COLLECTOR OF CUSTOMS, CENTRAL EXCISE AND SALES TAX VS ABDUL RASHID, 2013 PTD-QUETTA-HIGH-COURT-BALOCHISTAN 2217 (2013)

Customs Act (IV of 1969)---

----Ss. 2(s)(i)(ii)(iii), 156(1)(89), 168(2) & 180---Smuggling---Appreciation of evidence---Accused was arrested and was charged for smuggling 577 yards of foreign cloth but Trial Court acquitted him---Validity---Though smuggled goods were taken into custody by police but the same were not transmitted to Customs authorities, with a result that no notice under S. 180 of Customs Act, 1969, was served upon accused within the prescribed period as provided under S. 168 (2) of Customs Act, 1969, for confiscation of seized goods---Accused in view of such lapse, filed application before Trial Court for return of goods, which was accepted and goods were ordered to be returned to accused---Goods recovered from accused were not stated in the goods listed in S. 2 (s)(i) and (ii) of Customs Act, 1969 nor it was the case of prosecution that goods were brought into the country by unauthorized route, so as to bring it within the category of smuggled goods under S. 2(s)(iii) of Customs Act, 1969, therefore, the goods could not be treated as smuggled goods and no offence under S. 156(1)(89) of Customs Act, 1969 were made out---Value of goods seized were below the specified limit, as such Trial Court had rightly held that the case did not fall within the scope of "smuggled" goods as defined under S. 2(s) of Customs Act, 1969 and provisions of S.156(1)(89) of Customs Act, 1969, were not attracted against accused---Trial Court had given valid reasonsforacquittalofaccusedandauthoritiesfailedtopointoutthat finding arrived at by Trial Court was result of any illegalityor jurisdictional defect---High Court declined to interfere in the judgment passed by Trial Court---Appeal was dismissed in circumstances.

Ch. Mumtaz Yousaf Standing Council and Haji Muhammad Azam, Law Officer, Customs for Appellant.

Nemo for Respondent.

Date of hearing: 3rd May, 2013.

JUDGMENT

GHULAM MUSTAFA MENGAL, J.---Appellant, Collector of Customs, Sales Tax and Central Excise, Customs House, Quetta has called in question the acquittal order dated 18th June, 2003, passed by learned Special Judge, Customs, Lasbella at Hub, whereby he acquitted the accused/respondent from the charge of section 156(1)(89) Customs Act, 1969.

2.The gist of the facts forming the background of the instant appeal is that an F.I.R. No.14 of 2003 was registered at Police Station, Uthal on 14th April, 2003 under section 156(1)(89) of Custom Act, 1969 at the instance of complainant Abdul Ghafoor, S.-I./S.H.O. a leging therein that on 14th April, 2003 at 6-50 p.m. the accused/respondent was found sitting besides the road along with two bags, which were checked and 577 yards foreign made cloths were recovered from the bags. The accused disclosed his name as Abdul Rasheed son of Nazir Ahmed. He was brought to the Police Station where the instant case was registered against him.

3.After completion of usual investigation, the accused/respondent was sent to face the trial before the Court of competent jurisdiction, where charge was framed under sections 156/89 of Customs Act, 1969 to which he pleaded not guilty and claimed trial. Thereafter the respondent submitted an application under section 265K, Cr.P.C. for his acquittal and after hearing the arguments of the learned counsel for the parties, the learned Special Judge, Customs Lasbela at Hub vide order dated 18th June, 2003 accepted the application under section 265-K, Cr.P.C. and acquitted the accused/respondent on the ground that the value of seized goods is below the specific limit, therefore, the offence do not fall within the scope of smuggled goods as defined in section 2(s) of Customs Act, 1969. In the circumstancesof the case the provisions of section 156(1), (89) of Customs Act, 1969 are not attracted and there is no probability of the accused being convicted of the offence alleged in the F.I.R, hence, this appeal.

4.Record of the case shows that accused/respondent after getting acquittal under section 265-K, Cr.P.C. from the trial Court is not available at his residential address and all efforts made by this Court to procure his attendance in Court have failed. On 10th December, 2012 this Court was pleased to issue notices through publication but despite issuance of notice through publication in Daily Mashriq, Quetta dated 2nd January, 2012 none appeared on behalf of respondent. The Court has left with no option but to proceed with the case in his absence. Learned Standing Counsel has suggested that the acquitted accused is avoiding his appearance in this Court and matter may be heard in his absence and appropriate order may be passed on merits of the case.

5.I have heard the arguments of the learned Standing Counsel and have also perused the record. It appears that though the alleged smuggled goods were taken into custody by the police on 14th April 2003 but same were not transmitted to the Custom authorities with the result that no notice under section 180 of the Customs Act was servedon the appellant within the prescribed period as provided under section 168(2) of the Customs Act for the confiscation of the seized goods. In view of the lapse, the appellant filed an application before the trial Court for the return of goods, which was accepted on 30th June 2003 and the goods were ordered to be returned to the appellant. Further, since the goods are not stated in goods listed in clauses (i) and (ii) of subsection (s) of section 2 of the Customs Act, 1969 nor it is the case of the prosecution that the goods recovered were brought into the country by any unauthorized route, so as to bring it within the category of smuggled goods under clause (iii) of subsection (s) of section 2 of the Act, as such the said goods can not be treated as smuggled goods. Furthermore, no offence under section 156(1)(89) of the Customs Act, is made out. The value of the seized goods are below the specified limit, as such the learned trial Court has rightly held that the case do not fall within the scope of smuggled goods as defined in section 2(s) of the Customs Act, 1969 and provisions of section 156(1), (89) of Customs Act are not attracted in this case. I am satisfied that the learned trial Court had given valid reasons for the acquittal of the respondent. The learned Standing Counsel has failed to point out that the findings arrived at by the learned trial Court was result of any illegality or jurisdictional defect. In these circumstances, I have found no occasion for interference with the impugned judgment of acquittal. Double presumption of innocence is attached to the judgment of acquittal passed by the competent court.

6.In view of what has been discussed hereinabove, this appeal having no merit is dismissed.

MH/71/Bal.Appeal dismissed.