' MUHAMMAD ISHAQ KHAN, J.-Through this constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, Muhammad Zubair, petitioner, seeks a declaration from this Court of the order of respondent No, 2 dated 29-10-1978 in toto and that of respondent No, 1 dated 9-2-1981 so far as findings to the effect that the petitioner was in unlawful possession and sale of smuggled goods and consequent confiscation and penalty, as without lawful authority and of no legal effect.
2. Briefly stated the facts of the case are that the petitioner is a Contractor and he purchased 22 Air-Conditioners from Karachi through a broker called B. K. Commissionwala and supplied the same to the Highway Project, Nowshera, District Peshawar ; that the petitioner purchased the said Air-Conditioners in the open market after checking the Baggage Declaration Forms and after satisfying himself that the same were duly imported; that one Muhammad Akhtar, D. S. P. Crimes Branch, Peshawar, respondent No, 3 herein, entered the premises of a Project of the Provincial Government under construction at Peer Sabaq, Tehsil Nowshera, District Peshawar, and seized the aforesaid Air-Conditioners whereafter the said respondent lodged F. I. R. No, 331 dated 19-9-1977 in P. S. Nowshera Kalan ; that a show-cause notice was issued to the petitioner alongwith certain Government officials by respondent No, 2 as to why penal action should not be taken under section 156(89)(8) of the Customs Act, 1969 ; that though the petitioner duly replied the aforesaid show- cause notice explaining therein his position about the purchase of Air-Conditioners yet he alongwith two were arraigned before respondent No, 2, who vide his order dated 29-10-1978 ordered the confiscation of the said seized goods and also imposed a personal penalty of Rs, 2,50,000 on the petitioner under section 156(89) of the Customs Act ; that aggrieved of the aforesaid order the petitioner approached respondent No, 1 with an appeal who reduced the personal penalty from Rs, 2,50,000 to Rs, 25,000 only, hence the present writ petition.
3. We have heard the learned counsel for the petitioner and the Deputy Attorney-General for the respondent. Learned counsel for the petitioner vehemently argued was against law and, therefore, the entire superstructute based on the said search and seizure is also without lawful authority ; that the search and seizure is in violation of the relevant provisions of the Customs Act ; that as the search was admittedly carried without a search warrant, therefore, the same was in violation of the relevant provisions and that the goods seized were admittedly on the free list, therefore, the burden shifts to Customs Authorities to prove that any contravention of the relevant provisions of law has taken place. He also argued that the question of smuggling is to be proved by the Department and the petitioner has explained the factum of possession. Parawise comments were called from respondents and respondents 1 and 2 submitted the same jointly while respondent No, 3.
Submitted the same separately wherein respondent No, 3 has clearly admitted that he was legally competent to search and seize the smuggled Air-Conditioners and had adopted the legal procedure. The learned counsel for the petitioner invited our attention to section 162 of the Customs Act, 1969, which relates to power to issue search warrant and the same runs as under :- "16.2.-(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 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."
' He also referred to clause (2) of section 163 of the said Act which runs down as follows :- "163(2).-Any officer or person who makes a search or causes a search to be made under subsection (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."
It has not been denied that the seized Air-Conditioners were purchased in the open market by the petitioner through a broker and thus he had lawful possession of the same before supplying them to the Government and that the said goods passed on to the Provincial Government, became their propeity and hence their seizure from the premises where they were to be installed is totally against law. Besides this, it is also an admitted fact that the said Air-Conditioners are on the free list of import and are also importable under the Baggage Rules by the individuals. As such, they are not banned or prohibited items. Therefore, respondent No, 2 was wrong in accepting,the testimony of the police officer as against preponderance of independent evidence in favour of the petitioner.
Whereas it was established by the petitioner that he purchased the aforesaid Air-Conditioners from the open market after satisfying himself of the lawful import of the same, th burden shifted to the prosecution to prove that no duty was paid for the import of the aforesaid Air-Conditioners.
Respondent No, 1 has conceded the fact that the search was not in accordance with law and also that the A prosecution has not been able to prove beyond reasonable doubt that the seized goods in one way or the other were smuggled by the petitioner. Therefore, the order of confiscation of the same and simply reducing th personal penalty imposed on the petitioner was unjust and without jurisdiction. In the case in hand it is an admitted fact that the D. S. P. Concerned searched the premises without a search warrant and by not leaving a signed copy of the aforementioned statement in or about the place searched and had not, at the time the search was made or as soon as was practicable thereafter, delivered furthermore a signed copy of such statement to the occupier of the place at his last known address. As such, the search and seizure of goods in circumstances were liable to be declared to be without lawful authority and subsequent proceedings as non-existent in eye of law, and the goods seized in the case were to be returned to the petitioner. If any authority is needed, reference can be made to Shaukat. Hussain v. Zulfiqar Ahmad and 2 others (1).
4. Taking into consideration the abovementioned facts, we woul allow this writ petition and declare the order of respondent No, 2 in toto and that of respondent No, 1 as far as his findings to the effect that the g petitioner was in unlawful possession and sale of smuggled goods and consequent confiscation and penalty, as without lawful authority and, therefore, of no legal effect. No order as to costs.
(1) PLD 1981 Lab. 13