TMI Blog1960 (8) TMI 71X X X X Extracts X X X X X X X X Extracts X X X X ..... Tax Officer, Cuddapah (P.W. 5) deputed the Special Assistant Commercial Tax Officer (Evasions) (P.W. 1) to inspect Shree Sai Baba Oil Mills. Accordingly, P.W. 1 went to that mill accompanied by P.W. 2, the Inspector of Commercial Taxes and Sadiq Ali (P.W. 3) at about 2-30 p.m. When they arrived at the mills, they found A-1 sitting upon the front pail of the main building scrutinising some books. A-1 and A-2 are partners of the mill and are residing in the mill premises. A-3 is a clerk of the mill, i.e., Shree Sai Baba Oil Mills. On seeing the approach of P.Ws. 1, 2 and 3, A-1 hastily bundled up all the books in his upper cloth and proceeded towards his house. P.W. 1 immediately rushed up to A-1 and seized the books from A-1. Those books consisted of four exercise note-books, two half foolscap bound books and three bundles of foolscap paper folded along their length. P.W. 1 intended to use them in his inspection of the accounts of the oil mill for comparing them with the regular accounts of the mill. A-1 then raised an alarm saying. Then, A-2 and A-3, who were also sitting on the platform came to A-1. About ten workers also rushed there from the mills on hearing the alarm and joined ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... indings of the two lower Courts regarding facts that prove the occurrence. I believe that the occurrence took place, as alleged by the prosecution. The main arguments urged before me are on the basis that the concurrent findings on facts by the two lower Courts were true. It is contended that the provisions of section 28(3) of the Andhra Pradesh General Sales Tax Act (hereafter referred to, for convenience, as the "Act") and the concerned rules were not observed in conducting the alleged search. Section 28(3) of the Act runs: "If any such officer has reason to suspect that any dealer is attempting to evade the payment of any tax or other fee due from him under this Act, he may, for reasons to be recorded in writing seize such accounts, registers or other documents of the dealer as he may consider necessary, and shall give the dealer a receipt for the same..................." What the words "such accounts, registers and other documents of the dealer" in section 28(3) means is clear from section 28(1) and (2). Section 28(1) of the Act reads: "Any officer authorised by the State Government in this behalf may..................."require any dealer to produce before him the accounts, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... antially the same as the words contained in section 28(3) of the Andhra Pradesh General Sales Tax Act. It was held that the officer was not empowered to compel production of such private papers and cash and that if a dealer refused to produce them, he would not be culpable. Therein, it was observed as follows: "The learned Assistant Public Prosecutor conceded that under sec- tion 14(2) of the Madras General Sales Tax Act, the Assistant Commer- cial Tax Officer was only empowered to inspect 'the accounts and registers maintained by dealers like the petitioner in the ordinary course of their business', and also the goods in their possession, and their offices and shops etc., at all reasonable times, and that they are, 'not empowered to compel the production of private papers and cash' ...........................This is not an accidental slip in section 14(2), but a deliberate omission by the legislature, so that the privacy of the subject may not be infringed unnecessarily by the myrmidons of Government, under the pretence of examining registers and accounts and goods and shop premises. A man may have private papers which he may not like to show to all and sundry and especially to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under section 28(3). In Nehram Khurshid v. Bombay StateA.I.R. 1955 S.C. 123 at p. 144. , it was proved that the ac- cused was smelling of alcohol and, therefore, must have consumed alcohol in some form. The contention of the accused was that he had consumed alcohol which could be consumed without a permit. The Bombay High Court held that the onus was on the accused to prove that he had consumed alcohol that could be consumed without a permit. On appeal their Lordships of the Supreme Court observed as follows: "...........................In a criminal case unless the prosecution proves a contravention of a provision that is legally enforceable and valid, it cannot succeed. No onus is cast on the accused to prove that his case falls under that part of the section which has been held unenforceable. The High Court was in error in placing the onus on the accused to prove that he had consumed alcohol that could be consumed without a permit merely on proof that he was smelling of alcohol. In our judg- ment, that was not the correct approach to the question. The bare circumstances that a citizen accused of an offence under section 66(b) is smelling of alcohol is compatible both with his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Code which runs: "99. There is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done by a public servant acting in good faith under colour of his office, though that act may not be strictly justifiable by law." In Thathineni Subba Rao, In re[1959] 10 S.T.C. 187. , the Commercial Tax Inspector on general duty and the Commercial Tax Officer on special duty, entered the premises of a mill and forcibly removed a gunny bag containing account books from underneath the legs of a clerk of the mill and persisted to inspect the accounts which the accused, one of the employees of the mill, attempted to prevent and in the course of the Commercial Tax Officer's persistence to continue the inspection of the document which the accused tried to prevent, the accused came to push him. It was held by my learned brother Sanjeeva Row Naidu, J., as follows, at page 189: "...............These being the facts, the following conclusions are inevitable: (1) that the action of P.Ws. 1 and 2 in forcibly seizing the books from a clerk of the mill was ultra vires of their powers and illegal; (2) t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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