Ali NAWAZ BUDHANI, J.-In the instant petition, the petitioner Shaikh Israr Ahmad calls in question the search without search warrant made at his house on 1st June, 1967, by the Customs Officials and when only the mother of the present petitioner was present in the house. While such a search was going on the petitioner came in the house and produced the voucher, dated 10th October, 1965 of Messrs Siyani & Co. From whom the foreign cloth which was smuggled was purchased. This voucher was not accepted by the search party and they removed the cloth lying in his house measuring about 662 yards. The petitioner has further stated that the Customs Officers neither prepared a statement disclosing their belief that the cloth in question was contraband or that the goods were liable to be confiscated and that they were concealed or kept secret and that there was a danger that they might be removed before the search could be effected under the provisions of section 172-A of Sea Customs Act. The formalities to be performed by the Customs Officers under section 172-A of the Sea Customs Act were not observed by them and they did not leave a signed copy of aforesaid statement on the place of search and further did not deliver a signed copy of search either to the petitioner or his mother.
2. Since the search without search warrant was illegal the petitioner has made the following prayers in his petition
(a) To declare that the provisions of subsections 8 (a), 8 (b), subsection 81 of section 167 of the Sea Customs Act are void as they violate Fundamental Right No, 15.
(b) That the proceedings before the learned City and A. D. M. And the Deputy Collector of Customs be ordered to be quashed on account of their being without lawful authority.
(c) That the goods seized by Directorate of Customs Intelligence and Investigation in pursuance of the illegal search on 1st June, 1976 be ordered to be returned to the petitioner.
(d) Cost.
3. In the counter-affidavit filed by the respondents it is admitted that the search was made on 1st June, 1967 and cloth worth Rs, 30,000 was secured from House No, 108 (RC-35) Babu Lal Street, Lawrence Road, Karachi. However, in their counter affidavit they have asserted that the house was occupied by one Muhammad Rafi son of Haji Abdul Sattar. No receipt or voucher was produced to substantiate as to from where the cloth was purchased legally. It is averred in the counter affidavit that on 20th July, 1967 Cash Memo. No, 113 dated 10th October, 1965 was produced by the petitioner which was issued by Messrs P. M. Sayani Trading Co. The receipt was suspected to be fabricated and forged. They have stated that the copies of the statement were supplied and delivered to the persons namely Muhammad Hassan and Israr Ahmad and also the inventory was supplied to them.
4. The petitioner was argued by the learned counsel Mr. Azizul Hassan on behalf of the petitioner and by Mr. Yousuf Rafi on behalf of the respondents.
5. Mr. Azizul Hassan contended that the Customs Officers did not care to observe the formalities as provided in section 172-A of the Sea Customs Act (corresponding to section 63 of Customs Act, 1969). The section 172-A may be reproduced as under :- "172-A. Power to search without warrant.-Whenever any officer of Customs or person duly employed for the prevention of smu ggling has reasonable grounds for believing that goods in relating to which any of the provisions of this Act may be suspected to have been contravened, or goods which may be suspected to be liable to confiscation under any such provision 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 172 he may, after preparing a statement in writing of the grounds of his belief and of the goods for which search is to be made, search, or cause a search to be made for (such goods) in that place. Any officer or person who makes a search or cause a search to be made, under the foregoing provision 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. 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)."
3. It is to be noted that all searches made under this section shall be carried out mutatis mutandis in accordance with the provisions of the Code of Criminal Procedure, 1898. The normal procedure envisaged by section 172 of the Act is that the Customs Official shall obtain a search warrant from a Magistrate of competent jurisdiction and that search warrant shall be executed in the manner prescribed by the Code of Criminal Procedure. Section I72-A constitutes departure from this normal procedure and it is for the reason that the Legislature has in its wisdom placed certain limitations on the power so conferred on the Customs officials. The requirements contained in section 172-A may be listed as follows :-
(i) The Customs Officer should have reasonable grounds for believing that-
(a) smuggled goods are concealed or kept in any place, and (b) there is a danger that they may be removed before a search can be effected under the provisions of section 172,
(i) he shall prepare a statement in writing of the grounds of his belief on both the points mentioned above, and of the goods for which search is to be made,
(ii) after preparing such a statement he may search or cause search to be made for smuggled goods in that place,
(iii) at or about the time of conducting the search the officer shall leave a signed copy of the aforementioned statement in or about the place searched,
(iv) he shall also deliver, at the time the search is made or as soon as is practicable thereafter, a signed copy of such statement to the occupier of the place at his last known address, and
(v) that all searches made under this section shall be carried out in accordance with the provisions of the Code of Criminal Procedure, 1898.
7. The learned counsel for the petitioner Mr. Azizul Hassan pointed out that in this case, the petitioner's house was searched suddenly, and that only his mother was present in the house and on receiving the information he rushed to the house and produced the voucher for the goods in question. The Customs officials did not accept the voucher and that no formalities were observed such as supplying the copy of the statement of the search etc. All the same the cloth worth 662 yards was removed by the Customs officials. No signed copy was delivered to the petitioner or his mother and so-called Annexure "R-1" at page 81 was not delivered to the petitioner or to his mother or to one, by name Muhammad Hassan. It is manipulated subsequently by the Customs officials.
Be that as it may, the statement should show reasonable grounds for believing that smuggled clothes were concealed in particular house and that there should be a reasonable ground that the cloth would be removed from the house if a prompt search is not made without obtaining the search warrant. The Annexure at page 81 does not furnish the grounds for that belief and it was merely a fishing process as it appears. It is further argued that the Customs Officers shall prepare a statement in writing of the grounds of their belief that smuggled goods are concealed or kept in any place and there is a danger that they may be removed before the search could be effected under the provisions of section 172-A of the Act. The law further requires that the statement must also mention the goods for which the search is to be made. Those are stringent requirements prescribed by law in order to ensure that the enormous power of search without warrant given to Customs Officers is exercised honestly and judiciously. By insis-king that the grounds for his belief shall be recorded before hand by the Customs Officer concerned that law seeks to ensure that the search without warrant is made for a bona fide purpose and on reasonable grounds which can tested later, if challenged by the aggrieved party. This safeguard can be effective only if the procedure prescribed by law is faithfully and honest, ly followed by application of mind in each individual case. In L .O. C. Larke v. Brajendra Kishore the learned Judges were considering the question of the legality of a search purporting to have been conducted under section 25 of the Indian Arms Act (XI of 1878) which contained a provision that before making the search the Magistrate should first record the grounds of his belief in terms of the section. The majority held that according to principle of equity, justice and good conscience the search constituted an actionable trespass unless warranted by some statute, and in the circumstances of the case search was warranted by no statute, as reasons were not recorded before embarking upon the search. The learned Judges observed that "when Executive Officers are invested with statutory powers of a special or drastic nature, before exercising these powers, they must strictly comply with the provisions of the Act which created them." The view was upheld by their Lordships of the Privy Council in I L R 39 Cal, 953.
8. We have examined the nature of search made by the Customs Officers and their failure to comply with the provisions of section 172-A B and come to the conclusion that the search was merely a fishing process and was not valid and was without jurisdiction and lawful authority. The learned counsel for the petitioner has stated that the case from 1967 upto now is pending against the petitioner and the petitioner even does not know whether the case is pending before S. D. M. Or before Special Customs Court. Every time when he goes he is given time. It is more than 15 years the petitioner is waiting for justice. The learned counsel has further referred us to the authority reported in S. M. Yousuf v. Collector of Customs . The leading judgment was that of Anwarul Haq, J.1 2 Which was dissented by A. S. Faruqi J. And Khamisani, J. Agreed with the judgment of A. S. Faruqi, J.
We may reproduce the following extract from the judgment of Mr. Khamisani, J. :- "Apart from this, Article 98 (2) (a) (ii) of the Constitution envisages that if any Act done or proceeding taken, has been done or taken without lawful authority, it has to be declared by this Court as having been done without lawful authority. It further envisages that on a declaration having been given that an Act is without lawful authority, a further declaration has to be made that it is of no legal effect. The word "and" between the words "taken without lawful authority" and "is of no legal effect" is conjunctive and not disjunctive, it is, therefore, quite clear that when an order has been held to be without lawful authority, the Court cannot in law stop at that without saying that it is of no legal effect. In other words, the order which has been held to be illegal has to be declared to be of no legal effect. If the search made by the Customs Authorities and the seizures of the goods by them have been held by the Court to be not in accordance with the law, the obvious conclusions that the searches were conducted and the goods were seized without any lawful authority. In the conclusion of this kind having been reached, there is no option under Article 98 of the Constitution for the Court but to hold that the searches carried out by them and the goods seized were of no legal effect. If the declaration is given that the searches and seizures of the goods were of no legal effect, then, the only way open to the Court is to restore the goods to the petitioners. Even, if it be assumed that the power vesting in the High Court under Article 98 of the Constitution is discretionary, it is nowhere laid down that the discretion in favour of the petitioners shall be exercised in one part and refused in another part. As Mr. Justice S. Anwarul Haq has exercised jurisdiction by holding searches and seizures of the goods to be illegal, I am of the opinion that his view that discretion to restore the goods to the petitioners should not be exercised, is not in accordance with the phraseology used in Article 98 of the Constitution."
9. We have also been referred to an authority reported in PLD 1975 Kar. 482 decided by the Division Bench of Justice Noorul Arfin and Justice Muhammad Haleem. They held as follows :- "We further hold, in view of the ruling of this Court in S. M. Yousuf v. The Collector of Customs, that any action based on illegal seizure of goods, is itself illegal. We may record here that the appeal against this decision was rejected by their Lordships of the Supreme Court. Therefore, if in consequence of seizure of cars, the Customs Authorities have issued any notices, then the same are quashed hereby."
10. There is no satisfactory indication that the Customs Officers had reasonable ground to believe, that smuggled cloth was hidden, in the petitioners house and that it was likely to be removed, and Annexure "R-1" at page 81, does not speak of it, candidly, and also that no signed copy was delivered to the mother of the petitioner, we hold the search was without lawful authority, having no legal effect. The edifice built on the search and seizure, and the prosecution under section 167
(81) (8) of the Sea Customs Act, is without legal effect. Any other action taken by the Collector of Customs, under any provisions of the Sea Customs Act, is without jurisdiction and ultra vires.
11. We also take into consideration, the fact, the petitioner, facing trial, for a period of 15 years, without redress and this circumstance alone, is sufficient, that the proceedings against the petitioner need be quashed. Therefore, we allow the petition. The cloth be returned to him. Under the circumstances of the case no order as to costs is made. I L R 36 Cal. 433 PLD 1968 Kar. 599 1 2