1973 PLP 411 (SCMR)

MUHAMMAD YAQUB ALI, J.‑This order will govern Civil Petitions for Special Leave to Appeal Nos. K‑164 to K‑182 of 1967. Between the 27th and 29th March 1967 the Customs Officers, Karachi searched the business premises of the respondents and seized therefrom foreign cloth believed to have been smuggled Customs Act, 1875, but the High Court has in writ jurisdiction declared their action to he without lawful authority and directed that the goods be handed back to the respondents. By these nineteen petitions the Collector of Customs seeks special leave to appeal from the order of the High Court in each case. Section 172‑A under which searches were made required that whenever any officer of Customs has reasonable grounds for believing that goods in relation to which any of the provisions of the Act may be suspected to have been contravened or goods which may be suspected to be liable to confiscation under any such provision are concealed or kept in any place and that there is a danger that they may be removed before a search can be effected by applying to a Magistrate under the provisions of section 172 he may after preparing a statement in writing of the grounds of his belief search or cause search to be made for such goods in that place. All searches made under this section are to be carried out mutatis mutandis in accordance with the Code of Criminal Procedure, 1898. Mr. Shah Jamil Alam appearing in support of these petitions does not dispute that the searches carried out by the Customs Officers and the seizure of the goods from the premises of the respondents were unlawful inasmuch as no statement in. writing of the grounds of the belief mentioned in section 172‑A were recorded by the Customs Officers, but maintains that the writs issued by the High Court have become infructuous as the seized goods were after being placed on trucks to make them over to the respondents reseized under section 178 of the Sea Customs Act which is to the following effect:‑ "Any things liable to confiscation under this Act may be seized in any place, either upon land or water, by any officer of Customs or other person duly employed for the prevention of smuggling." It was contended by the learned counsel that since it has been) ascertained by the Customs Officers during the pendency of the writ petitions that the goods seized from the premises of the, respondents were liable to confiscation they could be seized under section 178 and the provisions of section 172‑A ceased to have application in regard to their seizure. In effect the orders of the High Court declaring the action taken by the Customs Officers to be unlawful and directing them to hand over to the respondents the goods seized from their premises were stultified by the action taken by them under section

178. If the construction placed by the Department on that section is accepted the safeguards provided by the Legislature in sections 172 and 172‑A would be rendered completely nugatory. It, therefore, follows that goods in relation. to which it has not yet been determined in proper proceedings whether any of the provisions of the Sea Customs Act have been contravened or that they are liable to confiscation are not liable to seizure under section

178. The opening clause in the section: ? Authority liable to confiscation under this act? makes it clear that the liability c f confiscation is already determined) or is no longer in dispute. In the instant cases the respondents disputed that any of the provisions of the Sea Customs Act has been contravened in respect of the foreign cloth seized from their premises and unless a determination is in appropriate proceedings reached to the contrary it cannot be postulated I that the same goods are liable to confiscation. There are in the) Sea Customs Act also provisions for appeal and revision from the decision of the Customs Officer on this point. In this view the seizure of the goods, belonging to the respondents, by the Customs Officers under section 178 was equally without lawful authority and since it was intended to nullify the effect of the writs issued by the High Court we highly disapprove of their action. For the foregoing reasons Civil Petitions for Special Leave to Appeal Nos. K‑164 to K‑182 are hereby dismissed. Petitions dismissed.