JAGMOHAN MAHAJAN Vs. COMMISSIONER OF INCOME-TAX

JUDGEMENT

(1.) THE petitioners are residing in house No. 355, Sector 9-D, Chandigarh, along with Shri Mulkh Raj Mahajan, advocate, Chandigarh. The latter is the father of petitioner No. 1 and father-in-law of petitioner No. 2. On October 17, 1974, this house was raided pursuant to warrant of search authorised by respondent No. 1 for conducting search of the house of Shri Mulkh Raj Mahajau, advocate. The Authorised Officer started searching not only the premises in possession of Shri Mulkh Raj Mahajan but also the portion which was in possession of the petitioners. They pointed out to the Authorised Officer that the search of the portion of the house in their possession was totally illegal because there were no proper warrants for that purpose with the Authorised Officer, Upon this, it is alleged that the Authorised Officer remarked that the question of getting warrants authorising the search of the portion in possession of the petitioners would also be settled immediately. In this connection, a telephone call was made to the Inspecting Assistant Commissioner of Income-tax, Chandigarh, and roughly within about 15 minutes the requisite search warrant was sent to the Authorised Officer, even though the Commissioner of Income-tax was stationed at Patiala, at a distance of about 40 miles. As a consequence of the search, a sum of Rs. 1,770 in cash, some household articles and some bank accounts were found to be in the possession of the petitioner. The Locker No. 85 in the New Bank of India, Sector 17, Chandigarh, jointly operated by the petitioners, was opened on October 21, 1974, and 510 grams of gold ornaments were found lying therein. The ornaments alone were seized by the Income-tax Officer. The statement of petitioner No. 1 was recorded by the Authorised Officer in which he stated that he was not an income-tax assessee and had been running a poultry farm at Zirakpur, which he had started in 1966. He had 3,500 birds in the farm. About the jewellery, he stated that the same belonged to his wife and had been given to her at the marriage. On October 24, 1974, the Income-tax Officer, Chandigarh, served a notice upon petitioner No. 1 calling upon him to appear before him on November 20, 1974, at 11 a. m. to explain or to produce evidence for explaining the nature of possession and source of acquisition of the assets, both seized and unseized, mentioned in the notice. The petitioners have challenged the search and seizure of articles from their premises mainly on the ground that there was no information with respondent No. 1 to come to the requisite belief under Section 132 (1) of the Income-tax Act, 1961 (hereinafter called the Act ). The additional ground taken is that blank warrants were placed at the disposal of the Inspecting Assistant Commissioner of Income-tax, Chandigarh, by the Income-tax Commissioner for conducting search of the premises of un-named persons and one such warrant was utilised for conducting the search in the instant case. On behalf of the respondents, the issuance of the blank warrants of authorisation is not denied. Respondent No. 1 in his reply-affidavit dated February 22, 1975, has stated as follows : "it is admitted that the warrants of authorisation signed by the deponent were entrusted to the Inspecting Assistant Commissioner at Chandigarh for use in the case of the sons of Shri Mulkh Raj Mahajan. The use of these forms duly signed by the Commissioner after recording his reasons on 8-10-1974 was fully authorisd by the deponent contemporaneously. "

(2.) IN Civil Writ No. 150 of 1975, H. L. Sibal v. Commissioner of Income tax, [1975] 101 ITR 112 (Punj) decided by us on July 15, 1975, we held as under :

(3.) IN H, L, Sibal's case, we also held with reference to Rule 112 of the Rules framed under the Act that the Commissioner of Income-tax is under law expected to sign a warrant of authorisation which is complete in all respects. There is abundant authority in support of the proposition that "general warrants are no warrants at all because they know no one". After discussing leading cases on the subject, E. Slade has observed as under in Thomas and Bellot's Leading Cases on Constitutional Law, 1934 edition, on page 145 : "the illegality of such warrants was finally settled, as well as the illegality of warrants to seize papers, by the judgments in the above cases. Each of the cases given decides a different point: Leach v. Money, that a general warrant to seize some person not named is illegal; Wilkes v. Wood decides the illegality of a warrant to seize the papers of a person not named, while Entick v. Carrington, [1765] 19 State Tr 1029 ; 95 ER 807 carries the latter point further, and establishes the illegality of a warrant to seize the papers of a person named--manifestly a sort of general warrant as regards the papers. These decisions are supported by two able judgments of Lord Mansfield, in Leach v. Money in error, and of Lord Camden in Entick v. Carrington. "