Seth Durgaprasad Vs. H. R. Gomes
[1965] INSC 284 (9 December 1965)
09/12/1965 RAMASWAMI, V.
RAMASWAMI, V.
GAJENDRAGADKAR, P.B. (CJ) WANCHOO, K.N.
HIDAYATULLAH, M.
SATYANARAYANARAJU, P.
CITATION: 1966 AIR 1209 1966 SCR (2) 991
CITATOR INFO:
OPN 1967 SC1298 (2) RF 1972 SC 591 (21)
ACT:
Defence of India Rules, 1963-Rule
126(2)-Whether permits seizure of documents.
Indian Customs Act, 1962 s. 2 (34) -'Proper
officer' within the meaning of section whether includes Collector of
Customs-Section 105, power to search under, whether a power to search
particular documents only-'secreted', meaning of--Section 110(3), seizure of
documents under-Documents whether can be seized from a person in legal and not
physical possession.
HEADNOTE:
Searches were carried out in the appellants'
premises by the Superintendent of Customs and Central Excise Nagpur. The
authority to search was given by the Assistant Collector of Customs and Central
Excise Nagpur under Rule 126 L(2) of the Defence of India Rules, 1963 for the
purpose of seizing gold held in contravention of the Rules and also connected
documents. The documents seized during the search were retained by the
Superintendent at Nagpur for 8 days and were then sent to Delhi temporarily for
the purpose of translation by the Departmental Hindi Officer. While the
documents were at Delhi the Collector of Customs Nagpur on September 6, 1963
made an order of seizure under s. 110(3) of the Customs Act purporting to seize
the aforesaid documents from the possession of the Superintendent. On September
11, 1963, the Collector made another similar order purporting to seize the said
documents from the Assistant Collector to whom, he believed, they had been
transferred by the Superintendent. The appellants challenged inter alia the
legality of the seizure of the documents by the Superintendent and the orders
of seizure made by the Collector, before the High Court. Their writ petitions
having been dismissed they appealed to this Court by special leave.
The questions that came up for consideration
were : (1) Whether the officer authorised under Rule 126L(2) could seize
documents by exercising his additional powers under Rule 156. (2) Whether the
Collector of Customs was a 'proper officer' for the purpose of ordering seizure
of documents under s. 110(3) of the Customs Act. (3) Whether the order under s.
110(3) was legally effective in view of the fact that the documents in question
were not in the physical possession of the Superintendent or the Assistant
Collector of Central Excise. (4) Whether the power under s. 105 of the Customs
Act was a general power or a power to seize only specified documents. (5)
Whether the documents in question could be said to have been 'secreted' within
the meaning of s. 105.
HELD : (i) The power granted under Rule 156
is an ancillary or incidental power for making effective seizure of suspected
gold. In other words the power granted under Rule 156 is the power to take such
action as may be necessary for seizing prohibited gold, and does not include
the power of seizure of documents which is not an ancillary or incidental
power. This view is borne out by the Seventh Amendment of the Defence of India
Rules on June 24, 1963. by this arsenates power to 992 seize documents has been
expressly conferred under Rule 126L(1) and (3) without conferring similar power
under Rule 126L(2). The Super. intendent of Central Excise, could not therefore
seize the documents b) authority given under the said Rule. [997 G] (ii)
However the appellants were not entitled to the grant of a writ because there
was a valid order for seizure of the documents on September 11, 1963 by the
Collector of.Customs under s. 110(3) of the Customs Act. Under the said
Sub-section documents relevant to the proceedings under the Act can be seized
by the 'proper officer'. [999 C] (iii) A Collector of Central Excise is a
'proper officer' within the meaning of s. 2(34) of the Customs Act.
[1000 E] (iv) The fact that on September 6
and 11, 1963, when the two orders under s. 110(3) were passed the goods were in
Delhi and not in the physical possession of the officers from whose possession
they were purported to be seized did not affect the validity of the orders.
Though the documents had been sent to Delhi, the Superintendent of Excise was
still, in legal possession of them for he had the right to control the use of
the documents and to exclude persons who should or should not have access to
the documents. The legal position is that at Delhi the documents were in
possession of a bailer for the limited purpose of examination and translation
of the documents but the legal possession was still with the Superintendent.
[1000 H-1001 B] Ancona v. Rogers, (1876) 1 Ex.D.285 and United States of
America v. Dollfus Mieg it Compagnie S.A. and Bank of England [1952] 1 All ER.
572, relied on.
From the above it would follow that the
Collector by his order of seizure dated September 6, 1963 or September 11, 1963
could transfer the legal possession of the documents to himself. The legal
effect of the order of seizure made by the Collector was the transfer of the
legal possession of the documents from the Superintendent or the Assistant
Collector. to the Collector. Such a change of possession need not necessarily
involve physical transfer of possession if it was not possible at that stage,
but as a matter of law on and from the date of seizure the Collector exercised
the full incidents of possession over the documents. The fact that the documents
were retained at Delhi for a specific purpose will not affect the legality of
the order of seizure. [1001 F-H] Gian Chand v. State of Punjab, [1962] Supp. 1
S.C.R. 364 and Vinter v. Hind, (1882) 10 Q.B. 62, distinguished.
(v), It cannot be said that the documents
have not been 'secreted within the meaning of s. 105 of the Customs Act unless
they are hidden or concealed. In the context of the section the word means
'documents which are not kept in the normal or usual place' or it may even mean
'documents or things which are likely to be secreted'; in other words documents
or things which a person is likely to keep out of the way or to put in a place
where the officer of the law cannot find it. [1005 F-G] The power to search
granted under s. 105 of the Customs Act is a power of general search and it is
not necessary for its exercise that the authorisation should specify the
documents for which search is to be made. But it is essential that before this
power is exercised the preliminary conditions required by the section must be
strictly satisfied that is, the officer concerned must have reason to believe
that any documents or things which-in his opinion are relevant for any
proceeding under the Act are secreted in the place searched. [1006 C-F] 993
CIVIL APPELLATE JURISDICTION : Civil Appeals
Nos. 677 to 680 of 1965.
Appeals from the judgment and orders dated
February 24, 25, 1964 of the Bombay High Court (Nagpur Bench) in Special Civil
Applications Nos. 437, 448, 449 and 490 of 1963.
G. S. Pathak, G. L. Sanghi, K.
Srinivasamurthy, O. C. Mathur, Ravinder Narain and J. B. Dadachanji, for the
appellants.
S. V. Gupte, Solicitor-General, N. S. Bindra
and B. R. G. K. Achar, for the respondents.
The Judgment of the Court was delivered by
RAMASWAMI J. These appeals are brought by a certificate from the judgment of
the High Court of Judicature at Bombay (Nagpur Bench) dated February 25, 1964
in Special Civil Applications nos. 437, 448, 459 and 490 of 1963 wherein the
respective appellants challenged the search and seizures carried out by the
respondents at the residential-cumbusiness premises of the appellants in
exercise of the power derived from Rule 126 L (2) of the Dtfence of India
(Amendment) Rules 1963 (hereinafter called the 'Gold Control Rules') and ss.
105 and 110 of the Customs, Act 1962 (hereinafter called the 'Customs Act').
Civil Appeal No. 678 of 1965 :
This appeal arises out of Special Civil
Application no. 490 of 1963 which relates to the search and seizure of the
premises of Sri Durga Prasad on August 19, 1963 and August 20, 1963. The authorisation
was granted by the 1st respondent-Assistant Collector of Customs and Central
Excise, Nagpur-to the second Respondent-Superintendent of Customs and Central
Excise -on August 19, 1963 to search the appellant's premises "Shreeram
Bhawan" and to seize and take possession of all gold, gold ornaments etc.
which were believed to have been kept in contravention of Gold Control Rules
and also account books and documents. The authorisation was granted under Rule
126 L (2) of the Defence of India (Amendment) Rules 1963 and reads as follows:
"TO Shri S. H. Joshi, Superintendent of
Customs and Central Excise, Nagpur.
Whereas information has been laid before me
and on due inquiry thereupon I have been led to believe% that the
premises/vaults/lockers specified below and 994 said to be in possession and
control of Shri R. B. Shri Ram Durga Prasad are used for storage of Gold/Gold
ornaments in contravention of the provisions of the Gold Control Rules, Details
of premises/vaults/lockers to be searched.Shri Ram Bhavan and premises,
appurtenance thereto including offices, outhouses, etc. Ramdaspeth, Nagpur.
This is to authorise and require you to enter
the said premises with such assistance as shall be required, and to use, if
necessary, reasonable force for that purpose, and to search every part of the
said premises and to seize and take possession of all gold/gold ornaments along
with the receptacle, container or covering thereof which you may reasonably
believe to be kept in contravention of the Gold Control Rules and also of such
books of accounts, return or any other documents, as you may reasonably believe
to be connected with any contravention of Gold Control Rules, and forthwith
report to this office regarding the seizure made, returning this order, with an
endorsement certifying what you bad done under it immediately upon its
execution.
Given under my hand and seal of this office
this Nineteenth day of August 1963.
Seal of Office. Sd. Krishan Dev, 19-8-63,
Assistant Collector of Customs and Central Excise, Nagpur." Having taken
possession of the documents, respondent no. 2 retained those documents at
Nagpur for about 8 days. Thereafter the documents were sent to Delhi
temporarily for proper translation by the Departmental Hindi Officer. While the
documents were at Delhi, the 3rd respondent viz., the Collector of Customs
Nagpur, made an order of seizure under S. 110(3) of the Customs Act. The order
of seizure dated September 6, 1963 states "Whereas information has been
received that the under mentioned documents are in the custody of Shri S. H.
Joshi, Superintendent of Central Excise, Nagpur :
1. Nacpur ki Juni Rokad Bahi Hisab Bahi Shri
Nagpur ki 24-7-58 to 28-10-59 (in Hindi) pages 1 to 96;
2. Shri Rokad Bahi Nagpur (in Hindi) pages 1
to 27;
995
3. Rokad-Bhuramalji Agrawal (in Hindi) pages
1 to 78;
4. Shri Khata Bahi Bhai Bhuramalji Agrawal
Samvat 2000-2001, 2005-2006 (in Hindi) pages 1 to 53;
5. Partners Shrix Du Group Hisab Bahi-upto
3-5-59 (in Hindi) pages 1 to 45;
6. Shri Khata Bahi-Bhai Bhuramalji AgrawalSamvat
2006-7 to 2012 (in Hindi) pages 1 to 57;
7. Hisab (bahi)-Partners-G X F Group upto
3-5-59 (in Hindi) pages 1 to 20;
8. Om.-P. Ankada Bahi (in Hindi) pages 1 to
25;
9. Ankada (Bahi) Bombay Nagpur (in Hindi)
pages 1 to 10;
10. Shri Jaipur Ki Hisab Bahi (in Hindi)
pages 1 to 101; (loose papers) and 1 to 39 (regular pages);
11. C.N.A. 1956,58 (A/c Book in English)
pages 1 to 101;
12. Account Book similar to no. II above (in
English) back cardboard cover missing pages 1 to 129;
13. June Shan Jakhiramji Bhagwandasji pages 1
to 2 loose pages. Pages 1 to 71 regular pages; 3-11-56 to 2-5-59;--Total
thirteen exercise book type account books;
14. Eight bunches of loose sheets stitched
together containing sheets as detailed below Bunch no. 1 containing sheets 5 :
Bunch no. 2 containing sheets 6 : Bunch no. 3 containing sheets 4: Bunch no. 4
containing sheets 5 :
Bunch no. 5 containing sheets 4 : Bunch no. 6
containing sheets 2; Bunch no. 7 containing sheets 2 : Bunch no. 8 containing
sheets 3;
15. Loose papers 25 sheets (including small
chits) recovered from Shriram Bhawan, Nagpur and whereas I am of the opinion
that the said documents are useful for and relevant to the proceedings under
Customs Act 1962 (Act 52 of 1962) 1, Shri Tilak Raj, the Collector of Central
Excise, having been empowered as Collector of Customs under Notification no.
GSR 214 dated 1-2-1963 of the Government of
India in this behalf in exercise of the said powers hereby order that the
aforesaid documents shall be seized." 996 Respondent no. 3 made a second
order of seizure dated September 11, 1963 with regard to the same documents.
Respondent no. 3 has explained that he had to
make the second order of seizure dated September 11, 1963 because he was, at
first, under the impression that the documents were under the custody of
respondent no. 2, but later on he learnt that respondent no. 2 had already made
over the documents to the custody or Sri Krishan Dev, Assistant Collector of
Central Excise, Nagpur.
It is contended by Mr. Pathak on behalf of
the appellants that the order of search and seizure dated August 19, 1963 was
illegal because the Excise authorities had no power to seize documents under
Rule 126 L (2) of the Defence of India (Amendment) Rules 1963 which states :
"126L. Power of entry, search, seizure,
to obtain information and to take samples.(1)....................................
(2) Any person authorised by the Central
Government by writing in this behalf may(a) enter and search any premises, not
being a refinery or establishment referred to in subrule (1), vaults, lockers
or any other place whether above or below ground-," (b) seize any gold in
respect of which he suspects that any provision of this Part has been, or is
being, or is about to be contravened, along with the package, covering or
receptacle, if any, in which such gold is found and thereafter take all
measures necessary for their safe custody.
It is contended for the appellants that the
Rule only gives authority to seize any gold in respect of which there is
suspicion of contravention of the Gold Control Rules along with the package,
covering or receptacle, but there is no provision in the Rule for search or
seizure of any documents. On behalf of the respondents the Solicitor-General
relied upon the provisions of Rule 156 which is to the following effect :
"156. Powers to give effect to rules,
orders, etc.(1) Any authority, officer or person who is emPowered by or in
pursuance of the Defence of 997 India Ordinance, 1962, or any of these Rules to
make any order, or to exercise any other power may, in addition to any other
action prescribed by or under these Rules, take, or cause to be taken, such
steps and use, or cause to be used, such force as may, in the opinion of such
authority, officer or person, be reasonably necessary for securing compliance
with, or for preventing or rectifying any contravention of, such order, or for
the effective exercise of such power.
(2) Where in respect of any of the provisions
of these Rules there is no authority, officer or person empowered to take
action under sub-rule (1), the Central or the State Government may take, or
cause to be taken, such steps and use, or cause to be used, such force as may,
in the opinion of that Government be reasonably necessary for securing
compliance with, or preventing or rectifying any breach of, such provision.
(3) For the avoidance of doubt, it is hereby
declared that the power to take steps under sub-rule (1) or under sub-rule (2)
includes the power to enter upon any land or other property whatsoever. "
It was submitted that the Superintendent of Customs and Central Excise was an
officer empowered by the Central Government to exercise the power under Rule 126
L (2) and under Rule 156 the Superintendent had the additional power to take or
cause to be taken such steps as may be reasonably necessary for the effective
exercise of such power. The argument was stressed that under Rule 156 the
Superintendent had the power to seize documents for the purpose of
investigating whether the gold which was seized was gold in respect of which
any provision of Part XIIA had been contravened. We do not think there is any
justification for this argument. The power granted to the authority empowered
under Rule 156 is an ancillary or incidental power for making effective seizure
of suspected gold.
In other words, the power granted under Rule
156 is the power to take such action as may be necessary for seizing the gold
and does not include the power of seizure of documents which is not an
ancillary but an independent power. The view that we have taken is borne out by
the 998 Seventh Amendment of the Defence of India Rules made on June 24, 1963.
Before the amendment, Rule 126 L read as follows "126L. Power of entry,
search, seizure, to obtain information and to take samples.(1) Any person
authorised by the Board by writing in this behalf may(a) enter and search any
refinery of which the refiner, or the establishment of a dealer who, is
licensed under this Part;
(b) seize any gold in respect of which he
suspects that any provision of this Part has been, or is being, or is about to
be, contravened, along with the package, covering or receptacle, if any, in
which such gold is found and thereafter take all measures necessary for their
safe custody.
(2) Any person authorised by the Central
Government by writing in this behalf may(a) enter and-search any premises, not
being a refinery or establishment referred to in sub-rule (1), vaults, lockers
or any other 'Place whether above or below ground;
(b) seize any gold in respect of which he
suspects that any provision of this Part has been, or is being, or is about to
be contravened, along with the package, covering or receptacle, if any, in
which such gold is found and thereafter take all measures necessary for their
safe custody.
After the Seventh Amendment the following
clause was inserted after cl. (b) in sub-r.
(1) :
"(c) seize any books of account, return
or any other document relating to any gold in respect of which he suspects that
any provision of this Part has been, or is being, or is about to be,
contravened and thereafter take all measures necessary for their safe
custody." By the same amendment the following sub-rule was inserted after
sub-rule (2):
"(3) Any officer authorised by the Board
by writing in this behalf may search any person if that officer 999 has reason
to believe that such person has secreted about his person(a) any gold in
respect of which such officer suspects that any provision of this Part has
been, or is being, or is about to be, contravened, (b) any document relating to
such gold." It is important to notice that Rule 126 L (2) has not been
amended by the Seventh Amendment and there is no provision in this sub-rule for
such a seizure of any document. We are, therefore, of the opinion that
respondent no. 1 had no authority under Rule 126 L (2) of the Defence of India
Rules to order respondent no. 2 to seize and take possession of the documents
in the premises of the appellant.
The appellants will not however be entitled
to the relief of rant of a writ, because we are of the opinion that there is a
valid order of seizure of the same documents on September 11, 1963 by the
Collector of Customs under s. 110(3) of the Customs Act. Section 1 1 0 of the Customs
Act states "110.(1) If the proper officer has reason to believe that any
goods are liable to confiscation under this Act, he may seize such goods:
Provided that where it is not practicable to
seize any such goods, the proper officer may serve on the owner of the goods an
order that he shall not remove, part with, or otherwise deal with the goods
except with the previous permission of such officer.
(2) Where any goods are seized under subsection
(1) and no notice in respect thereof is given under clause (a) of section 124
within six months of the seizure of the goods, the goods shall be returned to
the person from whose possession they were seized :
Provided that the aforesaid period of six
months may, on sufficient cause being shown, be extended by the Collector of
Customs for a period not exceeding six months.
(3) The proper officer may seize any
documents or things which, in his opinion, will be useful for, or relevant to,
any proceeding under this Act.
(4) The person from whose custody any
documents are seized under sub-section (3) shall be entitled to 1000 make copies
thereof or take extracts therefrom in the presence of an officer of
customs." On this aspect of the case it was, firstly, submitted by the
appellant that the Collector of Customs was not a "proper officer"
within the meaning of the Act and so he had no authority to seize documents
from the possession of the Superintendent or the Assistant Collector, Central
Excise.
Reference was made to S. 2(34)of the Customs
Act which states :
"2. (34) 'proper officer', in relation
to any functions to be performed under this Act, means the officer of customs
who is assigned those functions by the Board or the Collector of Customs;"
On behalf of the respondents the Solisitor-General relied upon s. 5(2) of the Customs
Act which states that "an officer of customs may exercise the powers and
discharge the duties conferred or unposed under this Act on any other officer
of customs who is subordiante to his".Mr. Pathak, however, submitted that
s.5(2)has no application to this case because there is a difference between the
"functions" on the one hand and "powers and duties"
reffered to in s.5(2) of the Customs Act on the other. We do not think it is
necessary to go into this point because we are of the view that, in any event,
the Collector of Customs would be a "proper officer" in relation to
the functions to be performed by the Act, because as a matter of principle the
Collector of Customs who had assigned the powers of a "proper
officer" to the subordinate officer must himself be deemed to have the
powers of a " proper officer" under S. 110(3) of the Customs Act. We
accordingly reject the contention of Mr. Pathak on this point.
It was next submitted on behalf of the
appellant that on both the dates-September 6, 1963 and September 11, 1963-the
documents were not in physical possession of respondent no.
2 and there could not be a valid seizure of
documents as contemplated by S. 110(3) of the Customs Act. It is the admitted
position that when seizure orders were passed by the Collector of 'Customs on e
documents were not in Nagpur or within the territorial of respondent no. 3. But
we do not accept the argument of the appellant that the power of seizure must
necessarily involve, in every case, the act of physical possession of the
person who had a right to seize the articles. It is true that the documents had
been sent to Delhi by respondent no. 2 for a limited purpose and for a limited
period. But though the documents were sent to 1001 Delhi, respondent no. 2 was
still in legal possession of the documents, for he had the right to control the
use of the documents and to exclude persons who should or should not have
access to the documents. The legal position is that at Delhi the documents were
in possession of a bailee for the limited purpose of examination and
translation of the documents but the legal possession was still with respondent
no. 2. The law on this point has been correctly stated by Mellish, L.J. in
Ancona v. Rogers(1) as follows :
".......... there is no doubt that a
bailor, who has delivered goods to a bailee to keep them on account of the
bailor, may still treat the goods as being in his own possession, and can
maintain trespass against a wrongdoer who interferes with them. It was argued,
however, that this was a mere legal or constructive possession of the goods,
and that in the Bills of Sale Act, the word 'possession' was used in a popular
sense, and meant actual or manual possession. We do not agree with this
argument. It seems to us that goods which have been delivered to a bailee to
keep for the bailor, such as a gentleman's plate delivered to his banker, or
his furniture warehoused at the Pantechnicon, would, in a popular sense, as
well as in a legal sense, be said to be still in his possession." This
passage was approved by Lord Porter in United States of America v. Dollfus Mieg
et Compagnie S.A. and Bank of England(1) and it was held in that case that
where a bailor can at any moment demand the return of the object bailed, he
still has legal possession.
It follows, therefore in this case, that the
Collector, by his order of seizure dated September 6, 1963 or September 11,
1963, could transfer the legal possession of the documents to himself. The
legal effect of the order of de Collector was the transfer of the legal
possession of the documents from respondent no. 2 or respondent no. 1 to the
Collector. Such a change of possession need not necessarily involve a physical
transfer of possession if it was not possible at that stage, but as a matter of
law on and from the date of seizure the Collector exercised the full incidents
of possession over the documents. The fact that the documents were retained at
Delhi for a specific purpose will not affect the legality of the order of
seizure and was, in law, transfer of possession in respect of these documents
from respondents nos. 1 and 2 to respondent no.
3.
(1) [1876], 1 Ex. D. 285, at p. 292. (2)
[1952] 1 All. E.R. 572.
1 002 On behalf of the appellants Mr. Pathak
referred to the decision of this Court in Gian Chand v. The State of Punjab (1).
In that case, the question debated was whether the presumption under S. 178A of
the Sea Customs Act, 1878 would arise in respect of an article which was
originally seized by the police and handed over to the authorities of the
Customs Department and was actually with one of them when it was seized. In
this context, this Court observed at page 373 of the Report :
"A 'seizure' under the authority of law
does involve a deprivation of possession and not merely of custody and so n the
police officer seized the goods, the accused lost possession which vested in
the police. When that possession is transferred, by virtue of the provisions
contained in s. 180 to the Customs authorities, there is no fresh seizure under
the Sea Customs Act. It would, therefore, follow that, having regard to the circumstances
in which the gold came into the possession of the Customs authorities, the
terms of S. 178A which requires a seizure under the Act were not satisfied and
consequently that provision cannot be availed of to throw the burden of proving
that the gold was not smuggled, on the accused." The ratio of that case is
of no assistance to the appellants, for the question at issue in that case was
in regard to burden of proof under S. 178A of the Sea Customs Act and whether
the presumption under that section would arise in the special circumstances of
the case. Mr. Pathak also referred to the decision of the Queen's Bench in
Vinter v. Hind (2 ) in which the respondent, a butcher, exposed for sale part
of a cow which had died of disease, and sold the meat to a customer, who took
it home for food, and some days afterwards was requested by the appellant, an
inspector of nuisances, to hand it over to him, and it was condemned by a
justice as unfit for the food of man. It was held by the Queen's Bench in these
circumstances that the meat was not "so seized" and condemned as is
prescribed by ss. 116, 117, of the Public Health Act. 1875, and therefore the
respondent was not liable, as the person to whom the same "did belong at
the time of the exposure for sale," to a penalty under S.
117. The decision of this case is of no help
to the appellants because the actual decision turned upon the language of ss.
116 and 117 of the Public Health Act, 1875 and the respondent was held not
liable to the penalty (1) 1962 Supp.1 R (2) (1882) 10 Q.B. 63.
1003 because he was not the person to whom
the meat "did belong at the, time of exposure for sale." It was then
contended on behalf of the appellants that there is no material to show that
the documents seized were relevant or useful to the proceeding under the Customs
Act and in the absence of such material the seizure of the documents must be
held to be illegal. We do not think there is any warrant for this argument. The
orders of the Collector dated September 6, 1963 and September 11, 1963 both
state that the Collector was of opinion "that the documents were useful
for and relevant to the proceedings under the Customs Act, 1962".
Respondent no. 2 has also stated in para 3 of his return that information was
received from a reliable source that the appellant had a considerable quantity
of hoarded gold which had not been declared by him under Rule 126 1 of the
Defence of India (Amendment) Rules, 1963, and for this purpose a raid was made
for search of gold and gold ornaments. Respondent no. 2 has further stated as
follows:
"During this search, I also came across
certain documents and records which indicated that the petitioner had acquired
considerable quantity of gold which was far in excess of the quantity of gold
declared by the petitioner and his family members in the declarations submitted
by them under Rule 126 1 of the Defence of India (Amendment) Rules, 1963. In
addition, I also found documents indicating that the petitioner had resorted to
dealings constituting breach of the Customs.
Regulations and the Regulations under the
Foreign Exchange Regulation Act punishable under the Sea Customs Act, 1878
and/or the Customs Act, 1962. The documents, note-books and files which I came
across also indicated that the petitioner had resorted to under invoicing of
export of mineral ores to the extent of millions of rupees, large-scale
purchase of gold to the tune of lakhs of rupees, unauthorised sale of Foreign
Exchange involving lakhs of dollars (U.S.) to parties of whom some are persons
known to be directly or indirectly involved in smuggling activities." We
accordingly hold that there is sufficient material to support the information
of the Collector of Customs under s. 110(3) of the Customs Act that the
documents would be useful or relevant to the proceedings under the Act and the
argument of Mr. Pathak on this aspect of the case must be rejected.
1004 For the reasons expressed, we hold that
the High Court was right in saying that the appellant had made out no case for
grant of a writ. This appeal accordingly fails and must be dismissed with
costs.
Civil Appeal No. 677 of 1965 This appeal
arises out of Special Civil Application no. 437 of 1963 relating to the search
of the premises of the appellant Durga Prasad at Tumsar and Nagpur on the basis
of an authorisation dated September 24, 1963 issued by the Assistant Collector
of Customs, Raipur to the Superintendent of Central Excise at Nagpur under s.
105 of the Customs Act which reads as follows "Shri H. R. Gomes,
Superintendent (Prev.) H. Qrs., Central Excise, Nagpur.
Whereas information has been laid before me
of the suspected commission of the offence under section 11 read with section 1
1 1 of the Customs Act 1962 (52 of 1962) and it has been made to appear that
the production of contraband goods and documents relating thereto are essential
to the enquiry about to be made in the suspected offence.
This is to authodse and require you to search
for the said articles and documents in the shop/office/godowns/ residential
premises/conveyance/packages belonging to or on the person of Shri Durgaprasad
Saraf Tumsar and if found, to produce the same forthwith before the undersigned
returning this authority letter with an endorsement certifying what you have
done under it immediately upon its execution.
given under my hand and the seal of this
office, this 24th day of September, 1963.
Seal of the Integrated Divisional Office,
Central Excise, Raipur.
Sd.
(R. N. Sen), Collector, Customs & Central
Excise : I.D.O.
Raipur: M.P." 1005 It is contended on
behalf of the appellant that the authorisation is not legally valid since there
is no averment by the Assistant Collector that the documents were
"secreted". Section 105 of the Customs Act states :
"105. (1) If the Assistant Collector of
Customs, or in any area adjoining the land frontier or the coast of India an
officer of customs specially empowered by name in this behalf by the Board, has
reason to believe that any goods liable to confiscation, or any documents or
things which in his opinion will be useful for or relevant to any proceeding
under this Act, are secreted in any place, he may authorise any officer of
customs to search or may himself search for such goods, documents or things.
(2) The provisions of the Code of Criminal
Procedure, 1898, relating to searches shall, so far as may be, apply to
searches under this section Subject to the modification that subsection (5) of
section 165 of the said Code shall have effect as if for the word
"Magistrate", wherever it occurs, the words "Collector of
Customs" were substituted." According to the appellant the power of
seizure under s. 105 of-the Customs Act cannot be exercised unless the
Assistant Collector had reason to believe that the documents were secreted. It
was argued that the word "secreted" is used in s. 105 in the sense of
being hidden or concealed and unless the officer had reason to believe that any
document was so concealed or hidden, a search could not be made for such a
document. We are unable to accept the submission of the appellant as correct.
In our opinion, the word "secreted" must be understood in the context
in which the word is used in the section. In that context, it means 'documents
which are kept not in the normal or usual place with a view to conceal them' or
it may even mean 'documents or things which are likely to be secreted'; In
other words, documents or things which a person is likely to keep out of the
way or to put in a place where the officer of law cannot find it. It is in this
sense that the word 'secreted' must be understood as it is used in s. 105 of
the Customs Act. In this connection reference was made by the Solicitor-General
to the affidavits of the Superintendent of Central Excise dated October 28,
1963. Para 6 states that "Some of the documents were recovered from the
living apartments and safe of the petitioner and also from the drawers 1006 of
the tables and cabinets utilised by his sons and a search was made for
documents which may have been secreted in the premises".
It was further submitted on behalf of the
appellant that the power of search under S. 105 of the Customs Act cannot be
exercised unless the authorisation specifies a document for which search is to
be made. In other words, it is contended that the power of search under S. 105
of the Customs Act is not of general ,character. We do not accept this argument
as correct. The object of grant of power under S. 105 is not search for a particular
document but of documents or things which may be useful or necessary for
proceedings either pending or contemplated under the Customs Act. At that stage
it is not possible for the officer to predict or even to know in advance what
documents could be found in the search and which of them may be useful. or
necessary for the proceedings. It is only after the search is made and
documents found therein are scrutinised that their relevance or utility can be
determined. To require, therefore, a specification or description of the
documents in advance is to misapprehend the purpose for which the power is
granted for effecting a search under s. 105 of the Customs Act. We are,
therefore, of opinion that the power of search granted under S. 105 of the Customs
Act is a power of general search. But it is essential. that before this power
is exercised, the preliminary conditions required by the section must be
strictly satisfied-that is, officer concerned must have reason to believe that
any documents or things, which in his opinion are relevant for any proceeding
under the Act, are secreted in the place searched. We have already mentioned
the reasons for holding that this condition has been satisfied in the present
case.
For the reasons expressed, we hold that the
appellant has made out no case for the grant of a writ and this appeal must be
,dismissed with costs.
Appeals dismissed.
Back
