MR. JUSTICE MANSOOR AHMED.-(l). The petitioner through the present writ petition prays that the search warrant dated 12.7.1994 issued by respondent No. 5 (Illaqa Magistrate) on the application moved by respondent No. 3 (Senior Intelligence Officer, Intelligence & Investigation) (Customs & Excise Lahore) be declared as illegal and void and the consignment recovered in pursuance of the warrant be directed to be returned to the petitioner. Further prayed that the show cause notice issued by the petitioner may also be struck down.
2. Facts in brief are that respondent No. 3, (Customs & Excise) moved an application on 12.7.1994 before respondent No. 5 (Illaqa Magistrate) for issuance of a search warrant under section 162 of the Customs Act, 1969. It was stated in the application that he is in possession of credible information that huge quantity of non-duty paid, contraband goods comprising of Electro Galvanized Steel Sheets had been stored in the premises of M/s. Shafiq Ahmad Godown No. 8 Din Road Misri Shah, Lahore. Respondent No. 5 issued the search warrant on the same day. Respondent No. 3 alongwith his other staff members raided the premises and seized 101 coils of Electro Galvanized Steel Sheets total weighing 382930 Kgs. The consignment seized was taken into custody by respondent No. 3 and thereafter FIR under section 156(1) 10-A of the Customs Act, 1969 was lodged. On the receipt of seizure report respondent No. 1 issued a show cause notice to the petitioner. The respondent case was that M/s. Makma Steel Craft (Pvt.) Ltd. Which is a concern having its establishment at plot No. 27Q industrial estate, Gadoon Amazia N.W.F.P imported two consignments of 48 and 39 coils of Electro Galvanized Steel Sheets in coils, obtain the released of goods from Karachi Custom House vide bill of entry Index No. 19 & 18 dated 25.6.1994. The consignment after clearance was loaded into truck Nos. LSA-6375, LSB-775, PRP-7075. PRO- 9144, PRP-3971, QAD-7905. LSA-5575, PRO-6672, PRO-7672 and LSD-875 at Karachi Port. These trucks carrying the imported goods were destined for Gadoon Amazia reach Lahore octroi and after paying the full octroi charges off loaded the consignment at the godown of the petitioner in Misri Shah Lahore. Soon after the seizure, the staff of Directorate of Intelligence and Investigation Lahore in association with the staff of Intelligence Directorate Peshawar checked the bonded house of M/s. Makma Steel Craft (Pvt.) Ltd. Gadoon Amazia and found that the imported consignments were not available. The proceedings against M/s. Makma Steel Craft were also initiated. It appears that M/s. Makma Steel Craft filed writ petition No. 628-95, in the Peshawar High Court, Peshawar challenging the initiation of proceedings. The writ petition filed by M/s. Makma Steel Craft in the Peshawar High Court, Peshawar succeeded and finally a consumption certificate was issued by the Custom Department in respect of the imported consignment.
3. Arguments heard. Learned counsel for the petitioner argued that the power to issue search warrant vest only in Judicial Magistrate and the warrant issued by respondent No. 5 was by Illaqa Magistrate who was hot a Judicial Magistrate. Therefore the search in pursuance of the said warrant was without any lawful authority and consequently entire subsequent action based on search was of no legal effect and was void ab initio. In support of his arguments learned counsel relied on case. The Collector of Customs Vs. Muhammad Akram (PLD 1999 Peshawar 33) and Muhammad Mahfooz Ks. Collector of Customs (Preventive) Custom House, Karachi and 2 others (PTCL 1986 CL. 270).
4. Section 162 of the Customs Act, 1969 provide that the search warrant shall be issued by Judicial Magistrate. Earlier it was only the Magistrate who could issue the warrant. But by the Federal Laws (Revision and Declaration) Ordinance, 1981 the word 'Magistrate' was substituted with the Judicial Magistrate. It therefore, follow that law maker Ms consciously made this amendment so as to avoid any mischief of law. Thus the search warrant under section 162 could only be issued by the Judicial Magistrate but instead the same were obtained by the Custom Authority from the Illaqa Magistrate who was not a Judicial Magistrate. This is a fatal mistake which could not cured. By now it is a well settled principle in the administration of justice that if the law prescribed a thing to be done in a particular manner it can only be done in that manner or not at all.
Resultantly it is argued that the search warrant dated 12.7.1994 issued by respondent No. 5 (Illaqa Magistrate) was without any jurisdiction and the search conducted in pursuance thereof was also illegal and of bo legal effect. I have considered the arguments and examined various provisions of law contained in the Customs Act, 1969 and tend to agree with the ration of judgment of a Division Bench of Peshawar High Court in case of Collector of Customs Vs. Muhammad Akram (PLD 1999 Peshawar 33) and hold that the search warrant dated 12.7.1994 issued by respondent No. 5 was without any lawful authority and accordingly all proceedings and action taken thereupon and results flowed therefrom are of no legal effect. The respondents are directed to restore the consignment seized by them through the process of search. In view of this finding the writ petition is hereby allowed.