PREMSUKHDAS SITARAM Vs. STATE

JUDGEMENT

(1.) This Revisional application is directed against the order of the Chief Presidency Magistrate of Calcutta dated the 10th June 1963 by which he has directed that Income Tax authorities be given custody of certain documents of the petitioner which were seized by execution of Search Warrants issued by him in July 1961 under Section 172 of the Sea Customs Act, 1878. Facts relevant for the purpose of this Rule are that on 6th July, 1961 Assistant Collector of Customs and Superintendent, Preventive Service Calcutta made an 'application for issue of search warrants for seizure of certain goods and documents connected with alleged illegal importation into India prohibited, restricted and dutiable goods by infringements of provisions of Sea Customs Act, Export and Import (Control) Act and Foreign Exchange Regulation Act. By that application dated the 6th July 1961 three premises were prayed to be searched and by other applications dated the 7th July 1961 and 11th July 1961 some other premises were prayed to be searched. The learned Chief Presidency Magistrate directed issue of search warrants of those premises under Section 172, Sea Customs Act, expressly stating in his order dated the 6th July 1961 that he did not take notice of alleged infringements of provisions of other Acts at that stage. In execution of those search warrants large number of documents were seized from the premises of the present petitioner.

(2.) The documents seized were given to the custody of Customs Department who were allowed to retain them by orders made by the Chief Presidency Magistrate from time to time. During that period Customs Department had prayed for permission to return some of the documents, which they did not require to retain, to the parties from whom they had been seized and that was allowed by the learned Chief Presidency Magistrate. In March 1962, Enforcement Officer, Ministry of Finance, Government of India upon their prayer were allowed to inspect the documents which remained in custody of Customs Department. By 17th July 1962 as many as 88 items out of 259 items of documents seized from the possession of the petitioner had been returned to him and by an order of that date the learned Chief Presidency Magistrate turned down the prayer of Finance Department for having custody of the documents they wanted because the learned Magistrate held that Section 19A of Foreign Exchange Regulation Act had no application to the case as search warrants had not been issued under that section but under Section 172, Sea Customs Act. On 17th September 1962 the Customs Department wanted to return 62 items of the documents and Enforcement Directorate wanted the custody of 38 items out of those 82 items and also other documents the Customs Department still wanted to retain. The petitioner wanted to get back the documents seized from him as soon as possible. By an order of that date in consideration of the admitted fact that an adjudication proceeding had already been started and notice thereof had been received by the party, the learned Chief Presidency Magistrate allowed the Enforcement Directorate of Finance Department to have custody of 32 items of documents on 17th September 1962. On 6th November 1982 the learned Magistrate gave custody of 14 other documents to that Directorate and directed that out of previous 38 items only 6 items be retained by them and the other 32 items be returned to party. The Enforcement Directorate thus had 20 items of documents in their custody and they were permitted to retain them till 6th January 1963.

(3.) On 28th December 1962, Income Tax Officer by an application before the learned Chief Presidency Magistrate prayed that the Enforcement Directorate be directed to make over to them those 20 items of documents for inspection. The learned Magistrate called for a report by 7th January, 1962 and allowed the Income-Tax Department to have access to the documents in the hands of the Enforcement Directorate. Under later orders of the learned Magistrate the period of custody of Enforcement Department was extended and the facility of access for inspection granted to Income-tax Department was also continued, On 7th June 1963 the Enforcement Directorate reported to the Chief Presidency Magistrate that the adjudication proceeding had been completed and they did not want to retain the documents any longer. On that date Income-tax Department prayed for custody of those documents. That prayer was opposed by the petitioner. The learned Chief Presidency Magistrate by his order dated 10th June 1963 held that :