1989L74 (PLP)

Miss Beatrice Ben, a Nigerian national was tried by the learned Special Judge, Customs, Lahore, under section 156(1)(8) of the Customs Act, 1968, for attempting to smuggle 250 grams of heroin to India. The learned Special Judge, Customs, by his judgment dated 4‑5‑1989 convicted the accused under the aforesaid section and sentenced her to four years rigorous imprisonment with a fine of rupees ten thousand (Rs.10,000) or in default thereof to undergo further rigorous imprisonment for six months. The benefit of section 382‑B, Cr.P.C. was also granted to the convict. The appeal of the convict is now before me for disposal.

2. The brief facts of the case are that the Superintendent Customs, Railway Station, Lahore, received a secret information that on 27‑12‑1988, a Nigerian woman would smuggle hereoin while going to India in Samjotha Express train. In view of this information, the entire staff was alerted. At about 11‑00 a.m. a Nigerian woman presented her luggage for checking at Customs Counter No.20 in Customs Zone, Railway Station, Lahore. She also produced her Nigerian Passport No.1490325 which disclosed that her name was Miss Beatrice Ben (the accused). Before searching her luggage, she was asked to declare if she was carrying any contraband item of narcotic, to which she replied in the negative. Her luggage was searched, but nothing objectionable was recovered from the same. Thereafter, the Superintendent Customs directed Mrs. Shahwar Sultana, Lady Inspector Customs, to cause personal search of the accused. This personal search led to the recovery of 21 small packets Ex.Pl/1‑21 of polythene containing 250 grams of heroin, from the folds of three underwears Ex.P2/1‑3, which she was wearing. The accused was arrested and the heroin was taken into possession. Notice Ex.PB under section 171 of the Customs Act was also served on the accused.

3. At the trial, the prosecution produced Mrs. Shahwar Sultana, Lady Inspector Customs PW1, Aftab Ahmad Khan, Deputy Superintendent of Customs PW2, Farhat Abbas, Inspector Customs PW3 and 'Mohammad Akhtar Wadhera, Superintendent Customs PW5 in support of the personal search of the accused and recovery from her of 21 small packets of polythene containing 250 grams of heroin from the folds of, multiple underwears which she was wearing.

4. At the trial, the accused denied all the accusations that were levelled against her, including the recoveries made from her person. She disclosed that at the time of search, two gold rings, one gold chain and U.S. $ 200 were taken from her by the Customs authorities and that when she demanded backed the same from them, the present false case was registered against her. She further stated that she was a student in the University of Maharani College Jaipur, India, in respect of which she produced the certificate of the Principal of that college Ex.DA. She declined to produce, any evidence. She declined to appear as her own witness on oath.

5. The learned trial Judge, relying upon the evidence of the aforesaid four witnesses, convicted and sentenced the accused, as stated in para 1 above.

6. I have heard the arguments of the learned counsel for the appellant and the Customs authorities and have also perused the record. The conviction is challenged on the short ground that before the personal search of the appellant, Muhammad Akhtar Wadhera, Superintendent Customs PW5 did not pass any order under section 159(3) of the Customs Act, 1969, calling upon two persons to attend and witness the personal search of the appellant and that even when the personal search was made, two or more persons were not present to attend and witness the same. It is, therefore, submitted that the sole testimony of Mrs. Shahwar Sultana, Lady Inspector Customs PW1, witnessing the search, cannot be legally accepted and that the appellant should be acquitted. On behalf of the Customs authorities it is submitted that any illegality during the investigation of the case or with regard to the arrest of the accused cannot vitiate the proceedings and that the sole testimony of Mrs. Shahwar Sultana PW1 can be accepted to sustain the conviction of the appellant. In this connection, learned counsel has cited Shaukat Hussain v. Zulfiqar Ahmad and others (P L D 1981 Lah.13). Subsections (3) and (4) of section 159 of the Customs Act, 1969, state: (3) Before making a search under section 158 the officer of customs shall call upon two or more persons to attend and witness the search and may issue an order in writing to them or any of them so to do, and the search shall be made in the presence of such persons and a list of all things seized in the course of such search shall be .prepared by such officer or other person and signed by such witnesses. (4) A female shall not be searched except by a female. It is, therefore, necessary that before search is made, the gazetted officer of customs or the Magistrate, before whom an accused is brought for purposes of personal search, issues an order in writing calling upon two or more persons to attend and witness the search. A However, such an order is not mandatory, If no such order is passed, the personal search should be made in the presence of two persons and a list of all things seized in the course of such search should be prepared by such officer or other person and signed by such witnesses. This is mandatory. In the instant case, no order was passed by Muhammad Akhtar Wadhera, Superintendent Customs PW5, I who was a gazetted officer of Customs, directing two or more persons to attend and witness the personal search of the appellant. Still further, no persons witnessed the search, or signed the recovery memo in token thereof. In view of subsections (3) and (4) of section 159 of the Customs Act, 1969, the Superintendent of Customs should have passed a written order directing two or more ladies to witness the personal search of the appellant, who was a lady. Assuming he did not consider this necessary, he was mandatorily bound to call upon two ladies to witness the personal search, to be conducted by a lady Customs Officer, and to see that such witnesses signed the recovery memo. Since the personal search was made in violation of the mandatory requirements of subsections (3) and (4) of section 159 of the Customs Act, 1969, the conviction cannot be sustained. See Zahid Ali v. The State (P L D 1987 Kar.399).

7. The upshot of the above discussion is that the appellant is entitled to an acquittal. .

8. For the foregoing reasons, this appeal is accepted and the conviction and sentence of Miss Beatrice Ben, appellant, is set aside. The appellant shall be released forthwith, if not required in any other case. Fine, if any recovered from her, shall be refunded to her. N.H.Q./M‑1361/L Appeal accepted.