TMI Blog1939 (8) TMI 34X X X X Extracts X X X X X X X X Extracts X X X X ..... , P. 22, New Jagannath Ghat Road, 2. Kanaya Lal Tharar, 1, New Jagannath Ghat Road. 3. Nagarmal Bhawalka and 4, Indra Chand Bhawalka, 10, Vivekananda Boad, 3rd floor. To The Chief Presidency Magistrate, Calcutta. Sir, I have the honour to submit that information has been received from the Collector of Customs, Calcutta, to the effect that systematic undervaluation of cotton piece goods assessable to duty on market value, resulting in considerable loss of revenue to the Government, is being committed by the marginally noted, parties (marked A) assisted by and in conspiracy with four persons named in the margin (marked B) for a number of years, in contravention of the Sea Customs Act and to cheat the Government. I therefore pray that search warrant may be issued to search the firms and residences of these persons immediately, to seize documents, account books and other papers of the years 1936-39. I have the honour to be, Sir, Your most obedient servant, P.K. Mukherjee. Assistant Commissioner of Police Detective Department, Calcutta, 4th April 1939. 2. Acting on this letter and on no further materials, so far as we are aware, the learned Magistrate issued a se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 1 Hoshide is the agent of the company and petitioner 2 is its shipping clerk. The books and documents which included current account books, codes, contracts, etc. were not produced before the Court by the police but made over to the customs authorities. To this objection was taken on behalf of the company. The learned Chief Presidency Magistrate after hearing their objections passed orders that the books should be retained by the customs authorities and that the company should be given free access to the books. There was a further direction that the books should be returned by 11th April 1939. Thereafter several extensions of time were obtained by the customs authorities and the police. On 8th July 1939 the solicitor to the Government of India appeared on behalf of the Crown and stated that the 'Japanese Firm' would be prosecuted for offences under the Penal Code and Sea Customs Act. On 21st July 1939 the police arrested the petitioners who were enlarged on bail on the same date. The challan or charge sheet against the petitioners had not yet been submitted to the Court. 4. On 7th August 1939 the petitioner made the present application praying for the return of the do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation for a search warrant he was justified under the law in issuing it. In my opinion the learned Magistrate has gone utterly wrong and he has issued a warrant upon a complete misconception of the law. He has not borne in mind the clear distinction made by the Code between an inquiry and an investigation. He has treated the terms as being synonymous. Inquiry is explained in Section 4, Clause (k) of the Code thus: Inquiry includes any inquiry other than a trial conducted under this Code by a Magistrate or Court. Investigation on the other hand is explained in Section 4, Clause (1) which says investigation includes all the proceedings under the Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf. 7. Thus it is clear that an inquiry relates Ito a proceeding held by a Court or a Magistrate while an investigation relates to the steps taken by a police officer or a person other than a Magistrate. It is quite evident from these explanations that the learned Magistrate was wrong when he said that there had been an enquiry before a charge sheet had been submitted and when he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the plain meaning of the words of the clause indicates that there must be an inquiry pending at the time the warrant was issued. In my opinion the contention of the Crown in this respect is the correct one. The Judicial Committee of the Privy Council has interpreted this Clause in Clarke v. Brojendra Kishore Roy (1912) 39 Cal 953. Lord Macnaghten delivering the judgment of their Lordships says at pp. 965 and 966 that a warrant may be issued under Clause 3 of Section 96(1) before any proceedings are initiated and 'in view of an enquiry about to be made' and he refers to the form of the warrant given in Schedule 5, Criminal P.C., in support of this view. In this form the words used are essential to the enquiry now being made or about to be made into the said offence or suspected offence. Mr. Banerjee says that this is an 'obiter dictum' and invites us to take another view. Whether this be an 'obiter dictum' or not we are bound by it. When the Privy Council interprets a Section or lays down a principle of law this Court is bound to follow the interpretation or principle whether it is obiter or not. This was laid down by the Privy Council in Mata Prasad v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that a Magistrate has not applied his mind in this way and when it appears that action has been taken on insufficient material this Court will always interfere. In this connexion we have been referred to the cases in T.R. Pratt v. Emperor (1920) 7 A.I.R. Cal 43 and Jagannath Agarwalla v. Emperor by Mr. Banerjee. Although the facts of these cases are somewhat different from those of the present one and although in the latter case, Newbould J. did not agree entirely with the view of Chaudhury J. on certain matters, nevertheless these cases are helpful in the determination of question involved in the present case as both the Judges hold in both the cases that a search warrant should not be issued merely to help an investigation and that it should not be issued unless there was an enquiry pending or about to be made. They also say that a search warrant should not be issued as a matter of course on the bare statement of a police officer that a search was necessary. 12. As I pointed out in the earlier part of my judgment a trading company has been deprived of its account books, codes and other papers both current and for previous years for several months. Any one having to deal with c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of crime. I wish to make it perfectly clear that nothing that I have said is intended to cast any aspersion whatsoever on the fairness or good faith of the learned Chief Presidency Magistrate. I have had occasion to see his work and I have found him to be able, fair and conscientious to a high degree. In the present case there has been an error due to a misconception of the law and it is therefore necessary for us to set the matter right. In these circumstances I agree with my learned brother in the order that he is about to pass, viz., that the rule so far as it relates to the documents seized should be made absolute and that the documents seized from the petitioners should be returned to them forthwith. Khundkar, J. 15. I agree but desire to add a few observations which arise in connexion with the arguments regardiag the construction of Section 96, Criminal P.C., which have been addressed to us. We are concerned at this stage with only the second part of the rule which is in these terms : to show cause why the books of account seized under the search warrant should not be restored to the company. The power to issue a general search warrant is conferred by Section 96( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r than a Magistrate) who is authorized by a Magistrate in this behalf. 18. It is to be observed that a proceeding by a police officer for the collection of evidence would answer the definition of investigation only if it were a proceeding under the Code. In the present case, the letter of the Assistant Commissioner on which the Magistrate took action shows that the petitioner's books were not required for the purposes of any inquiry, trial or other proceeding under the Code, by or before the Court, but whether they were required for an investigation may be considered. The letter prays that a search warrant may be issued and recites that an information was received from the Collector of Customs Calcutta to the effect that systematic undervaluation of cotton piecegoods assessable to duty on market value resulting in considerable loss of revenue to the Government was being committed by several persons... in contravention of the Sea Customs Act and to cheat the Government. It is quite obvious that the customs authorities wanted an examination of the books in order to see what materials they would afford in support of the information which had come into their possession. Su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... follows that the Magistrate's action is not covered by Section 96(1) Clause (a) and it is clear that Clause (b) had no application. There remains Clause (c), and the learned Magistrate's explanation in answer to the rule shows that in his opinion his order ought to be considered justified under that clause. Certain portions of the explanation require to be quoted: In the present case, the police report on which I issued search warrant definitely stated that the suspected offences, into which inquiry was about to be made, were under the Indian Penal Code as also the Sea Customs Act and I submit that my order was justified. I agree however that the original application by the police (dated 4th April 1939) might have been a little more explicit, and the warrants themselves might have been more explicit.... I am informed that the charge sheet is about to be submitted against the applicants by the police, so that there has been an inquiry under the Code resulting in prosecution of the applicants. 20. What I have quoted from the learned Magistrate's explanation indicates that ha has confused inquiry with investigation and has failed to appreciate the fact that an e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with Clause (c). Clause (d) authorizes the person to whom the warrant is directed to search or inspect in accordance therewith, and it seems to me to be reasonably clear that the word ' inspect must contemplate a step to be taken after the seizure of the documents or things concerned has been effected. In the context in which it occurs it implies a capacity to scrutinize the materials seized for purposes of any inquiry, trial or other proceeding under the Code. There are no words which limit scrutiny to the purposes of a trial already launched. Indeed when documents or things are involved the effective prosecution of a criminal trial would generally be impossible unless the prosecutors were permitted to examine the documents or things at a very early stage, and) it is only reasonable to assume that the Legislature was alive to such a consideration. 22. In my judgment the language of Clauses (c) and (d) read together justify a search warrant for materials an examination of which is required for the purposes of a trial note yet actually embarked upon. In Mahomed Jackariah Co. v. Ahmed Mahomed (1888) 15 Cal 109 it was held that documents of an accused person brought into Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... brother has pointed out the word investigation is omitted from Clause (c) of Section 96(1) which indicates that a Court acting under that clause may not order seizure for purposes of an investigation. As stated above investigation means a proceeding by the police under the Code for the collection of evidence. I agree entirely that the Court cannot when acting under Clause (c) order the seizure and production of documents for the sole purpose of enabling the police to collect evidence or to search for evidence. But that does not amount to saying that the Court may not make an order for seizure to be followed by an inspection by the prosecutor where the Court judicially considers that seizure and inspection will serve the purposes of any inquiry, trial or other proceeding under the Code. The second branch of Mr. Banerjee's argument is concerned with the meaning of the words where the Court considers and this has been dealt with in the judgment of my learned brother in which as I have said I concur. The result is that this rule must be made absolute. The books and documents seized under the search warrant in question are to be returned to the petitioner forth with. - - Tax ..... X X X X Extracts X X X X X X X X Extracts X X X X
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