R L D 1979 Karachi 687 (PLP)

FAKHRUDDIN G. EHRAIIIM, J.‑The two orders impugned in Constitutional Petitions Nos. 548 and 549 of 1968 made under section 172‑A of the Sea Customs Act read as follows "Petition No. 348 of 1968 Statement of reasons for search under section 172‑A of the Sea Customs Act. It has come to the knowledge of undersigned from reliable source that goods specified below are concealed and kept in premises known as 'Society Stores' owned by Mirza Anwar Baig situated in Ali Akbar Market, Alamgir Road, Bahadurabad, Karachi. The goods so con cealed in the above‑mentioned shop are liable to confiscation as in respect of these goods provisions of Sea Customs Act had been con travened. The undersigned further believes on the reliable information that these goods will be removed if immediate search is not made. It is not possible to take a search warrant under section 172 of the Sea Customs Act as the leakage of information and any delay will result in the removal of the goods. Specification of the goods Toilet requisites. Artificial jewellery. Sundry goods. (Sd.) Khurshid Ali Khan, Chief Investigation Officer, Customs House, Karachi : 31st July, 1968." Petition No. 549 of 1968 "Statement under section 172‑A of the Sea Customs Act. It has come to the knowledge of the undersigned from reliable informer that goods specified below are concealed and kept in Flat No. 1, Khursheed Mansion Plot No. 18, Bahadurabad, Karachi. The goods no concealed in the above‑mentioned premises are liable to confisca tion as in respect of these goods provisions of Sea Customs Act had been contravened. The undersigned further believes on the reliable information that these goods will be removed if immediate search is not made. It is not possible to take a search warrant under section 172. of the Sea Customs Act as the leakage of information and any delay in search will result in the removal of the goods. Specification of goods Artificial jewellery. Nylon socks. Neck Ties. Toilet requisites, etc. (Sd.) Kbursheed Ali Khan, Chief Investigation Officer, Customs House, Karachi. 31‑7‑1968. (Sd.) M. A.Beg 31‑7‑1968. To Mirza Anwar Beg, Occupant of the above‑mentioned Flat."

2. The circumstances under which the above orders came to be made are disclosed in paragraph 2 of the counter affidavit filed on behalf of the respondents, which reads as follows :‑ "That paras. 3 and 4 are not denied except the statement in para. 4 of the petition that raid in the shop of Mirza Naseer Beg was made without any rhyme and reason. The raid was made by the, C.

1. A. police at the shop of Mirza Naseer Beg. On the information received that there was still large quantity of unlawfully imported goods lying in the house of Mirza Naseer Bag at Flat No. 1, Khurshid Mansion, Bahadurabad. the Customs Staff made raid at the said house on 31‑7‑1968. The raid party headed by respondent No. 3 included two lady Preventive Officers and when the party reached the said house of Mirza Naseer Beg he was not present but his brother Mirza Anwar Beg was present there. He disclosed that he owns 'Society Stores' which was very close to the house of Mirza Naseer Beg. Respondent No. 3 also contacted Mirza Mukkaram Shaikh who was present there. He disclosed himself to be brother‑in‑law of Mr. Naseer Beg. Both Mirza Anwar Beg and Mirza Mukkaram Shaikh admitted that smuggled goods were concealed in that very house. Respondent No. 3 then to presence of the two independent Mashirs prepared Mashirnama and inventory of the goods seized by the raiding party in presence of Mirza Mukkaram Shaikh and the petitioner. A copy of the said Mashirnama alongwith the inventory is annexed hereto and marked R/2 and R/2‑A. During the querries made from the petitioner it was disclosed that he owned Society Stores where similar goods were being sold. After search and seizure of the goods front the house of Mirza Naseer Beg, the raiding party went to the Society Stores along with the petitioner and served another statement under section 172‑A of the Sea Customs Act on the petitioner. True copy of the same is annexed hereto and marked R/3. The search of the shop was carried out by the raiding party in presence of the Mashirs and petitioner. Inventory of the smuggled goods was prepared and the same were seized under a proper Masbirnama. The true copy of the Mashirnama are annexed hereto and are marked R/4 and R/4‑A. "

3. Mr. Saeeduzzaraan Siddiqi, the learned counsel for the petitioners challenged the aforesaid orders on the ground that they are not in compliance with the requirement of the aforesaid section 172‑A inasmuch as the orders do not disclose the reasonable grounds for believing that the goods in relation to which any of the provisions of the Sea Customs Act were suspected to have been contravened or that the goods which may have been suspected to be liable to confiscation under any such provisions were concealed or kept in any place or that there were grounds to believe that such goods will be removed before a search could be effected under the provisions of section 172 of the Sea Customs Act which, according to him, are the pro‑requisites before any action could be taken under section 172‑A. Now there is no doubt that in so far as the impugned orders are concerned they do not disclose grounds much less reasonable grounds for suspecting that the vaguely specified goods were either smuggled or that there ware grounds to believe that they are likely to be removed if the search is effected under the provisions of section 172 by obtaining a warrant from a Magistrate. This, however, will not make the impugned orders without jurisdiction, for as was observed by the Supreme Court in the case of Muhammad Ishaque Chowdhury v. Nur Mahal Beguile and others (PLD 1961 S C 426) in relation to an order under section 145, Cr. P. C., that mere omission to state the grounds upon which the Court is satisfied will not necessarily make the order also without jurisdiction. However, in this case it was further observed as follows "In such cases the important thing is to see whether there were materials on the record ;upon which the satisfaction of the Magistrate could be at all grounded. If there exists such materials, then the mere omission to state the grounds of satisfaction will not vitiate the order. In such a case it must be held that there has been substantial compliance with the requirements of the provisions of section 145 of the Code and that the defect is merely a technical defect."

4. From the above decision it will follow that :he respondents were bound to disclose in their counter‑affidavit the grounds on which they pre‑1 raised their belief that specified smuggled goods had been stored in a. particular place and that there were grounds to believe that if immediate action is not taken under section 172‑A the goods will be removed. The respondents' case has been stated in the aforesaid paragraph 2 of the counter‑ affidavit and it is obvious that the paragraph does not disclose the material upon which the satisfaction of the respondent was founded at least as to the latter requirement, namely, that there were grounds to believe that the goods would be removed unless immediate action was taken without a warrant from a Magistrate under section 172 of the Sea Customs Act. In this connection we may also refer to the case of S. M. Yusuf v. Collector of Customs and others in which also an action under section 172‑A was under attack and the view that found favour was that it is within our jurisdiction to ascertain the material available to the relevant authorities which could furnish reason able grounds for believing that action under section 172‑A of the Act was .called for and what was to be adjudicated upon was the reasonableness thereof. 1n the present case, as aforesaid no material has been disclosed which warranted action under section 172‑A of the Sea Customs Act against the petitioners for the only ground disclosed is that if action under B section 172‑A is not taken the goods will be removed.

5. The result, therefore, is that the impugned orders cannot be sustained and they are set aside with the result that the petitioners will be returned the seized goods, with this observation, however, that nothing stated herein will prevent the Customs Authorities from taking such action as they may be entitled to in law in relation to the said goods.

6. In so far as the prayer for the release of the petitioner in Petition No. 548 of 1968 is concerned Mr. Saeeduzzaman Siddiqi did not press the same in view of the statement made in the counter‑affidavit that the petitioner was never arrested.

7. Petitions Nos. 548 and 549 of 1968. are disposed of as aforesaid with no order as to costs. S. A. x. Petitions disposed of accordingly.