P L D 1988 Lahore 146 (PLP)

Syed Abdul Nabi was tried by the learned Special Judge, Customs, Lahore, under section 156 (1) 8 of the Customs Act for attempting to smuggle seven gold coins weighing seven tolas (eighty grams) valuing Rs.14,080/‑ and Indian currency worth Rs.400/‑ to India, whilst crossing over from the Wahga Border. The learned Special Judge, Customs, by his judgment dated 30‑7‑1981, convicted Syed Abdul Nabi, accused, under the said section and sentenced him to five years' rigorous imprisonment with a fine of Rs.200/‑ or in default thereof to undergo further simple imprisonment for fifteen days. Two. stripes were also ordered to be inflicted on him. The appeal (Cr.A. 483/C of 1981) preferred by Syed Abdul Nabi convict, is now before me for disposal.

2. The brief facts of the case are that Syed Abdul Nabi, accused, was proceeding to India on 9‑5‑1981 via Wahga Border Check Post. At 10.00 a.m. he was checked by the Customs Staff at the Wahga Border. Azhar Ali, Inspector PW1, was one of the members of the staff on duty. When the accused presented himself, he asked him what he was having with him, when the accused 'Stated that he had only US $ 45.00. Azhar Ali Inspector PW1 suspected that the accused was not disclosing the truth. With the permission of Mubashir Ali D.S. PW2, he searched the person of Syed Abdul Nabi, accused, in the presence of Abdul Majid and Muhammad Ashraf (given up PWs.)From the pockets of the saluka, which the accused was wearing under his shirt, seven gold coins (each weighing one tola) and Indian currency notes worth Rs.400/‑ were recovered. The same were taken into possession vide memo Ex.PA. The accused was also served notice Ex.PB under section 171 of the Customs Act. At the trial, Syed Abdul Nabi, accused, in his statement under section 342 Cr.P.C., took up the position that he was proceeding to India on the date in question and was in possession of the recovered seven gold coins and Indian currency worth Rs.400/‑ which he was taking for the marriage of his son in India, but that he had declared the same to the Customs Officers when they had questioned him in that connection and he had handed over the said gold coins and currency notes to them. He admitted his signature on the notice Ex.PB, but stated that the contents of the same were not disclosed to him. He further stated that he did not know why the case had been instituted against him and pleaded innocence.

3. I have heard the arguments of the learned counsel for the appellant and the State and have perused the record. The appellant himself admits that he was proceeding to India and was in possession of the gold coins and Indian currency, when he was checked at the Border. The only disputed question is‑ whether the appellant had disclosed the same to the Customs Staff, when he was checked, or the same were recovered, after he had denied knowledge of the same. On behalf of the prosecution, Azhar Ali Inspector PW1 and Mubashir Ali D.S. PW2 have been produced. On behalf of the defence, Syed Abdul Nabi, appellant, in his statement under section 342 Cr.P.C., has supported his own case. The prosecution witnesses have no enmity with the appellant, nor any has been suggested. Their evidence, therefore, stands unrebutted in this connection. However, under section 159 (1) of the Customs Act, Azhar Ali Inspector PW1, before searching the appellant, did not inform him about his right to be taken to Gazetted Officers of Customs or a Magistrate for such search and, if he so desired, to take him without unnecessary delay to the said Gazetted Officer or Magistrate, before searching him. Two Customs Officers and two public witnesses were present at the time of the search of the appellant, when the smuggled goods were alleged to have been recovered from his saluka, which he was wearing under his shirt. They were Mubashir Ali D.S. PW2, Azhar Ali Inspector PWI and Mohammad Ashraf and Abdul Majid (given up PWs).. Azhar Ali Inspector PW1 had the right to search the appellant under section 158 of the Customs Act, if he had first informed the appellant that he had a right to be searched before a gazetted officer of Customs or a Magistrate, if he so desired, and the appellant had waived such a right. The object of section 159 is to prevent high handedness being committed by Customs Officers and innocent persons being falsely involved. In a genuine case the person effected would like to seek protection of a senior officer of Customs or the Magistrate. where he could also plead his case. The said section is intended to meet such a case, for if the gazetted officer of Customs or the C Magistrate sees no reasonable grounds for search, he may forthwith discharge the person and record reasons for doing so; otherwise he could direct that search be made in the presence of two witnesses. Since neither of the Customs Officers informed the appellant of his right, the search was illegal. Even otherwise the Deputy superintendent and the Inspector of Customs are not gazetted officers. It is admitted by the learned Standing Counsel for the Federal Government, that both of them are not gazetted officers of Customs. The search, therefore, was illegal. In S. M. Yusuf v. Collector of Customs (PLD 1968 Karachi 599), where a search was made in violation of section 172‑A of the Sea Customs Act, 1878, the conviction of the accused was set aside. A fortiori, the present search is also illegal and the conviction and sentence of the appellant deserve to be set aside on this short ground alone. The appellant is, therefore, entitled to an acquittal.

4. For the foregoing reasons, this appeal is accepted and the conviction and sentence of Syed Abdul Nabi, appellant, is set aside. The appellant is on bail. His bail bond shall stand discharged. The fine, if any recovered from the appellant, shall be refunded to him. M.B.A./A‑211/L Appeal accepted.