TMI Blog1965 (12) TMI 127X X X X Extracts X X X X X X X X Extracts X X X X ..... ction. The first accused placed them on the table. P.W. 1 and one of the Inspectors P.W. 2 examined the note-books and slips (purchase vouchers and indents about fifty in number) and were satisfied that they related to the first accused's business and that some of the transactions referred to therein were not entered in the account books originally produced by the first accused. P.W. 1 wanted to seize them for further scrutiny and verification. So he recorded in writing the reasons for the seizure (exhibit P7). He also prepared the receipt exhibit P8 (in original) with exhibit P3 (carbon copy) and asked the first accused to sign it. The fact of seizure was also endorsed by him in the first accused's daybook exhibit P2. By this time the second accused came to the shop and asked the first accused not to sign the receipt. Thereupon P.W. 1 handed over the note-books to P.W. 3 and asked him to take the books to the motor van in which they had come. P.W. 3 packed them and was about to take them to the van when the second accused went up to P.W. 3 and caught him by his shirt. The first accused then snatched the packet from P.W. 3 and passed it on to the second accused who handed it over t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the conviction is not sustainable. 5.. As the latter objection is confined to Criminal R.P. 231 of 1964 it may be disposed of first. We feel that the objection has to prevail. Section 17(2A) was inserted by section 11(i) of Act 18 of 1955 on 1st October, 1955, and it would appear to be an omission on the part of the Legislature not to have introduced a corresponding change in section 19(c) by penalising the obstruction to seizure as well. It may be noted in this connection that in the Kerala General Sales Tax Act, 1963, the necessary changes have been made in section 46(2)(a) by penalising prevention or obstruction of inspection, entry, search or seizure by an officer. The learned State Prosecutor would contend that section 19(c) will take in a case of seizure as well because the seizure is implicit in the act of inspection and forms an integral part of it. He has also an alternative contention that obstruction to seizure will come within the purview of section 19(h) which penalises all acts in contravention of any of the provisions of this Act. In our opinion both these positions are untenable. If section 17(2) as originally framed was intended to include taking into custody a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 196.: "The test of reasonableness, wherever prescribed, should be applied to each individual statute impugned, and no abstract standard, or general pattern of reasonableness can be laid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time should all enter into the judicial verdict." 8.. It is now for us to examine section 17(2A) in the light of the above well-recognised canons. The section reads thus: "If any officer not below the rank of assessing authority has reason to suspect that any dealer is attempting to evade the payment of any tax or fee due from him under this Act, he may, for reasons to be recorded in writing, seize such accounts, registers, or documents of the dealer as may be necessary, and shall grant a receipt for the same. The officer who seizes such accounts, registers or documents shall return them within ten days from the date of seizure unless they are required for a prosecution." The nature of the right alleged to be infringed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t only if he has reason to suspect that any dealer is attempting to evade payment of tax or fee due from him and before he takes action he has to follow the procedure laid down, viz., to record his reasons in writing and then grant receipts for the accounts and registers seized and also to return them within ten days unless they are required for a prosecution. It is also relevant to note that only the registers, accounts or documents of the dealer himself and only such of them as may be necessary are to be seized. It is the inadequacy of the procedural safeguards that has been stressed by the defence. It is argued that the restriction is not procedurally reasonable as it empowers the executive to restrict the fundamental right without complying with the rules of natural justice, in so far as (1) the action is taken without notice to the dealer so as to afford him an opportunity to object to the proposed action, (2) the decision taken by the officer and the propriety of the action taken by him are not made subject to appeal to a higher administrative authority or to the Government, (3) the necessity for a seizure of the records is made dependent solely on the subjective satisfaction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e considered as an additional safeguard though we are inclined to take the view that the safeguards that are provided in the Act are themselves sufficient to serve the purpose. The mere possibility of the abuse of power is not to be taken into account for determining the reasonableness of the restriction imposed by the law itself but on the contrary it may be presumed that the public authority will act honestly and reasonably in the exercise of his statutory powers. As observed by the Supreme Court in Collector of Customs v. Sampathu ChettyA.I.R. 1962 S.C. 316.: "The possibility of abuse of a statute otherwise valid does not impart to it any element of invalidity.........The constitutional validity of the statute would have to be determined on the basis of its provisions and on the ambit of its operation as reasonably construed. If, so judged, it passes the test of reasonableness, possibility of the powers conferred being improperly used is no ground for pronouncing the law itself invalid." 11.. The learned counsel relied on the decision of the Madras High Court in R.S. Jhaver v. Commissioner of Commercial Taxes[1965] 57 I.T.R. 664; 16 S.T.C. 708., in support of his contention th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12.. The investiture of power by the Government authorising in general all officers of the department and even those unconnected with the tax department does not arise in the case of section 17(2A) under which the investiture of power is by the Legislature itself and that is confined to officers not below the rank of an assessing authority. The notifications published by the Government in that behalf show that no officer below the rank of a Sales Tax Officer has been invested with the powers of assessing authority. The officer empowered is one who is exercising a quasi-judicial function as the assessing authority and that assures his competency to take a proper decision as to the necessity of effecting a seizure with reference to the facts of each case, He is also an officer sufficiently high in the hierarchy of officers who could normally be presumed to act honestly and legally. We do not feel that the efficacy of the provision for recording the reasons with regard to seizure is affected by the failure to specify whether reasons have to be recorded before or after the search or of the provision to give a receipt for any ambiguity as to whether it is to be given at the completion ..... X X X X Extracts X X X X X X X X Extracts X X X X
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