HANUMAN TRADERS Vs. C T O TNT BANGLORE

JUDGEMENT

(1.) This writ petition under Art. 226 of of the Constitution is directed agains the search and seizure conducted by the respondent inter alia contending that the search is without jurisdiction contrary to the express provisions of law and therefore, illegal. In the result, the petitioner has prayed for quashing of tht seizure order which is at Ext-A to the petition and also for issue of a writ of mandamus to the respondent directing him to return all books of accounts and other documents seized under Exhibit-A above.

(2.) The facts leading to the filing of the petition may be briefly stated as follows:

(3.) The petitioner-Hanuman Traders, Huliyar Road, Hiriyur, is a registered partnership firm and in these proceedings is represented by one of the partners M.H.Anjanappa,. The petitioner firm is a dealer under the Karnataka Sales Tax Act (hereinafter referred to as the Act) . The firm is assessed by the Assistant Commissioner of Commercial Taxes, Assessments, Bangalore Dn.Bangalore. The petitioner has asserted that he has filed all the returns due under the law. He has paid all the taxes payable under the Act. It is alleged that on the 16th January, 1981, the respondent-Commercial Tax Officer Intelligence-II Bangalore along with a number of officials of his department made a surprise raid on the firm's oil mill, office premises and the residential premises. It is alleged that the respondent arrived at the premises of the firm at about 3 p.m. and left the premises at about 10 p.m. The respondent did not have a warrant of search. The respondent had no authority of law to search or size. It is also claimed that it has come to the knowledge of the firm that the respondent has not been authorised under sub-sec. (2) of Sec. 28 of the Act to exercise the powers thereunder. It is also alleged that the respondent had no basis, reason or information against the petitioner to conduct the search and seizure. It is further alleged that 'the, respondent is an authority subordinate to the Assistant Commissioner of Commercial Taxes, the assossing authority in the petitioner's case and therefore he could not effect tbe search and seizure without the presence of the assessing authority. It is further alleged that the action of the respondent is not in accordance with the provisions of sub-sec. (2) of Sec. 28 of the Act It is also alleged that there is total violation of the provisions of sub- sec. (3) of S. 28 of the Act. It is alleged that there is no proper application of mind in the matter of conducting the search and effecting the seizure. That at about 9 p.m. on that evening the respondent sent for the police and in their presence the partner of the firm who was present at the time of search and seizure M.H.Anjanappa under threats posed by the police and the respondent had no alternative except to the submit to the recording of whatever statements the respondent (C.T.O.) wanted. It is further alleged that the respondent ransacked all the belongings in the office premises, oil mill and also entered the residential premises and took away whatever was available. The respondent had not brought any independent witnesses to witness the search. The witnesses did not know English language. The witnesses were induced to sign the mahazar by stating that they were not in any way involved in the search and seizure proceedings. The contents of the mahazar were not translated for the benefit of the witnesses. The mahazar was prepared before the witnesses came and the names of the witnesses were insertod at the end after their arrival. It is also alleged that no receipt was given in respect of the seized documents and books of accounts contrary to the express provisions contained in sub-sec. C3) of Sec. 28 of the Act. It if also alleged that the witnesses to the search and seizure as recorded were not persons of the locality and therefore there was violation of Sec. 100 of the Crl.P.C. vitiating the entire search and rendering the seizure illegal and without the authority of law. It is also allegedi that the witnesses were brought by the police at about 9 p.m. on that day well after the search and seizure was over.