TMI Blog1983 (3) TMI 254X X X X Extracts X X X X X X X X Extracts X X X X ..... the learned Magistrate made an order on the same day in these terms: "Perused the application and I am satisfied with reasons. Hence issue search warrant to search the premises No. 76/3 (Old No. 108) belonging to Hastimal of Mariswamy Matadagalli, Binny Mill, Bangalore, for the purposes stated in the application. Report by 1st December, 1982." Hastimal referred to in the order of the learned Magistrate is the petitioner in the case. 3.. In pursuance of the aforesaid order, the learned Magistrate issued a search warrant addressed to the C.T.O. on that day which reads thus: "WARRANT TO SEARCH AFTER INFORMATION OF A PARTICULAR OFFENCE (See section 93) To Commercial Tax Officer I, Bangalore City (Intelligence) (Name and designation of the Police Officer or other person or persons who is or are to execute the warrant). Commercial Tax Officer (Intelligence) I, South Zone, Bangalore. Whereas information has been laid (or complaint has been made) before me of the commission (or suspected commission) of the offence of (mention of the offence concisely) Under section 93, Cr. P.C. and it has been made to appear to me that the production of (specify the thing clearly) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 and various other rulings that have followed the same, contends that a challenge to the order of search was not necessary and that in its absence also, it was open to this Court to examine the validity of the search warrant and the search made thereto by the C.T.O. 9.. Earlier I have set out the nature of the application made by the C.T.O. and the order made thereto by the learned Magistrate. The search warrant and the seizure effected thereto derive their authority and efficacy to the order for search made by the Magistrate. The search warrant issued, though important, is a ministerial act performed in pursuance of an earlier judicial order in that behalf. The primary order is the order for search and the challenge must be primarily to that, though in such challenge it is open to challenge the search warrant and other acts that emanate from the order for search. 10.. When the petitioner does not challenge the order for search made by the Magistrate, that being the primary order, it would be proper for this Court to decline to examine the order challenged on that short ground alone. 11.. An order for search made by a Magistrate under the Criminal Procedure Code is also re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... him to retain the documents from 10th January, 1983, to 7th March, 1983. The reason he gave was that he was not able to complete the proceedings due to the non-appearance of the petitioner. On an examination of that request, the D.C. on 4th January, 1983, granted that request of the C.T.O. Before the expiry of the time granted on 4th January, 1983, the C.T.O. requested the D.C. to permit him to retain the books and documents from 7th March, 1983, to 6th May, 1983. The reason he gave was that the matter was seized by this Court and therefore, he has not been able to complete the proceedings. On an examination of that request of the C.T.O., the D.C. on 7th March, 1983, has granted that request. 17.. With the permission so granted on 4th January, 1983, and 7th March, 1983, the C.T.O. has retained the books and documents. Those orders made by the D.C. have not been communicated to the petitioner is apparent from the records produced before this Court and that fact is not also disputed by Smt. M.R. Vanaja, the learned High Court Government Pleader, appearing for the respondent. 18.. Sri Gandhi contends that the power exercised by the D.C. was quasi-judicial and was not administrativ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uage of the proviso to section 28(3) of the Act unlike section 110(2) of the Customs Act does not employ the terms "on sufficient cause being shown". Hence, the principles enunciated in Charan Das's case AIR 1972 SC 689 do not bear on the point. 22.. In Agarwal's case 1973 Tax LR 2168, a Division Bench of the Allahabad High Court dealing with an analogous provision occurring in the Gold Control Act referring to Charan Das Malhotra's case AIR 1972 SC 689 has also taken a similar view as the one expressed by me earlier. In Karsandas' case 1981 ELT 268, a Division Bench of the Gujarat High Court, speaking through Thakkar, J. (as he then was), expressing concurrence with the view taken by the Allahabad High Court in Agarwal's case 1973 Tax LR 2168 has also taken a similar view. I am in respectful agreement with the views expressed in these cases. 23.. Sri Gandhi next contends that the orders made by the D.C., even if they are administrative, result in civil consequences to the petitioner and therefore, he was bound to notify and afford him an opportunity of hearing. In support of his contention, Sri Gandhi strongly relies on the ruling of the Supreme Court in State of Orissa v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion only. Even in law also, the validity of an order does not depend on its communication or non-communication. Any such enunciation to the contrary would create very strange and dangerous results also. For these reasons, I have no hesitation in rejecting this contention of Sri Gandhi. 32.. In Mahabir Prasad Poddar's case [1974] 93 ITR 215, the Calcutta High Court was dealing with an order for retention made under the Income-tax Act, 1961, and the effect of its non-communication. On the language of that Act that empowered the person from whom the documents had been seized to challenge the same before the Central Board of Revenue, the Court came to the conclusion that non-communication vitiates the order for retention. But that is not the position in the Act and therefore the ratio does not squarely governs the question. 33.. In ruling that non-communication vitiates the order for retention itself, Mitra, J., speaking for the Bench derived support from the rulings of the Supreme Court in Bachhittar Singh v. State of Punjab AIR 1963 SC 395 and State of Punjab v. Amar Singh Harika AIR 1966 SC 1313. But those rulings of the Supreme Court dealing with the efficacy of the orders made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Without any doubt, the two panch witnesses are not members of the locality and there was contravention of section 100 Cr. P.C. But, the question is whether the same vitiates the search and seizure. 40.. In Hanuman Traders' case [1982] 51 STC 76, Chandrakantaraj Urs, J., relying on a ruling of the Supreme Court has rejected a similar contention on almost similar facts under the Act inter alia holding that the same was only a curable irregularity and not an illegality that vitiates the search and seizure. But, Sri Gandhi contends that this decision which is in appeal is erroneous and has wrongly applied the ruling of the Supreme Court in Radha Kishan's case AIR 1963 SC 822. 41.. As the very order is in appeal, I do not consider it necessary to examine whether the same has been correctly decided or not. But, till that ruling is upset by a Division Bench of this Court or by the Supreme Court, the same is binding on me. For the very reasons stated in Hanuman Traders' case [1982] 51 STC 76, I reject the contention of Sri Gandhi. But at the same time, it is necessary to point out that the officers should make an honest and sincere attempt to avoid such lapses. 42.. Sri Gandhi ur ..... 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