{"id":185421,"date":"1985-04-26T00:00:00","date_gmt":"1985-04-25T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/dr-partap-singh-and-anr-vs-director-of-enforcement-foreign-on-26-april-1985"},"modified":"2017-06-14T06:49:23","modified_gmt":"2017-06-14T01:19:23","slug":"dr-partap-singh-and-anr-vs-director-of-enforcement-foreign-on-26-april-1985","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/dr-partap-singh-and-anr-vs-director-of-enforcement-foreign-on-26-april-1985","title":{"rendered":"Dr. Partap Singh And Anr vs Director Of Enforcement Foreign … on 26 April, 1985"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Dr. Partap Singh And Anr vs Director Of Enforcement Foreign … on 26 April, 1985<\/div>\n
Equivalent citations: 1985 AIR 989, \t\t 1985 SCR (3) 969<\/div>\n
Author: D Desai<\/div>\n
Bench: Desai, D.A.<\/div>\n
           PETITIONER:\nDR. PARTAP SINGH AND ANR.\n\n\tVs.\n\nRESPONDENT:\nDIRECTOR OF ENFORCEMENT FOREIGN EXCHANGE REGULATION AND ORS.\n\nDATE OF JUDGMENT26\/04\/1985\n\nBENCH:\nDESAI, D.A.\nBENCH:\nDESAI, D.A.\nERADI, V. BALAKRISHNA (J)\n\nCITATION:\n 1985 AIR  989\t\t  1985 SCR  (3) 969\n 1985 SCC  (3)\t72\t  1985 SCALE  (1)1208\n\n\nACT:\n     Foreign Exchange  Regulation Act  1973 section  37\t and\nCode of\t Criminal  Procedure.  section\t165-Search  warrant-\nIssuance of-Officer whether obliged to record in writing the\ngrounds for  his belief before issuance-'Reason to believe'-\nWhat is-Whether\t grounds inducing  'reasonable belief  to be\nstated In search warrant-Whether open to judicial scrutiny.\n     Foreign Exchange  Regulation Act  section 37 38 and 41-\nSearch\tand   Seizure-Illegality  of-Whether   would  render\nseizure\t pursuant   to\t illegal   search   Invalid-Evidence\ncollected during  illegal search-Court\tto  be\tcautious  in\nassessment.\n     Income  Tax   Act\t1961   section\t132   A-Warrant\t  of\nauthorisation to  seal documents  articles seized during the\nsearch under  section 37  of the Foreign Exchange Regulation\nAct 1973-Whether could be returned.\n     Words and\tphrases-(caning of-'Reason  to believe'\t and\n'so far\t as may\t be-Meaning of-Section 37 (1) and Section 37\n(2) of FERA 1973.\n\n\n\nHEADNOTE:\n     The appellants  husband and  wife moved  the High Court\nunder Article 226 for quashing of a search warrant issued by\nrespondent No.\t2-Assistant Director,  Enforcement, as\talso\nthe warrant  of authorisation  issued by  respondent No.  5-\nCommissioner of\t Income Tax  and for  a direction  to return\narticles seized\t during the  search of\ttheir house  and for\nrelief incidental  and\tancillary  thereto.  The  appellants\nalleged that respondent No. 6-an Assistant Com. missioner of\nIncome Tax,  bore personal malice towards them, attributable\nto an  incident concerning the servant of the appellants and\nan application\tfor transfer  of appeals  pending before him\nwas made  to the  Chairman Central  Board of Direct Taxes by\nthe first  appellant.  Actuated\t by  this  persona;  malice,\nrespondent No.\t6 first instigated respondent No. 2 to issue\na search  warrant under\t the authority\tof which  a raid was\ncarried out  at the residence of the appellants which led to\nthe seizure  of certain\t documents  including  some  foreign\ncurrency.  Thereafter\twhen  the  appellants  made  various\nrepresentations for return of documents, again instigated by\nrespondent No. 6,\n970\nrespondent No.\t5 issued  a warrant  of authorisation  under\nsection 132 A of the Income Tax Act directing respondent No.\n2 to  deliver such books of accounts and other documents and\ngoods  seized\tduring\tthe  search  to\t the  requisitioning\nofficer. The documents and material seized during the search\nhad not been returned.\n     The High  Court held  that there was nothing illegal in\nthe issuance  of the  search warrant, the consequent search,\nthe seizure  during  the  search  and  taking  over  of\t the\ndocuments by  the Income  Tax Department under Section 132-A\nand dismissed the petition.\n     In the  appeal to\tthis Court  it was  contended by the\nfirst appellant: (i) that respondent No. 2 acted in a manner\ncontrary to  law in  issuing a\tsearch warrant\twithout\t any\nmaterial before him on which he could entertain a reasonable\nbelief that  any documents  which in  his  opinion  will  be\nuseful for,  or relevant to, in investigation or proceedings\nunder Foreign  Exchange Regulation Act, 1973 are secreted in\nany place  and (ii)  that as  the second  respondent did not\nrecord his reasons in writing on which reasonable belief was\nentertained, the search warrant issued by him was illegal.\n     Dismissing the appeal,\n^\n     HELD 1.  When an  officer of the Enforcement Department\nproposes to  act under\tsection 37  he must  have reason  to\nbelieve that  the  documents  useful  for  investigation  or\nproceeding under the Act are secreted. The material on which\nthe belief is grounded may be secret, maybe obtained through\nintelligence or\t occasionally  may  be\tconveyed  orally  by\ninformants.  It\t is  not  obligatory  upon  the\t officer  to\ndisclose his  material on the mere allegation that there was\nno material before him on which his reason to believe can be\ngrounded. Whether these grounds are adequate or not is not a\nmatter for the Court to investigate. [079F-H: 977A-C]\n     S.\t Narayanappa   v.  Commissioner\t  of   Income\tTax,\nBangalore,<\/a> [1967] 1 SCR 590 relied upon.\n     2. The expression 'reason to believe' is not Synonymous\nwith subjective satisfaction of the Officer. The belief must\nbe held in good faith; it cannot be merely be a pretence. It\nis open\t to the Court to examine the question to the limited\nextent whether\tthe reasons  for the  belief have a rational\nconnection or  a relevant  bearing to  the formation  of the\nbelief and  are not  extraneous or irrelevant to tho purpose\nof the section. [977 D-E]\n     3. Sub-Section  (2) of  section 37\t provides  a  shield\nagainst abuse  of power\t inasmuch as  that where  an officer\nbelow the  rank of  the Director  of Enforcement carried out\nthe search,  he must  send  a  report  to  the\tDirector  of\nEnforcement. [978C-G]\n971\n     In the  instant case,  the reply affidavit on behalf of\nthe respondents I to 4 and the original papers, shown to the\nCourt, indicate\t that there  was material  before the second\nrespondent which  furnished him\t grounds for  entertaining a\nreasonable belief  that some documents which would be useful\nin the\tinvestigation  or  proceeding  under  the  Act\twere\nsecreted  in  the  house  of  the  appellants  and  he\twas,\ntherefore, fully justified in issuing the search warrant.\n\t\t\t\t\t     [975E-H 976A-B]\n     Calcutta  Discount\t  Co  Ltd.  v.\tIncome\tTax  Officer\nCompanies District<\/a>  1, Calcutta\t & Anr.\t 41 ITR 191 and R.S.\nSeth Gopikrishan Agarwal v. R.N. Sen, Assistant Collector of\nCustoms & Ors.,<\/a> [1967] 2 SCR 340 relied upon.\n     4. Section\t 37(2) provides\t that the  provisions of the\nCode of\t Criminal Procedure  relating to  searches, shall so\nfar as\tmay be,\t apply to  searches directed  under  section\n37(1). Reading\tthe two\t sections together,  means that\t the\nmethodology prescribed\tfor carrying out the search provided\nin section  165 has to be generally followed. The expression\n'so far\t as may\t be' has  always been construed to mean that\nthose provisions  may be  generally followed  to the  extent\npossible. If  section 165(1)  was to  be incorporated by pen\nand ink\t as sub-section\t (2) of\t section 37, the legislature\nwould have provided that the provisions of the Code relating\nto searches  shall apply to the searches directed or ordered\nunder section  37(1) except that the power will be exercised\nby tho\tDirector of  Enforcement or other officer exercising\nhis power  and he  will\t be  substituted  in  place  of\t the\nMagistrate- The\t provisions of sub-section (2) of section 37\nhas not\t been cast  in any such language. It merely provides\nthat tho  search may  be carried out according to tho method\nprescribed in section 165 (1). [979E-H;980A-B]\n     5. If  it was  the intention that reasons which furnish\ngrounds for  entertaining a  reasonable belief\twere  to  be\nrecorded in  advance,  appropriate  words  could  have\tbeen\nincorporated in\t section 37(1),\t otherwise a simple one line\nsection would  have been  sufficient that  all\tsearches  as\nrequired for the purpose of this Act shall be carried out in\nthe manner  prescribed in  section 165\tof the\tCode by\t the\nOfficer to be set out in tho section. [980C]\n     6. In  order to give full meaning to the expression 'so\nfar as\tmay be'\t sub-section (2)  of section  37  should  be\ninterpreted to\tmean that  broadly the procedure relating to\nsearch as enacted in section 165 shall be followed. But if a\ndeviation becomes necessary to carry out the purposes of the\nAct in\twhich section  37(1) is\t incorporated, it  would  be\npermissible except  that when  challenged before  a court of\nlaw,  justification   will  have   to  be  offered  for\t the\ndeviation. [980]\n     R.S. Seth\tGopikrishan v. R.N. Sen, Assistant Collector\nof Customs  & Ors.,<\/a>  [1967] 2 SCR 340 and Pooran Mal etc. v.\nDirector of  Inspection (Investigation)\t of Income Tax Mayur\nBhavan, New Delhi & Ors., [1974] 2 SCR 705 followed,\n972\nH.L. Sibal  v Commissioner  of Income,\tTax, Punjab an Ors.,\n[1975] 101  ITR 112;  Commissioner of  Commercial  Taxes  v.\nRamkishan Shrikishan  Jhaver<\/a> 1966  ITR 664  referred to, New\nCentral Jute  Mills Co.\t Ltd. v.  T.N. Kaul  & Ors. AIR 1976\nCal. 178 held over-ruled.\n     7. The grounds which induced reasonable belief need not\nbe stated  in the  search warrant.  In the instant case, the\nfile submitted\tto the\tcourt unmistakably  shows that there\nwas material  enough before  the second respondent to form a\nreasonable belief  which prompated him to direct the search.\nThat the  documents seized during the search did not provide\nsufficient material to the officer for further action cannot\nbe a  ground for  holding that the grounds which induced the\nreasonable beli f  were either\timaginary or  fictitious  or\nmala fide conjured up.[980E-G]\n     8. Legality  in the  method, manner  or initiation of a\nsearch does not necessarily mean that anything seized during\nthe search  has to be returned. After all in the course of a\nsearch, things\tor documents  are required  to be seized and\nsuch things and documents may furnish envidence . Illegality\nof the search does not vitiate the evidence collected during\nsuch illegal  search. The only requirement is that the court\nor the\tauthority before  which such  material\tor  evidence\nseized during  the search shown to be illegal, is placed has\nto be cautious and circumspect in dealing with such evidence\nor material. [981B-F]\n     Radhakishan v.  State of  U.P.-,<\/a> [1963] Supp- 1 SCR 408\nat 411;\t and State  of Maharashtra  v. Natwarlal  Damodardas\nSoni,<\/a> [1980] 4 SCC 669 relied upon.\n     9. The  mere fact\tthat during the pendency of the writ\npetition  before     the   High\t Court\t -  the\t Enforcement\nDirectorate  decided   to  close   the\tproceedings  against\nappellant in  respect of  the  material\t seized\t during\t the\nsearch, would not show that the search was mala\t fide or for\nreasons irrelevant  or extraneous  the\texercise  of  power.\nThere is no warrant for the assertion that every search must\nresult in  seizure of  incriminating material-\tThere can be\ncases in  which search\tmay fail or a reasonable explanation\nin respect of the documents may be forthcoming. [982B-E]\n     In\t the  instant  case,  as  the  documents  and  other\nmaterials  have\t  been\t sealed\t  under\t  the\twarrant\t  of\nauthorisation issued  under section  132-A of the Income Tax\nAct, the  Enforcement Directorate  may legitimately case the\nproceedings. [982E-F]\n     Pooran Mal\t etc. v. Director Inspection (Investigation)\nof Income  Tax Mayur  Bhavan, New  Delhi & Ors, [1974] 2 SCR\n705; and Income Tax Officer, Special Investigation Circle-B,\nMeerut v.  M\/s Seth Brothers & Ors.,<\/a> [1970] 1 SCR 601 relied\non.\n     10. If  the officer  who issued  the search warrant had\nmaterial for forming a reasonable belief for the exercise of\nthe power,  the search\tcannot be  styled  as  illegal\tand,\ntherefore, no  case is\tmade out  for  directing  return  of\ndocuments on  the supposition  that the\t search and  seizure\nwere illegal. [982G: 983A]\n973\n     11. The  allegations of  mala fides in the instant case\nwere scanty  and vague\tand completely\tmisleading averments\nwere made  to support  such a  serious allegations against a\nresponsible  officer   discharging  his\t duties.A  nefarious\nattempt\t had   eeen  made  to  cook-up\ta  wholly  imaginary\nallegation for\tattributing personal mala fides to the sixth\nrespondent.  In\t the  circumstances  the  allegation  cannot\nstand.\n\n\n\nJUDGMENT:\n<\/pre>\n
     CIVIL APPELLATE  JURISDICTION: Civil  Appeal No.1138 of
\n1981.\n<\/p>\n
     From the  Judgment and  Order dated  22.9. 1980  of the
\nPunjab and Haryana High Court in W. P. No. 2163 of 1980.\n<\/p>\n
     Appellant-in-person.\n<\/p>\n
     M. M. Abdul Khader, V. S. Desai, Ms. A. Subhashini, and
\nR. N. Poddar for the Respondents.\n<\/p>\n
     The judgment of the Court was delivered by
\n     DESAI,  J.\t  Appellants  who   are\t husband   and\twife
\nrespectively moved  Civil Writ\tPetition No. 2163 of 1980 in
\nthe High Court of Punjab and Haryana praying for quashing of
\na search  warrant issued  by  respondent  No.  2-  Assistant
\nDirector, Enforcement on August 24, 1979 as also the warrant
\nof authorisation  issued by  respondent No, 5 – Commissioner
\nof Income  Tax,\t Jullandur  on\tApril  9,  1980\t and  for  a
\ndirection to return articles seized during the search of his
\nhouse on  August 24,  1979 and\tfor  relief  incidental\t and
\nancillary thereto.\n<\/p>\n
     Briefly stated,  the allegations  were that  respondent
\nNo. 6-\tShri J.\t S. Ahuluwalia,\t Assistant  Commissioner  of
\nIncome-tax at  Jullundur bore  personal malice\ttowards\t the
\nappellants, amongst  others,  attributable  to\tan  incident
\nconcerning the\tservant of the appellants and an application
\nfor transfer  of appeals  pending before  him  made  to\t the
\nChairman,  Central  Board  of  Direct  Taxes  by  the  first
\nappellant. Actuated  by this personal malice, respondent No.
\n6 first\t instigated respondent\tNo.  2\tto  issue  a  search
\nwarrant under  the authority of which a raid was carried out
\nat the\tresidence of the appellants on August 24, 1979 which
\nled to\tthe seizure  of certain\t  documents  including\tsome
\nforeign currency. Thereafter, when the
\n794<\/span>
\nappellants  made   various  representations  for  return  of
\ndocuments, again  instigated by respondent No. 6, respondent
\nNo’ S  issued a\t warrant of authorisation under sec. 132A of
\nthe Income  Tax Act on April 9, 1984 by which respondent No.
\n2 was  directed to  deliver such rooks of accounts and other
\ndocuments  and\t goods\tseized\tduring\tthe  search  to\t the
\nrequisitioning officer\tAs the documents and material seized
\nduring the  search had\tnot been returned, the writ petition
\nas aforementioned  was filed  or the reliefs hereinabove set
\nout.\n<\/p>\n
     When the  writ petition  came. up\tbefore a  Divisional
\nBench of  the Punjab  and Haryana  High Court,\tMr.  Kuldeep
\nSingh,\tlearned\t counsel  who  appeared\t on  behalf  of\t the
\nDirectorate of\tEnforcement Department made a statement that
\nthe Directorate has closed the proceedings and does not want
\nto take\t any action against the appellants on account of the
\nsearch. The  High  Court  observed  that  in  view  of\tthis
\nstatement, the\tDirectorate of Enforcement would normally be
\nrequired to return the seized material to the appellants but
\nit was\tnoticed that  as the same was sealed under a warrant
\nof authorisation  issued under\tSec. 132A  of the Income Tax
\nAct, an\t order for  return of  the same\t cannot be made. The
\nHigh Court  also took note of the statement made by Mr. D.N.
\nAvathy that the Income Tax Department was still scrutinising
\nthe seized documents The  High Court was of the opinion that
\nthere was nothing illegal in the issuance of search warrant,
\nthe consequent\tsearch, the  seizure during  the search\t and
\ntaking over  of, the  documents by the Income Tax Department
\nunder sec.  132A. The  High Court  accordingly dismissed the
\npetition. Hence this appeal by special leave.\n<\/p>\n
     Dr. Partap\t Singh, the  first appellant who appeared in
\nperson submitted  that respondent  No 2\t acted in  a  manner
\ncontrary to  law in  issuing a search warrant when there was
\nno material  before  him  on  which  he\t could\tentertain  a
\nreasonable belief  that any  documents which  in his opinion
\nwill be\t useful for,  or relevant  to, in  investigation  or
\nproceedings under  Foreign Exchange Regulation Act.1973 (Act
\nfor short) are secreted in any place, whereupon alone he may
\nauthorise any officer of Enforcement to search for and seize
\nor may\thimself search\tfor and seize such documents. It was
\nalso contend  that as  the second  respondent did not record
\nhis reasons  in\t writing  on  which  reasonable\t belief\t was
\nentertained, the search warrant issued by him was illegal.\n<\/p>\n
975<\/span><\/p>\n
     Sec. 37  of the  Act confers  power on  any officer  of
\nEnforcement not\t below the  rank of  Assistant\tDirector  of
\nEnforcement to\tsearch premises. This power can be exercised
\nif the\tofficer has  reason to\tbelieve that  any  documents
\nwhich in his opinion will be useful for, or relevant to, any
\ninvestigation or  proceedings under the Act, are secreted in
\nany place.  The appellant  contended that  no  material\t was
\nplaced on  record which\t may permit  an inference  that\t the
\nsecond respondent  had reason  to believe that any documents
\nwhich in  his opinion would be useful for or relevant to any
\ninvestigation or  proceeding under  the Act were secreted in
\nthe house  of the  appellants. It  was urged that respondent
\nNo. 6  who was\tactuated  by  personal\tmalice\ttowards\t the
\nappellants and\twho being  a  friend  of  respondent  No.  2
\ninstigated and\tprovoked him  to-  exercise  this  power  of
\nsearch and  seizure not\t to effectuate any purpose for which
\npower is  conferred but\t with  a  view\tto  humiliating\t and
\nharassing the appellants.\n<\/p>\n
     A little while after, we will examine the allegation of
\npersonal  malice.  Suffice  it\tto  say\t that  there  is  no
\nsubstance in the allegation.\n<\/p>\n
     Respondent No.  2 is  a responsible  officer being\t the
\nAssistant Director, Enforcement, Foreign Exchange Regulation
\nAct stationed  at Jullundur.  He issued\t the impugned search
\nwarrant which  led to the seizure. In the affidavit in reply
\non behalf  of the  respondents Nos.  l to  4, it was clearly
\nstated that  search was\t authorised by the second respondent
\nafter he was fully satisfied on the basis of the information
\navailable in  the official  record and\talso on the basis of
\nthe information collected by the officers of the Enforcement
\nDirectorate after  making enquiries. lt was repeated in para
\n14 of  the affidavit-in-reply,`that  on\t the  basis  of\t the
\nofficial record\t and reliable  information in  possession of
\nrespondent No  2, he  entertained a  reasonable\t belief\t for
\nissuing\t the   search  warrant\t against   the\t appellants.
\nRespondent  No.\t 2,  it\t was  said,  on\t the  basis  of\t the
\ninformation available  on the  file had\t reasons to  believe
\nthat  incriminating   documents\t  were\t secreted   in\t the
\nresidential  premises\tof  the\t  first\t appellant  and\t the
\ndocuments which\t were seized by Enforcement Directorate were
\nuseful for  the investigation  undertaken by  the office. He
\nundertook to produce the relevant records for the inspection
\nof the\tcourt at  the time  of the  hearing of the petition.
\nRelying on  this statement  in the  affidavit in  reply, the
\nappellant contended that no record was shown to the court as
\npromised therein. We therefore,
\n976<\/span>
\nadjourned the  matter to  a  later  date  and  directed\t the
\nlearned counsel\t for respondents  Nos. l to 4 to produce the
\nfile. Original papers were shown to us and typed copies were
\nfurnished to  the court.  We have  minutely gone through the
\nfile and  we are  fully satisfied  that there  was  material
\nbefore the second respondent which would furnish him grounds
\nfor entertaining  a reasonable\tbelief that  some  documents
\nwhich could  be useful\tin the\tinvestigation or  proceeding
\nunder the  Act were secreted in the house of the appellants.
\nHe was\ttherefore, fully  justified in\tissuing\t the  search
\nwarrant.\n<\/p>\n
     The appellant  contended that  in order to justify that
\nthe power  of search was exercised in a fair and just manner
\nand to\teffectuate the\tpurpose for which it is conferred as
\nis evident  from the  language\temployed  in  sec.  37,\t the
\nofficer\t issuing  the  search  warrant\tmust  disclose\twhat
\nmaterial was before him on which he entertained a reasonable
\nbelief to  move into  the matter.  Proceeding along  it\t was
\nsubmitted that\tneither in  the search\twarrant nor  in\t the
\naffidavit in   opposition in the High Court, the material on
\nwhich reasonable  belief was  entertained was  disclosed. It
\nwas  submitted\tthat  the  affidavit  merely  recites  in  a
\nmechanical manner  the language\t of the section which cannot
\nbe held\t sufficient for\t discharging the burden on the party
\nwhich has  exercised this  power of  search and\t seizure. In
\nthis connection,  lastly it  was submitted that if the court
\nis going   to  look into the file, produced on behalf of the
\nsecond\trespondent,  the  same\tmust  be  disclosed  to\t the
\nappellants so  that they  can controvert any false or wholly
\nunsustainable material set out in the file.\n<\/p>\n
     When an  officer of the Enforcement Department proposes
\nto act\tunder Sec.  37 undoubtedly,  he must  have reason to
\nbelieve that   the  documents useful  for  investigation  or
\nproceeding under the Act are secreted. The material on which
\nthe belief  is grounded\t may  be  secret,  may\tbe  obtained
\nthrough Intelligence  or occasionally may be conveyed orally
\nby informants.\tIt is  not obligatory  upon the\t officer  to
\ndisclose his  material on the mere allegation that there was
\nno material before him on which his reason to believe can be
\ngrounded.  The expression ‘reason to believe’ is to be found
\nin various  statutes. We  may take note of one such. Sec. 34
\nof the\tIncome Tax  Act, 192.  inter alia  provides that the
\nIncome Tax  officer must  have ‘reason\tto believe’ that the
\nincomes, profits or gains chargeable to income-tax have been
\nunder-assessed, then  alone he\tcan take  action  under sec.\n<\/p>\n
34. In S. Narayanappa V. Commissioner of Income Tax,<\/a>
\n977<\/span>
\nBangalore(1) the  assessee challenged the action taken under
\nsec. 34\t A and amongst others it was contended on his behalf
\nthat the  reasons which\t induced the  Income-tax Officer  to
\ninitiate proceedings  under sec.  34 were  justiciable,\t and
\ntherefore, these  reasons should  have been  communicated by
\nthe Income Tax Officer to the assessee before the assessment
\ncan be reopened. It was also submitted that the reasons must
\nbe sufficient  for a  prudent man  to come to the conclusion
\nthat the  income escaped  assessment and  that the court can
\nexamine the  sufficiency or adequacy of the reasons on which
\nthe Income  Tax Officer\t has acted. Negativing all the limbs
\nof the\tcontention, this  Court held  that ‘if\tthere are in
\nfact some  reasonable grounds  for the Income Tax Officer to
\nbelieve that  there had\t been any  non-disclosure as regards
\nany fact,  which  could\t have  a  material  bearing  on\t the
\nquestion of  under-assessment, that  would be  sufficient to
\ngive jurisdiction  to the Income Tax Officer to issue notice
\nunder sec.  34. The  Court in  terms held that whether these
\ngrounds are adequate or not is not a matter for the court to
\ninvestigate.’
\n     The expression  ‘reason to\t believe’ is  not synonymous
\nwith subjective satisfaction of the Officer. The belief must
\nbe held in good faith; it cannot be merely be a pretence. In
\nthe same  case, it  was held that it is open to the court to
\nexamine the question whether the reasons for the belief have
\na rational connection or a relevant bearing to the formation
\nof the\tbelief and  are not  extraneous or irrelevant to the
\npurpose of the section. To this limited extent the action of
\nthe Income Tax Officer in starting proceedings under Sec. 34
\nis open\t to challenge  in a  court  of\tlaw.  (See  Calcutta
\nDiscount Co.  Ltd. v.  Income Tax Officer Companies District<\/a>
\n1, Calcutta  & Anr.(2)\tIn R. S. Seth Gopikrishan Agarwal v.
\nR. N.  Sen, Assistant  Collector of  Customs & Ors.,<\/a>(3) this
\nCourt repelled the challenge to the validity 1 of the search
\nof the\tpremises of  the appellant  and the  seizure of\t the
\ndocuments found\t there in.  The search was carried out under
\nthe authority  of an authorisation issued under Sec. 126 (L)
\n(2) of\tthe Defence  of India  (Amendment) Rules, 1963 (Gold
\nControl Rules)\tfor search of the premises of the appellant.
\nThe validity  of the  authorisation was\t challenged  on\t the
\nground of  mala\t fides\tas  also  on  the  ground  that\t the
\nauthorisation did not expressly employ the
\n(1) (1967] 1 SCR 590.\n<\/p>\n
(2) 41 ITR 191.\n<\/p>\n
(3) [1967] 2 SCR 340
\n978<\/span>
\nphrase reason  to believe’  occurring in  Sec.\t105  of\t the
\nCustoms Act.  Negativing both the contentions, Subba Rao, C.
\nJ.  speaking   for  the\t court\tobserved  that\tthe  subject
\nunderlying Sec.\t 105 of\t the Customs Act which confers power
\nfor issuing  authorisation for\tsearch of  the premises\t and
\nseizure of  incriminating articles  was to  search for goods
\nliable to be confiscated or documents secreted in any place,
\nwhich are  relevant to\tany proceeding\tunder the  Act.\t The
\nlegislative policy  reflected in  the section  is  that\t the
\nsearch must  be in regard to the two categories mentioned in
\nthe section.  The court\t further observed  that though under
\nthe section,  the officer concerned need not give reasons if
\nthe existence  of belief  is questioned\t in  any  collateral
\nproceedings he\thas to\tproduce relevant evidence to sustain
\nhis belief.A  shield against the abuse of power was found in
\nthe provision  that the\t officer authorised to search has to
\nsend forthwith\tto the\tCollector of  customs a\t copy of any
\nrecord made by him. Sub-sec. (2) of Sec. 37 of the Act takes
\ncare for  this position\t inasmuch as  that where  an officer
\nbelow the  rank of  the Director of Enforcement\t carried out
\nthe search,  he must  send  a  report  to  the\tDirector  of
\nEnforcement. The  last part  of the  submission\t do.  s\t not
\ncommend to us because the file was produced before us and as
\nstated earlier,\t the Officer  issuing the search warrant had
\nmaterial which he rightly claimed to be adequate for forming
\nthe reasonable belief to issue the search warrant.\n<\/p>\n
     lt was however contended that when sub-sec. (2) of Sec.
\n37  is\t read  in  juxtaposition  with\tsub  sec.  (l),\t the
\nlegislative mandate  clearly manifests\titself\tthat  before
\nissuing a  search warrant in exercise of the power conferred
\nby Sec.\t 37 (1),  it is\t obligatory upon the officer issuing
\nthe search  warrant to record in writing the grounds of\t his
\nbelief and  specifying in  such writing, so far as possible,
\nthe thing for which search is to be made because Sec. 37 (2)
\nprovides that  the   provisions\t of  the  Code\tof  Criminal
\nProcedure, 1898\t (now 1973)  relating to searches, shall, so
\nfar as\tmay be, apply to searches under this section subject
\nto the\tmodification that  sub-sec. (5)\t of Sec. 165  of the
\nsaid Code shall have effect as if for the word ‘Magistrate’,
\nwherever it  occurs, the  words “Director  of Enforcement or
\nother officer  exercising his  power” is substituted. It was
\nsubmitted that\tif the power to search premises is conferred
\non the\tofficer therein\t mentioned, it\tis hedged  in with a
\ncondition that\tin exercise  of the power he is bound by the
\nrequirements of Sec. 165 of the Code. In other words, it was
\nsaid that by sub-sec. (2) of Sec. 37, Sec. 165 of
\n979<\/span>
\nthe Code  is incorporated  in pen and ink in Sec. 37. It was
\nurged that  the section\t should be re-read as Sec. 37 (1) as
\nit is and Sec. 165 A (I) of the Code be read as Sec. 37 (2).
\nContinuing along this line, it was submitted that read thus,
\nthe necessary intendment of the Legislature becomes revealed
\nin that\t such drastic  power of\t search and  seizure without
\nnotice to  the person  affected, can  be exercised,  if\t the
\nofficer has reason to believe which must have its foundation
\non some\t material or  grounds which  must be  stated in\t the
\nsearch warrant\titself\tor  in\ta  record  anterior  to\t the
\nissuance of  the search\t warrant so that when questioned the
\ncontemporaneous record\twould be  available to\tthe court to
\nexamine the contention whether there was material for taking
\nsuch a\tdrastic action\tor that\t the action  was  taken\t for
\nextraneous  and\t irrelevant  reasons.  In  support  of\tthis
\nsubmission, reliance  was placed on a decision of the Punjab
\nand Haryana  High Court\t in H.L.  Sibal v.  Commissioner  of
\nIncome Tax,  Punjab &  Ors.<\/a>(l) The  court was  examining the
\nexpression  ‘in\t  con.\tsequence   of  information   in\t his
\npossession, has reason to believe’ in Sec. 132 of the Income
\nTax Act,  1961. The Court after referring to the decision of
\nthis Court  in Commissioner of Commercial Taxes v. Ramkishan
\nShrikishan Jhaver<\/a>(2)  held that\t the obligation to record in
\nwriting, the  grounds of  the belief as enjoined by Sec. 165
\n(1), if\t not complied  with would  vitiate the\tissuance  of
\nsearch warrant and the seizure of the articles’. It was then
\nsubmitted that\tif the\tsearch is  illegal, anything  seized
\nduring such  an illegal search has to be returned as held by
\na learned  Single Judge\t of the\t Calcutta High\tCourt in New
\nCentral Jute Mills Co. Ltd. v. T. N. Kaul & Ors.(3)
\n     Sec. 37  (2) provides  that ‘the provisions of the Code
\nrelating to  searches, shall  so far  as may  be,  apply  to
\nsearches  directed  under  Sec.\t 37  (1).  Reading  the\t two
\nsections together  it  merely  means  that  the\t methodology
\nprescribed for\tcarrying out the search provided in Sec. 165
\nhas to\tbe generally followed. The expression ‘so far as may
\nbe’ has\t always been construed to mean that those provisions
\nmay be\tgenerally  followed  to\t the  extent  possible.\t The
\nsubmission that\t Sec, 165  (1) has  been incorporated by pen
\nand ink\t in Sec.  37 (2)  has to be negatived in view of the
\npositive  language   employed  in   the\t section   that\t the
\nprovisions relating to searches shall so far as may be apply
\n(1) [1975] 101 ITR 112.\n<\/p>\n
(2) [1966] ITR 664.\n<\/p>\n
(3) AIR 1976 Cal. 178.\n<\/p>\n
980<\/span><\/p>\n
to searches  under Sec.\t 37 (1).  If Sec.  165 (1) was to be
\nincorporated by\t pen and ink as sub-sec. (2) of Sec. 37, the
\nlegislative draftsmanship  will leave  no room\tfor doubt by
\nproviding that\tthe  provisions\t of  the  Code\tof  Criminal
\nProcedure relating  to searches\t shall apply to the searches
\ndirected or  ordered under Sec. 37 (1) except that the power
\nwill be\t exercised by  the Director of Enforcement or  other
\nofficer exercising  his power  and he will be substituted in
\nplace y\t f the Magistrate. The provisions of sub-sec. (2) of
\nSec. 37\t has not  been cast  in any such language. It merely
\nprovides that the search may he carried out according to the
\nmethod prescribed  in Sec.  165 (1).  If the  duty to record
\nreasons which  furnish grounds for entertaining a reasonable
\nbelief were  to be  recorded in advance, the same could have
\nbeen incorporated  in Sec.  37 (1),  otherwise a  simple one
\nline section would have been sufficient that all searches as
\nrequired for the purpose of this Act shall be carried out in
\nthe manner prescribed in Sec. 165 of the Code by the officer
\nto be  set out in the section. In order to give full meaning
\nto the\texpression ‘so far as  may be’, sub-sec. (2) of Sec.
\n37 should  be interpreted to mean that broadly the procedure
\nrelating to search as enacted in Sec. 165 shall be followed.
\nBut if\ta deviation  becomes  necessary\t to  carry  out\t the
\npurposes of the Act in which Sec. 37 (1) is incorporated, it
\nwould be  permissible except  that when\t challenged before a
\ncourt of  law, justification will have to be offered for the
\ndeviation. This\t view will give\t full play to the expression
\n‘so far as may be’.\n<\/p>\n
     The view which we are taking is in accord with the view
\ntaken in  Gopikrishan  Agarwal’s  case.\t The  grounds  which
\ninduced reason\table belief  therefore need not be stated in
\nthe search warrant.\n<\/p>\n
     Assuming that  it was  obligatory to  record reasons in
\nwriting prior to directing the search, the file submitted to
\nthe court  unmistakably shows that there was material enough
\nbefore\tthe  officer  to  form\ta  reasonable  belief  which
\nprompted him to direct the search. That the documents seized
\nduring the search did not provide sufficient material to the
\nofficer for  further action  cannot be\ta ground for holding
\nthat the  grounds which\t induced the  reasonable belief were
\neither imaginary of fictitious or mala fide conjured up.\n<\/p>\n
     Assuming  that   it  is  obligatory  upon\tthe  officer
\nproceeding to take search or directing a search to record in
\nwriting the  grounds of\t his belief  and also  to specify in
\nsuch writing,  so far  as possible, the\t thing for which the
\nsearch is to be made, is mandatory and that non
\n981<\/span>
\nrecording of  his reasons  would result\t in the search being
\ncondemned as  illegal, what consequence it would have on the
\nseizure of  the documents  during such\tillegal search.\t The
\nview taken  by a  learned Single  Judge of the Calcutta High
\nCourt in  New Central Jute Mills Co. Ltd. case that once the
\nauthorisation for  carrying out\t the search  is found  to be
\nillegal on  account of\tthe absence  of recording reasons in
\nthe formation  of a  reasonable belief,\t the officer who has
\nseized\tdocuments   during  such   search  must\t return\t the
\ndocuments seized  as a\tresult\tof  the\t illegal  search  is
\nagainst the  weight of\tjudicial opinion  on the subject and
\ndoes not  commend to  us. In  fact this\t decision should not
\ndetain\tus  at\tall  because  virtually\t for  all  practical
\npurposes, it  can be  said to  have been  overruled  by\t the
\ndecision of  the Constitution  Bench in\t Pooran Mal  etc.  v
\nDirector of  Inspection (Investigations) of Income Tax Mayur
\nBhavan, New  Delhi & Ors.(1) This Court held that ‘courts in
\nIndia and  even in  England  have  consistently\t refused  to
\nexclude relevant  evidence merely  on the  ground that it is
\nobtained by  illegal search  or seizure.’  If therefore, the
\nview of\t the learned Single Judge of the Calcutta were to be
\naccepted meaning  thereby that\tif the search is shown to be
\nillegal, anything  seized during  such illegal\tsearch\twill
\nhave to\t be returned to the per- son from whose premises the
\nsame was seized. It would tantamount to saying that evidence
\ncollected during  illegal search  must be  excluded on\tthat
\nground\talone.\t This  was   in\t terms\t negatived  by\t the
\nConstitution Bench. It has been often held that the legality
\nin the\tmethod, manner\tor initiation  of a  search does not
\nnecessarily mean  that anything seized during the search has
\nto be  returned. After all in the course of a search, things
\nor documents  are required  to be seized and such things and
\ndocuments when\tseized may  furnish evidence.  Illegality of
\nthe search  does not  vitiate the  evidence collected during
\nsuch illegal  search. The only requirement is that the court
\nor the\tauthority before  which such  material\tor  evidence
\nseized during  the search shown to be illegal. is placed has
\nto be cautious and circumspect in dealing with such evidence
\nor material. This is too well-established to necessitate its
\nsubstantiation by  a precedent.\t However, one can profitably
\nrefer to  Radhakishan v.  State of U.P.<\/a>(2) wherein the court
\nheld that  assuming that  the search was illegal the seizure
\nof the\tarticles is  not vitiated. It may be that because of
\nthe illegality of the search the court may be inclined to
\n(1) [1974] 2 SCR 705.\n<\/p>\n
(2) [1963] Supp 1 S.C.R. 408 at 411
\n982<\/span>
\nexamine carefully  the evidence\t regarding seizure,  but  no
\nother consequence  ensues.  (See  State\t of  Maharashtra  v.
\nNatwarlal Damodardas Soni.<\/a>(1)
\n     In this behalf, the appellant further contended that if
\nthe 1  search was  genuine or bona fide for carrying out the
\npurposes of  the Act,  it is surprising that when the matter
\nwas before  the\t Might\tCourt  the  Enforcement\t Directorate
\nsubmitted that\tit does\t not wish to take any further action
\nin respect  of the  material seized during the search. There
\nis no  warrant for  the assertion  that\t every\tsearch\tmust
\nresult\tin   seizure  of  incriminating\t material.  Such  an
\napproach would be a sad commentary on human ingenuity. There
\ncan be\tcases in  which search\tmay   fail or  a  reasonable
\nexplanation in\trespect of the documents may be forthcoming.
\nIn Income  Tax\tofficer,  Special  Investigating  Circle.B,-
\nMeerut v.  M\/s Seth Brothers & Ors.,<\/a>(2) it was in terms held
\nthat ‘from  amongst the\t documents seized during the search,
\nif some\t are found  not to  be useful for or relevant to the
\nproceeding, that  by itself will not vitiate the search. Nor
\ncan an\tinference be  made  that  the  power  was  initially
\nexercised mala fide.’ The Cour in Puran Mal’s case held that
\nif the books of account and other documents collected during
\nthe search were after words found to be not relevant that by
\nitself does not make the search and seizure illegal. In this
\ncase, however as the documents and other materials have been
\nsealed under  the warrant of authorisation issued under Sec.
\n132 A of the Income Tax Act, the Enforcement Directorate may
\nlegitimately close the proceedings. We cannot move back ward
\nand conclude  that if  no further  proceedings are taken, at
\nthe  inception\tthe  search  was  malafide  or\tfor  reasons
\nirrelevant or  extraneous.    the  exercise  of\t power.\t The
\ncontention therefore,  must be rejected. Having examined all
\nthe limbs  of the  submission,\twe  find  no  merit  in\t the
\ncontention that\t the issuance  of search warrant was illegal
\nor the search was illegal and invalid.\n<\/p>\n
     It was  next urged\t that if  there was no justification
\nfor issuing a search warrant, the search under the authority
\nof such\t a warrant would be illegal and the respondents 1 to
\n4 are  bound to\t return the  documents. If  the officer\t who
\nissued\tthe  search  warrant  had  material  for  forming  a
\nreasonable belief to exercise the power the search
\n(1) [1980] 4 S.E.C. 669
\n(2) [1970] 1 S.C.R. 601.\n<\/p>\n
983<\/span><\/p>\n
cannot be  styled as  illegal and therefore, no case is made
\nout for directing return of the documents on the supposition
\nthat the search and seizure were illegal.\n<\/p>\n
     The next  submission was  that  respondent\t No.  6\t was
\nactuated by  a personal\t malice and with a view to harassing
\nand humiliating\t the appellants\t instigated and provoked his
\nfriend, the  second respondent\tto issue  the search warrant
\nand to\tcarry out  the search.\tIn the petition filed in the
\nHigh Court  the allegations of mala fides are so scanty that
\nthe High Court was justified in not examining the contention
\non merits. In para 6 of the petition, it is stated ‘that the
\npetitioners  own   house  No.  531  in\tNew  Jawahar  Nagar,
\nJullundur while\t respondent No.\t 6  occupies  the  adjoining
\nhouse. It  is attitude\ttowards the petitioners was inimical
\nand has\t ever been  so. Some appeals filed by the appellants
\nagainst their  assessments under the Wealth Tax were pending
\nbefore the  sixth respondent  and that ‘on May 29, 1979, the
\nfirst appellant submitted a representations to the Chairman,
\n(Central  Board\t  of  Direct  Taxes  complaining  about\t the
\nanimosity  of\tthe  sixth   respondent\t towards  the  first
\nappellant and  requested that  those appeals  pending before
\nthe sixth  respondent be  transferred to  another  appellate
\ncourt’.\t These\t are  all  the\trelevant  averments  on\t the
\nallegation of  mala  fides.  When  attention  of  the  first
\nappellant was  drawn to\t this scanty  material, he  drew our
\nattention to  the averments  in para  6 of  the petition for
\nspecial\t leave\t wherein  it   is  alleged  ‘that  when\t the
\npetitioners were  away from  Jullundur leaving their servant
\nGyan Chand  to\tlook  after  their  house,  the\t servant  of
\nrespondent No.\t6 left\this job\t whereupon respondent  No. 6
\nnursed a  feeling that his servant had left the job on being
\ntutored by  the petitioner’s  servant. Thereupon  respondent
\nNo. 6  got Gyan Chand detained and maltreated by the police.
\nWhen  the  petitioners\tlearnt\tabout  it  at  Bombay,\tthey
\nrequested a  common friend to get Gyan Chand released and in
\nfact Gyan  Chand was  released. It  was then stated that the
\nfriend contacted  the Police  Officer who  had detained Gyan
\nChand and  before him, the Police Officer admitted that Gyan
\nChand  was   detained  at   the\t instance   of\tthe   sixth,
\nrespondent.’  Could  there  be\tmore  vague  and  completely
\nmisleading  averments\tto  support  serious  allegation  of
\npersonal mala  fide  against  the  officer  discharging\t his
\nduties ?  We are  not inclined\tto dilate  any more  on this
\naspect save  and except\t saying that  the affidavit  of Gyan
\nChand is  not forth-coming,  that the  name of the friend is
\nnot mentioned and
\n984<\/span>
\nthe Police  Officer cannot  be identified  from the material
\ndisclosed in the petition. One can only say that a nefarious
\nattempt\t has  been  made  to  cook  up\ta  wholly  imaginary
\nallegation for\tattributing personal mala fides to the sixth
\nrespondent. The contention must be negatived without further
\nexamination,
\n     It was  lastly urged that there has been tampering with
\nthe documents by the officers of the Enforcement Directorate
\nwhile the  Income Tax  Officer scaled and took possession of
\nthe  documents\t under\t the   authority   of\twarrant\t  of
\nauthorisation issued by the fifth respondent under Sec. 132A
\nof the\tIncome Tax Act. It was submit ted that the documents
\nwith which  the appellants  were  not  concerned  have\tbeen
\nfoisted upon  him and  some  documents\thave  been  removed.
\nThough the  submission was  made at  some length, Mr. Desai,
\nlearned\t counsel  appearing  for  some\tof  the\t respondents
\ndispelled whatever little doubt was generated in our mind by
\nthe submissions\t of the\t first appellant He referred to Pass
\nBook Account Nos. 132269 and 159431, both issued by the Bank
\nof India  and urged  that what\twas mentioned  was  not\t the
\naccount number\tbut the\t Pass Book  numbers and\t the Account
\nNos. SB\t 6731 and  SB 7626  both tally\tand  therefore,\t the
\nsubmission in  this behalf  is misconceived.  We accept\t the
\nsame. It  was then  urged that\tthere were  some erasures in
\nsome of\t the loose sheets. We found none. After referring to
\npages 148,  149 and  150  of  the  diary.  an  argument\t was
\nattempted to  be built\tup that there is some tinkering with
\nthe  same.   We\t found\t the  submission  wholly  imaginary.
\nTherefore, there  is absolutely\t no merit  in the contention
\nthat there  has been  some tampering with the documents when
\nthey were  sealed under\t the authority\tof  the\t warrant  of
\nauthorisation issued by the Commissioner of Income Tax.\n<\/p>\n
     These were\t all the  contentions raised  in this appeal
\nand as\tthere is  no merit  in any of them, the appeal fails
\nand is dismissed but with no order as to costs.\n<\/p>\n
A.P.J.\t\t\t\t\t   Appeal dismissed.\n985<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Dr. Partap Singh And Anr vs Director Of Enforcement Foreign … on 26 April, 1985 Equivalent citations: 1985 AIR 989, 1985 SCR (3) 969 Author: D Desai Bench: Desai, D.A. PETITIONER: DR. PARTAP SINGH AND ANR. Vs. RESPONDENT: DIRECTOR OF ENFORCEMENT FOREIGN EXCHANGE REGULATION AND ORS. DATE OF JUDGMENT26\/04\/1985 BENCH: DESAI, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-185421","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nDr. Partap Singh And Anr vs Director Of Enforcement Foreign ... on 26 April, 1985 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/dr-partap-singh-and-anr-vs-director-of-enforcement-foreign-on-26-april-1985\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Dr. Partap Singh And Anr vs Director Of Enforcement Foreign ... on 26 April, 1985 - 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