1. SALEEM AKHTAR. J --The petitioner is a shopkeeper carrying on business in shop No.75 at Motan Market, M.A. Jinnah Road, Karachi. He is engaged in the business of retail sale of cloth. In this market there were about 150 shops of cloth and crockery besides iron and steel and offices located on the first floor. On 22-10-1979 the respondent No.2 sent its force of Pakistan Coast Guards to Motan Market at about 10.00 a.m. They cordoned all the area and also brought police for their aid. It has been alleged that the locks of the shops were broken open and the goods in the shop premises were ransacked and taken away. It has been maintained that the shops in this area open at 11.00 a.m. Everyday but during this operation no one was allowed to enter the market. The respondent No.2 claims to act under section 163 of the Customs Act 1959 but the petitioner has denied that the respondent No.2 had any authority or jurisdiction to break open the lock, enter the shop premises and take away the goods. It is alleged that no statement under section 163 of the Customs Act was served on any one of the shopkeepers on 22-10-1979. A statement was pasted on few shops. These cyclo--styled statement were addressed to no one and by this manner compliance with section 162 of the Customs Act was sought to be made. No statement under section 163 was pasted on the petitioner's shop, nor any compliance of section 171 was made. The petitioner has alleged that he has managed to obtain one sample statement under section 163 removed from shop No.5-D which is signed by the Seizing Officer of the rank of Captain, a copy of which has been produced with the petition as Annexure `A'. On the basis of this document it has been stated that it was not a compliance of section 133 of the Customs Act. The petitioner has given the particulars of the goods and cash removed from the shop as follows:-- "(i) Suiting cloth 1800 yards.Japanese origin
(ii) Moonlight 800 yards.Japanese origin
(iii) Art Silk 1400 yards.Japanese origin
(iv) Mixed Suiting 600 yards.Pakistan origin
(v) Shirting Khadi 250 yards.Pakistan origin
(vi) Cash in shop over Rs.7,000.
2. The petitioner has valued these gods at Rs. 2,50,000 at costs price Out of these goods certain quantities are of Japanese origin. It has been alleged by the petitioner that he deals in cloth of foreign origin, which he purchases from persons who bring it when they come from abroad. The cloth is duty paid and in some cases penalty has also been paid. Two duty paid receipts and the petitioner's buying receipts have also been filed with the petition. The respondent had pasted notices on some shops calling upon the shops by its members to appear for further investigation.
3. Some shopkeepers went to the office of the respondent No.2 who were asked to sort out the cloth belonging to them. On sorting out they were arrested and produced before the Summary Military Court. The respondent No.2 then advertised in the press that the shopkeepers should appear on 20-11-1979 otherwise they would be tried in absentia. Wide publicity was also given through national press, radio and television and the newspaper carried photographs of how the operation was handled. It has been clamed that the goods of the petitioner are neither smuggled nor contraband. Duty was duly paid on these goods and the petitioner is a bona fide purchaser for value. The petitioner then filed this petition challenging the legality and jurisdiction of the respondent in taking action and seizing the goods and cash from his shop.
4. The counter-affidavit was filed by one Major Ata Muhammad Awan in which it has been admitted that the raid was conducted by and under the instructions and supervision of the Martial Law Authorities and that they had accompanied them. As instructed by them, the police was called and a Magistrate was also accompanying them. The goods were seized-and inventories were duly prepared alongwith the Mashirnama in the presence of the Magistrate who also signed them. It has been denied that the shopkeepers were prevented from entering the shops. Some of the shopkeepers on arrival of the Martial Law Authorities locked their shops and went away. Their shops were opened by breaking open the locks and in their cases inventory and Mashirnama were duly prepared on the spot. It has been stated that statements were handed over to the shopkeepers who were present in the shops and the statements were pasted on the doors of the shops which were locked. The provision of law had duly been complied with. The police was posted for a couple of days to protect the goods seized which were in the process of removal to warehouse and once the goods Were removed the shopkeepers were allowed to have free access to their shops. A photocopy of the inventory of the seized goods from the petitioner's shop is also annexed with the counter-affidavit showing the following goods which were taken in custody: "(1) Foreign cloth: suiting311 pieces (all type) approx. 2000 yards).
(2) Foreign cloth KT 30 pieces.
(3) Pak Currency Rs. 7,100.
5. Mr. Muzaffar Hassan the learned counsel for the petitioner has contended that the respondent had no jurisdiction and authority to make search and further that the search has been made in contravention of the provisions of law. Mr. Syed Inayat A.I the learned counsel for the respondent has contended that the entire operation conducted by the respondent No.2 is stated to have been taken under the orders and directions of the Martial Law Authorities, but no. A Written document is available on record to show that such a direction was issued by the Martial Law Authorities. Without commenting upon the jurisdiction of the respondent to take search and seize the goods it is pertinent to note that the procedure provided under law sought to be invoked has not been followed. The search and seizure is regulated by sections 162 and 163 of the Customs Act. Power to search and arrest without warrant has been given by section 13. There are pre-conditions for exercise of this power which inter alia include that officers of Customs should have reasonable ground for believing that the goods liable to confiscation or other documents and things are concealed in that place and there is danger of its being removed. On being satisfied on these grounds he should prepare a statement m writing regarding the grounds of his belief. Reference can be made to PLD 1986 Kar.
28. These conditions have been laid down to give protection to the citizen from unauthorised encroachment on their right of privacy and business. Where grounds do not exit for such satisfaction search without warrants will not be legal. In such circumstances the Officers of the customs will have to resort to section 162 of the Customs Act which provides that on an application by a gazetted Officer of Customs stating the grounds of belief that the goods liable to confiscation or things which may be evidenced in any proceedings under this act are kept or hidden in any place within the limits of the Jurisdiction of the said Magistrate. He will then issue a search warrant for such Roods documents or things. In the present case none of the procedures were followed and, therefore, the search and seizure, was illegal and without jurisdiction. Reference can be made to S.M. Yousuf v. Collector of Customs Kar ALD 1968 Kar. 599.
6. The next question therefore arises that as the action taken by the respondent is illegal and without jurisdiction, whether the goods seized should be released and delivered to the petitioner. This question is now well settled by the Judgment of S.M. Yousuf v. Collector of Customs, 1972 SCMR 871 and PLD 1968 Kar. 597. In such circumstances and in view of the law laid down by the Supreme Court the goods should be released to the petitioner. Although there is a difference in the list provided by both the parties with regard to the goods seized by the respondent No.2. Mr. Muzaffar Hassan the learned counsel for the petitioner states that at least the goods admitted by the respondents to have been seized, inventory of which has been riled with their counter-affidavit, be directed to be returned to the petitioner. Mr. Syed Inayat A.I contends that he is not aware what has happened to those goods. We, therefore, declare that the action taken by the respondent against the petitioner was without lawful authority and of no legal effect. We direct the respondent No.2 to deliver the goods mentioned in the inventory filed with their counter-affidavit including cash to the petitioner.
7. The petition is allowed with no order as to costs.
8. M.Y.H/S-336/K