S C SIBAL Vs. COMMISSIONER OF INCOME-TAX

JUDGEMENT

(1.) ON October 17, 1974, the house of the petitioner was searched by respondents Nos. 3 and 4 accompanied by other officers. The income-tax authorities purported to act on an authorisation which had been issued by respondent No. 1, the Commissioner of Income-tax, under Section 132 of the Income-tax Act, 1961. Shorn of all details, the fact remains that after the search of the premises of the petitioner had been completed, M. K. Dhar, respondent No. 3, got into touch with J. S. Dulat, respondent No. 2, on the telephone. The petitioner has stated that Dhar told Dulat on that occasion on the telephone that not much jewellery had been found. Dulat ordered Dhar to seize all the things found from the premises of the petitioner as per instructions, and thereafter, at about 2-40 or 2-45 p. m. , Dulat came to the residence of the petitioner without being authorised to enter the premises, and on being told about the relevant facts by the petitioner, he directed respondent No. 3 to seize the sum of Rs. 4,000 and the jewellery as per instructions, in spite of the petitioner's protest against the seizure. The grievance of the petitioner in this respect, mentioned in paragraph 23 of the petition, is that it was the authorised officer, i. e. , Mr. M. K. Dhar alone who could seize money, bullion, etc. , as a result of application of his own independent mind and that inasmuch as the seizure was in fact ordered only as directed by Dulat, the same was illegal on that additional ground. In reply to the averments made by the petitioner in paragraphs 7 and 23 of the petition, Dhar has, however, in paragraph 2 of his affidavit, while denying the suggestion of the petitioner and describing it as incorrect, admitted that during the course of the proceedings, he did refer certain matters to respondent No. 2 (J. S. Dulat) and has claimed that this was done only to ascertain his views "on matters arising out of the search and seizure". The above-mentioned averment of Dhar is wholly consistent with the aforementioned allegations made by the petitioner, though they have been vaguely denied in the opening sentence of paragraph 2 of his affidavit. He has denied that Dulat ever gave any direction to him "as alleged by the petitioner" and has claimed that the decisions were made by himself. He has not denied that though the search had been completed much earlier and he had rung up Dulat after the completion of the search, he did not effect any seizure till Dulat had actually arrived at the spot. Nor has he specifically denied that the petitioner apprised Dulat of all the facts to which the petitioner has adverted. It is significant that Dhar has not taken the court into confidence as to "the matters arising out of the search and seizure" on which he consulted Dulat or sought his instructions. These facts are so eloquent that the conclusion appears to us to be irresistible that the seizure was in fact effected by Dhar as a result of the consultation made with Dulat and after receiving instructions from him. Otherwise, there is no reason why the seizure could not be effected before Dulat's arrival. On the facts of this case, therefore, we are satisfied that the authorised officer did not apply his mind before seizing the cash and jewellery taken over by him and that in making the seizure under instructions from Dulat, he acted under extraneous orders.

(2.) IN H. L. Sibal v. Commissioner of Income-tax [1975] 101itr 112 (Punj), Civil Writ No. 150 of 1975, decided on July 15, 1975, we held that even if the requirements of recording the grounds of belief and the specification, as far as possible, of the things for recovering which the search is being ordered, are not expressly mentioned in Section 132 (1) of the Income-tax Act, 1961 (hereinafter referred to as "the Act"), they have assumed statutory character by the force of Sub-section (13) of that section. Section 165 of the Code of Criminal Procedure does not authorise a general search on the off-chance that something might be found. The warrant of authorisation issued in the present case was exactly in similar terms as the one issued in H. L. Sibal's case [1975] 101 ITR 112 (Punj ). Accordingly, for the reasons recorded in our judgment in that case, we hold that the warrant of authorisation issued in this case did not conform to the requirements of section 132 (13) of the Act read with Section 165 of the Code of Criminal Procedure.

(3.) THE question of allowing privilege in respect of the files of the income-tax authorities (which are the same as have been referred to in H. L. Sibal's case [1975] 101 ITR 112 (Punj)) has now become merely academic as the relevant portion of those files has been made part of the judicial file in the above-mentioned case.