PETITIONER:
R. S. SETH GOPIKRISHAN AGARWAL
Vs.
RESPONDENT:
R. N. SEN, ASSISTANT COLLECTOR
DATE OF JUDGMENT:
05/01/1967
BENCH:
RAO, K. SUBBA (CJ)
BENCH:
RAO, K. SUBBA (CJ)
SHAH, J.C.
SIKRI, S.M.
RAMASWAMI, V.
VAIDYIALINGAM, C.A.
CITATION:
1967 AIR 1298 1967 SCR (2) 340
CITATOR INFO :
F 1985 SC 989 (10,13)
ACT:
Defence of India (Amendment) Rules 1963 (Gold Control
Rules) r. 126(L) (2) and the Customs Act, 1962 (52 of 1962),
ss. 2(34), 105 and 110--Order of Assistant Collector
authorising search of premises, requirements of--procedure
of search, s. 165(1) of the Code of Criminal Procedure how
far applicable--Officer authorised by Collector whether
'proper officer'--Validity of s. 105.
Constitution of India, Art. 14--Section 105 of Sea
Customs Act, 1962 whether gives unguided and arbitrary
power--Whether ultra vires.
HEADNOTE:
The Assistant Collector of Central Excise issued an
authorization 'under s. 126(L)(2) of the Defence of India
(Amendment) Rules, 1963 (Gold Control Rules) for searching
the premises of the appellant. As a result of the search
undeclared gold and certain other articles as well as
documents were seized. The appellant's writ petition under
Art. 226 challenging the search on various grounds was
dismissed. In appeal by certificate,
HELD : (i) Mala fides had not been proved against the
officer authorized to make the search [342 C]
(ii) The authorization order could. not be said to be
defective merely because it did not expressly employ the
phrase 'reason to believe' occurring in s. 105 of the-
Customs Act. The phraseology used in the order meant, in
effect and substance, the same thing. [342 E-F]
(iii) While it may be advisable and indeed proper for
the Assistant Collector to give in the authorization order
the reasons for his belief that a search is necessary, the
non-mention of reasons would not by itself vitiate the
order. Nor can all the particulars of the nature of the
goods and of the documents be mentioned in the order as they
will be known only after the search is made The
specifications given in the present case,were sufficient to
enable the officer authorized to make the search
[343 C-D]
(iv) The word by in s.2(34) refers both to the Board and the
Collecter and therefore both the Board- and the Collector of
Customs can assign functions to an officer of Customs. [343
H]
(v) It cannot be said that the Assistant Collector of
Customs must in authorizing search also record his reasons
for doing so on the ground that s. 165(1) of the Code of
Criminal Procedure which makes such a provision is made
applicable to searches under s. 105 of the Customs Act.
While under S.--105 of the Act the Assistant Collector of
Customs either makes the search personally or authorizes any
officer of Customs to do so, if he has reasons to believe
the facts mentioned therein, under s. 165(1) of the Code of
Criminal Procedure the recording of the reasons for
believing the facts is only to enable him to make a search
urgently in a case where search warrants in the ordinary
course cannot be obtained. It is, therefore, not possible to
invoke the condition and apply it to a situation arising
under s. 105 of the Act [345 B-D]
341
(VI) Section 105 of the Customs Act does not confer an
unguided and arbitrary power on the Assistant Collector of
Customs to make a search. A deeper scrutiny of the
provisions indicates not only a policy but also effective
checks on the exercise of the power of search by the
Assistant Collector. The section does not therefore offend
Art. 14 of the Constitution. [346 D]
(vii) The High Court on the materials placed before it,
held that the Assistant Collector had acted with reasonable
belief in the facts mentioned in s. 105. There, was no
justification for interfering with the findings of the High
Court. [346 E-F]
'Durga Prasad v. H. R. Gomes, Superintendent (Prevention)
Central Excise, Nagpur, A.I.R. 1966 S.C. 1209, referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 998 of 1965.
Appeal from the judgment and order dated February 24, 25,
1964 of the Bombay High Court, Nagpur Bench in Special Civil
Application 459 of 1963.
B. K. Sanghi, G. L. Sanghi and 0. C. Mathur, for the
appellant.
Niren De, Addl, Solicitor-General, N. S. Bindra and R. H.
Dhebar, for the respondents.
The Judgment of the Court was delivered by
Subba Rao, C. J. This appeal by certificate raises the quest
on whether the search of the premises of the appellant and
the seizure of the articles and the documents found therein
were valid.
The relevant facts are as follows: The appellant is a mining
proprietor and holds several manganese mines in different
States. He has also been doing business in many articles
apart from being an exporter of manganese ore. On
information alleged to have been received to the effect of
that the appellant was in possession of a large quantity of
undeclared gold the Assistant Collector of Customs and
Central Exercise Raipur issued an authorization under r. 126
(L)4(2) of the Defence of India (Amendment) Rules, 1963
(Gold Control Rules) hereinafter called the Rules, for
searching the premises of the appellant. Pursuant to that
authorization, the appellants premises were searched and as
a result of the search gold and other articles, foreign
currency and other documents. were seized. The appellant
filed a petition under Art. 226 of the Constitution in the
High Court of Bombay (Nagpur Bench) challenging the validity
of the said search and the seizure of the articles and
documents belonging to him. The petition was heard along
with similar petitions filed by other persons whose premises
were likewise searched and goods and documents seized
therefrom. The High Court dismissed all the petitions. The
several petitioners before the High Court, along with the
appellant, preferred appeals to this Court and the an
appeal’s other than that filed by the appellant were heard
by this Court : See Durg
342
Prasad v. H.R. Gomes, Superintendent (Prevention), Central
Exercise Nagpur(1). Therein this Court considered the
various contentions raised by them and dismissed the same.
For one reason or other, this appeal was not heard along
with them.
Obviously the points covered by that judgment cannot be
permitted to be reagitated in this appeal. Accepting that
position, learned counsel for the appellant raised before us
only the questions that were not decided by the said
judgment. We shall now proceed to consider the questions
that are peculiar to this appeal.
The contention that the Assistant Collector and the officer
authorized by him to make the search acted with mala fides
has no substance. The High Court considered the evidence
and rejected it. We do not see any justification to take a
different view on the material placed before us.
The second contention is that under s. 105 of the Customs
Act, hereinafter called the Act, the Assistant Collector
shall have reason to believe that some goods are secreted
before he can authorize any officer of Customs to search for
them or the relevant documents, but the authorization given
by the Assistant Collector to the Customs Officer did not
say that he had reason to believe so.
The relevant part of the authorization reads thus
“Whereas information has been laid before me
of the suspected commission of offence under
section 11 read with section 111 of the
Customs Act 1962 (52 of 1962) and it has been
made to appear that the production of
contraband goods and documents relating
thereto are essential to the enquiry about to
be made in the suspected offence……..
Though the words “reason to believe” are not in terms
embodied in the authorisation, the phraseology used in
effect and substance meant the same thing.
, The next contention is that on a reasonable construction
of the said provision it should be held that the Assistant
Collector of Customs should not only give reasons for his
belief but also the particulars of the nature of the goods
and of the documents, for, if the reasons and the
particulars are not given the officer authorized may make a
roving search of the house which is not in the contemplation
of the said section. This argument may be dealt with in two
parts. In terms S. 105 of the Act does not say that the
Assistant Collector shall give reasons. The power conferred
on him under S. 105 is not subject to any such condition.
Though he cannot make a search or authorize any officer to
make a search
(1) A.I.R. 1966 S.C. 1209.
343
unless he has reason to believe the existence of the facts
mentioned in the section, the section does not compel him to
give reasons. While it may be advisable, and indeed proper,
for him to give reasons, the non-mention of reasons in
itself does not vitiate the order. Nor can we agree with
the appellant that the particulars of the nature of the
goods and of the documents should be given in the
authorization. Obviously, no question of giving of parti-
culars arises if he himself makes the search, but if he
authorizes any officer to do so, he cannot give the
particulars of the documents, for they will be known only
after the search is made. Doubtless he has to indicate
broadly the nature of the documents and the goods in regard
to which the officer authorized by him should make a search,
for without that his mandate cannot be obeyed. The autho-
rization issued by the Assistant Collector of Customs in
this case clearly mentioned that on information received it
appeared that the appellant was in possession of contraband
goods and documents relating thereto and also described the
office and the residential premises wherein those goods and
documents would be found. In the circumstances of the case
we are satisfied that the specifications are sufficient to
enable the officer authorized to make the search.
The next argument is based upon the provisions of s. 110 of
the Act. Under s. 110(3) of the Act only a proper officer
can seize any documents or goods which in his opinion will
be useful for or relevant to any proceedings under the Act.
“Proper officer” has been defined by s. 2(34) of the Act
thus :
“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.”
it is contended that, on a true construction of s. 2(34) of
the Act the Collector of Customs should himself seize the
goods, that he has no power to authorize another to do so
and that in this case the Collector of Customs did not make
the seizure. This argument turns upon the terms of the said
provision. It is said that the Board only can assign
functions to another officer and that the Collector of
Customs cannot assign but can function personally. The
controversial expression in s. 2(34) is “by the Board or the
Collector of Customs”. The clause “who is assigned those
functions”, the argument proceeds, refers only to the Board
and not to the Collector. A fair reading of the provision,
in our view, is that the preposition “by” refers both to the
Board and the Collector. Both the Board and the Collector
of Customs can assign functions to an officer of Customs.
It is then contended that the search made was void inasmuch
as in making the search the relevant provisions of Code of
Criminal
344
Procedure had not been complied with. This argument is
based upon S. 105(2) of the Act. It reads
“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.”
Now, if we look at the Code of Criminal Procedure, s. 165
deals with searches. The relevant part of that section
reads
(1) Whenever an officer in charge of a
police station or a police-officer making an
investigation has reasonable grounds for
believing that anything necessary for the
purposes of an investigation into any offence
which he is authorised to investigate may be
found in any place within the limits of the
police-station of which he is in charge, or to
which he is attached, and that such thing
cannot in his opinion be otherwise obtained
without undue delay, such officer may, after
recording in writing the grounds of his belief
and specifying in such writing, so far as
possible, the thing for which search is to be
made, search, or cause search to be made, for
such thing in any place within the limits of
such station.
(2)
(3) If he is unable to conduct the search in
person, and there is no other person competent
to make the search present at the time, he may
after recording in writing his reasons for so
doing require any officer subordinate to him
to make the search, and he shall deliver to
such subordinate officer an order in writing
specifying the place to be searched and; so
far as possible, the thing for which search is
to be made and such subordinate officer may
thereupon search for such thing in such place.
(4) The provisions of this Code as to
search-warrants and the general provisions
as to searches contained in section 102 and
section 103 shall, so far as maybe, apply to a
search made under this section.
(5) Copies of any record made under
subsection (1) or sub-section (3) shall
forthwith be sent to the nearest Magistrate
empowered to take cognizance of the offence
and the owner or occupier of the place
searched shall on application be furnished
with a copy of the same by the .Magistrate.
345
The argument is that the expression “so far as may be” in s.
105(2) of the Act attracts s. 165(1) of the Code of Criminal
Procedure and under that section, as the police-officer has
to record in writing the grounds of his belief the Assistant
Collector of Customs shall also in authorizing the search
record his reasons for doing so. But, in our view, s. 105
of the Act and s. 165(1) of the Code of Criminal Procedure
are intended to meet totally different situations. While
under s. 105 of the Act the Assistant Collector of Customs
either makes the search personally or authorizes any officer
of Customs to do so, if he has reason to believe the facts
mentioned therein, under s. 165(1) of the Code of Criminal
Procedure the recording of the reasons for believing the
facts is only to enable him to make a search urgently in a
case where search warrants in the ordinary course cannot be
obtained. It is, therefore, not possible to invoke that
condition and apply it to a situation arising under s. 105
of the Act. It is not necessary in this case to
particularize which of the other clauses or part of the
clauses of that section can be applied to a search under s.
105 of the Act. We, therefore, reject this contention also.
Then it is contended that s. 105 of the Act confers an
unguided) and arbitrary power on the Assistant Collector of
Customs to make a search,. the only condition being that he
has reason to believe in the existence of the facts
mentioned therein. It is said that the said belief is
practically a subjective satisfaction and the section
neither lays down any policy nor imposes any effective
control on his absolute discretion. So stated the argument
is attractive, but a deeper scrutiny of the provisions
indicates not only a policy but also effective checks Oil
the exercise of the power to search by the Assistant
Collector of Customs. The object of the section is to make
a search for the goods liable to be confiscated or the
documents secreted in any place. which are relevant to any
proceeding under the Act. The legislative policy reflected
in the section is that the search must be in regard to the
two categories mentioned therein, namely, goods liable to be
confiscated and documents relevant to a ding under the Act.
No doubt the power can be abused. at is controlled by other
means. Though under the section the Assistant Collector of
Customs need not give the reasons, if the existence of
belief is questioned in any collateral proceedings, he has
to produce relevant evidence to sustain his belief. That
apart, under s. 165(5) of the Code of Criminal Procedure,
read with s. 105(2) of the Act, he has to send forthwith to
the Collector of Customs a copy of any record made by him.
The Collector would certainly give necessary directions if
the Assistant Collector went wrong, or if his act was guided
by mala fides. But the more effective control on him is
found in s. 136(2) of the Act. It reads :
If any officer of customs….
346
(a) requires any person to be searched for
goods liable to confiscation or any document
relating thereto, without having reason to
believe that he has such goods or documents
secreted about this person; or
(b) arrests any person without having reason
to believe that he has been guilty of an
offence punishable under section 135; or
(c) searches or authorises any other officer
of customs to search any place without having
reason to believe that any goods, documents or
things of the nature referred to in section
105 are secreted in that place,
he shall be punishable with imprisonment for
a term which may extend to six months, or with
fine which may extend to one thousand rupees,
or with both.
No doubt he can be prosecuted only with the previous
sanction of the Central Government, but his liability to
criminal prosecution for dereliction of duty under S. 105 of
the Act is certainly an effective control on his arbitrary
acts. It is, therefore, clear that not only a policy is
laid down in S. 105, but also that the acts of the Assistant
Collector are effectively controlled in the manner stated
above. We cannot, therefore, say that s. 105 offends Art.
14 of the Constitution.
Lastly, it is contended that the Assistant Collector of
Customs in fact has not placed any material before the High
Court to sustain his reasonable belief. The High Court, on
the material placed before it, held that the Assistant
Collector had acted with reasonable belief in the facts
mentioned in that section. There is no justification for
our interference with the findings of the High Court.
In the result, the appeal fails and is dismissed with costs.
It is represented to us that three years have elapsed since
the documents were seized and it appears that nothing
further has been done in the matter. We hope and trust
that the Customs Authorities will take appropriate and
immediate steps to finish their investigation and return the
documents which are not required,
to the appellant.
G.C.
Appeal dismissed.
347