TMI Blog1973 (4) TMI 94X X X X Extracts X X X X X X X X Extracts X X X X ..... ing copra into coconut oil. The premises of both these firms are situated in the same compound. On 24th July, 1970, the Inspecting Assistant Commissioner, Agricultural Income-tax and Sales Tax (Intelligence), with his subordinates visited the premises of the above firms and took into custody and removed certain books of account, letters and slips for which he issued two receipts of even date, copies of which are produced as exhibits P1 series. By notices dated 25th July, 1970, he called upon petitioners 1 and 2 to produce before him the day-book, ledger, purchase bills, sale bills of each of the petitioners for the years 1969-70 and 1970-71 with details of opening stock as on 1st April, 1970. The petitioners produced these records and the 1st respondent issued (exhibit P3) receipt to them. Though these records were required by the petitioners for their daily use and to submit returns before the income-tax and sales tax authorities and the petitioners wanted them to be returned, the 1st respondent failed to return them for nearly two months and so the petitioners by a letter dated 25th September, 1970, requested the 1st respondent to return the documents in question. In that letter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing whether there is any evasion. Even if he requires them for evidence in any proceeding he is not entitled to retain them for an indefinite and unlimited period. That will amount to a deprivation of their use to the petitioners. Apparently, the 1st respondent is retaining them beyond a period of one month relying on the last sentence in section 28(3) of the Kerala General Sales Tax Act, 1963, which reads as follows: "The officer who seizes such accounts, registers or documents shall return them within 30 days from the date of seizure unless they are required for a prosecution." Even so, the 1st respondent is not entitled to rely upon that provision for the purpose of retaining the books and other records produced by the petitioners on 20th August, 1970, as per exhibit P3 receipt. The petitioners contend that the provisions of section 28(3)(a) extracted above does not authorise the 1st respondent to retain the books covered by exhibit P1 series for whatever period that suits him even for the purpose of prosecution. This retention amounts to violation of the fundamental rights of the petitioners under article 19(1)(f) and (g). It is further contended that the refusal of the 1st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts and if necessary to take copies and so their complaint before this court that they were not able to make a thorough study of the accounts for filing objections is unsustainable. He has filed two complaints on 16th November, 1970, and 19th November, 1970, before the District Magistrate, Tellicherry, against the petitioners for offence punishable under section 46 of the Kerala General Sales Tax Act and those proceedings are pending. These records have been produced along with the complaint before the court of the District Magistrate (judicial), Tellicherry. The contention that the latter part of section 28(3)(a) of the General Sales Tax Act, 1963, is invalid and violates article 14 or 19(1)(f) and (g) is denied. This provision only imposes a reasonable restriction in the exercise of the fundamental right to hold property and to carry on trade and it is submitted that these restrictions are protected by clauses (5) and (6) of article 19. On these averments the 1st respondent opposed the original petition. The first question that has to be considered is about the constitutional validity of section 28(3)(a), especially the last portion of the last sentence in that clause. That sent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 543. A similar provision of the Madras Act was upheld by the Supreme Court in Commissioner of Commercial Taxes v. Ramkishan Shrikishan Jhaver[1967] 20 S.T.C. 453 (S.C.).The Allahabad High Court also construed a similar section of the U.P. Act and upheld it as valid in Agrawal Engineering Stores v. State of Uttar Pradesh[1971] 28 S.T.C. 507. Similar provisions exist in the Sales Tax Acts of other States. In West Bengal, Punjab, Madhya Pradesh, Orissa, Gujarat and Maharashtra, the provision is to the effect that these records seized may be retained so long as they are necessary for proceedings under the Act for prosecution. In Andhra, Mysore and Madras the provision is to the effect that the permission of the higher authorities must be obtained for retention beyond 30 days of the records seized. In Bihar, Rajasthan and Uttar Pradesh the provision is that the account books must be returned within 90 days of the date of seizure. If the provision is capable of a construction that would make it valid that is the manner in which the section should be understood. This is clear from the decision in the case already referred to, namely, K.A. Abbas v. Union of IndiaA.I.R. 1971 S.C. 481. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te. It is difficult to exhaust the list of cases of this nature. It is reasonable to hold that if the requirement of prosecution can be met without these records being retained by the Sales Tax Officer, the section can be understood as only conferring such power in the Sales Tax Officer. In this connection, the decision of the Court of Appeal in England in Ghani v. Jones[1969] 3 A.E.R. 1700. may be usefully referred to. In that case the retention of a passport by the police was challenged. Lord Denning, M.R., held that the public interest in assisting the administration of justice by production of the relevant records must be balanced with the private right of the individuals as regards the records belonging to them, and a course of action which will cause the least prejudice to the citizen must be adopted by the police. In so balancing the two interests, Lord Denning, M.R., laid down certain criteria to be followed by the police in the matter of seizing and retaining the articles belonging to the accused. The 4th criterion, which he has stated, reads as follows: "The police must not keep the article, nor prevent its removal, for any longer than is reasonably necessary to complete ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
