P L D 1984 Karachi 71 (PLP)

NASIR ASLAM ZAHID, J .--The petitioner is a general-merchant .and carry ing on business at Karachi. According. to the memo. -of petition, the petitioner, in the course of his business, purchased 43,000 pairs of soles from Basco Limited of Gujrat against invoice, dated 25-8-1981 for an approximate value of Rs. 4,23,

550. Before 2-9-1981 the peti tioner had already effected sales of about 15,000 pairs and had in his godown situated in Nazimabad, Karachi, the balance, of the goods i.e. 28,600 pairs. The goods were packed, according to the memo. 'of petition, in 572 cartons containing 52 pairs ;of unit sole of Taiwan manu facture. On 2-9-1981, Inspector Qaswar Ali of F. f. A., came to the godown of the Petitioner and directed the Petitioner not to remove, dispose off, sell or transfer the said goods without prior permission of the respondent-agency. This direction was given pursuant to an enquiry No. 14 of 1981. A detention memo. of the goods was prepared in which details of the goods detained were mentioned and it was also recorded that the petitioner should not remove, dispose off, sell or transfer its goods without the permission of F. I. A. It was mentioned that this was being done in connection with the powers invested under section 5(5) of the Federal Investigation Agency Act, 1975. The action of the inspector of F.

1. A. has been challenged in the present Constitutional petition. We have heard Mr. Nasim Ahmed Farouqui, learned counsel for the petitioner and Mr. S. Inayat Ali, learned Standing Counsel for the Federal Government on behalf of the respondent. On a question from us, the learned Standing Counsel informed that no order has been passed about seizure of the goods so far. Reference may be made to subsection (5) of section 5 of Federal Investigation Agency Act (VIII of 1975), which reads as follows :- "(5) If, in the opinion of a member of the Agency conducting an investi gation, any property which is the subject-matter of the investigation is likely to be removed, transferred or otherwise disposed of before an order of the appropriate authority for its seizure is obtained, such member may, by order in writing, direct the owner of any person who is, for the time being, in possession thereof not to remove, transfer or otherwise dispose of such property in any manner except with the previous permission of that member and such order shall be subject to any order made by the Court having jurisdiction in the matter." Normally there should be an order of the appropriate authority for .seizure) before any property, which is the subject-matter of investigation by the F. I. A.,. is seized or detained. However, in exceptional circumstance, any member of the F. I. A. conducting an investigation can direct by an order that any property which is the subject-matter of investigation which is likely to be re moved, transferred or otherwise disposed off before an order of the appropriate authority for its seizure is obtained that such property be not removed, transferred or otherwise disposed off except with the previous permission of) that member. We find from the impugned detention memo. dated 2-9-1981 that it has not been mentioned by the Inspector concerned that he was passing the order for restraint on the removal or sale of goods in question, as in his opinion an order of the appropriate authority for the seizure of the goods could not be obtained, as before that the goods were likely to be removed, transferred or otherwise disposed off. It must be established that sufficient time was not available with the concerned member of the F. I. A. to approach the appropriate authority for obtaining an order for the seizure of the goods and in those circumstances only the power under subsection (5) of section 5 of the Act (VIII of 1975) could be exercised. Comments dated 29-11-1981 have been filed in this case on behalf of the respondent-agency. The comments are signed by 'Ali Qaswar Bokhari, the concerned Inspector of F. I. A., who had passed the order of detention of the goods. From the comments, respondent's case appears to be that an enquiry was registered against the petitioner on 15-8-1981 for smuggling of synthetic unit sole, on 25-8-1981 books of account and certain goods were seized at the businses premises of the petitioner and then on 2-9-1981 the goods in question were seized at the Nazimabad godown of the petitioner. The comments clearly show that there was sufficient time available with the F.

1. A. for obtaining an order of seizure from the appropriate authority. However, this was not done and the concerned inspector decided to exercise the powers under subsection (5) of section 5 of the F. I. A. Act, 1975. In our view in these circumstances, the powers could not be exercised by the Inspector under subsection (5) of section 5 and the goods could have been detained only after an order of seizure had been obtained from the appropriate authority. We have also been informed by the learned Standing Counsel as observed earlier, that uptill now no order has been passed by any authority or Court about the l seizure and detention of the goods by the Inspector of F. I. A. The order passed by the Inspector of F. I. A. for detention of the goods was, therefore, illegal and without any authority. Constitutional Petition No. D-1006 of 1981 is allowed to the extent that a declaration is granted that the detention of the goods of the petitioner by order, dated 2.9-1981 by Ali Qaswar Bukhari, Inspector, F. I. A. EE. Wing, Karachi, is without lawful authority and of no legal effect. The petitioner will also be entitled to costs. M. Y. H. Petition accepted.