' According to F.I.R. No,447 of 1999, registered at Police Station Urban Area District Sargodha, under section 18 of the Motion Pictures Ordinance, 1979 (hereinafter referred to as the Ordinance) read with section 292/294, P.P.C. Registered on the written complaint of respondent No,2, respondent No,2 alongwith respondent No,3 and some police constables raided, the premises of Naz Cinema, where he found that a blue film was being exhibited, which being illegal, the film was taken into possession. One or two persons present there were arrested while the others managed their escape. The F.I.R. Further states that cinema in question has been sealed. The S.H.O. Has been asked to register the case. The petitioner, who claims to be the licensee of the cinema, feeling aggrieved, has challenged the raid, seizure and the sealing of the cinema as illegal, through this Constitutional petition.
2. In their joint report respondents Nos.1 to 3 have defended the impugned action. It is asserted that vide order, dated 12-8-1997, passed by the District Magistrate, Sargodha, all the Executive Magistrates working in Sargodha District have been authorized to conduct raids and take legal necessary action under Motion Pictures Ordinance, 1979. It is also asserted that at present the petitioner's application for renewal of license is pending for want of the requisite inspection report and that the petitioner was running the cinema under a temporary permit, which itself expired on 18-11-1999. It is maintained that at present the petitioner cannot run the cinema.
3. Mr. S.A. Rashid, Advocate, learned counsel for the petitioner, has submitted that the action such as has been taken against the petitioner4 can only be taken under section 8 of the Ordinance and that respondents Nos.2 and 3 are not officers, who could enter the premises and seize the film, under the orders of the District Magistrate. He has further contended that sealing of the cinema is not at all provided for.
4. Learned Assistant Advocate-General, on the other hand, relied on Rule 80 of the Punjab Cinematograph Rules, 1984 (hereinafter referred to as the Rules) to contend that respondent No,2 being an officer authorized by the licensing authority, has legally entered the premises and taken the impugned action. He has further invited attention to Rule 109 of the Rules to argue that District Magistrate has the power to suspend/revoke the licence as also direct the closure of the cinema in the stated circumstances.
5. The relevant statutory provisions may be reproduced, for convenience of reference. Section 8(5) of the Ordinance reads:-- "Where a film in respect of which no certificate has been granted under this Ordinance is exhibited, or a film certified as suitable for restricted public exhibition is exhibited otherwise than as certified, or a film is exhibited in contravention of any of the other provisions of this Ordinance, any Police Officer not below the rank of Inspector may, upon a report in writing made by the Board or by a person authorised by it in this behalf or under the orders of the District Magistrate, enter any place licensed for the exhibition of films in which there is reason to believe that the film has been or is being exhibited, search it and seize the film and projection equipment."
6. Rule 80 of the Cinematograph Rules, 1984 reads:-- "Inspection by the District Magistrate.--- The Licensing Authority or any officer authorized by him in this behalf may, at any time, enter a place which it or he had reason to believe is being used or is intended to be used for the purpose of cinematograph exhibition, in order to satisfy itself or himself that the provisions of section 13 of the Ordinance, the Rules framed thereunder and the conditions of the licence are being complied with."
' The perusal of Rule 80 shows that this does enable the Licensing Authority to either himself enter a place, which is being used for purposes of cinematograph exhibition or about which he has reason to believe it is being so used and this entry into the place is for the purpose of satisfying himself or itself whether the provision of section 13 of the Ordinance, the Rules thereunder and the conditions of license are being complied with. The rule in terms does not entitle the person, who enters into the premises to take further action like seizure of the film or sealing of the cinema. It may also be seen that under rule 80 the officer has to be authorized by the Licensing Authority in this behalf.
Apparently the rule envisages conferment of authority on an officer by name and for the specific purpose of Rule 80. It is doubtful if the general authority conferred on Executive Magistrates by District Magistrate vides order, dated 12-8-1997 is covered by Rule 80.
7. But assuming that it is so covered then from where the Executive Magistrate, respondent No,2, in this case is getting the authority to seize the film and to seal the cinema? Undisputedly Rule 80, in terms) does not give such authority. Rule 80 exclusively restricts the entry of the Authorized Officer for satisfying itself or himself as to whether the provision of section 13 of the Ordinance, the rules framed thereunder and the conditions of the license, are being complied with. The rule is silent as to what can the Authorized Officer do if he finds that the provisions are not being complied with.
Since the action taken in this case is penal in nature, the rule will have to be strictly construed. In the absence of authority justifying the action taken, the action will have to be struck down as having no backing of law. Apparently Rule 80 envisages that in case it is discovered that the provisions of law are not being complied with, the Licensing Authority will initiate separate action in accordance with the Ordinance and Rules. The Authorized Officer, it seems, can only make a report to the Licensing Authority, who then can initiate legal action. It is extremely doubtful that the Authorized Officer can himself proceed to take action.
8. Mr. S.A. Rashid, Advocate is correct in submitting that the precise situation is exclusively governed by section 8(5) of the Ordinance. This provision authorises the seizure of the film and the projection equipment. Under this provision only a Police Officer not below the rank of Inspector, under the orders of the District Magistrate can enter any place, search it and seize the film.
Respondent No,2 is not a Police Officer and even if the authority conferred on him by order of the District Magistrate, dated 12-8-1997, be deemed valid, he could not have seized the film nor sealed the cinema. The action taken by respondent No,2 even though falls within section 8(5) of the Ordinance, but respondent No,2 not being a Police Officer, could not have taken it. The action, therefore, has to be declared as without legal authority.
9. Rule 109 of Cinematograph Rules, 1984, as referred to by learned Assistant Advocate-General is not relevant to the situation as the bare reading shows that rule authorizes the District Magistrate to revoke or suspend the licence for any breach of rules or conditions etc. This rule does not save the impugned action taken by respondent No,2 in this case.
10. For the reasons stated above the action taken by respondents cannot be justified. This petition, in the circumstances, is allowed and the impugned action is declared as having been taken without lawful authority and, consequently, of no legal effect. It is clarified that it will be open to respondents to proceed in the matter in accordance with law. No order as to costs.