ORDER IJAZ NISAR, J. - Abdul Hameed alias Bagga son of Sanaullah, Arif Masih son of Ghulam Masih and Allah Ditta alias Lala, son of Anayat Masih petitioners were arrested in case FIR No. 148, dated 28.11.1995 registered at Police Station Rayya Khas, Tehsil and District Narowal under section 156(1)(8) of the Customs Act, 1969. They were arrested in the border belt of Indo-Pak on the allegation that they were engaged in the smuggling of narcotics to India. .Razzaq Inspector of Chinab Rangers conducted search of the petitioners and recovered four killos of heroin from Abdul Hameed, three killos from Arif Masih and four killos from Allah Ditta.
2. Bail for the petitioners is mainly urged on the ground that the search was not made in accordance with law. He has referred to section 159(1) of the Customs Act, 1969 which makes it obligatory upon the officer of Customs to inform the person to be searched about the right to be taken to a Gazetted Officer of Customs or Magistrate before conducting the search but Razzaq Hussain Inspector Rangers did not comply with the said mandatory provisions of law. As regards the effect of violation of section 159 of Customs Act, 1969, a reference may be made to Rothan Bacher Peter v. The 'State (NLR 1989 Crl. 201) and Syed Niaz Ahmad Naqui v. The State (NLR 1989 UC 747) where it was held that breach of mandatory requirement of law as contained in the said section could nullify the proceedings and entitle the accused to acquittal. The object of section 159 of the Customs Act, 1969 was stated in Syed Abdul Nabi u. The State (PLD 1988 Lah. 146). It was observed that it was to prevent high-handedness being committed by Customs Officers and involvement of innocent persons. Conviction recorded in violation of section 159 of the Customs Act was set aside in the said case. Parid Khan u. The State (1993 P. Cr. L.J.500) also underlines mandatory requirement of section 159(1) of the Customs Act, 1969. It was observed therein that it was not only a valuable right but at the same time a mandatory provision and failure on the part of the seizing officer to inform the accused about his right rendered his search illegal and in such circumstances even the conviction and sentence of an accused becomes unsustainable.
'3. Learned counsel representing the Customs Department has not been able to repel this contention or show from the record that the petitioners were informed of their right to be searched by a Gazetted Officer or a Magistrate. They are behind the bars since about eleven months without any progress in the trial. Accordingly, I grant the application and admit them to bail in the sum of Rs. 1,0, 000/- (One lac) each with two sureties each in the like amount to the satisfaction of the trial Court/Sessions Judge, Lahore.