TMI Blog1975 (7) TMI 61X X X X Extracts X X X X X X X X Extracts X X X X ..... al records would also be harmful to public interest as the information on the basis of which the authorisation was issued was of completely secret nature. It was received in the course of strict official secrecy. (iii) The disclosure of the information in the possession of the Commissioner of Income-tax would also expose the departmental official from whom such information came with the result that in future no departmental official would place on record any information against tax evaders and thus there will be detriment to public revenue." On the basis of this affidavit, it is urged on behalf of the respondents that the claim of privilege made by them should be upheld. Reliance in this connection is also placed on section 138 of the Income-tax Act which precludes an outsider from getting information about the record of an assessee. On behalf of the petitioner, it is submitted that the Commissioner was not the head of the department within the meaning of section 123 of the Evidence Act, the affidavit sworn in in respect of the claim for privilege was not in proper form or was no affidavit in the eyes of law and the respondents while clubbing the cases of more than one ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wer, has no relevance in making a claim for privilege under section 123. The apprehension that the disclosure may adversely affect the head of the department or the department itself or the Minister or even the Government, or that it may provoke public criticism or censure in the legislature has also no relevance in the matter and should not weigh in the mind of the head of the department who makes the claim. The sole and the only test which should determine the decision of the head of the department is injury to public interest and nothing else. Since it is not unlikely that extraneous and collateral purposes may operate in the mind of the person claiming the privilege it is necessary to lay down certain rules in respect of the manner in which the privilege should be claimed. We think that in such cases the privilege should be claimed generally by the Minister-in-charge who is the political head of the department concerned ; if not, the Secretary of the department who is the departmental head should make the claim ; and the claim should always be made in the form of an affidavit. When the affidavit is made by the Secretary the court may, in a proper case, require an affidavit of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, it must be held that the Commissioner is not the head of the department and there is no affidavit sworn by a proper person in support of the claim for privilege. In Union of India v. Indradeo Kumar, it was held that when a suit was filed against the Union of India representing railway administration an affidavit in support of the claim for privilege must be filed by the head of the department, i.e., the Railway Minister or the Secretary to the Railway Ministry. It was further held that for the purposes of section 123, the officers mentioned in annexure " I " as heads of departments mentioned in Appendix XXXVIII of the Indian Railway Establishment Code, Volume II, could not be taken to be the heads of the railway department. In respectful agreement with this view, we hold that the Commissioner of Income-tax is not the departmental head within the meaning of section 123 of the Evidence Act. The claim for privilege under that section cannot be upheld on the basis of the affidavit filed by him. The passage quoted from the judgment of their Lordships of the Supreme Court also shows that the competent authority which claims privilege must apply its mind to each individual docume ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e same could not be searched in the absence of a warrant. Upon this, the authorised officer rang up respondent No. 2 who sent a search warrant for the inspection of the luggage of Mr. Mann. This warrant shows that it had been issued on October 8, 1974, but the reason for the issuance of the warrant given therein is that Mr. Mann had been ordered to produce books of account, etc., on October 17, 1974, which he failed to do so. Obviously, respondent No. 1 had placed at the disposal of respondent No. 2 a blank warrant signed by him authorising him to insert the name of the person whose premises were to be searched at his (respondent No. 2's) own discretion. On this point, we recorded oral evidence. Shri Hardwari Lal, ex-Member of the Legislative Assembly, was produced before us as a witness. He has stated that Shri Gurdial Singh Mann stayed in Haryana M.L.A.'s hostel from October 2, 1974, to October 11, 1974. On this point Mr. Mann is corroborated by Shri M. R. Minhas, who is working as a clerk in the office of Haryana Tourism Department and Shri Mahant Ram, Chowkidar of the hostel. In other words, Mr. Mann was positively not residing with the petitioner on October 7, 1974, as is indi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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