SYED ARSHAD ALI, J.---Through the instant Custom reference, the Collector of Customs, Model Custom Collectorate, Peshawar seeks the advice of this court in terms of Section 196 of the Customs Act, 1969, "The Act", on specific questions of law duly enumerated in the memo. of the petition allegedly arising out of judgment of the learned Customs Appellate Tribunal dated 19.1 1.2019.
2. The record unfolds that it is a case of the department that on prior information, that a huge quantity of foreign origin smuggled goods are dumped in Shafi Market Saddar , Peshawar , a joint raid was conducted by the staff of Customs Preventive (Central), Peshawa r with the help of local Police under the ,supervision/presence of the Assistant Collector of. Customs Preventive (Central), Peshawar and Superintendent Customs Preventive (Central), Peshawar . The raiding team on search, recovered a huge quantity of foreign origin smuggled cloth (the detail of which is mentioned in Recovery Memo No. 86/2019, dated 26.06.2001(sic). The owners of the goods namely (1)
Jahanzeb Sherzada Resident of Kakshal Mohallah Lali Bagh, Peshawar , (2) Gul Zaman son of Noroz Khan, Resident of Zargarabad Warsak Road Dar Mangi P.O .Tery Payan, Peshawar , (3) Abdul Raziq son of Muhammad Amin Resident of Baron Yakatoot, Khan Mast Colony , Mohallah Aziz Abad Pesha war, (4) Noor Sher son of Saad ullah Resident of Mohallah Zakar Abad, P.O Tery Payan Dar Mangi, Peshawar , and (5) Muhammad Umer Khan son of Rustam Khan, Resident of P.O Tery Payan Dar Mangi Tehsil, Peshawar have allegedly failed to produce any legal import documents or lawful possession of the goods so recovered. Therefore, the aforesaid goods were seized under the provisions of Section 168 of the Act, for violation of Sections 2(s), 7 and 16 of the Act read with Section 3(1) of the Imports and Exports (Control) Act, 1950 punishable under Section 156(1)(8) (89) of the Act, read with Section 3(30) of the Imports and Exports (Control) Act, 1950. The said seizure was accordingly referred for adjudication to the competent authority under Section 179 of the Act.
3. A show-cause notice was issued vide letter C.No.ADC (Adj:) 125/MS-2/2019 /590, dated 03.07.2019 to the Respondent by the Additional Collector of Customs (Adjudication), Islamabad, Camp Office, Custom House, Peshawar . Finally the adjudicating authority vide Order-in-Original No.265 of 2019, dated 03.07.2019, has ordered for the outright confiscation of the seized goods in terms of Section 156(1), clauses (8) and (89) of the Act, 1969 read with Section 3(3) of the Import and Exports (Control) Act, 1950.
4. The Respondent/owners of the good had challenged the aforesaid order before the learned Customs Appellate Tribunal, the learned Tribunal vide impugned order dated 19- 11-2019 has allowed the appeal mainly on the ground that the said search and seizure was conducted in violation of Section 162 and Section 163 of the Act.
5. Arguments heard and record of the case was perused.
6. The only question for adjudication and advice of this Court is the legality and proprietary of the raid conducted by the Custom Of ficers on the disputed premises and the seizure of foreign origin Smuggled Goods.
7. Section 162 and Section 163 of the Act envisages the manner and mode albeit the authority/power of the Customs Officer for the search and seizure and raid on any premises when there are grounds to belief that goods liable to confiscation or documents or things which in the opinion of the competen t authority will be useful for any inquiry under the Act are dumped or concealed in the premises. Thus, it would be useful to reproduce the aforesaid two Sections/ provisions of the Act:-
162. Power to issue search warrant.---( 1) Any 1 [Judicial Magistrate] may, on appli cation 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 proceedings 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 2[****]] 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 he made, search or cause search to be made for such goods, documents or things in that place.
(2) Any officer or person who makes a search or causes a search to be made under subsection (1) shall leaved 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 1[Assistant Collector 2[***]] 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 3[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 is 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 prevent ing 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 subsection (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 proceedings shall be instituted, except with the previous sanction in writing of the 3 [Federal Government], against any person in respect of anything done or purporting to be done in exercise of the powers conferred by subsection (1) or subsection (2) or, in the areas specified in subsection (5), by subsection (4).
8. It is alleged by the department that on prior information which was conveyed by Collector MCC Preventive, Peshawar that a huge quantity of foreign origin smuggled goods are secretly dumped in Shafi Market Saddar Peshawar , a joint raid was conducted by the staff of the Customs Preventive Officer and the local police on the disputed premises where from a huge quantity of foreign origin smuggled goods were recovered. The said goods were recovered through recovery memo. dated 26.06.2019. The said memo. is worth perusal which is reproduced as under:- On prior information conveyed by Collector MCC Preventive Peshawar that huge quantity of foreign origin smuggled goods dumped in Shafi Market Sadder Peshawar . A joint raid was conducted by the staff of Customs Preventive (Central) Peshawar with the help of local police under the supervision/presence of Assistant Collector Customs Preventive (Central) Peshawar and Superintendent Customs Preventive (Central) Peshawar . The raiding team recovered huge quantity of foreign origin smuggled goods there in possession of (Name and address).
1) Jahanzeb son of Sherzada Resident of Kakshal Mohallah Alibagh Peshawar .
2) Gul Zaman son of Noroz Khan Resident of Zargarabad W arsak Road Darmangi PO T ery Payan Peshawar .
3) Abdul Raziq son of Muhammad Amin resident of Baroon Yakatoot Khan Mast Colony Mohallah Aziz Abad Peshawar .
4) Noor Sher son of Saad Ullah resident of Mohallah Zakar Abad PO Threy Payan Darmangi Peshawar .
5) Muhammad Umer Khan son of Rustam Khan resident PO T ety Payan Darmangi T ehsil Peshawar .
As no proof regarding lawful import and bona fide pos.fession of these goods has been produced the same are therefore, seized; in terms of Section 168 of the Custom's Act, 1969 for violation of Sections 2(s), 16, 163, 167 and 178 of the Customs Act, 1969, read with Section 3(1) of the Imports and Export (Control) Act, 1950 for penal action under Section 156(1)(8)(89) and (90) of the. Customs Act, 1969 Section 3(3) of the Import and Export (Control) Act, 1950 and with all other enabling provisions applicable.
Detail of the seized goods: 1) F/O V elvet Cloth in Cut Pieces = 885kgs 2) F/O Micro Yelvet Cloth 71 thans = 3521 yards 3) F/O Polyester Cloth 37 thans = 201kgs 4) F/O t-shirt Cloth 81 thans = 331kgs 5) F/O Jersey Cloth 75 thans=1018kgs 6) F/O Jali Cloth =137kgs 7) F/O Palachi Cloth in Cut pieces = 677kgs.
Witnesses 1 Driver Muhammad T ariq
2. Sepoy . Wasi Ullah.
8. The learned counsel for the department was asked that who has signed this recovery memo, his reply was that this recovery memo. was signed by the then Superintendent Customs.
9. Thus, the moot question before this Court is as to whether the said raid was conducted in conformity with the provisions of Section 162 and Section 163 of the Act and if not, what are the consequences?
The close perusal of aforesaid two sections of law would suggest that ordinarily a place is to be searched only after search warrant is obtained from the Magistrate as is contemplated in Section 162 of the Act and only in extra ordinary circumstances as provided under Section 163 of the Act, this mandatory requirement can be dispensed with. The language of Section 163 of the Act in this regard is very clear and unambiguous that before embarking upon a search without a warrant, the Customs Officer not below the rank of an Assistant Collector of customs shall prepare a statement in writing disclosin g the grounds of his belief that the goods liable to confiscation 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 the provisions of Section 162 of the Act. These stringent requirements envisaged by Section 163 of the Act, is to ensure that the enormous power of search without warrant given to the gazetted Custom Officer is exercised honestly and judiciously . This pre-condition of search without a warrant from the Magistrate as envisaged by Section 163 of the Act is mandatory and its non-compliance would render the entire process at nullity in the eye of law. We have also perused the case law on the subject laid down in the case of "S.M. Yousaf and others v.
Collector of Customs and others", reported as (PLD 1968 Karachi 599), The Commissioner of Sales Tax, Rawalpindi v. Messrs Sajjad Nabi Dar (PLD 1977 Lahore 75), Shaukat Hussain v. Zulfiqar Ahmed, SHO Police Station (PLD 1981 Lah. 13) Muhammad Mahfooz v. Collector of Customs (PLD 1986 Kar. 28). All the honorable Court are unanimous on this question of law that the requirement of section 163 envisaging for the pre- existence of the grounds for belief of the Customs Officer which shall be recorded before raid by the customs officer concerned, the law seeks to ensure that the search without warrant is made for a bona fide purpose and on reasonable grounds which can be tested later, if challenged by the aggrieved party . To put it differently , it seems that this is a safeguard prescribed by the Legislature to ensure that the rights of the citizen in respect of private property are interfered with only for genuine reasons related to the prevention of smuggling and evasion of customs duty, etc. This safeguard can be effective only if the procedure prescribed by law is faithfully and -honestly followed by application of mind in each individual case.
Similarly the apex Court in the case of Collector of Customs (Preventive) and 2 others v. Muhammad Mahfooz while dealing with the case wherein the raid was conducted by the customs officer in violation of Section 163 ibid, in para 9 of the judgment has held; Perusal of the statement of grounds reproduced above clearly shows that grounds for belief in support of danger as such were not mentioned specifically as is required under Section 163 of the Customs Act. This is a statutory requirement and there is legislative wisdom behind it which is to the effect that ordinarily a place is to be searched only after search warrant is obtained from the Magistrate as is contemplated under the preceding Section of the Customs Act and only in extraordinary cases this Section can be dispensed with as is permissible under Section 163 of the Customs Act but then grounds are to be stated by the Customs Officer who is allowed this facility for his belief and decision in not obtaining the search warrant. He must state the grounds which justify apprehension of danger of removal of goods. For example, information is received from such and such person that the party concerned has taken steps or is about to take steps for removal of goods and if search warrant is obtained the same will consume time or the Magistrate is not available, hence there is no other way but to go for the search without warrant. By providing such statutory requirement, the intention of legislature is to provide safe-guard against mala fide interference with rights of citizens in respect of property and again st violation of right of privacy . In the instant case in the statement of grounds reproduced above, reasons are not stated as to why and what danger was apprehended for removal of goods and it is not enough simply to say that "it is not expedient to obtain search warrant" We are, therefore, in agreement with the finding of the High Court on the ground that search and seizure were defective and improper on account of non-compliance with the provisions of sections 162 and 163 of the Customs Act.
11. The close perusal of the recovery memo. would show that this raid was allegedly supervised by the Assistant Collector Customs (Preventive) Centra l, Peshawar and the Superintendent Customs (Preventive) Central, Peshawar , however , the said recovery memo. has neither been signed by the Assistant Collector Customs (Preventive) nor there is any such statement available on the record, that the Assistant Collector Customs (Preventive) has recorded the reasons as provided by D Section 163 to dispense with the requirement of obtaining search warrant which is a condition precedent before conducting the raid on any premises dispensing with the requirement of warrant to be issued by a Magistrate. Nothing is available on record justifying the said raid i.e. the solid reasons that if the time is wasted in obtaining the search warrant, the party concerned would either remove the said goods from the premises or would otherwise frustrate the said search and seizer . Absence of these reasons would obviously render the entire process of search and seizure nullity at the eye of law. It is established principle of law that when a thing is to be done in a particular manner , it must be done in that way and not otherwise. Atta Muhammad Qureshi's case (PLD 1971 Supreme Court page 61), Agha Shorish Kashmiri's case (PLD 1969 Supreme Court Page 14) and Raja Hamayun Sarfaraz Khan's case (SCMR 2007 page 307 ).
12. Similarly , when it is alleged that Assistant Collector Custom (Preventive) was supervising the raid and it is the requirement of section 163 of the Act that it is only an officer not below the rank of Assistant Collector Custom to conduct the raid then non signing of the recovery memo. by the said Assistant Collector would lead us to infer that the said of ficer was not present at the time of raid.
13. In view of the above we hold that the impugned seizure and raid, which is a lynchpin in the present case, has been conducted in violation of Section 163 of the Act, then the entire superstructu re built on the same would also crumble to the ground, albeit would vitiate the entire process of recovery and seizure. The reference is accordingly answered. Copy of the judgm ent be sent to the learned Appellate Tribunal irk terms of section 196(5) of the Act.