P L D 1952 Sind 61 (PLP)

CONSTANTINE, J.‑Upon the following letter received from the Collector of Customs, the following endorsements were made, and the following search warrant was issued : "In the Court of the City and Additional District Magistrate, Karachi. Criminal Case No. 1951. Collector of Customs Karachi‑Complainant versus Tar Muhammad & Co‑Accused Note.‑In replying please quote the number and date of this letter and address the office from whom it is received by designation and not by name. C/o Post Box. No. 198 No. of enclosures. Secret Urgent. From : A. E. Wright Esq. O. B. E., Collector of Customs, Box. No. 198, Custom House, Karachi. To The City Magistrate, Karachi. A. I. B. No. 45/51 . Dated the 10th July 1951. I have reasonable ground to suspect that Messrs Tar Muhammad & Co. Ramburthi Road, Jodia Bazar, Karachi have been misdeclaring values on bills of entry in contraven tion of sections 29 and 30 of the Sea Customs Act and evading paying proper Customs duties thereby. They have been pro ducing false invoices and the real invoices and other relevant documents are suspected to be concealed in their office.

2. It is therefore requested that a search warrant may please be issued on the Police Station concerned for carrying out necessary search in the presence of my staff at 12‑00 noon on the 11th July 1951 at the place in question. The warrant may be handed over to Principal Appraiser Mr. Sattar Muhammad whose signature is appended below. (Sd.). ....... Collector of Customs. 15‑7‑

51. Sattar Muhammad. Issue search warrant and give to Mr. Sattar Muhammad. (Sd.) ABDUL RASUL KAZI, City and A. D. M. 10‑7‑

51. Received warrant. (Sd.) SATTAR MUHAMMAD. 10‑7‑

51. Issued for a period of 7 days. (Sd.)........... 10‑7‑1951. In the Court of the City and Additional District Magis trate Karachi. Criminal Case No. 1951. Collector of Customs, Karachi‑Complainant versus Tar Muhammad & Co.‑Accused Warrant to search after information of a particular offence. Section

96. To The Inspector, City Police Station, Karachi. Whereas information has been laid before me of the commission of the offence of misdeclaration of values in bills of entry in contravention of sections 20 and 30 of the Sea Customs Act by Messrs Tar Muhammad & Co., Ramburthi Road, Karachi and it has been made to appear to me that the production of relative invoices and other documents is essential to the

"enquiry now being made (or about to be made) into the said offence. This is to authorise and require you to search for the said invoices and other documents in the office of Messrs. Tar Muhammad & Co., Ramburthi Road, Karachi, in the presence of the Karachi Customs House Staff, arid if found to hand over the same forthwith to the Customs Officers returning this warrant, within 7 days endorsements certifying what you have done under it immediately upon its execution. Given under my hand and the seal of the Court this day of 10th July 1951. (Sd.) ABDUL RASUL KAZI. 10‑7‑

51. City and A. D. M. Karachi." The applicant's affidavit alleges that in execution of the warrant on the 11th July 1951 police and. Customs Officers raided his office, took possession of a large number of docu ments, of which some were placed in an almirah and sealed with the officers seals, and others were taken away. The applicant has applied that the order issuing the warrant should be set aside, and that all the papers should be returned to the possession of the applicant. A Magistrate has jurisdiction to issue a search warrant before proceedings of any kind are initiated before him and in view of an inquiry about to be made. (Clarke v. Bigendra 39 Cal. P C 953) Inquiry is distinct both from trial (Section 4 (k) Criminal P. C.) and from investigation (section 4 (1) Criminal P. C). Jurisdiction to order production carried with it jurisdiction to order inspection (Muhammad Rahim v. Crown 29 S L R (FB) at p. 114). The applicant relies on Hoshide v. Emperor (1940) A I R Cal. 97 and do re Muhammad Tahir (1934) A I R Bom.

104. The material facts in both these cases are indistinguishable from the present. It was held in both cases that the fact that the documents came to be handed over to the customs authorities showed that the warrant was issued not for the purpose of an enquiry, but for the purpose of an investiga tion by the customs authorities. With respect we agree with this finding. The distinction between a Magistrate allowing inspection by the customs authorities to aid his own inquiry and between an investigation by them may be thin, but nevertheless we think it substantial. On the point whether, as the Calcutta High Court held, the third paragraph of section 96 does not apply to investigation at all (which may be of course a proceeding under the Code) we express no opinion. The answer to the Crown as regards both the first paragraph (which fell outside consideration in Hoshide's and Muhammad Tahir's cases) and also the third paragraph of section 96, is that the investigation of the customs authorities was not authorised under the Code, and therefore the warrant, being issued for a purpose outside the scope of the Court's powers under section 96, was illegal. The documents should be returned to the applicant. A. H. Petition accepted.