Full Judgment Text
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PETITIONER:
SETH DURGAPRASAD ETC.
Vs.
RESPONDENT:
H. R. GOMES
DATE OF JUDGMENT:
09/12/1965
BENCH:
RAMASWAMI, V.
BENCH:
RAMASWAMI, V.
GAJENDRAGADKAR, P.B. (CJ)
WANCHOO, K.N.
HIDAYATULLAH, M.
SATYANARAYANARAJU, P.
CITATION:
1966 AIR 1209 1966 SCR (2) 991
CITATOR INFO :
OPN 1967 SC1298 (2)
RF 1972 SC 591 (21)
ACT:
Defence of India Rules, 1963-Rule 126(2)-Whether
permits seizure of documents.
Indian Customs Act, 1962 s. 2 (34) -’Proper officer’ within
the meaning of section whether includes Collector of
Customs-Section 105, power to search under, whether a power
to search particular documents only-’secreted’, meaning
of--Section 110(3), seizure of documents under-Documents
whether can be seized from a person in legal and not
physical possession.
HEADNOTE:
Searches were carried out in the appellants’ premises by the
Superintendent of Customs and Central Excise Nagpur. The
authority to search was given by the Assistant Collector of
Customs and Central Excise Nagpur under Rule 126 L(2) of the
Defence of India Rules, 1963 for the purpose of seizing gold
held in contravention of the Rules and also connected
documents. The documents seized during the search were re-
tained by the Superintendent at Nagpur for 8 days and were
then sent to Delhi temporarily for the purpose of
translation by the Departmental Hindi Officer. While the
documents were at Delhi the Collector of Customs Nagpur on
September 6, 1963 made an order of seizure under s. 110(3)
of the Customs Act purporting to seize the aforesaid
documents from the possession of the Superintendent. On
September 11, 1963, the Collector made another similar order
purporting to seize the said documents from the Assistant
Collector to whom, he believed, they had been transferred by
the Superintendent. The appellants challenged inter alia
the legality of the seizure of the documents by the
Superintendent and the orders of seizure made by the
Collector, before the High Court. Their writ petitions
having been dismissed they appealed to this Court by special
leave.
The questions that came up for consideration were : (1)
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Whether the officer authorised under Rule 126L(2) could
seize documents by exercising his additional powers under
Rule 156. (2) Whether the Collector of Customs was a ’proper
officer’ for the purpose of ordering seizure of documents
under s. 110(3) of the Customs Act. (3) Whether the order
under s. 110(3) was legally effective in view of the fact
that the documents in question were not in the physical
possession of the Superintendent or the Assistant Collector
of Central Excise. (4) Whether the power under s. 105 of the
Customs Act was a general power or a power to seize only
specified documents. (5) Whether the documents in question
could be said to have been ’secreted’ within the meaning of
s. 105.
HELD : (i) The power granted under Rule 156 is an ancillary
or incidental power for making effective seizure of
suspected gold. In other words the power granted under Rule
156 is the power to take such action as may be necessary for
seizing prohibited gold, and does not include the power of
seizure of documents which is not an ancillary or incidental
power. This view is borne out by the Seventh Amendment of
the Defence of India Rules on June 24, 1963. by this
arsenates power to
992
seize documents has been expressly conferred under Rule
126L(1) and (3) without conferring similar power under Rule
126L(2). The Super. intendent of Central Excise, could not
therefore seize the documents b) authority given under the
said Rule. [997 G]
(ii) However the appellants were not entitled to the grant
of a writ because there was a valid order for seizure of
the documents on September 11, 1963 by the Collector
of.Customs under s. 110(3) of the Customs Act. Under the
said Sub-section documents relevant to the proceedings under
the Act can be seized by the ’proper officer’. [999 C]
(iii) A Collector of Central Excise is a ’proper
officer’ within the meaning of s. 2(34) of the Customs Act.
[1000 E]
(iv) The fact that on September 6 and 11, 1963, when the two
orders under s. 110(3) were passed the goods were in Delhi
and not in the physical possession of the officers from
whose possession they were purported to be seized did not
affect the validity of the orders. Though the documents had
been sent to Delhi, the Superintendent of Excise was still,
in legal possession of them for he had the right to control
the use of the documents and to exclude persons who should
or should not have access to the documents. The legal
position is that at Delhi the documents were in possession
of a bailer for the limited purpose of examination and
translation of the documents but the legal possession was
still with the Superintendent. [1000 H-1001 B]
Ancona v. Rogers, (1876) 1 Ex.D.285 and United States of
America v. Dollfus Mieg it Compagnie S.A. and Bank of
England [1952] 1 All ER. 572, relied on.
From the above it would follow that the Collector by his
order of seizure dated September 6, 1963 or September 11,
1963 could transfer the legal possession of the documents to
himself. The legal effect of the order of seizure made by
the Collector was the transfer of the legal possession of
the documents from the Superintendent or the Assistant
Collector. to the Collector. Such a change of possession
need not necessarily involve physical transfer of possession
if it was not possible at that stage, but as a matter of law
on and from the date of seizure the Collector exercised the
full incidents of possession over the documents. The fact
that the documents were retained at Delhi for a specific
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purpose will not affect the legality of the order of
seizure. [1001 F-H]
Gian Chand v. State of Punjab, [1962] Supp. 1 S.C.R. 364 and
Vinter v. Hind, (1882) 10 Q.B. 62, distinguished.
(v), It cannot be said that the documents have not been
’secreted within the meaning of s. 105 of the Customs Act
unless they are hidden or concealed. In the context of the
section the word means ’documents which are not kept in the
normal or usual place’ or it may even mean ’documents or
things which are likely to be secreted’; in other words
documents or things which a person is likely to keep out of
the way or to put in a place where the officer of the law
cannot find it. [1005 F-G]
The power to search granted under s. 105 of the Customs Act
is a power of general search and it is not necessary for its
exercise that the authorisation should specify the documents
for which search is to be made. But it is essential that
before this power is exercised the preliminary conditions
required by the section must be strictly satisfied that is,
the officer concerned must have reason to believe that any
documents or things which-in his opinion are relevant for
any proceeding under the Act are secreted in the place
searched. [1006 C-F]
993
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 677 to 680
of 1965.
Appeals from the judgment and orders dated February 24, 25,
1964 of the Bombay High Court (Nagpur Bench) in Special
Civil Applications Nos. 437, 448, 449 and 490 of 1963.
G. S. Pathak, G. L. Sanghi, K. Srinivasamurthy, O. C.
Mathur, Ravinder Narain and J. B. Dadachanji, for the
appellants.
S. V. Gupte, Solicitor-General, N. S. Bindra and B. R. G.
K. Achar, for the respondents.
The Judgment of the Court was delivered by
RAMASWAMI J. These appeals are brought by a certificate from
the judgment of the High Court of Judicature at Bombay
(Nagpur Bench) dated February 25, 1964 in Special Civil
Applications nos. 437, 448, 459 and 490 of 1963 wherein the
respective appellants challenged the search and seizures
carried out by the respondents at the residential-cum-
business premises of the appellants in exercise of the power
derived from Rule 126 L (2) of the Dtfence of India
(Amendment) Rules 1963 (hereinafter called the ’Gold Control
Rules’) and ss. 105 and 110 of the Customs, Act 1962
(hereinafter called the ’Customs Act’).
Civil Appeal No. 678 of 1965 :
This appeal arises out of Special Civil Application no. 490
of 1963 which relates to the search and seizure of the
premises of Sri Durga Prasad on August 19, 1963 and August
20, 1963. The authorisation was granted by the 1st
respondent-Assistant Collector of Customs and Central
Excise, Nagpur-to the second Respondent-Superintendent of
Customs and Central Excise -- on August 19, 1963 to search
the appellant’s premises "Shreeram Bhawan" and to seize and
take possession of all gold, gold ornaments etc. which were
believed to have been kept in contravention of Gold Control
Rules and also account books and documents. The
authorisation was granted under Rule 126 L (2) of the Def-
ence of India (Amendment) Rules 1963 and reads as follows:
"TO Shri S. H. Joshi,
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Superintendent of Customs
and Central Excise, Nagpur.
Whereas information has been laid before me
and
on due inquiry thereupon I have been led to
believe%
that the premises/vaults/lockers specified
below and
994
said to be in possession and control of Shri
R. B. Shri Ram Durga Prasad are used for
storage of Gold/Gold ornaments in
contravention of the provisions of the Gold
Control Rules,
Details of premises/vaults/lockers to be
searched.Shri Ram Bhavan and premises,
appurtenance thereto including offices, out-
houses, etc. Ramdaspeth, Nagpur.
This is to authorise and require you to enter
the said premises with such assistance as
shall be required, and to use, if necessary,
reasonable force for that purpose, and to
search every part of the said premises and to
seize and take possession of all gold/gold
ornaments along with the receptacle, container
or covering thereof which you may reasonably
believe to be kept in contravention of the
Gold Control Rules and also of such books of
accounts, return or any other documents, as
you may reasonably believe to be connected
with any contravention of Gold Control Rules,
and forthwith report to this office regarding
the seizure made, returning this order, with
an endorsement certifying what you bad done
under it immediately upon its execution.
Given under my hand and seal of this office
this Nineteenth day of August 1963.
Seal of Office. Sd. Krishan Dev,
19-8-63,
Assistant Collector of
Customs and Central Excise,
Nagpur."
Having taken possession of the documents,
respondent no. 2 retained those documents at
Nagpur for about 8 days. Thereafter the
documents were sent to Delhi temporarily for
proper translation by the Departmental Hindi
Officer. While the documents were at Delhi,
the 3rd respondent viz., the Collector of
Customs Nagpur, made an order of seizure under
S. 110(3) of the Customs Act. The order of
seizure dated September 6, 1963 states
"Whereas information has been received that
the undermentioned documents are in the
custody of Shri S.
H. Joshi, Superintendent of Central Excise,
Nagpur :
1. Nacpur ki Juni Rokad Bahi Hisab Bahi
Shri Nagpur ki 24-7-58 to 28-10-59 (in Hindi)
pages 1 to 96;
2. Shri Rokad Bahi Nagpur (in Hindi) pages
1 to 27;
995
3. Rokad-Bhuramalji Agrawal (in Hindi)
pages 1 to 78;
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4. Shri Khata Bahi Bhai Bhuramalji Agrawal
Samvat 2000-2001, 2005-2006 (in Hindi) pages 1
to 53;
5. Partners Shrix Du Group Hisab Bahi-upto
3-5-59 (in Hindi) pages 1 to 45;
6. Shri Khata Bahi-Bhai Bhuramalji Agrawal-
Samvat 2006-7 to 2012 (in Hindi) pages 1 to
57;
7. Hisab (bahi)-Partners-G X F Group upto
3-5-59 (in Hindi) pages 1 to 20;
8. Om.-P. Ankada Bahi (in Hindi) pages 1 to
25;
9. Ankada (Bahi) Bombay Nagpur (in Hindi)
pages 1 to 10;
10. Shri Jaipur Ki Hisab Bahi (in Hindi)
pages 1 to 101; (loose papers) and 1 to 39
(regular pages);
11. C.N.A. 1956,58 (A/c Book in English)
pages 1 to 101;
12. Account Book similar to no. II above
(in English) back cardboard cover missing
pages 1 to 129;
13. June Shan Jakhiramji Bhagwandasji pages
1 to 2 loose pages. Pages 1 to 71 regular
pages; 3-11-56 to 2-5-59;--Total thirteen
exercise book type account books;
14. Eight bunches of loose sheets stitched
together containing sheets as detailed below
Bunch no. 1 containing sheets 5 : Bunch no. 2
containing sheets 6 : Bunch no. 3 containing
sheets 4: Bunch no. 4 containing sheets 5 :
Bunch no. 5 containing sheets 4 : Bunch no. 6
containing sheets 2; Bunch no. 7 containing
sheets 2 : Bunch no. 8 containing sheets 3;
15. Loose papers 25 sheets (including small
chits) recovered from Shriram Bhawan, Nagpur
and whereas I am of the opinion that the said
documents are useful for and relevant to the
proceedings under Customs Act 1962 (Act 52 of
1962) 1, Shri Tilak Raj, the Collector of
Central Excise, having been empowered
as Collector of Customs under Notification no.
GSR 214 dated 1-2-1963 of the Government of
India in this behalf in exercise of the said
powers hereby order that the aforesaid
documents shall be seized."
996
Respondent no. 3 made a second order of seizure dated
September 11, 1963 with regard to the same documents.
Respondent no. 3 has explained that he had to make the
second order of seizure dated September 11, 1963 because he
was, at first, under the impression that the documents were
under the custody of respondent no. 2, but later on he
learnt that respondent no. 2 had already made over the
documents to the custody or Sri Krishan Dev, Assistant
Collector of Central Excise, Nagpur.
It is contended by Mr. Pathak on behalf of the appellants
that the order of search and seizure dated August 19, 1963
was illegal because the Excise authorities had no power to
seize documents under Rule 126 L (2) of the Defence of India
(Amendment) Rules 1963 which states :
"126L. Power of entry, search, seizure, to
obtain information and to take samples.-
(1)....................................
(2) Any person authorised by the Central
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Government by writing in this behalf may-
(a) enter and search any premises, not being
a refinery or establishment referred to in
subrule (1), vaults, lockers or any other
place whether above or below ground-,"
(b) seize any gold in respect of which he
suspects that any provision of this Part has
been, or is being, or is about to be contra-
vened, along with the package, covering or
receptacle, if any, in which such gold is
found and thereafter take all measures
necessary for their safe custody.
It is contended for the appellants that the
Rule only gives authority to seize any gold in
respect of which there is suspicion of
contravention of the Gold Control Rules along
with the package, covering or receptacle, but
there is no provision in the Rule for search
or seizure of any documents. On behalf of the
respondents the Solicitor-General relied upon
the provisions of Rule 156 which is to the
following effect :
"156. Powers to give effect to rules, orders,
etc.-
(1) Any authority, officer or person who is
emPowered by or in pursuance of the Defence of
997
India Ordinance, 1962, or any of these Rules
to make any order, or to exercise any other
power may, in addition to any other action
prescribed by or under these Rules, take, or
cause to be taken, such steps and use, or
cause to be used, such force as may, in the
opinion of such authority, officer or person,
be reasonably necessary for securing
compliance with, or for preventing or
rectifying any contravention of, such order,
or for the effective exercise of such power.
(2) Where in respect of any of the
provisions of these Rules there is no
authority, officer or person empowered to take
action under sub-rule (1), the Central or the
State Government may take, or cause to be
taken, such steps and use, or cause to be
used, such force as may, in the opinion of
that Government be reasonably necessary for
securing compliance with, or preventing or
rectifying any breach of, such provision.
(3) For the avoidance of doubt, it is hereby
declared that the power to take steps under
sub-rule (1) or under sub-rule (2) includes
the power to enter upon any land or other
property whatsoever. "
It was submitted that the Superintendent of
Customs and Central Excise was an officer
empowered by the Central Government to
exercise the power under Rule 126 L (2) and
under Rule 156 the Superintendent had the
additional power to take or cause to be taken
such steps as may be reasonably necessary for
the effective exercise of such power. The
argument was stressed that under Rule 156 the
Superintendent had the power to seize docu-
ments for the purpose of investigating whether
the gold which was seized was gold in respect
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of which any provision of Part XIIA had been
contravened. We do not think there is any
justification for this argument. The power
granted to the authority empowered under Rule
156 is an ancillary or incidental power for
making effective seizure of suspected gold.
In other words, the power granted under Rule
156 is the power to take such action as may be
necessary for seizing the gold and does not
include the power of seizure of documents
which is not an ancillary but an independent
power. The view that we have taken is borne
out by the
998
Seventh Amendment of the Defence of India
Rules made on June 24, 1963. Before the
amendment, Rule 126 L read as follows
"126L. Power of entry, search, seizure, to
obtain information and to take samples.-
(1) Any person authorised by the Board by
writing in this behalf may-
(a) enter and search any refinery of which
the refiner, or the establishment of a
dealer who, is licensed under this Part;
(b) seize any gold in respect of which he
suspects that any provision of this Part has
been, or is being, or is about to be,
contravened, along with the package, covering
or receptacle, if any, in which such gold is
found and thereafter take all measures
necessary for their safe custody.
(2) Any person authorised by the Central
Government by writing in this behalf may-
(a) enter and-search any premises, not being
a refinery or establishment referred to in
sub-rule (1), vaults, lockers or any other
’Place whether above or below ground;
(b) seize any gold in respect of which he
suspects that any provision of this Part has
been, or is being, or is about to be
contravened, along with the package, covering
or receptacle, if any, in which such gold is
found and thereafter take all measures
necessary for their safe custody.
After the Seventh Amendment the following
clause was inserted after cl. (b) in sub-r.
(1) :
"(c) seize any books of account, return or any
other document relating to any gold in respect
of which he suspects that any provision of
this Part has been, or is being, or is about
to be, contravened and thereafter take all
measures necessary for their safe custody."
By the same amendment the following sub-rule
was inserted after sub-rule (2):
"(3) Any officer authorised by the Board by writing in this
behalf may search any person if that officer
999
has reason to believe that such person has secreted about
his person-
(a) any gold in respect of which such officer suspects that
any provision of this Part has been, or is being, or is
about to be, contravened,
(b) any document relating to such gold."
It is important to notice that Rule 126 L (2) has not been
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amended by the Seventh Amendment and there is no provision
in this sub-rule for such a seizure of any document. We
are, therefore, of the opinion that respondent no. 1 had no
authority under Rule 126 L (2) of the Defence of India Rules
to order respondent no. 2 to seize and take possession of
the documents in the premises of the appellant.
The appellants will not however be entitled to the relief of
rant of a writ, because we are of the opinion that there is
a valid order of seizure of the same documents on September
11, 1963 by the Collector of Customs under s. 110(3) of the
Customs Act. Section 1 1 0 of the Customs Act states
"110.(1) If the proper officer has reason to
believe that any goods are liable to
confiscation under this Act, he may seize such
goods:
Provided that where it is not practicable to
seize any such goods, the proper officer may
serve on the owner of the goods an order that
he shall not remove, part with, or otherwise
deal with the goods except with the previous
permission of such officer.
(2) Where any goods are seized under sub-
section (1) and no notice in respect
thereof is given under clause (a) of section
124 within six months of the seizure of the
goods, the goods shall be returned to the
person from whose possession they were seized
:
Provided that the aforesaid period of six
months may, on sufficient cause being shown,
be extended by the Collector of Customs for a
period not exceeding six months.
(3) The proper officer may seize any
documents or things which, in his opinion,
will be useful for, or relevant to, any
proceeding under this Act.
(4) The person from whose custody any
documents are seized under sub-section (3)
shall be entitled to
1000
make copies thereof or take extracts therefrom in the
presence of an officer of customs."
On this aspect of the case it was, firstly, submitted by the
appellant that the Collector of Customs was not a "proper
officer" within the meaning of the Act and so he had no
authority to seize documents from the possession of the
Superintendent or the Assistant Collector, Central Excise.
Reference was made to S. 2(34)of the Customs Act which
states :
"2. (34) ’proper officer’, in relation to any
functions to be performed under this Act,
means the officer of customs who is assigned
those functions by the Board or the Collector
of Customs;"
On behalf of the respondents the Solisitor-General relied
upon s. 5(2) of the Customs Act which states that "an
officer of customs may exercise the powers and discharge the
duties conferred or unposed under this Act on any other
officer of customs who is subordiante to his".Mr. Pathak,
however, submitted that s.5(2)has no application to this
case because there is a difference between the
"functions"on the one hand and "powers and duties" reffered
to in s.5(2) of the Customs Act on the other. We do not
think it is necessary to go into this point because we are
of the view that, in any event, the Collector of Customs
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would be a "proper officer" in relation to the functions to
be performed by the Act, because as a matter of principle
the Collector of Customs who had assigned the powers of a
"proper officer" to the subordinate officer must himself be
deemed to have the powers of a " proper officer" under S.
110(3) of the Customs Act. We accordingly reject the
contention of Mr. Pathak on this point.
It was next submitted on behalf of the appellant that on
both the dates-September 6, 1963 and September 11, 1963-the
documents were not in physical possession of respondent no.
2 and there could not be a valid seizure of documents as
contemplated by S. 110(3) of the Customs Act. It is the
admitted position that when seizure orders were passed by
the Collector of ’Customs on e documents were not in Nagpur
or within the territorial of respondent no. 3. But we do not
accept the argument of the appellant that the power of
seizure must necessarily involve, in every case, the act of
physical possession of the person who had a right to seize
the articles. It is true that the documents had been sent
to Delhi by respondent no. 2 for a limited purpose and for a
limited period. But though the documents were sent to
1001
Delhi, respondent no. 2 was still in legal possession of the
documents, for he had the right to control the use of the
documents and to exclude persons who should or should not
have access to the documents. The legal position is that at
Delhi the documents were in possession of a bailee for the
limited purpose of examination and translation of the
documents but the legal possession was still with respondent
no. 2. The law on this point has been correctly stated by
Mellish, L.J. in Ancona v. Rogers(1) as follows :
".......... there is no doubt that a bailor,
who has delivered goods to a bailee to keep
them on account of the bailor, may still treat
the goods as being in his own possession, and
can maintain trespass against a wrongdoer who
interferes with them. It was argued, however,
that this was a mere legal or constructive
possession of the goods, and that in the Bills
of Sale Act, the word ’possession’ was used in
a popular sense, and meant actual or manual
possession. We do not agree with this
argument. It seems to us that goods which
have been delivered to a bailee to keep for
the bailor, such as a gentleman’s plate
delivered to his banker, or his furniture
warehoused at the Pantechnicon, would, in a
popular sense, as well as in a legal sense, be
said to be still in his possession."
This passage was approved by Lord Porter in United States of
America v. Dollfus Mieg et Compagnie S.A. and Bank of
England(1) and it was held in that case that where a bailor
can at any moment demand the return of the object bailed, he
still has legal possession.
It follows, therefore in this case, that the Collector, by
his order of seizure dated September 6, 1963 or September
11, 1963, could transfer the legal possession of the
documents to himself. The legal effect of the order of de
Collector was the transfer of the legal possession of the
documents from respondent no. 2 or respondent no. 1 to the
Collector. Such a change of possession need not necessarily
involve a physical transfer of possession if it was not
possible at that stage, but as a matter of law on and from
the date of seizure the Collector exercised the full
incidents of possession over the documents. The fact that
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the documents were retained at Delhi for a specific purpose
will not affect the legality of the order of seizure and
was, in law, transfer of possession in respect of these
documents from respondents nos. 1 and 2 to respondent no.
3.
(1) [1876], 1 Ex. D. 285, at p. 292. (2) [1952] 1
All. E.R. 572.
1 002
On behalf of the appellants Mr. Pathak referred to the
decision of this Court in Gian Chand v. The State of
punjab(1). In that case, the question debated was whether
the presumption under S. 178A of the Sea Customs Act, 1878
would arise in respect of an article which was originally
seized by the police and handed over to the authorities of
the Customs Department and was actually with one of them
when it was seized. In this context, this Court observed at
page 373 of the Report :
"A ’seizure’ under the authority of law does
involve a deprivation of possession and not
merely of custody and so n the police officer
seized the goods, the accused lost possession
which vested in the police. When that
possession is transferred, by virtue of the
provisions contained in s. 180 to the Customs
authorities, there is no fresh seizure under
the Sea Customs Act. It would, therefore,
follow that, having regard to the cir-
cumstances in which the gold came into the
possession of the Customs authorities, the
terms of S. 178A which requires a seizure
under the Act were not satisfied and
consequently that provision cannot be availed
of to throw the burden of proving that the
gold was not smuggled, on the accused."
The ratio of that case is of no assistance to the
appellants, for the question at issue in that case was in
regard to burden of proof under S. 178A of the Sea Customs
Act and whether the presumption under that section would
arise in the special circumstances of the case. Mr. Pathak
also referred to the decision of the Queen’s Bench in Vinter
v. Hind (2 ) in which the respondent, a butcher, exposed for
sale part of a cow which had died of disease, and sold the
meat to a customer, who took it home for food, and some days
afterwards was requested by the appellant, an inspector of
nuisances, to hand it over to him, and it was condemned by a
justice as unfit for the food of man. It was held by the
Queen’s Bench in these circumstances that the meat was not
"so seized" and condemned as is prescribed by ss. 116, 117,
of the Public Health Act. 1875, and therefore the respondent
was not liable, as the person to whom the same "did belong
at the time of the exposure for sale," to a penalty under S.
117. The decision of this case is of no help to the
appellants because the actual decision turned upon the
language of ss. 116 and 117 of the Public Health Act, 1875
and the respondent was held not liable to the penalty
(1) 1962 Supp.1 R (2) (1882)
10 Q.B. 63.
1003
because he was not the person to whom the meat "did belong
at the, time of exposure for sale."
It was then contended on behalf of the appellants that there
is no material to show that the documents seized were
relevant or useful to the proceeding under the Customs Act
and in the absence of such material the seizure of the
documents must be held to be illegal. We do not think there
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is any warrant for this argument. The orders of the
Collector dated September 6, 1963 and September 11, 1963
both state that the Collector was of opinion "that the
documents were useful for and relevant to the proceedings
under the Customs Act, 1962". Respondent no. 2 has also
stated in para 3 of his return that information was received
from a reliable source that the appellant had a considerable
quantity of hoarded gold which had not been declared by him
under Rule 126 1 of the Defence of India (Amendment) Rules,
1963, and for this purpose a raid was made for search of
gold and gold ornaments. Respondent no. 2 has further
stated as follows:
"During this search, I also came across
certain documents and records which indicated
that the petitioner had acquired considerable
quantity of gold which was far in excess of
the quantity of gold declared by the
petitioner and his family members in the
declarations submitted by them under Rule 126
1 of the Defence of India (Amendment) Rules,
1963. In addition, I also found documents
indicating that the petitioner had resorted to
dealings constituting breach of the Customs.
Regulations and the Regulations under the
Foreign Exchange Regulation Act punishable
under the Sea Customs Act, 1878 and/or the
Customs Act, 1962. The documents, note-books
and files which I came across also indicated
that the petitioner had resorted to under
invoicing of export of mineral ores to the
extent of millions of rupees, large-scale
purchase of gold to the tune of lakhs of
rupees, unauthorised sale of Foreign Exchange
involving lakhs of dollars (U.S.) to parties
of whom some are persons known to be directly
or indirectly involved in smuggling
activities."
We accordingly hold that there is sufficient material to
support the information of the Collector of Customs under s.
110(3) of the Customs Act that the documents would be useful
or relevant to the proceedings under the Act and the
argument of Mr. Pathak on this aspect of the case must be
rejected.
1004
For the reasons expressed, we hold that the High Court was
right in saying that the appellant had made out no case for
grant of a writ. This appeal accordingly fails and must be
dismissed with costs.
Civil Appeal No. 677 of 1965
This appeal arises out of Special Civil Application no. 437
of 1963 relating to the search of the premises of the
appellant Durga Prasad at Tumsar and Nagpur on the basis of
an authorisation dated September 24, 1963 issued by the
Assistant Collector of Customs, Raipur to the Superintendent
of Central Excise at Nagpur under s. 105 of the Customs Act
which reads as follows
"Shri H. R. Gomes,
Superintendent (Prev.) H. Qrs., Central
Excise, Nagpur.
Whereas information has been laid before me of
the suspected commission of the offence under
section 11 read with section 1 1 1 of the
Customs Act 1962 (52 of 1962) and it has been
made to appear that the production of
contraband goods and documents relating
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thereto are essential to the enquiry about to
be made in the suspected offence.
This is to authodse and require you to search
for the said articles and documents in the
shop/office/godowns/ residential
premises/conveyance/packages belonging to or
on the person of Shri Durgaprasad Saraf Tumsar
and if found, to produce the same forthwith
before the undersigned returning this
authority letter with an endorsement
certifying what you have done under it
immediately upon its execution.
given under my hand and the seal of this
office, this 24th day of September, 1963.
Seal of the Integrated
Divisional Office,
Central Excise, Raipur.
Sd.
(R. N. Sen),
Collector,
Customs & Central
Excise : I.D.O.
Raipur: M.P."
1005
It is contended on behalf of the appellant that the
authorisation is not legally valid since there is no
averment by the Assistant Collector that the documents were
"secreted". Section 105 of the Customs Act states :
"105. (1) If the Assistant Collector of
Customs, or in any area adjoining the land
frontier or the coast of India an officer of
customs specially empowered by name in this
behalf by the Board, has reason to believe
that any goods liable to confiscation, or any
documents or things which in his opinion will
be useful for or relevant to any proceeding
under this Act, are secreted in any place, he
may authorise any officer of customs to search
or may himself search for such goods, docu-
ments or things.
(2) The provisions of the Code of Criminal
Procedure, 1898, relating to searches shall,
so far as may be, apply to searches under this
section Subject to the modification that sub-
section (5) of section 165 of the said Code
shall have effect as if for the word
"Magistrate", wherever it occurs, the words
"Collector of Customs" were substituted."
According to the appellant the power of seizure under s. 105
of-the Customs Act cannot be exercised unless the Assistant
Collector had reason to believe that the documents were
secreted. It was argued that the word "secreted" is used in
s. 105 in the sense of being hidden or concealed and unless
the officer had reason to believe that any document was so
concealed or hidden, a search could not be made for such a
document. We are unable to accept the submission of the
appellant as correct. In our opinion, the word "secreted"
must be understood in the context in which the word is used
in the section. In that context, it means ’documents which
are kept not in the normal or usual place with a view to
conceal them’ or it may even mean ’documents or things which
are likely to be secreted’; In other words, documents or
things which a person is likely to keep out of the way or to
put in a place where the officer of law cannot find it. It
is in this sense that the word ’secreted’ must be understood
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as it is used in s. 105 of the Customs Act. In this
connection reference was made by the Solicitor-General to
the affidavits of the Superintendent of Central Excise dated
October 28, 1963. Para 6 states that "Some of the documents
were recovered from the living apartments and safe of the
petitioner and also from the drawers
1006
of the tables and cabinets utilised by his sons and a search
was made for documents which may have been secreted in the
premises".
It was further submitted on behalf of the appellant that the
power of search under S. 105 of the Customs Act cannot be
exercised unless the authorisation specifies a document for
which search is to be made. In other words, it is contended
that the power of search under S. 105 of the Customs Act is
not of general ,character. We do not accept this argument
as correct. The object of grant of power under S. 105 is
not search for a particular document but of documents or
things which may be useful or necessary for proceedings
either pending or contemplated under the Customs Act. At
that stage it is not possible for the officer to predict or
even to know in advance what documents could be found in the
search and which of them may be useful. or necessary for the
proceedings. It is only after the search is made and
documents found therein are scrutinised that their relevance
or utility can be determined. To require, therefore, a
specification or description of the documents in advance is
to misapprehend the purpose for which the power is granted
for effecting a search under s. 105 of the Customs Act. We
are, therefore, of opinion that the power of search granted
under S. 105 of the Customs Act is a power of general
search. But it is essential. that before this power is
exercised, the preliminary conditions required by the
section must be strictly satisfied-that is, officer
concerned must have reason to believe that any documents or
things, which in his opinion are relevant for any proceeding
under the Act, are secreted in the place searched. We have
already mentioned the reasons for holding that this
condition has been satisfied in the present case.
For the reasons expressed, we hold that the appellant has
made out no case for the grant of a writ and this appeal
must be ,dismissed with costs.
Appeals dismissed.
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