TMI Blog1975 (7) TMI 132X X X X Extracts X X X X X X X X Extracts X X X X ..... eizure unless they are required for a prosecution." The controversy here is about the scope of the term "required for a prosecution" in this sub-section. It is the petitioner's case that if within 30 days from the date of seizure of the accounts, prosecution in which the books are to be used is not instituted, the books have necessarily to be returned. The words "required for a prosecution" can, according to the petitioner, mean only required for an existing prosecution and not one which may be filed beyond a period of 30 days. In support of this the decision of this court reported in Mubarak Stores v. Intelligence Officer, Agricultural Incometax and Sales Tax, Cannanore[1974] 33 S.T.C. 526; 1974 K.L.T. 327., is relied on. The learned Judge said: "The question is whether the prosecution for which they are required must be a prosecution in existence or it would include also a prosecution in contemplation. Seizure and retention of a dealer's books of account by an officer are serious inroads into his fundamental rights. But that is permitted by the above statutory provision in the interest of the general public under certain special circumstances. Any such restriction on the fundamen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quired for a prosecution" would necessarily involve the concept of a decision being reached within 30 days that these are required for the purpose of a prosecution to be lodged. But we cannot see the further requirement that the prosecution itself must be commenced within a period of 30 days from the date of seizure. The accounts, registers and documents would be said to be required for a prosecution even in respect of a prosecution proposed to be lodged provided the decision to prosecute had been reached, for, when once an officer decides that there should be prosecution he could also decide whether the books and documents would be required for the purpose of such prosecution; The prosecution must be lodged within a reasonable time thereafter as otherwise it will be an abuse of power vested in the officer. It is no doubt true that the consequences of seizure of books and documents are grave. That by itself cannot alter the plain meaning of the section which appears to us to justify the construction placed on it by us here. In this view, with great respect, we are unable to agree with the decision of the learned Judge in Mubarak Stores v. Intelligence Officer, Agricultural Income-t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lapse of two years the books were not returned and no steps for prosecution have been taken. In these circumstances, he seeks return of the books and appropriate directions from this court in that behalf. 2.. Section 28(2) of the Kerala General Sales Tax Act, 1963 (hereinafter referred to as the Act), enables officers authorised in that behalf by Government to inspect at all reasonable times, all accounts, registers and other documents maintained by a dealer and the goods in his possession and his office, shops, godowns, vessels or vehicles. Sub-section (3)(a) runs as follows: "(3)(a) If any officer not below the rank of an assessing authority has reason to suspect that any dealer is attempting to evade 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 and documents of the dealer as he may consider necessary and shall grant a receipt for the same. The officer who seizes such accounts, registers or documents shall return them within thirty days from the date of seizure unless they are required for a prosecution." Rule 34 of the Kerala General Sales Tax Rules, 1963. relate to the procedure concer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould visit consequence of a grave nature on the party to whom these belong it must be a decision reached after considering all the materials available to the officer concerned. I am saying this because I feel the necessity of emphasising that in every case where books are retained beyond 30 days it is not sufficient if the officer concerned contends that these are required for prosecution and therefore were so retained. The good faith of the authority in regard to such retention is open to very serious challenge when, for years together, no action by way of prosecution is being taken. It is more so when such conduct is challenged before this court and in answer no materials are disclosed as to why there has been such inordinate delay. The case before me is an instance where those circumstances do exist. The books were taken in January and February, 1969. The written demand for return of the books was made as early as in October, 1970. By that time nearly two years had passed after the recovery of the books. Certainly it was time enough by then for the authority concerned to decide whether prosecution should be taken or not. I must state here that when the section requires return of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CANNANORE, AND OTHERS KHALID, J.-The petitioner, a registered dealer under the provisions of the Kerala General Sales Tax Act, prays for an appropriate order from this court directing the first respondent, Intelligence Officer, Agricultural Income-tax and Sales Tax, Cannanore, to return the books of account and other allied documents seized by him. The officers attached to the first respondent inspected the petitioner's business place on 9th May, 1973. Certain slips were seized by the intelligence squad and they were taken into custody, however, without recording any reason and without acknowledging receipt for the seizure of such slips. Subsequently, notices were issued to the petitioner for production of his regular books of account. The petitioner's representative produced the books of account for the year 1973-74 before the first respondent on 6th July, 1973. During the course of scrutiny of these books, these books were seized by the officer and orders, exhibits P-1 and P-2, were passed. Exhibits P-3 and P-4 receipts evidence the seizure. The apparent reason given out for such seizure is, there is some variation in the stocks. 2.. The petitioner has an oil-mill and flour-mi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the complaint in that court. The Government Pleader therefore submitted that under these circumstances the books of account cannot be handed over to the petitioner. 5.. The petitioner's contention is that the conduct of the officers concerned in this case is highly objectionable. From July, 1973, to 31st July, 1974, no steps were taken to launch any prosecution against the petitioner. The books of account seized were current books which were needed for completing the accounts. Notices issued to the petitioner asking whether he was willing to compound the offences are also not proper since he had not offered to compound the offences. According to the petitioner, he has not committed any offences and, therefore, no occasion arises for him to compound the offences. These notices, according to him, are only clever moves by the officers concerned to trap him for two reasons: (1) to save face of the officers for their irregular acts, and (2) to use the composition for future assessments at rates to be decided by them. I do not think it necessary to go into the details of the allegations made by the petitioner's counsel in this case. 6.. The important point to be decided is, whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his 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 the same manner, the latter part of section 28(3)(a) of the Sales Tax Act should be understood to mean only that the retention of the original records is necessary if they are to be used as material objects to prove the commission of the offence or where the authenticity or the handwriting of the entries will be a matter which will have to be gone into in the prosecution proceedings. If the genuineness of the books seized are not matters in dispute and the dealer agrees to certify that the records seized belong to him and authenticated copies are sufficient to enable the prosecution to proceed with the criminal proceedings, normally that alone will be deemed necessary and such copies must be taken by the authorities and the originals returned to the dealers on their certifying the copies as true copies of the originals. The power under section 28(3)(a) can only be understood in this way." In Mubarak Stores v. Intelligence Officer[1974] 33 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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