1988 P Cr (PLP)

‑‑‑Ss. 156 (1), 8, 9, 162, 163 & 171‑‑Criminal Procedure Code (V of 1898), S.537‑‑Constitution of Pakistan (1973), Art. 199‑‑Quashing of proceedings and F.I.R.‑‑V.C.R. and three cassettes of Indian Films recovered after raiding a house‑‑No warrant for search of premises obtained in advance‑‑No statement in writing giving grounds of believing that goods will be disposed of by the time warrant is obtained‑‑No such statement left at place of search‑‑No notice under S. 171, Customs Act, served at time of seizing alleged smuggled goods‑-Held, all proceedings conducted by raiding party, were illegal and in violation of mandatory provisions of S. 171, non‑compliance of which was not condonable being not an irregularity but an illegality not curable under S. 537, Criminal Procedure Code‑‑Proceedings and F.I.R. quashed in circumstances. Raja Abdul Razzaq for Petitioner. Altaf Muhammad Khan for the State. Date of hearing: 21st February, 1988. This is a constitutional petition filed by Mian Iftikhar, petitioner, for the quashment of the entire proceedings taken up by Agha Muhammad Asaf, Deputy Superintendent, of Police, Lahore, against the petitioner leading up to the registration of case F.I.R. No.78 at Police Station, Ichhra, Lahore, on 15‑3‑1979 under section 156(1)(8) and (9) of the Customs Act.

2. The prosecution case in brief is that one Farooq Butt filed a complaint against his wife Mst Saeeda Bano to the Deputy Inspector- General of Police (Crimes) Lahore, that she was leading an immoral life with certain undesirable persons who visited her house and drank liquor there and if a raid was conducted, they could all be arrested. The complaint was marked by the Deputy Inspector‑General of Police (Crimes), Lahore, to Agha Muhammad Asaf, Deputy Superintendent of Police, Anti Vice Squad, Lahore for necessary action. The said officer organized and headed a raiding party alongwith a Magistrate and the S.H.O. Police Station Ichhra and raided the (louse of Mst. Saeeda Bano. After the raid, the Deputy Superintendent of Police registered a case with S.H.O., Police Station Ichhra on 15‑3‑1979, that during the search of the house of Mst. Saeeda Bano a Philips V.C.R. (Austrian made) alongwith three cassettes of Indian Film "Saniasi" were found from the house of Mst. Saeeda Bano and by being in possession of the said articles she had committed an offence under section 156 (1) (8) and (9) of the Customs Act. Later during the investigation, it was found that the said Philips V.C.R. and the cassettes belonged to Mian Iftikhar, petitioner, and he was also involved in this case. Ultimately, the challan was filed against Mst. Saeeda Bano and Mian Iftikhar, petitioner, in the Court of the Special Judge, Customs, Lahore, under section 156 (1)(8) (9) of the Customs Act.

3. I have heard the learned counsel for the petitioner and the' State. It is apparent that warrant for the search of premises was not taken in. advance by the Deputy Superintendent of Police, Anti Vice Squad, as required under section 162 of the Customs Act. Assuming that the said police officer felt that the goods would be disposed of by time he obtained such search warrant, he did not prepare any statement in writing giving the grounds of his belief in that respect, as required by section 163 of the Customs Act, nor did he leave the said statement at the place of search, as required by section 163 (2) of the Customs Act. In these circumstances, the search carried out by the Deputy Superintendent of Police was illegal. Still further no notice under section 171 of the Customs Act was served by the Deputy Superintendent of Police on Mst. Saeeda Band, when he seized the alleged smuggled goods. In these circumstances, all the proceedings conducted by the Superintendent of Police appear to be illegal. The service of notice under section 171 of the Customs Act is mandatory. Its non‑compliance is not condonable during investigation. Even in trial, the non‑service of this notice is not treated as an irregularity,' but as an illegality not curable under section 537, Cr.P.C. See N.L.R.' 1982 Criminal Cases

231. In these circumstances the entire proceedings, taken by the Deputy Superintendent of Police, respondent No.1 against Mian Iftikhar, petitioner, and Mst. Saeeda Bano, co‑accused, leading up to the registration of the case and submission of challan are declared to be illegal and without lawful authority and are hereby quashed. S. A. /1-70/L Proceedings quashed.