K HOSHIDE Vs. EMPEROR

JUDGEMENT

(1.) The point involved in this rule relates to the propriety of an order of the-Chief Presidency Magistrate issuing a search warrant under Section 96, Criminal P.C. The facts briefly are these. On 4 April 1939, Mr. P.K. Mukherjee, Assistant Commissioner of the Calcutta Police in the Detective Department, addressed a letter to the Chief Presidency Magistrate, Calcutta. As the decision of this matter will depend largely on the effect and interpretation of this letter I reproduce it in full below: (1) Messrs. Toyo Menka Kaisha Ltd., 4, Clive Ghat Street. (2) Pannalal Sagarmal, 112, Cross Street. (3) Meghraj Kanaiya Lal, 2nd floor, 113, Monohar Das Katra. (4) B.M. Kharwar, 1 floor, 161, Harrison Road. (5) Khanna and Co., 35, Cross Street. (6) Jewan Ram Ganga Ram, 35, Cross Street. (7) Bisweswar Lal Chiman Lal, Groundfloor, 174, Harrison Road. (8) Hazarimal Hiralal, 60, Cross Street, and 148, Cotton Street. (9) Jewanram Periwal, 1 floor, 113, Monohar Das Katra. (1) Bholaram Mussuddi, P. 22, New Jagannath Ghat Road, (2) Kanaya Lal Tharar, 1, New Jagannath Ghat Road. (3) Nagarmal Bhawalka and 4, Indra Chand Bhawalka, 10, Vivekananda Boad, 3rd floor. To The Chief Presidency Magistrate, Calcutta. Sir, I have the honour to submit that information has been received from the Collector of Customs, Calcutta, to the effect that systematic undervaluation of cotton piece goods assessable to duty on market value, resulting in considerable loss of revenue to the Government, is being committed by the marginally noted, parties (marked A) assisted by and in conspiracy with four persons named in the margin (marked B) for a number of years, in contravention of the Sea Customs Act and to cheat the Government. I therefore pray that search warrant may be issued to search the firms and residences of these persons immediately, to seize documents, account books and other papers of the years 1936-39. I have the honour to be, Sir,Your most obedient servant,P.K. Mukherjee.Assistant Commissioner of PoliceDetective Department, Calcutta,4 April 1939.

(2.) Acting on this letter and on no further materials, so far as we are aware, the learned Magistrate issued a search warrant which is reproduced below: Bengal Form No. 3919, High Court Criminal Process No. 10. Warrant to Search After Information of a Particular Offence (No. 8, Schedule 5, Act 5, 1898) ( Section 96, Criminal P.C.). (1) Name and designation of the police officer or other person or persons who is or are to execute the warrant. (2) Information has been laid or complaint has been made. (3) Commission or suspected commission. (4) Mention the offence concisely. (5) Specify the thing clearly. (6) Now being made or about to be made. (7) Offence or suspected offence. (8) The thing specified. (9) Describe the house or place or part thereof, to which the search is to be confined. To (1) Assistant Commissioner of Police Detective Department-Whereas (2) information has been received before me of the (3) commission of the offence of (4) Sea Customs Act and conspiracy to cheat Government and it has been made to appear to me that the production of (5) documents, account books and other papers for the year 1936-37, 1937-38, 1938-39 is essential to the enquiry (6) now being made into the said (7) offence. This is to authorise and require you to search for the said (8) documents etc. in the (9) firm of Messrs. Toyo Menka Kaisha Ltd. 4, Clive Ghat Street, and if found to produce the same forth-with before this Court, returning this warrant with an endorsement certifying what you have done under it immediately upon its execution. Given under my hand the seal of the Court, this 4 day of April 1939. (Sd.) Rule Gupta,Chief Presidency Magistrate, Calcutta,Calcutta 4 April, 1939. (Return on the back of the search warrant duly executed with the properties seized as per search list attached.) (Sd.) S.N. MukherjeeInspector D.D. 4 April, 1939.

(3.) I wish to emphasize the fact that the learned Magistrate states in the warrant that he was issuing it on the ground that it appeared to him that the documents wore essential "to the enquiry now being made into the said offence" because as I shall show later there was really no enquiry within the meaning of Section 96, Criminal P.C., being made into any offence at the time the warrant was issued. Empowered with this warrant the police seized numerous books of accounts and other documents belonging to "Toyo Menka Kaisha Limited," a Japanese trading company doing business at Calcutta. Petitioner 1 Hoshide is the agent of the company and petitioner 2 is its shipping clerk. The books and documents which included current account books, codes, contracts, etc. were not produced before the Court by the police but made over to the customs authorities. To this objection was taken on behalf of the company. The learned Chief Presidency Magistrate after hearing their objections passed orders that the books should be retained by the customs authorities and that the company should be given free access to the books. There was a further direction that the books should be returned by 11 April 1939. Thereafter several extensions of time were obtained by the customs authorities and the police. On 8 July 1939 the solicitor to the Government of India appeared on behalf of the Crown and stated that the Japanese Firm would be prosecuted for offences under the Indian Penal Code and Sea Customs Act. On 21 July 1939 the police arrested the petitioners who were enlarged on bail on the same date. The challan or charge sheet against the petitioners had not yet been submitted to the Court.