JIB NARAIN SAO Vs. STATE OF BIHAR

JUDGEMENT

(1.) There are four petitioners in this writ application. Although the statement in the petition is not very clear, on instructions from junior counsel, Mr. Jagdish Sahay, learned senior counsel for the petitioners, informed us that petitioner No. 2 is the mother of petitioner No. 1 and they are carrying on business in partnership under the name and style of Kanhaiya Industries, to the benefits of which petitioners 3 and 4, who are the minor sons of Yogendra Prasad, brother of petitioner No. 1, have been admitted. According to the petitioners' case made out in the writ application which was filed on 19th January, 1973, respondents Nos. 2 to 6, who are Assistant Superintendents of Commercial Taxes attached to the Intelligence Branch of the Commercial Taxes Department, Bihar (hereinafter to be called the respondents, respondent No. 1 being the State of Bihar), suddenly raided the factory and office (shop) of the petitioners' firm, Kanhaiya Industries located at Begusarai at about 2.30 p.m. on 5th January, 1973. In the petition they had made out a case that the raid was unauthorised--not with the sanction of the Commissioner of Commercial Taxes--but, in view of the statements made in the counter-affidavit, this point was not pressed and, therefore, I am leaving out the details of statement in that regard.

(2.) In the writ application it is stated that "the petitioner was not present at the time of raid nor was any member of his family present and at that time one Sidheshwar Prasad, an employee of the petitioner, was present". In argument, by "petitioner" was meant to convey petitioner No. 1. The case made out in the writ application is that the respondents entered the office (shop) of the petitioners and informed Sidheshwar Prasad that they had come to examine the ledger and account books whereupon Sidheshwar Prasad immediately produced before them all the bahi-khatas, accounts, registers, cash memos, files, etc., in all 64 or 65 in number. And some other papers were also produced by him. The respondents did not examine the account books, stock registers, cash memos or other papers but seized them and directed their orderly to take all those papers in his possession and put them in the jeep which they had brought with them. Sidheshwar Prasad's request to the respondents to examine the account books on the gaddi was turned down. He asked them to issue a receipt which they refused to do. The respondents took away all the papers with them. Sidheshwar Prasad, therefore, filed an informatory petition, according to the case made out in the writ application, at about 4 p.m. on 5th January, 1973, before the Sub-divisional Magistrate, Begusarai; a copy of this informatory petition is annexure 1 to the writ application. The attack on the action of the respondents is on very many grounds, on the basis of which certain points were urged on behalf of the petitioners by their learned Counsel, which will be stated and dealt with at the proper place in this judgment. The petitioners have further made out a case that when the respondents came to know that Sidheshwar Prasad had made an application before the Sub-divisional Magistrate, Begusarai, against them, they, in self-defence and as a counterblast, lodged a first information report at Begusarai Police Station at 6 p.m. on 5th January, 1973, a copy of this first information report is annexure 2. The petitioners stated that they had received a notice from Shri R.N. Shukla, Additional Superintendent, Commercial Tax Intelligence Branch, Bihar, to appear before him on 2nd February, 1973, for verification of entries in the seized books. A true copy of this notice is annexure 3. Attacking the action of the respondents as being illegal and without jurisdiction, the prayer made in the petition is for a writ of mandamus "commanding the respondents to return forthwith to the petitioner all the account books, registers and other documents seized by them from his shop (office) on 5th January, 1973", and not to use, inspect or look into the account books, registers and other papers seized by them from the shop of the petitioners.

(3.) A counter-affidavit sworn by respondent No. 2 was filed on behalf of the State of Bihar and the other respondents on 30th March, 1973. Besides controverting the very many statements made in the writ application, it was stated in paragraph 6 of the counter-affidavit that the surprise inspection of the mill and the office (shop) of the petitioners was conducted simultaneously in pursuance of the programme drawn up at the headquarters. In paragraph 8 of the counter-affidavit, it is stated that at the shop, when the raiding party inspected it, were present Yogendra Prasad, father of petitioners Nos. 3 and 4, and Sidheshwar Prasad, an employee of the petitioners. Jib Narain Sao, petitioner No. 1, was present at the mill. The account books produced by Yogendra Sah at the shop were duly inspected and an inspection report dated 8th January, 1973, was submitted by Shri S. Ojha, respondent No. 3. No account or any other paper from the shop was seized. The account books produced at the mill premises were also inspected and when a prima facie case of attempt of evasion was suspected, respondent No. 2, after recording the reasons in writing, seized the account books and the papers under Section 37(3) of the Bihar Sales Tax Act, 1959 (hereinafter called the Act). A copy of the order recording the reasons in writing and seizing the account books and papers is annexure A to the counter-affidavit. In regard to the receipt, the statement in paragraph 8 of the counter-affidavit is : It is not a fact that anybody had asked for a receipt of the books; on the other hand the partner Jib Narain Sao, who produced the books at the mill premises refused to acknowledge the receipt of the aforesaid annexure A when it was made over to him. The filing of the informatory petition by Sidheshwar Prasad or its existence is denied and, consequently, it is also denied that the first information report lodged was a counterblast to the said petition.