9911796707
TMI Blog2012 (2) TMI 116X X X X Extracts X X X X X X X X Extracts X X X X ..... hts. Some of the broad features of the complaint which is also summarized in paragraph 2 of the writ petition are as follows: (i) The officials of the Income Tax Department confined them in their house for two days in course of search and seizure operation in their business and residential premises almost uninterruptedly. (ii) The search team confined his family members and did not allow him to cook food, thereby compelling them to purchase the same from outside. (iii) The members of the search team misbehaved, abused and tortured respondent no.3 and his family members. (iv) The members of the search team used methods of coercion for recording statements and obtaining signatures forcibly. (v) The members of the search team hurt the religious sentiments of the Sikh community by throwing buts of used cigarettes on the photograph of Golden temple and Sikh Guru vi) The members of the search team stole two Mobile Phones before leaving the premises. A copy of the complaint petition is at Annexure-1. 3. The Commission issued show cause notice to the Income Tax Department to reply to the allegations of respondent no.3. The department filed its reply and report on 25.11.2010 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he search and seizure manual permitted continuous interrogation. 5. The petitioners in support of their submissions relied upon the case of Rajendran Chingaravelu v. R.K. Mishra, Addl. CIT reported in (2010) 1 SCC 457, wherein the Hon'ble Apex Court did not find any fault with long detention and interrogation of appellant. 6. The petitioners in short submitted that the search operation resulted in disclosure of undisclosed income of Rs.86,66,220/- from respondent no.3 and Rs.4,81,66,220 in total from all the four brothers including respondent no.3. The search and seizure protected the interest of the State and revenue. 7. Now I will take up the points raised by the petitioners one by one. Refer: Issue No.(i): The order of the learned Single Member is without jurisdiction being Coram non-judice. The petitioners have argued that the Hon'ble Chairperson sitting singly was not competent to hear the complaint of violation of human rights. According to them, all the three members of the Commission sitting together could have heard the complaint. On the other hand, counsel for respondent no.3 submits that the doctrine of Coram non-judice speaks about inherent or complete lack of jur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed, is of the opinion that the case should be heard by a Bench of not less than two Members, he/she may refer the case to a Bench of two Members. On receipt of the reference, the case shall be assigned to a Bench of two or more Members, as may be constituted by the Chairperson, Ordinarily, complaints of the following nature are not entertainable by the Commission:- (a) in regard to events which happened more than one year before the making of complaints; (b) with regard to matters which are sub-judice; (c) which are vague, anonymous or pseudonymous; (d) which are of frivolous nature; or (e) those who are outside the purview of the Commission." 9. From bare perusal of the regulation, it appears that rule 8(1) of Regulations, 1994 contains the procedure for dealing with a complaint by a Commission. It states that a Single Member bench dealing with complaint may refer the matter to a bench of two members, or more than two members if he considers that the issue is of considerable importance to be heard so. On receipt of reference, the case shall be assigned to a bench of two or more members, as may be constituted by Chai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (v) & (vi) which are taken up together as they are inter linked: (iv) The Commission ought not have held the concerned officials of the Income Tax guilty of violating human rights without affording an opportunity of hearing to them personally under section 16 of the Act. (v) The officer had acted in good faith and in discharge of their official duty. (vi) The Commission erred in holding that the complainant was not given sufficient break as it was not possible for one officer to keep interrogating for 42 hours. Further more, the search and seizure manual permitted continuous interrogation. The petitioners submit that Bhargo Saw Mill Compound is a huge compound of about 5000 Sq. ft. in area. The apartment comprises of four residential floors in which respondent no.3 and his other brothers live separately. The building also has an office of M/s Bhargo Saw Mills. The open area of the premises was used to store huge quantity of timber inside the residential premises. The two open premises across the road was also used to store timber and another premise was rented out to a school. The petitioners submit that the search and seizure operation of such a large residential and business ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e authority to ensure that the said money is not intended for illegal activities. The Hon'ble Apex Court further held as follows: "Any bonafide measures taken in public interest, and to provide public safety or to prevent circulation of black money, cannot be objected as interference with the personal liberty or freedom of a citizen". 13. Mr. Mrigank Mauli, learned counsel for respondent no.3 submits that the Commission found that the search and seizure operation commenced at 9.30 A.M. on 8.9.2010 and he was continuously interrogated for 36 hours till 10 P.M. on 9.9.2010. He further submits that the Commission noted that though the exact time of commencement of interrogation is not mentioned in the statement but question no.15 gives an idea about the duration. The officer interrogating respondent no.3 while asking question no.15 told the applicant that he was being asked to produce books of accounts, but despite passage of more than 36 hours, the same had not been produced. Learned counsel further submits that the Commission rightly observed that the operation commenced at 9.30 A.M. on 8.9.2010 and the question no.15 was being asked about 10 P.M. on 9.9.2010. Further, it would ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on and search operation continued unabated for more than 36 hours. It may also not be humanly possible for an official to interrogate continuously for 36 hours. However, one fact remains undisputed that the interrogation continued till 3.30 A.M. on the second night of search and seizure as per the own record of department. The search and seizure manual of the Income Tax does not prescribe any time limit for search and survey operation and the same may continue for days if required, but it has to be in keeping with the basic human rights and dignity of an individual. The purpose of the Act is to give effect to the process of execution of actions of executive and bureaucratic machinery in line of accepted standard of basic human rights which are internationally recognized. The laws, and approach to law for its execution must confirm to the charter of human values and dignity. Even a person accused of a serious offence has to be produced before the nearest Magistrate within 24 hours minus the time taken in reaching the Court. There is no possible justification to continue interrogation and keep the respondent no.3 awake till 3 A.M. on the second night of search and interrogations. No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purposes of this Convention, the term Torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such paid or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in any official capacity......" The preamble specifically provides that while drafting the said Convention, regard had been made to Article 5 of the 'Universal Declaration of Human Right and to Article 7 of the International Covenant on Civil and Political Rights, as the same are in recognition of the universal respect for an observance of Human Rights and fundamental freedoms. 20. Even assuming that there were temporary breaks in course of interrogation which continued for 42 hours, it is not in dispute that even on the second night of search and survey on 10.9.2010, the interrogations co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ials. The issuance of such notice would tantamount to pre-judging the officials/staff engaged in search and seizure operation of being guilty of violation of human rights, without affording them an opportunity of hearing. Section 16 of the Protection of Human Rights Act, 1993 prohibits passing of an order by the Commission which may prejudicially injure the reputation of a person without providing a reasonable opportunity of being heard in the enquiry and to produce the evidence in his defence. Section 16 is quoted herein below for easy reference: "16. Persons likely to be prejudicially affected to be heard- If, at any stage of the inquiry, the commission- (a) consider it necessary to inquire into the conduct of any person; or (b) is of the opinion that the reputation of any person is likely to be prejudicially affected by the inquiry, it shall give to that person a reasonable opportunity of being heard in the inquiry and to produce evidence in his defence: Provided that nothing in this section shall apply where the credit of a witness is being impeached". 24. In the instant case admittedly no notice has been issued to the individual officials who now ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
