MAHADEVI LOHARIWALLA Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioners are near relations (torn) the petitioner No. 2 is a daugher of pet. (torn) No. 1. They have states to the regular (torn) under the Income Tax Act, 1961. It is these (torn) that premises No. 8 Jadulal Mullick Road, Calcutta (hereinafter referred to as the said premises), which at all material times belonged and still belongs to Smt. Mahadevl Lohariwalla was searched on 5th April, 1975 by the respondent No. (torn) as Inspector of Customs along with other officers in terms of a search order No. 34/75, dated 4th April, 1975 (hereinafter referred to as the said search order).

(2.) It has been alleged that such search was conducted without showing or exhibiting the said search order to Smt. Mahadevi Lohariwalla, the owner of the said premises, although she requested for the same. It appears that during the concerned search, the officers who con(torn) same seized cadmium anode, Invoice N (torn), dated 22-3-1973 of Industrial Steel Corporation of 40 Strand Road, Calcutta and Challan No. 152/73, dated 22-3-1973, issued to Messrs Canapat Rani Sagarmal by the said Industrial Steel Corporation and one sealed packet containing 2 locker keys. On the statements as made, it further appear that thereafter on 7th April, 1975, by the said search order, locker No. 1882, belonging to the petitioner No. 1 Sm. Gayatri Devi Agarwala and locker No. 1702, belonging to the petitioners jointly, in the branch of the Bank of India at Vtvekananda Road, were searched by the respondent No. 4 as mentioned above and ornaments were seized under the Customs Act, 1962 and the Gold (Control) Act, 1968.

(3.) The petitioners have alleged that the said respondent No. 4 viz. the Inspector concerned has wrongly described the gold ornaments as gold in the shape of rod, diced and rounded, which are known as bangles. It is their case that 10 British gold coins were also said to have been found by the Customs Officers. The petitioners, have stated that by a letter dated 19th April, 1975, they informed the Assistant Collector of Customs, West Bengal, Respondent No. 3 that inspite of repeated requests and demands, the officer who conducted the search and seizure on 7th April, 1975 and pursuant to the said search order, did not give or supply a copy of the same. In fact, by this letter, the petitioners demanded a copy of the said search order. Thereafter, the petitioners by their letter of 22nd April, 1975 alleged to the said respondent Nos. 3 and 9 (torn) that the search and seizure as made, were malafide and without jurisdiction, as such actions were not covered by the said search order, as issued by the Respondent No. 3, for searching the said premises. It was contended by them that the said search order and the search and seizure conducted on the basis of the same by the respondent No. 4, were not on reasonable belief that the goods were liable to be confiscated or any documents or things relevant for any proceeding under the Customs Act as afore said, were screted. It was contended by them that for such reasons, the concerned search and seizures were bad, illegal and without jurisdiction. These apart, the petitioners contended further that in terms of Section 105(2) of the Customs Act as above, which deals with the powers to search premises and lays down that the provisions of the code of criminal procedure, 1898, relating to search, was, so far as may be, apply to searches under the Section subject to the modification that Sub-Section (5) of Section 165 of the code of criminal procedure shall have effect as if for the word "Magistrate", wherever it occurs, the word "Collector of Customs" were substituted and neither of the respondent Nos. 3 and 4 did record the reasons as contemplated under the Section 165 as mentioned above and sent the same to the Collector of Customs. It was further alleged that the conditions precedent for the assumption of jurisdiction to issue search order and to seize, were not satisfied inasmuch as there was no reasonable belief before issuing the said search order and making the seizure that the goods were liable to confiscation under the Customs Act and there was no material and/or basis upon which they had reasons to believe that the goods in question were liable to confiscation. It was further contended that reasonable belief, which should precede the search and seizure, must be an antecedent belief, based upon grounds justifying the entertainment of such belief. It was also contended that the said respondent Nos. 3 and 4, not being the officers under the Gold Control Act, they having acted as Officers under that Act, the entire search and seizure was unauthorised and as such, the seized goods were and are liable to be released from such confiscation. By this letter, the petitioners also required the respondent Nos. 3 and 4, to furnish them the materials and/or the basis upon which they had reasons to believe that the goods were liable to confiscation forthwith, and failing which they made it clear that it should be presumed that those authorities had neither any reasonable belief nor any basis for the formation of such belief before the issue and execution of the said search order. In fact, a demand was made by the petitioners asking the respondents concerned to return the seized goods forthe reasons as mentioned above and more particularly when, according to them the conditions precedent for the exercise of power in the instant case were not satisfied.