TMI Blog1965 (2) TMI 86X X X X Extracts X X X X X X X X Extracts X X X X ..... er and certain records found on the top of the suit-case. The Deputy Commissioner, as he says in his counter-affidavit, had specific information that some secret account books relating to the various businesses in which one Sri Goenka was interested, were removed from his house in such a suit-case and hidden in the business premises of Zenith Lamps and Electricals Ltd. When he went in mufti and watched the place, he found a black Ambassador car leaving from that place and going to 366, Tiruvottiyur High Road. He contacted Mr. P.S. Marappan, Commercial Tax Officer (Intelligence) and directed him to get a warrant for search of the premises, 366, Tiruvottiyur High Road which he did from the Chief Presidency Magistrate, on the 19th itself. 366, Tiruvottiyur High Road is the residence of Mr. Ramkishan Srikishan Jhaver. The Deputy Commissioner also learnt from Mr. P.S. Marappan that his confidential enquiries revealed that Mr. Jhaver maintained some of his accounts and records of his business in his residence. The Deputy Commissioner, therefore, arranged for a simultaneous inspection of both the places at 4-45 p.m. sharp. Mr. P.S. Marappan went with four of his officers to the residence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th about thirty Gurkhas and others armed with lathis, lead pipe etc., and started beating the officers. One person aimed a blow at the Deputy Commissioner with a lead pipe which he dodged. Mr. Mimani beat the officers on their wrists and got hold of the box and gave it to someone in the crowed who took it and ran away. Mr. Samraj and Mr. Francis, Assistant Commercial Tax Officer, followed them. Most of the persons who were assaulting the officer, followed them. The Deputy Commissioner too ran after them, but Mr. Sharma closed the door by which they came and left. So the Deputy Commissioner turned and ran outside shouting for jeep, got into it and went to the place where the man had run away with the box. There was a crowd of employees blocking the path. The Deputy Commissioner directed the jeep driver Sitaraman to run into the crowd, in a threatening way, as he wanted to reach Mr. Samraj whose life was in danger. At that time Mr. Samraj got hold of the box and passed it to Mr. Francis who, in turn passed it on to the Deputy Commissioner who took it, ran the jeep into the crowd of employees, who started throwing stones at him, and dashed to the police station. There he filed a compl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e was made impossible, Mr. Mimani says, he decided to go to the Madhavaram Police Station along with Mr. Jhaver to complain about the high-handedness of the officials. When they started the car, they were prevented by some of the officials blocking up the passage. They left the car and walked out through another entrance to the police station. On their way they were forcibly put into a jeep and taken to a police station where they were taken into custody and released on bail the next day. That is, according to Mr. Mimani, what had happened. We are not, in these petitions, concerned with the actual details of the raid and of the tussle there. But we have referred to the facts as mentioned by the Deputy Commissioner or by Mr. Mimani to show that the Intelligence Wing of the Commercial Taxes Department searched the premises of Zenith Lamps and Electricals Ltd., found out the leather suit-case, forcibly removed it in spite of objection and physical resistance, and took it away with certain other records and that this raid was carried out as the Deputy Commissioner, as he claimed, had specific information that the suit-case contained secret account books relating to the various busine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... records connected with the search warrant and quash the search warrant issued to Mr. Marappan, who is the 3rd respondent in this petition, by the 4th respondent, the Chief Presidency Magistrate, on 19th August, 1964. His grounds are that the warrant was obtained on fraudulent misrepresentation by the Deputy Commissioner, the 2nd respondent, through Mr. Marappan for the ulterior purpose of tracing the box of one Mr. Goenka containing secret accounts of his many businesses, that the Madras General Sales Tax Act does not give a power to search but only a power of inspection, that the proviso to section 41(2) for search of a residential building goes beyond the main provision relating to inspection, that when there is no provision for search of even business premises, there cannot be a search of a private residence and that if the proviso is construed as conferring a power of search, it offends Article 19(1) of the Constitution. He also adds that under section 41(2) inspection can only be of the accounts maintained by a dealer for the purposes of checking up his conduct as a dealer in relation to the tax department and does not give a power of general search of any premises for offenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iness premises and also the residence of the managing partner, one Ganmal K. Shah at No. 17, Luckmudoss Street, Madras, and the main godown at No. 18, Ponnappa Chetty, as well as the subsidiary godown at No. 6, General Muthiah Mudali Street. The search of the residence was carried out under a search warrant issued by a competent Magistrate. From the residence of the managing partner were, under an inventory, seized electrical goods such as electric fans, bulbs, toaster, tube lights, table lamps etc., and a hurricane lantern, the approximate value of which was said to be Rs. 1,04,543. Also were seized from No. 6, General Muthiah Mudali Street, electrical goods, such as junction boxes, Suraj main switches, insulated cables, etc., approximately valued at Rs. 4,000. The Special Deputy Commercial Tax Officer (Intelligence) V, and the Special Assistant Commercial Tax Officer-II, Madras City, issued separate notices of penalty in lieu of confiscation to the petitioners on 22nd September, 1964. The notices stated that, in the opinion of the officers, the petitioners had violated the conditions prescribed under rule 38(1) of the Madras General Sales Tax Rules, 1959, and the goods were there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titution. They will be dealt with in that order. Before doing so and getting into the problem of construction, certain general observations, as to the law of search and seizure in respect of offences, may be made. Sections 51, 96, 98 and 165 of the Code of Criminal Procedure contain such power. Section 96 authorises search or inspection under and in accordance with a warrant issued by a court having jurisdiction on its being satisfied that the circumstances in which it may issue exist. One such circumstance is that a person to whom a summons to produce a document or thing has been or might be addressed, will not or would not produce as required. The scope of such warrant as to the particular place to be searched may be restricted by court under section 97. In certain circumstances, the specified Magistrates, may, under section 98, issue warrants authorising entry into and search and seizure in houses of documents and things concerned with the particular offence or suspected offence. Sections 101 to 103 make general provisions relating to searches and prescribe the procedure to be followed in search and seizure. Such warrants may be issued to any person including the police. Durin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, the Act contains the usual broad features of such statutes, namely, definitions, charging provisions and taxable events, hierarchy of assessing, appellate and revisional authorities, provisions for making returns, assessments, quantification of tax, payment and recovery thereof and enforcement provisions including offences and penalties, and procedures in respect of them. Section 40 requires every person or dealer registered or required to register under the Act, to keep and maintain a true and correct account and such other records as may be prescribed. Section 41 which we are called upon to construe and interpret reads: "Powers to order production of accounts, and powers of entry, inspection, etc.-(1) Any officer empowered by the Government in this behalf may, for the purposes of this Act, require any dealer to produce before him the accounts, registers, records and other documents and to furnish any other information relating to his business. (2) All accounts, registers, records, and other documents maintained by a dealer in the course of his business, the goods in his possession, and his offices, shops, godowns, vessels or vehicles shall be open to inspection at all reas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sted all officers of the Commercial Taxes Department not lower in rank than an Assistant Commercial Tax Officer, all officers of the Revenue Department not lower in rank than a Revenue Inspector and all officers of the Police Department not lower in rank than a Sub-Inspector with powers of inspection, seizure and confiscation under sub-sections (2) to (4). Section 45 constitutes offences and prescribes penalties. One such offence is wilful acting in contravention of any of the provisions of the Act and another is fraudulent evasion by an assessee of the payment of any tax assessed on him. The penalty on conviction for any of these offences is a fine which may extend to Rs. 1,000 and, in the event of a second or subsequent conviction, simple imprisonment which may extend to six months or a fine which may extend to two thousand rupees or both. The section also provides that any person who prevents or obstructs entry, search or seizure by any officer empowered under section 41 shall, on conviction, be liable to simple imprisonment which may extend to six months or a fine which may extend to two thousand rupees or both. Sub-section (1) of section 41 poses no problem of construction. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s on the assumption that the sub-section includes searches. The question is whether sub-section (2) without or with the proviso includes a power of search and if it does, whether it is with or can be without a warrant. Four alternatives were suggested for the petitioners of which, according to them, the third is the correct one. The first is that sub-section (2) only provides for inspection and the proviso is a positive enactment providing for a search of a house under authority of a warrant. The second is that by reason of the proviso the main limb includes searches without warrant and without a condition. The third is that sub-section (2) is confined to inspection and the proviso is ineffective and the fourth is that subsection (2) comprehends search without a warrant and the Code has no application. On the other hand, while agreeing that the draft of section 41 is not happy, the learned Attorney-General contends that having regard to the substance, objects and in general structure of the Act including the preamble therein and in the old Act of 1939 to ascertain the purpose of the enactment, there should be no difficulty in construing subsection (2) by itself as including sea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oncise Dictionary, to "inspect" is to "look closely into"; "examine officially ". To that extent what the AttorneyGeneral said is correct. The word is derived from the Latin Spicere spect meaning look. The meaning of "search" in the same dictionary is given as "look or feel or go over (person or his face or pockets receptacle, place, book) for what can be found or to find something of which presence is suspected, probe, look for, seek out". Search warrant as seen from this dictionary is one that is granted by justice of peace to enter premises of person suspected of concealing stolen property. In French it is Chercher and the Latin word is Circare which in literal sense means, go around as in circus. It may be seen that a search is therefore not mere looking for something which is produced or open but which is hidden, concealed or not obvious. It is looking for in the sense of seeking out what is suspected or concealed by probing into or investigation or examination. Seize, as the dictionary shows, means "taking possession by warrant or legal right, confiscate, impound or attach, lay hold of forcibly or suddenly, snatch, grasp with hand or mind". Seizure, therefore, is not mere tak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erely holding books found lying in the premises for perusing them cannot properly be regarded as seizure because seizure implies doing something over and above holding an article in one's hand. According to the Shorter Oxford Dictionary, seizure, among other things, means 'confiscation or forcible taking possession (land or goods); a sudden and forcible taking hold'. As already stated, Mr. Singh merely picked up the books which were lying in the shop and did not snatch them away from any one nor did he take them by force." A mere power of inspection will not, therefore, take with it a power to seize unlike a search which often, particularly, as seen from the provisions of the Code of Criminal Procedure, includes a power of seizure. But we think a power of seizure need not necessarily imply a power of search, for, there may be seizure on production or on inspection. Let us turn to section 41 of the Act. If sub-section (2) is taken by itself which follows the power to call for production in the preceding sub-section, there is no reason, as far as we have been able to see, why we should import into it a power of search. There is nothing in the context or terms of sub-section (2) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... does not. The proviso undoubtedly proceeds on the assumption that the sub-section includes a power of search without a warrant and provides for an exception that no residential accommodation shall be searched without a warrant. It is on that assumption again the second part of the proviso says that searches under the sub-section shall, as far as may be, be made in accordance with the Code of Criminal Procedure. If the main part does not contain the power, it cannot obviously be imported into it through a proviso. A proviso is one which excepts, cuts out or qualifies something which will otherwise be within the main part. When the main part is by itself clear as to its scope and meaning, a proviso cannot be read as enlarging its ambit. That strictly is the function, scope and effect of a proviso. Nor can the erroneous legislative assumption in the proviso have the effect of enacted law. These propositions to which Mr. V.K. Thiruvenkatachari invited our attention, are well established and cannot be disputed. Craies on Statute Law, sixth edition, at page 217 states: "The effect of an excepting or qualifying proviso, according to the ordinary rules of construction, is to except out o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on taking words absolutely in their strict literal sense, disregarding the fundamental consideration that they appear in the proviso." A proviso cannot take the place of or substitute the main part. It can do no more than to restrict by exception or qualification the scope and ambit of the main provision and where the main provision is somewhat ambiguous, a proviso may sometimes throw light to clear the ambiguity but it can never as a proviso expand, enlarge or amplify the scop and ambit of the main provision which on its plain language is restricted. Nor can a proviso import, by any means, into the main part, words which are not there. A proviso completely depends on the main part and is subject to it, as otherwise it will cease to be a proviso and be an independent provision by itself. If the draftsman or the Legislature assumed but wrongly wider scope and content of a main enacted provision which plainly or ex facie is not justified and on that assumption modelled and legislated a proviso, such an assumption implied in the proviso is entirely futile to have the effect of law. In West Derby Union v. Metropolitan Assurance Society[1897] A.C. 647., Lord Halsbury, L.C., has held, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ording to him, search without warrant will render sub-section (3) useless. He would add that sub-section (2) does not include seizure because if it does, a separate sub-section in relation to seizure will be unnecessary which we however find in section 41. Learned Attorney-General would, however, contend that search under sub-section (2) is without warrant and Chapter VII of the Code of Criminal Procedure would be wholly inapplicable. We can accept neither of the constructions as entirely correct. If the main part means a search with a warrant, the proviso to it will be misplaced, unless its purpose is merely to subject a residential accommodation too to search. Such an accommodation is not within the main part and the proviso will not, as mentioned by us, have the effect of putting it into it. The second part of the proviso makes the provision of the Code of Criminal Procedure applicable to all searches under the sub-section but only so far as may be. Some such limiting words not unoften occur in special enactments creating offences and penalties and prescribing procedures in respect of them. In Hinde v. Brayan(1884) 7 Mad. 52., "as far as may be" in section 587 of the Code of Civ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mbit of regulation in special law will therefore decide the extent of applicability or non-applicability of the provisions of the Code. That, as we understand, is also the test applied by the Supreme Court in those cases in the light of the specific or special provisions in the particular enactments with which it was concerned. Coming back to section 41, on the assumption that subsection (2) includes a power of search, its terms, in our view, will exclude the application of sections 96 and 98 of the Code as also the form of warrant prescribed by it, but, at the same time, we can find nothing in those terms to make sections 101 to 103 of the Code inapplicable to the conduct of search, whether the words "so far as may be" in the second part of the proviso are read in the narrower or wider sense as mentioned in Hinde v. Brayan(1884) 7 Mad. 52. We think that by applying the above test, conduct of searches under the first part of the proviso should be in accordance with sections 101 to 103 of the Code. But if sub-section (2) is read as search without a warrant, quite apart from the legal effect of the proviso, which we have already adverted to, it seems to us that even the issue of sear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It was considered that without such a power the effectiveness of the taxing provisions would be defeated. On that view section 23A of the Indian Income-tax Act, 1922, was upheld as within the purview of the said entry on the ground that it was a provision to prevent evasion of tax. On a similar view, section 16(3)(a)(i) and (ii) of the Indian Income-tax Act was regarded by the Supreme Court in Balaji v. Income-tax Officer, Special Investigation Circle [1961] 43 I.T.R. 393; [1962] 2 S.C.R. 983., as within the topic of legislation to tax on income. If there is any likelihood of a loophole, the taxing power should necessarily include the power to plug it by requisite legislative provision. The Supreme Court in Abdul Quader Co. v. Sales Tax Officer[1964] 15 S.T.C. 403; A.I.R. 1964 S.C. 922 at 924. again observed: "Now there is no dispute that the heads of legislation in the various Lists in the Seventh Schedule should be interpreted widely so as to take in all matters which are of a character incidental to the topics mentioned therein. Even so, there is a limit to such incidental or ancillary power flowing from the legislative entries, in the various Lists in the Seventh Schedule. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tial accommodation of a dealer in sale of goods is not ancillary to or necessary for the topic of tax on sale of goods. Viewed in the background of what we have stated above in relation to ancillary and subsidiary power, we are of opinion that power of search even of goods, if included in section 41, will be competent. Such a power, as it seems to us, will be plainly in aid of achieving the purposes of the Act. No elaborate consideration seems necessary to sustain the power of search of books, documents etc., of a dealer maintained in the course of his business. So far as goods are concerned, take for instance charge of tax at purchase point and assume, a question arises as to whether purchases of goods have been made which are liable to tax. The presence of goods on a search of a dealer's premises or his residence will then be one method of checking such purchases and of evasion of the tax. Mr. Thiruvenkatachari, however, urges that the power to search, and confiscate goods cannot, in any case, be regarded as ancillary or necessary. This power in sub-section (4) relates to goods unaccounted for. Apparently the sub-section pre-supposes suspected or suppression of sales or purchases ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was such a tax ..... We are therefore of opinion that the provision ..... cannot be justified even as an incidental or ancillary provision permitted under that entry." Though there is no analogy to the present context, the principle of this decision is clear that what has been properly a subject within the ambit of a legislative head of power including ancillary and incidental powers flowing therefrom, cannot be indirectly legislated upon under the guise of making a law which might otherwise be within the limits of the legislative head of power. We are of the view that the provision for seizure and confiscation of goods offends that principle. We hold, therefore, that sub-section (4) of section 41 in so far as it provides for such a power is not within the ambit of Entry 54, and is neither ancillary nor incidental thereto and is incompetent and invalid. The next submission for the petitioners is that clause (a) of the second proviso to sub-section (4) is also invalid as it contemplates a tax on goods without reference to their sales or purchases. What the second proviso does is to offer to the person concerned an option to pay in lieu of confiscation and specifies the quantum of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se (a) of the second proviso to sub-section (4) must be struck down. Lastly we come to the contention of the petitioners based on Articles 19(1) and 31(1) of the Constitution. If the power under section 41(2) is held to be a power of search without a warrant, so it is said, inasmuch as no safeguards have been provided for its due exercise, it is an unreasonable restriction and so infringes the rights of the petitioners under Article 19(1)(f) and (g). We recognise that a power of search and seizure is a drastic power and that if it is necessary in public interest, equally would it be essential to make suitable safeguards to ensure against arbitrary and unreasonable exercise of the power. During the arguments for the petitioners, reference was made to how the English common law viewed a power of search. We do not however think it necessary to notice in detail the struggle of eighteenth century common law lawyers and Courts and the relative decisions as to power of search. Entick v. Carrington19 St. Tr. 1029. was a landmark which is regarded as having settled the common law as to general search of premises. Lord Camden, C.J., in that case condemned the practice of the Secretary of Sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence against injury and violence as for his repose." and the elder Pitt's expression: "The poorest man may in his cottage bid defiance to all the force of the Crown. It may be frail; its roof may shake, the wind may blow through it; the storms may enter; the rain may enter-but the King of England cannot enter. All his forces dare not cross the threshold of the ruined tenement." That was the outlook of the seventeenth and eighteenth century England. It was in that background and the events in that country touching a general or unrestricted search warrant, which was regarded as unlawful, the American Fourth Amendment was made. It says: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." The Amendment was directed against unreasonable searches and was intended to provide safeguards for issuing warrants, namely, that they may be issued only on a probable cause, which must be shown by oath or affirmation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the earlier English or even American cases based on the Fourth Amendment. We have to consider the problem in the context of the guaranteed rights of a citizen under Article 19(1)(f) and (g) and the violation of which can only be justified as a reasonable restriction in public interest. As we mentioned, the general law relating to search and seizures is to be found in the Code of Criminal Procedure. M.P. Sharma and Others v. Satish Chandra, District Magistrate, Delhi and Others[1954] S.C.R. 1077. held that the provision for a search warrant under the first alternative of section 96(1) of the Code did not offend Article 19(1)(f) of the Constitution. This was on the ground: "A search and seizure is only a temporary interference with the right to hold the property searched and the articles seized. Statutory recognition in this behalf is a necessary and reasonable restriction and cannot per se be considered to be unconstitutional." Whether section 96 of the Code was a reasonable restriction was not considered in Wazir Chand v. The State of Himachal Pradesh[1955] 1 S.C.R. 408., but it ruled that any seizure by the Indian Police of any property of a citizen not sanctioned under se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch and similar safeguards, the power of search under sub-section (2) of section 41 and the proviso thereto, so it is said, does not satisfy the test of reasonable restriction. In support of this contention, reliance is placed on S. Doongarmal v. K.E. Johnson[1964] 52 I.T.R. 637; A.I.R. 1964 Assam 1. The Attorney-General counters this argument by stating that the question whether a restriction is a reasonable restriction cannot be judged with reference to any abstract or rigid standard and that the safeguards in the Code of Criminal Procedure do not by any means constitute the sold standard. He says that public interest against evasion of tax demands invasion of business premises or residential accommodation of a dealer by surprise and a power to search is necessary for effective and complete fulfillment of the object of the Act as disclosed in its preamble and several provisions and rules made thereunder. While providing for such a power, he continues, section 41 has provided every safeguard necessary to make a reasonable restriction. First of all, the Government, the highest authority, is entrusted with the power of discretion to choose officers or class of officers to be invested ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he object and purpose for which the power of search can be exercised and there is no nexus between the two, (c) when and in what circumstances the power is to be exercised there is no indication, (d) in respect of which persons and whose premises is not stated, (e) no principle or policy is indicated to guide the exercise of the power, (f) no opportunity is provided for to contest the validity of the exercise of power, (g) no opportunity is given to the affected person to make representations against the proposed search, (h) no notice is to be given before exercise of the power and (i) there is no provision for the return of books which have been seized. So the majority of the learned Judges of the Assam High Court considered that subsection (2) of section 37 of the Income-tax Act contained a concentration of naked, arbitrary and unrestricted power vested in the executive without any form of check, control or limitation. Learned Chief Justice of that Court differed and was of the view that subsection (2) was a reasonable restriction because the deprivation was only temporary and was meant to serve a public purpose, namely, prevention of large scale evasion of tax. The Calcutta High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... finition of an industrial dispute taken with the rest of the provisions relating to adjudication of various other matters, held that the achievement of one or the other objects must guide and control the exercise of the discretion of Government under section 10 and there was no scope for the argument that the appropriate Government would be in a position to discriminate between one party and the other. It was, however, pointed out whether the one or the other of the steps contemplated by section 10 should be taken by the appropriate Government must depend upon "the exigencies of the situation, the imminence of industrial strife resulting in cessation or interruption of industrial production and breach of industrial peace endangering public tranquility and law and order." The same reasoning was apparently adopted in upholding the validity of the section as a reasonable restriction in the context of Article 19(1)(f) and (g). Messrs Pannalal Binjraj v. Union of India[1957] 31 I.T.R. 565; A.I.R. 1957 S.C. 397. held that section 5(7A) of the Income-tax Act did not offend Article 19(1)(g) or Article 14 of the Constitution. The section gave power to the Commissioner of Income-tax to trans ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry, that it may well be assumed that high officials in whom discretion is vested, would follow the law and that if an improper order is made, the same may be struck down, went into that decision. In Ram Krishna Dalmia v. Justice TendolkarA.I.R. 1958 S.C. 538 at 552., the Supreme Court upheld the validity of section 3(1) of the Commissions of Inquiry Act on the grounds among others, "Parliament has confided the task of selective application of the law to the appropriate Government and it is, therefore, for the appropriate Government to exercise its discretion in the matter. It is to be expectedand, until the contrary is proved, it is to be presumed-that the Government, which is responsible to Parliament, will act honestly, properly and in conformity with the policy and principle laid down by Parliament." It was considered that where a discretion was vested in the highest executive body like the Central Government, it was not easily to be expected that it would be used in a discriminatory manner from the standpoint of Article 14 of the Constitution. The Collector of Customs, Madras v. Nathella Sampathu Chetty[1962] 3 S.C.R. 786. decided that section 178A of the Sea Customs Act, 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cope and application must necessarily be shifting and changing according to persons, occasions and circumstances. But it seems to us that while there can be no particular standard or uniform yardstick of reasonableness, the broad grounds on which it may be founded may generally be conceived and properly understood in the context of particular statues and circumstances which come up for test of constitutional validity. Those grounds may be common up to a point for the purpose of Article 14 and Article 19(1) but beyond that, there may be further grounds peculiar only to considerations in respect of reasonable restrictions. An impugned provision may pass the test of reasonable classification, not offending the equal protection clause. But notwithstanding that fact, it may not be considered a reasonable restriction. What is a reasonable restriction in the context of Article 19(1) will depend upon what is a just and equitable balance in the circumstances between two opposing factors, namely, the fundamental right of a citizen and the interests of the State. When they clash, to what extent the fundamental right should yield to State necessity or public interest or to what extent the law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... balance struck, just and equitable, in all the circumstances between the sanctity of the property or individual rights and the interest of the community in law enforcement either in regard to tax collection or suppression of crimes or any other by the insistence upon proper safeguards against oppression or violation of guaranteed basic rights under the Constitution. Let us now examine section 41, and find out whether the power of search without a warrant in sub-section (2)-we are assuming that it contains the power-and the power of seizure in sub-section (3) are unreasonable restrictions on the petitioner's right under Article 19(1)(f) and (g). We are inclined to think that the right under Article 19(1)(f) covers business premises and the kinds of records mentioned in sub-section (2) of the Act. Any invasion of the business premises or search and seizure of records and goods from there will affect the right to hold and dispose of the property. The right to hold the property will, in our view, include the right to enjoy that property without interference or disturbance. Equally, when books of accounts or goods in trade are searched for and taken away, it necessarily affects the b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Government, the highest executive authority, and it may be trusted to exercise the power reasonably and for the purpose of the Act. But this power of the State Government cannot be approximated to or is not like the power of the Commissioner of Income-tax under section 37(2) or 5(7A) of the Incometax Act or of the Central Government in the Commissions of Inquiry Act, 1952, which have been held as not to offend Article 19(1). The power of the Commissioner of Income-tax under section 37(2) is that in each case brought to his notice, he authorises the Income-tax Officer to make a search and the officer seizes books of account and records in connection with the proceedings relating to an assessee under the Income-tax Act. What is given is not a general power to authorise all the Income-tax Officers without reference to the merits and needs of particular cases to search and seize if and when they think fit in the light of the exigencies of the tax collection. Under sub-section (1) of section 41, the Government does not examine each case and satisfy itself on the materials before it whether an officer in a particular or given case should be authorised to search and seize a dealer's accou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us power vested in all kinds of officers, high and low, without any such safeguards, cannot, in our view, be regarded by any means as a reasonable restriction. Sub-section (3) no doubt enacts that an officer may, for reasons to be recorded in writing, seize. But it does not say whether he has to record his reasons before or after and if he records his reasons, whether he is obliged to forward the same to any higher officer to ensure proper exercise of the power. The officer is totally unrestricted and unchecked at any stage like any other authority in the exercise of his power of search. The sub-section does not provide even for seizure in the presence of independent witnesses. True it is, under sub-section (3) the officer, who seizes, has to give a dealer a receipt for what he has seized. But obviously this in itself is nowhere a safeguard to the proper exercise of the power of seizure and the sub-section does not even say when that receipt is to be given to the dealer, whether it is to be at the completion of the search and seizure or long thereafter. Even the little protection to be found in sub-section (3) is absent in sub-section (4). In the circumstances, we are constrained t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eedom which has ceased to be of value." Anyway, in view of the clear statement of the position in M.P. Sharma v. Satish Chandra, District Magistrate, Delhi[1954] S.C.R. 1077. and Wazir Chand v. State of Himachal Pradesh[1955] 1 S.C.R. 408., we have considered and decided the question whether the power of search and seizure under section 41 of the Act is a reasonable restriction, on our assumption that a search by itself is a restriction on the right to hold and enjoy property. If we may say so with great respect, the scope and effect of Article 19(1)(f) and (g) in the present context can only be finally settled by the Supreme Court but, as it is, this Court is bound by M.P. Sharma v. Satish Chandra, District Magistrate, Delhi[1954] S.C.R. 1077., and at the same time also by Wazir Chand v. State of Himachal Pradesh[1955] 1 S.C.R. 408. to a different effect. The petitioner in W.P. No. 1321 of 1964 has on facts contended that the suit case with its contents seized from the premises of Zenith Lamps and Electricals Limited, is his personal belonging and is not in any way related or connected with the business of the company, while the respondents would assert that the suit case belo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1321 of 1964 do leave the impression that the real object of obtaining the search warrant was to search and trace for the suit case above mentioned in the residential premises of the petitioner at No. 366, Tiruvottiyur High Road, Madras. Though it was stated in the counter-affidavit that enquiry also revealed that the petitioner maintained some accounts and records of his business at his residence, the facts and circumstances of the case, as disclosed in the affidavits and counter-affidavit show that the immediate and real purpose was to search for the suit case in those premises. But this purpose was not the one for which the warrant was issued by the Chief Presidency Magistrate. Apart from that, a perusal of the original search warrant is open to attack that the columns which should be struck out in the printed form and the gaps to be filed therein while issuing the search warrant had not been attended to and that, therefore, the authority that issued it had not particularly applied its mind to those matters. We think, therefore, that on these grounds too the search warrant should be quashed. In W.Ps. Nos. 1495 and 1496 of 1964, we accept the contention of learned Attorney-Genera ..... X X X X Extracts X X X X X X X X Extracts X X X X
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