KAVITA AGARWAL Vs. DIRECTOR OF INCOME TAX INVESTIGATION

JUDGEMENT

(1.) This writ petition has been filed for a writ of certiorari quashing the entire search and seizure proceedings in regard to the jewellery found in locker No. B-237 of Standard Chartered Grindlays Bank, Karol Bagh, New Delhi on 3rd Nov., 2001, and for mandamus directing the respondents to return the jewellery seized by the respondent No. 3 on 3rd Nov., 2001, from the aforesaid locker.

(2.) Heard learned counsel for the parties.

(3.) The petitioner No. 1 is the wife of petitioner No. 2. They were married in December, 1990, and the petitioner No. 2 is one of the partners of the firm M/s Lallooji & Sons at 1, Ram Bagh, Allahabad which is registered under the Partnership Act. The firm has its offices and godowns at several places as mentioned in para 8 of the writ petition. The names of the partners are mentioned in para 9 of the petition. It is alleged that the petitioner No. 1 is not a partner of the firm. It is alleged in para 12 of the petitioner that the family of petitioner No. 2 consists of three units which reside in their respective separate portions in residential house No. 16/309, Gali No. 10, Joshi Road, Karol Bagh, New Delhi. These three units are : (i) Petitioner No. 2, his wife and their children. (ii) Father of petitioner No. 2 namely, Ramesh Kumar Agarwal and his wife Madhu Agarwal; and (iii) Mukul Agarwal (brother of petitioner No. 2), his wife Smt. Ritu Agarwal and their children. On 27th April, 2000, a search was made by the IT authorities at the business premises of the firm at its head office at No. 1, Rambagh, Allahabad as well as its other offices and godowns under Section 132(1) of the IT Act, 1961. Simultaneously on 27th April, 2000, a search was also conducted at all the aforesaid residential premises of house No. 16/309, Gali No. 10, Joshi Road, Karol Bagh, New Delhi wherein the petitioner No. 2, his parents, and his brother were separately residing in their respective portions. It is alleged in para 15 of the petitioner that at the time of the search the petitioner No. 2 was told that the warrant of authorization had been signed by respondent No. 1 and was only in the name of the petitioner No. 2. It was not told or informed that there was any warrant of authorization of search in the name of petitioner No. 1. It is alleged in para 16 of the petitioner that no copy of the warrant of authorization was given to any of the petitioners though it was asked for. The warrant of authorization was hurriedly shown to the petitioner No. 2 for a few moments. It was got signed by petitioner No. 2, In the pressure and panic of the situation it was not possible for the petitioners to make any note of its contents. In para 18 it is alleged that petitioner No. 2 had been informed that the premises of the other partners at Allahabad and Lucknow were also searched on 27th April, 2000. At the time of search of the aforesaid premises, house No. 16/309 Gali No. 10, Joshi Road, Karol Bagh, New Delhi on 27th April, 2000, keys of three lockers No. A-906, B-237 and A-701 of Standard Chartered Grindlays Bank, Karol Bagh, New Delhi were also found. These lockers were in the joint names of three set of persons as mentioned below : (i) Locker No. A-906 was in the name of petitioner No. 2 and Smt. Madhu Agarwal mother of petitioner No. 2 and wife of Ramesh Kumar. (ii) Locker No. B-237 was in the name of petitioners. (iii) Locker No. A-701 was in the name of Smt. Ritu Agarwal and her husband Mukul Agarwal (brother of petitioner No. 2). All the aforesaid three keys were seized by the IT authorities during the aforesaid search. During the aforesaid search the IT authorities found jewellery, cash and papers in the aforesaid three separate portions of house No. 16/309. The IT authorities, however, did not seize the jewellery and cash found in any of the three portions. Only papers and keys were seized. A copy of the Panchanama dt. 27th April, 2000, along with its various annexures of the inventories as well as seizure of the aforesaid keys, a restraint order under Section 132(3) of the Act was also passed by the authorized officer of the raiding party against the aforesaid three sets of persons and the manager of the bank in respect of the operation of the aforesaid three lockers. A copy of restraint order is Annexure 2. In para 25 of the petition it is alleged that it was only from the contents of the Panchanama and the restraint order that the petitioners learnt that the warrant of authorization was only in the name of the petitioner No. 2 and it was dt. 28th March, 2000. On 22nd June, 2000, a representation was made to the respondent No. 2 wherein a complaint was made to respondent No. 1 regarding the infirmities and illegalities of the aforesaid search dt. 27th April, 2000. Copy of representation dt. 22nd June, 2000, is Annexure 3. An oral request praying for certain papers was made but the same were not supplied. It is alleged in para 28 of the petition that the restraint order had ceased to be in force after the expiry of a period of 60 days from 27th April, 2000, in view of the provisions of Section 132(8A) of the Act. On 11th Oct., 2001 the petitioner No. 2 applied to respondent No. 3 in writing for the revocation of the restraint order and for release of the keys of the locker vide Annexure 4. The application was sent to all the three authorities mentioned in it. The respondent No. 3 issued three letters dt. 16th Oct., 2001, asking them to be present in the bank on 3rd Nov., 2001, at 10 A.M. for the opening of the locker in their presence. A copy of the letter issued to the petitioners is Annexure 6. On 3rd Nov., 2001 the petitioners, Smt. Madhu Agarwal and Smt. Ritu Agarwal reached the bank. In the bank there were IT authorities headed by respondent No. 3, prior to the opening of the lockers, for which the petitioner and the other persons had been called, respondent No. 3 told them that he was in possession of a warrant of authorization to search and seize the contents of the lockers. The petitioners were informed that the search warrant in respect of locker No. B-237 was in the names of the petitioners. However, no copy of the search warrant was given to the petitioners. It was hurriedly shown for few moments. In the pressure and panic of the situation as had been created by the IT authorities in the bank the petitioner No. 2 was asked to put his signatures on it. It is alleged in para 36 that the warrant in the name of the petitioner was not in their capacity as partners of the firm. In fact, the petitioner No. 1 is not a partner of the firm. In para 37 of the petition it is alleged that on 3rd Nov., 2001, the three lockers including B-237 were opened. The valuer of the Department was called. The jewellery of the petitioner No. 1 found in the locker No. B-237, was valued at Rs. 6,28,861. The entire jewellery was seized. The description of the jewellery was made in Annexure J to that Panchanama. A copy of that Panchnama including its Annexures was given to the petitioners. A copy of that Panchnama is Annexure 7. It is alleged in para 38 of the petitioner that locker No. A-906 in the name of Madhu Agarwal and Vipul Agarwal was also opened and inventory of the jewellery was prepared but the same was not seized as per the Panchnama. However, the jewellery of locker No. A-701 in the name of Ritu Agarwal and Mukul Agarwal after opening the locker, was inventorised and seized as per the Panchnama. Subsequently the respondent No. 3 wrote a letter whereby it has been informed that the restraint order dt. 27th April, 2000, has been vacated vide Annexure 8. It is alleged in para 43 of the petition that seizure is wholly without jurisdiction and void. It is alleged in para 44 of the petition that the seizure of the aforesaid jewellery found in locker B-237 is a fraud in law in view of provisions of Section 132(8A) of the Act. After the expiry of period of 60 days the restraint order was wholly illegal and without jurisdiction.