G M AGADI Vs. CTO ENFORCEMENT BELGAUM

JUDGEMENT

(1.) This matter arises under the Mysore Sales Tax Act, 1957 (hereinafter called the 'Act') . The petitioner is a partnership firm registered as dealers under the Act and therefore, required to maintain accounts as prescribed under the Rules. The respondent had information that the petitioner was maintaining two sets of account books one for the purpose of assessment under the Act and another for their own purposes and that the entries in the private account books were recorded after 7 P.M. in the shop premises. He had also information that some sales exigible to tax were not recorded in the regular account books but were brought into account in the private account books. On that information, the respondent decided to inspect the petitioner's premises at 8 P.M. on 6-10-1971 so as to get hold of the private account books which according to him would furnish evidence of evasion of tax on the part of the petitioner. When the respondent inspected the shop premises of the petitioner on 6-10-1971 at 8 P.M., Sri G . M. Agadi, one of the partners of the firm produced the regular accounts; the respondent found two credit books on the counter of the petitioner's premises and on making a test-check of the sales recorded in the said credit books with the regular account books, he found that there was lot of discrepency between the two sets of books. Therefore, the respondent seized the account books in exercise of his powers under S. 28 (3) of the Act. He made an order for seizure of the account books.

(2.) The petitioner has challenged the seizure on the ground that the respondent raided their shop premises and made an illegal search without obtaining a search warrant and complying with the provisions of the CrlPC., particularly Ss.103(2) and 165(5) of the Code. The contention of the petitioner was that the search being illegal, the seizure of the account books made on tl\e said search is also illegal. Therefore, the petitioner has prayed for a writ in the nature of a mandamus to the respondent to return, the books and documents seized on 6-10-1971 under Annexure A along with all notes made from them.

(3.) The short question for decision is whether the account books and documents seized as per Annexure A was on a search of the petitioner's premises or was it merely after inspection of the said premises. If the said account books had been seized merely after inspection of the premises as contended on behalf of the respondent, there is no illegality attached to the seizure; but if the seizure was made on search of the petitioner's premises admittedly the provisions of Ss. 103(2) and 165(5) CrlPC were not complied with-the seizure would be illegal and ' the petitioner is entitled to the relief prayed for.