1. Heard learned counsel.
2. Thus bunch of References involve common questions of law hence are being dealt with by this common order.
3. Entire proceedings, out of which instant References have arisen were based on search and seizure hence the only question that could lawfully be framed is: Whether search and seizure, as conducted by the applicant department, was in accordance with the requirements of Section 162 and 163 of Customs Act, 1969?
4. This prime question came for consideration before the Appellate Tribunal. Consequent upon issuance of show-cause notice, the cases were adjudicated by competent authority under section 179 of Customs Act, 1969. Aggrieved of it appeals were preferred before Collectors Appeals which were dismissed. The remedy was then availed before the Tribunal, which rendered the search and seizure unlawful.
5. It is primarily case of the respondent before Tribunal that no proceedings should have been initiated on the basis of defective search and seizure. It appears that provisions of Section 162 were dispensed with as desired; albeit there are reasons enumerated under the law for such dispensation and invoking Section 163 of the Customs Act, 1969. For convenience both Sections 162 and 163 of Customs Act, 1969 are reproduced as under:-
162. Power to issue search warrant.- (1) Any Judicial Magistrate may, on application by a gazetted officer of customs stating the grounds of his belief that goods liable to confiscation or documents or things which in his opinion will be useful as evidence in any proceeding under this Act are secreted in any place within the local limits of the jurisdiction of such Magistrate, issue a warrant to search for such goods, documents or things.
(2) Such warrant shall be executed in the same way, and shall have the same effect, as a search- warrant issued under the Code of Criminal Procedure, 1898 (Act V of 1898).
163. Power to search and arrest without warrant.- (1) Whenever any 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 has reasonable grounds for believing that any goods liable to confiscation or any documents or things which in his opinion will be useful for or relevant to any proceeding under this Act are concealed or kept in any place and that there is a danger that they may be removed before a search can be effected under section 162, he may, after preparing a statement in writing of the grounds of his belief and of the goods, documents or things for which search is to be made, search or cause search to be made for such goods, documents or things in that place.
(2) An officer or person who makes a search or causes a search to be made under sub section (1) shall leave a signed copy of the aforementioned statement in or about the place searched and shall, at the time the search is made or as soon as is practicable thereafter, deliver furthermore a signed copy of such statement to the occupier of the place at his last known address.
(3) All searches made under this section shall be carried out mutatis mutandis in accordance with the provisions of the Code of Criminal Procedure, 1898 (Act V of 1898).
(4) Notwithstanding anything contained in the foregoing sub-sections and subject to previous authorization by an officer of customs not below the rank of an Assistant Collector 2A of Customs, any officer of customs or any person duly empowered as such may, with respect to an offence related to exportation of such goods as the Federal Government may, by notification in the official Gazette, specify in this behalf-
(a) arrest without warrant any person concerned in such offence or against whom reasonable suspicion exists that he is about to be concerned in such offence; (b) enter and search without warrant any premises to make an arrest under clause (a),or to seize any goods which are reasonably suspected to be intended for exportation contrary to any prohibition or restriction for the time being in force, and all documents or things which in his opinion will be useful for or relevant to any proceeding under this Act; and
(c) for the purpose of arresting, detaining or taking into custody or preventing the escape of any person concerned or likely to be concerned in such offence, or for the purpose of seizing or preventing the removal of any goods in respect of which any such offence has occurred or is likely to occur, use or cause to be used such force to the extent of causing death as may be necessary.
(5) The provisions of sub-section (4) shall apply only to the areas within five miles of the land frontier of Pakistan, and within a five miles belt running along the sea coast of Pakistan.
(6) No suit, prosecution or other legal proceeding shall be instituted, except with the previous sanction in writing of the 1 [Federal Government], against any person in respect of anything done or purporting to be done in exercise of the powers conferred by sub-section (1) or sub-section(2) or, in the areas specified in sub-section (5), by sub-section (4).
6. Following is the search warrant issued under section 163 of Customs Act, 1969:- "Search Warrant under section 163 of the Customs Act, 1969 (statement prepared by Deputy Collector (RFtD)
7. Whereas, on the basis of credible information and having reasons to believe that certain things liable to confiscation and vital documents which in my opinion will be useful for relevant to proceedings under Customs Act, 1969 are lying/concealed at Room No.9-A Pak chamber, West Warf Road, Karachi and there is a danger that the same shall be removed before a search can effected under provisions of Section 162 of the Customs Act, 1969.
8. I, therefore, keeping in view the circumstances of the case, exercising the powers under Section 163 of Customs Act, 1969, do hereby order to cause the above mentioned premises to be searched for the things and documents into the said place."
9. The law, as settled is such that requirements of Section 162 could only be dispensed when exceptional circumstances exist. Section 163 of Customs Act, 1969 empowers Assistant Collector of Customs or any officer of the like rank to make search if he is being satisfied, which he has to express, that there is danger of removal of goods (which are to be specified) if such warrant is obtained, and further that he has recorded reasons for the same. The requirement is categorically mentioned in subsection (1) of Section 163 of Customs Act, 1969. The burden is thus heavy on the officer who is taking this exceptional view for carrying exercise under Section 163 of Customs Act, 1969 hence he (the officer concerned) is required to have prepared a statement in writing to include the grounds of his belief with regard to danger he apprehends i.e. before such search is made on the basis of search warrant (under section 162 of Customs Act, 1969) the goods or documents or things for which search is being made may be removed. The text of the statement of grounds in the instant case is as under:- "Whereas credible information has been placed before me that foreign smuggled refined tin slabs and other contraband goods are stored in the premises of M/s Ittihad Re-Rolling Mills L-10-C Block 21, Federal B. Area, Karachi, it is not expedient to obtain a search warrant as required under section 162 of the Customs Act, 1969 as the goods may be removed from the premises.
10. I, Afzal Ameer Khan, Assistant Collector of Customs (Preventive) under the powers conferred under section 163 of Customs Act, 1969 order the search of the said premises."
11. The text of the statement disclosed that nothing of the above in black and white and it seems to be a fishing expedition before dispensing with the procedure of Section 162 of Customs Act, 1969. The officer concerned i.e. Assistant Collector had to disclose categorically what subject goods were smuggled and what specific documents he apprehend to be removed, which he has failed as is clearly apparent while reading the above text.
12. Section 163 requires that the statement must mention the documents and/or things for which search has to be made. These are stringent requirements prescribed by law in order to ensure that enormous power of search is exercised honestly and judiciously. The legislature has made it mandatory for an officer that the grounds for his belief shall be recorded beforehand by the officer concerned and it is only to ensure that the search without warrant is made for a bona fide cause and such grounds could be tested later if required. Hence only a genuine ground could have enabled the officer to invoke powers under section 163 and not a roving exercise.
13. Simply mentioning that there is danger of removal of goods is not sufficient. The officer must state grounds which justify apprehension of danger of such removal and so also information that he received from an individual having name and that the concerned party has taken steps or about to take steps for the removal of the goods. Nothing of such sort is mentioned in the under considered warrant allegedly issued under section 163 of Customs Act, 1969.
14. The primary requirement apart from others that concern with section 163 of Customs Act, 1969 are as under:-
(i) There is a danger that goods (specified) might be removed before search warrant could be obtained.
(ii) To record the statement of the grounds of his belief and of the goods and documents for which search is to be made and
(iii) To leave a signed copy of the said statement at place searched and to deliver signed copy of the same to the occupier of the place.
15. Thus, there is nothing which could demonstrate the danger the officer concerned apprehended and that neither any details of the goods required to be searched nor a signed copy of the same was handed over to the occupier as there is nothing on record to overcome and hence it was considered necessary by the Appellate Tribunal to have annulled the proceedings initiated thereunder as far as illegal search and seizure is concerned.
16. In view of above, we do not find any reason to have considered the questions as proposed by the applicant and rather the question as framed above by this Court is also answered in affirmative i.e. in favour of respondent and against the applicant hence instant Special Customs Reference Applications are dismissed.
17. A copy of the order be sent under the seal of the Court and the signature of the Registrar to the Appellate Tribunal Inland Revenue Karachi in terms of Section 196(5) of Customs Act, 1969.
18. Annexure-A List of. Cases fixed with Special Customs Reference A.(D)335/2012 S.No. CASE NO CASE TITLE 1 Special Customs Reference No.A. (D)
19. 336 of 2012Collector of Customs v. Messrs Forte Impex 2 Special Customs Reference No.A. (D) 337 of 2012Collector of Customs v. Messrs Forte Impex 3 Special Customs Reference No.A. (D) 338 of 2012Collector of Customs v. Messrs Forte Impex 4 Special Customs Reference No.A. (D) 339 of 2012Collector of Customs v. Messrs Forte Impex 5 Special Customs Reference No.A. (D) 340 of 2012Collector of Customs v. Messrs Forte Impex 6 Special Customs Reference No.A. (D) 341 of 2012Collector of Customs v. Forte Impex, Lahore.
20. 7 Special Customs Reference No.A. (D) 342 of 2012Collector of Customs v. Forte Impex 8 Special Customs Reference No.A. (D) 343 of 2012Collector of Customs v. Forte Impex, Lahore.
21. 9 Special Customs Reference No.A. (D) 344 of 2012 .Collector of Customs v. Messrs Forte Impex 10 Special Customs Reference No.A. (D) 345 of 2012Collector of Customs v. Messrs Forte Impex 11 Special Customs ReferenceCollector of Customs v. Messrs Forte Impex No.A. (D) 346 of 2012 12 Special Customs Reference No.A. (D) 347 of 2012Collector of Customs v. Messrs Forte Impex 13 Special Customs Reference No.A. (D) 348 of 2012Collector of Customs v. Messrs Forte Impex 14 Special Customs Reference No.A. (D) 349 of 2012Collector of Customs v. Messrs Forte Impex 15 Special Customs Reference No.A. (D) 350 of 2012Collector of Customs v. Messrs Forte Impex 16 Special Customs Reference No.A. (D) 351 of 2012Collector of Customs v. Messrs Forte Impex 17 Special Customs Reference No.A. (D) 352 of 2012Collector of Customs v. Messrs Forte Impex 18 Special Customs Reference No.A. (D) 353 of 2012Collector of Customs v. Messrs Forte Impex 19 Special Customs Reference No.A. (D) 354 of 2012Collector of Customs v. Messrs Forte Impex 20 Special Customs Reference No.A. (D) 355 of 2012Collector of Customs v. Messrs Forte Impex 21 Special Customs Reference No.A. (D) 356 of 2012Collector of Customs v. Messrs Forte Impex 22 Special Customs Reference No.A. (D) 357 of 2012Collector of Customs v. Messrs Forte Impex 23 Special Customs Reference No.A. (D) 358 of 2012Collector of Customs v. Messrs Forte Impex 24 Special Customs Reference No.A. (D) 359 of 2012Collector of Customs v. Messrs Forte Impex 25 Special Customs Reference No.A. (D) 360 of 2012Collector of Customs v. Messrs Forte Impex 26 Special Customs Reference No.A. (D) 361 of 2012Collector of Customs v. Messrs Forte Impex 27 Special Customs Reference No.A. (D) 362 of 2012Collector of Customs v. Messrs Forte Impex 28 Special Customs Reference No.A. (D) 363 of 2012Collector of Customs v. Messrs Forte Impex 29 Special Customs Reference No.A. (D) 364 of 2012Collector of Customs v. Messrs Forte Impex 30 Special Customs Reference No.A. (D) 365 of 2012Collector of Customs v. Messrs Forte Impex 31 Special Customs Reference No.A. (D) 366 of 2012Collector of Customs v. Messrs Forte Impex 32 Special Customs Reference No.A. (D) 367 of 2012Collector of Customs v. Messrs Forte Impex 33 Special Customs Reference No.A. (D) 368 of 2012Collector of Customs v. Messrs Forte Impex 34 Special Customs Reference No.A. (D) 369 of 2012Collector of Customs v. Messrs Forte Impex 35 Special Customs Reference No.A. (D) 370 of 2012Collector of Customs v. Messrs Forte Impex 36 Special Customs Reference No.A. (D) 371 of 2012Collector of Customs v. Messrs Forte Impex 37 Special Customs Reference NoA. (D) 372 of 2012Collector of Customs v. Messrs Forte Impex 38 Special Customs Reference No.A. (D) 373 of 2012Collector of Customs v. Messrs Forte Impex 39 Special Customs Reference No.A. (D) 374 of 2012Collector of Customs v. Messrs Forte Impex 40 Special Customs Reference No.A. (D) 375 of 2012Collector of Customs v. Messrs Forte Impex 41 Special Customs Reference No.A. (D) 376 of 2012Collector of Customs v. Messrs Forte Impex 42 Special Customs ReferenceCollector of Customs v. Messrs Forte Impex No.A. (D) 377 of 2012 43 Special Customs Reference No.A. (D) 378 of 2012Collector of Customs v. Messrs Forte Impex 44 Special Customs Reference No.A. (D) 379 of 2012Collector of Customs v. Messrs Forte Impex 45 Special Customs Reference No.A. (D) 380 of 2012Collector of Customs v. Messrs Forte Impex 46 Special Customs Reference No.A. (D) 381 of 2012Collector of Customs v. Messrs Forte Impex 47 Special Customs Reference No.A. (D) 382 of 2012Collector of Customs v. Messrs Forte Impex 48 Special Customs Reference No.A. (D) 383 of 2012Collector of Customs v. Messrs Forte Impex 49 Special Customs Reference No.A. (D) 384 of 2012Collector of Customs v. Messrs Forte Impex 50 Special Customs Reference No.A. (D) 385 of 2012Collector of Customs v. Messrs Forte Impex 51 Special Customs Reference No.A. (D) 386 of 2012Collector of Customs v. Messrs Forte Impex 52 Special Customs Reference No.A. (D) 387 of 2012Collector of Customs v. Messrs Forte Impex 53 Special Customs Reference No.A. (D) 388 of 2012Collector of Customs v. Messrs Forte Impex 54 Special Customs Reference No.A. (D) 389 of 2012Collector of Customs v. Messrs Forte Impex 55 Special Customs Reference No.A. (D) 390 of 2012Collector of Customs v. Messrs Forte Impex, Lahore.
22. 56 Special Customs Reference No.A. (D) 391 of 2012Collector of Customs v. Messrs Forte Impex Lahore. t