' Ajmal Mian, J.-- The petitioner through this petition has impugned seizure of goods by respondent No,2. The brief facts leading to the filing of the above petition are that on 31st January,1973 the S.H.O.
Aram Bagh Police Station, Karachi, without a search warrant from a Magistrate entered into the deceased petitioner's shop, who was carrying on business of tailoring and seized 778 yards of cloth.
After that respondent No,1 on 24th March,1973, Assistant Collector of Customs Preventive, Customs, House, Karachi, issued a show-cause notice. After that he by his order, dated 17th April, 1973 confiscated the goods and imposed a fine of Rs,1,000. The deceased petitioner thereafter filed an appeal, which was partly accepted by an order dated 11th August,1973 inasmuch as the fine was remitted but the confiscation order was kept intact. After that deceased petitioner filed a revision, which was partly allowed by the order dated 14th March, 1975 whereby one bundle of cloth was released. The deceased petitioner thereafter filed the present petition.
2. (a) In support of the above petition Mr.Mirza Rasheed has contended that since the seizure was illegal, ail subsequent actions in pursuance thereof were also illegal. In furtherance of above argument, he has referred to the case of S.M.Yousuf and others v. Collector of Customs and others PLD 1968 Kar. 599, the case of Collector of Customs v. S.M.Yousuf and others 1968 SCMR 603 and the case of Shaukat Hussain v. Zulfiqar and two others P L 0 1981 Lah.
13.
(b) In the above Karachi case the majority view was that under section 172-A(1) of the old Act, the question whether reasonable grounds existed to believe that a search was warranted without obtaining a search warrant, was subject to judicial review. It was also held by the majority that since the seizure was not in accordance with law, the same was illegal and the subsequent action taken by the Customs Authorities did not rectify the above illegality. Against the above judgment a Petition for Leave in the Supreme Court was filed, but the same was declined. The above dismissal order is reported in the aforesaid 1968 SCMR 603.
(c) In the third case M.S.H. Quraishi,J.(as he then was) construed the provisions of the relevant provisions of the Customs Act, 1969, namely inter alia sections 162, 163 and concluded that when a Police Officer without recording statement of grounds of his belief that the goods were likely to be removed, seized goods, the seizure was illegal and the subsequent proceedings followed therefrom were not in fact existing in the eyes of law.
3. In the present case the respondents have not filed any document to indicate that provision of section 163 of the Customs Act,1969, were complied with, namely, that respondent No,2 prepared a statement in writing of the grounds of his belief that the goods were likely to be removed. The above case cited by Mr.Mirza Rasheed on all four applicable to the instant case.
' It may be stated that during the pendency of the above petition by the consent of the parties by an order, dated 24th September,1975, it was ordered that the confiscated goods be sold. The learned counsel for the respondent Mr.Abdul Sattar was unable to state, whether in fact the goods were sold.
' We allow the above petition and declare that the seizure by the respondent No,2 was without lawful authority and of no legal effect. The confiscated goods if not yet have been auctioned in terms of the above order dated 24th September,1975, the same shall be restored to the petitioners who are the legal heirs of the deceased petitioner. But in case the goods have already been sold in pursuance of the above consent order, the petitioners shall be paid the sale proceeds of the above confiscated goods after deducting the expenses of disposing of the same in accordance with law.
' In the circumstances of the case: there will be no orders as to costs.