the material placed on record. The documents placed on record show that the applicant Maqsood A. Memon, S.P.O. Pakistan Customs, inspected the goods along with two other Customs Officials namely M. Akram Khan, Inspector Preventive Services and Aftab A. Qazi, Superintendent Preventive Services, who have not been shown as accused persons. I have perused the document and found that the goods were inspected by applicant Maqsood A. Memon, only who submitted a note to the two other officers and they jointly passed the following order:- Goods may be released as proposed by E.O. Mr. M. A. Kazi, has levelled allegation of mala fide in general terms but is not able to show as to which officer in the Directorate of Intelligence or any other branch of the Customs Department, is inimical to the applicant or has an axe to grind against him. Thus, I find that the applicant is not able to show any mala fide on part of the prosecution. The contention that the applicant first examined the goods and cleared the same on 1-2-2005 and second examination by the Customs Intelligence staff was conducted on 3-2-2005, therefore, there is possibility of change of the goods does not appear to have any substance. In the ordinary course, the goods as actually found in the container are not readily available with the customs officials, which may be substituted. In any case, it is a matter of evidence and at this stage it is not appropriate to make any further observation. Since the goods were initially examined by the applicant and the documents suggest that a huge loss to the Revenue was caused on account of report prepared by the applicant therefore, I do not find it a fit case for the grant of bail before arrest. The application stands dismissed accordingly. Interim order passed earlier stands vacated. N.H.Q./M-201/K Pre-arrest bail refused.