1989 P Cr (PLP)

Criminal Miscellaneous No. 110 of 1988, decided on 18th October, 1988, ‑‑‑S. 497‑‑Customs Act (IV of 1969), Ss. 156(1)(8) & 159‑‑Bail, grant of‑‑Foreign currency of different countries worth Rs.2,77,632 recovered from accused‑‑F.I.R. not disclosing as to whether accused was informed of his right to be searched in presence of Gazetted Officer or Magistrate‑‑Provisions of S.159, Customs Act not followed‑‑Case needing further inquiry‑‑Bail granted in circumstances. Mrs. Ismat Mehdi for Petitioner. Ashiq Ali Zaidi for the State. The applicant who is challaned under section 156(1)(8 of the Customs Act, 1969, for allegedly carrying on his person foreign currency of different countries equivalent to Pakistan Rs.2,77,632, has applied for, grant of bail. Learned counsel for the applicant contends that F.I.R. does not show that the applicant before he was personally searched by the Customs Officer was informed about his right under section 159 of the Customs Act. It is accordingly contended that search being in violation of section 159 of the Customs Act the case needs further enquiry at this stage. Learned counsel for the State on the other hand maintains that as the applicant was within the limits of Customs area he could be validly searched under section 158 of the Customs Act. It is true that the applicant being present within the limits of the Customs area could be searched by a Customs Officer under section 158 of the Customs Act but the power to search is subject to the limitations prescribed in section 159 of the Customs Act. This section unequivocally lays down that before taking a personal search of a person he must be informed about his right to be taken to a Gazetted Officer of the Customs or Magistrate and if such person so desired he should be taken either to the Magistrate or before the Gazetted Officer of the Customs without further delay. The procedure for taking search after a person is produced before the Magistrate or Gazetted Officer of the Customs is also laid down in subsection (2) of the said section. There is nothing in the F.I.R. to show that the, applicant was either informed about his right under section 159 or that he was asked whether he would like to be searched in presence of Magistrate or a Gazetted Officer of the Customs. As the provisions of section 159 have not been followed the case against the applicant at this stage would need further enquiry and I accordingly admit the applicant to bail in the sum of Rs. two lacs with one surety and P.R. in the like amount to the satisfaction of the trial Court. S.A./M‑712/K Bail granted.