This judgment will dispose of two constitutional petitions bearing Nos. W. P. 711/1980, filed by Shaukat Hussain, and W. P. 728/1980, filed by Zazey Khan. The petitioners have cloth shops in Shadman Colony, Lahore, which were raided by a Police party headed by Zulfiqar Ahmad, Inspector Police, accompanied by a Magistrate on 13-8-1979. In the result of the raid and the search of the shops, certain quantity of cloth, said to be of foreign origin, was seized and- a case against the petitioners was registered under sec--petition 156(1), clause (89) of the Customs Act, 1969, and their prosecution launch--ed before the Special Judge Customs, Lahore. The matter was also referred to the concerned Customs authorities for adjudication. The petitioners have, by these constitutional petitions, challeliged both the proceedings on the ground that the search and the seizure were vitiated by non-compliance of the provisions of sections 162, 163 and 171 of the Customs Act and have prayed that the said proceedings be declared to be without lawful authority and of no legal effect and the cloth seized be directed to be released.
2. In their written statements, the respondents have asserted that there was "no search whatsoever", that the goods were seized "without any search" and that as the Magistrate was at the spot and the smuggled goods were produced in the open shop by the petitioners, no search warrant was required.
3. Section 162 of the Customs Act empowers 'a Magistrate to issue search warrant on an application by a gazetted Officer of Customs. Under section 163, subsection (1), an "officer of Customs not below the rank of an Assistant Collector of Customs" or "any other officer of like rank duly employed for the prevention of smuggling", if he has reason to believe that any goods liable to confiscation under the Act are concealed or kept in. Any place and there is a danger that the same may be removed before a search can be effected under section 162, may "after preparing a statement in writing of grounds of his belief and of goods" for which search is to be made, search or cause search to be made for such goods in that place. The officer who makes the search or causes the search to be made, is further required by subsection (2) to leave a signed copy of the aforementioned statement in or about the place searched and at the time of the search or as soon as practicable thereafter to deliver furthermore a signed copy of such statement to the occupier of the place at his last known address. Subsection (3) of section 163 directs that all searches made under this section shall be carried out mutatis mutandis in accordance with the provisions of the Criminal Procedure Code. Section 171 requires that when anything is seized, the officer making such seizure - shall, as soon as may be, inform in writing the person from whose possession the things are seized, of the grounds of such seizure or arrest.
4. The contention that there was no search involved is not correct because the act of entering upon the shop premises with a view to finding out if it contained any smuggled cloth and if so to seizing it, did constitute search. From the F. I. Rs. In both the cases and the written statements filed, it appears that the raid had been organized and conducted on the basis of an information that the petitioners had stock of foreign cloth in their shops. However, there is no mention in the F. I. Rs. Nor is it the case of the respondents that any attempt had been made to obtain a search warrant from the Magistrate as required under section 162 of the Customs Act, or a statement as required under section 163(1) of that Act had been prepared .In writing of the grounds of the raiding officer's belief that goods liable to confiscation were concealed in the shops and that there was a danger that the same might be removed before a search warrant could be obtained. It is also not the case of the respondents that the raiding officer had, after the seizure, informed in writing the petitioners of the grounds of the seizure as required under sections 163(3) and 171 of the Act. It is, therefore, clear that there had been no compliance of the provisions of sections 162, 163(1) and (2) and 171 of the Customs Act.
5. The question that now arises is as to what is the effect of this non-compliance on the departmental adjudication by the Customs authorities or the proceedings before the Special Judge Customs. It is to be noted that under clause (89) of section 156 (1), the goods, upon the proof of the offence having been committed, shall be liable to confiscation and the person concerned in the offence to a penalty up to ten times the value of the goods in the departmental adjudication and the offender, upon conviction by the Special Judge, shall also be liable to imprisonment for a term up to six years and to a fine up to ten times the value of such goods as well as to whipping.
6. As the raid had been conducted by an Inspector of Police, who was accompanied, according to the F. I. Rs., by a D. S. P., it may be seen if the Inspector or the D. S. P. Was an officer of the Customs for the purposes of sections 162 and 163. An "officer of customs" is one appointed under section 3 which includes a Collector, a Deputy Collector, or an officer of customs with any other designation.
But under section 6, any function of an officer of customs can be entrusted by the Board, by a notification in the official Gazette, to any officer of the Federal or the Provincial Government either conditionally or unconditionally. In exercise of this power under section 6, the Board of Revenue had issued notifications from time to time. By the Notification S. R. O. No. 538 (1)/72 dated 25-7-1972, all officers of the Police Department not below the rank of Head Constable/ Havaldar were appointed to be officers of customs in Pakistan within their respective jurisdiction as respects the exercise of powers and performance of duties under certain sections of the Customs Act, which included section 162 but not section 163. This notification was superseded by S. R. O. No: 1029(1)/74 dated 29- 7-1974, whereby the power conferred on the Police Officer under section 162 was omitted and instead the power under section 163(1) was conferred on officers of the police not below the rank of Sub-Inspectors within their respective jurisdictions. Under this latter notification, therefore, a Police Officer cannot approach a Magistrate for issuing a search warrant under section 162. The Police Officer instead bad to fall back on the provisions of the Criminal Procedure Code for obtaining the search warrant by virtue of subsection (3) of section 163 of the Customs Act. It is to be noted that while for the purposes of applying to a Magistrate an officer of the Customs has to be not below the gazetted rank and for the purposes of section 163(1) he has not to be below the rank of an Assistant Collector of the Customs, the power under the latter section has been delegated to an officer as low as a Sub-Inspector. The Board must have had their reason for conferring power under section 163(1) on such low ranking officers of the police, which power the Act itself has denied to the officers of the Customs below the rank of an Assistant Collector. Anyway, the raiding Inspector of Police can be said to have been empowered under section 163(1) of the Act.
7. The spirit of the Customs law is that unless there was a danger that the goods might be removed before a search warrant could be obtained, no search could be carried out except upon a search warrant obtained from a Magistrate. This has been made a condition precedent to making a search under section 163(1). But there is nothing in the F. I. Rs. To explain asl to why no effort was made to obtain a search warrant. The presence of a Magistrate 1st Class by the name of Mr. Abdul Matloob Khan in the raiding party goes to show that access to a Magistrate was possible. In that case the pre-condition to the search is not satisfied and the search carried out without a warrant is in contravention' of section 163(1). The presence of the Magistrate cannot be said to obviate the necessity of obtaining a search warrant, because a Magistrate when issuing a warrant has to exercise his judicial power as a Court but he does not do so when he is simply witnessing the search. It is not the respondents' case that the Magistrate had gone to direct the search in his presence under section 105, Cr. P. C. In Shaheen Calico Printing Works v. Mumtaz A.I (PLD 1975 Lab.
1442) it was held: "I am afraid the case (Clarke v. Brajendra Kishore Roy Chowdhry and another (I. L R 39 Cal. 953) is distinguishable, for, in that case, the Magistrate had issued the orders while in the instant case the Magis--trate acted only as an attesting witness. Therefore, the action of search was not in accordance with the provisions of section 162."
Iqbal Akhtar v. Muhammad Mushtaq PLD 1977 Lah. 1318) where the Magistrate had accompanied the search party, it was held that "recourse to. Magistrate being possible, under section 162, Customs Act, powers under section 163(1) could not be exercised at all."
8. Nor were the other conditions to the search under section 163(1) observed. There is nothing to show that the Police Officer had recorded the statement of the grounds of his belief and of the goods, for which search was to be made. There is also nothing to show that the Police Officer had, after the search, left assigned copy of the said statement at the place searched or had delivered a signed copy of the same to the occupier of the place, as required by subsection (2) of section 163.
9. The law, as we have seen, does not recognize any general right in the police of entry into private property for the purpose of obtaining evidence of smuggled goods. The right is available only upon the fulfilment of certain conditions. The defects pointed out, I am afraid, are neither minor nor just technical, They are violative of the basic conditions prescribed for carrying out a search under section 163, a breach of which will strike at the protection guaranteed under Article 4 of the Constitution itself. Clause (2)(a) of Article 4 requires that "no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law".
10. The illegality, I am afraid, is not one that can be ignored on the principle that the jurisdiction of a trial Court is not dependent upon the legality of the antecedent investigation. I am aware of the rulings in Perbhu v. Emperor (AIR 1944 P C 73), Crown v. Nur Alam (PLD 1955 Lab. 667 ), Crown v.
Subhan (PLD 1956 B J 9 ), M. S. K. Ibrat v. Commander-in-Chief, Royal Pakistan Navy and others (PLD 1956 SC (Pak.) 264), Kuruma v. The Queen (PLD1957PC32) and Sadan v. State (PLD1965BJ12which are to the effect that Illegality of arrest or investigation could not vitiate the subsequent trial. But I am here not considering the scope of section 537, Cr. P. C. Because no trial has yet taken place. The defect goes to the root of the case itself inasmuch as the search is the pivotal point in the entire case, whether before the Customs Department or the Special Judge.
11. The question of the legality of a search and seizure of goods in similar circumstance had come up before a Division Bench in S. M. Yousuf and others v. Collector of Customs and others (:PLD 1968 Kar. 599). Both the learned Judges came to the view that the same was not in accordance with law but while one of them held that the jurisdiction of the Court was not dependent upon the legality of the search, nor was the jurisdiction of the Customs Department to adjudicate upon the matter in spite of the illegalities of the search taken away and that as such the goods could not be released in favour of the person from whom it had been seized, the other learned Judge, dissenting from this view, expessed that: "Therefore, when the petitioners have come to this Court promptly after the seizure of the goods and we have granted them a declaration that the search and the seizure were both illegal, I am unable to justify the refusal to restore the goods on the principle that in a subsequent proceeding which may take place, these goods might constitute evidence of contravention of the Sea Customs Act. Such a refusal might nullify the constitutional guarantee which a citizen of this country has under Article 2 of the Constitution to enjoy the protection of law and to be treated in accordance with law, and only in accordance with law."
He was, therefore, in favour of restoration of the goods subject to certain conditions, such as the preparation of a complete inventory of the goods to be restored. In view of this difference of opinion, the matter was referred to a third Judge, who agreed with the latter view and directed that "the goods under these circumstances have to be restored to the petitioners". He expressed no opinion as to the imposition of the conditions for the restoration because the same had not been referred to him. The affected party, however, went to the Supreme Court, which held that there was no warrant in law for the conditions imposed by the High Court on the restoration of the goods. See Muhammad Yousaf v. The Collector of Sea Customs, Karachi (PLD 1969 SC 153and S. M. Yousuf v.
The Collector of Customs, Karachi (1972 SCMR 87 The Collector of Customs also appealed to the Supreme Court and meanwhile re-seized the goods released by the High Court, under section 178 of the then Sea Customs Act (V III of 1878). The appeal was dismissed with the observation that the seizure of the goods by the Customs Officers under section 178 was equally without lawful authority and since it was intended to nullify the effect of the writs issued by the High Court, the same was highly disapproved (see Collector of Customs v. S. M. Yousuf (1972 SCMR 411
12. Following from this authority, a Division Bench of the Sind High Court in Sher Bahadur v.
Chairman, Industrial Relations Commission (PLD 1975 Kar. 483held that action based on illegal seizure of goods was itself illegal and the notices issued by the Customs authorities were quashed.
In another case of this Court, i.e., Iqbal Akhtar v. Muhammad Mushtaq on a similar question, the learned Judge came to the view: "It, therefore, follows that all the proceedings taken by respondent No. 1, the raid, the search, the seizure and the prosecution of the petitioners is without lawful authority and of no legal effect. It is so declared. All the subsequent proceedings which are based on such an illegality are all non- existent in the eye of law. The goods seized shall forthwith be returned to the respective petitioners."
13. I, therefore, accept the petitions and declare that the search and the seizure of the goods in question are without lawful authority and of no legal effect and that the subsequent proceedings, either before the Customs authorities or the Special Judge Customs, based on such search and seizure are non-existent in the eye of law and direct that the goods seized be returned to the petitioners. There shall be no order as to costs.