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TMI Blog1965 (12) TMI 20X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 and 20-8-1963. The authorisation was granted by the 1st respondent—Assistant Collector of Customs and Central Excise, Nagpur—to the second respondent—Superintendent of Customs and Central Excise—on 19-8-1963 to search the appellant's premises "Shreeram Bhawan" and to seize and take possession of all gold, gold ornaments etc. which were believed to have been kept in contravention of Gold Control Rules and also account books and documents. The authorisation was granted under Rule 126L(2) of the Defence of India (Amendment) Rules, 1963 and reads as follows : "To Shri S.H. Joshi, Superintendent of Customs and Central Excise, Nagpur. Whereas information has been laid before me and on due inquiry thereupon I have been led to believe that the premises/ vaults/lockers specified below and said to be in possession and control of Shri R.B. Shri Ram Durga Prasad are used for storage of Gold/Gold ornaments in contravention of the provisions of the Gold Control Rules. Details of premises/vaults/lockers to be searched. Shri Ram Bhavan and premises, appurtenances thereto including offices, out-houses, etc. Ramdaspeth, Nagpur. This is to authorise and require you to enter the said premises ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 2012 (in Hindi) pages 1 to 57; 7. Hisab (bahi)—Partners—GXF Group upto 3-5-1959 (in Hindi) pages 1 to 20; 8. Om—P. Ankada Bahi (in Hindi) pages 1 to 25; 9. Ankada (Bahi) Bombay Nagpur (in Hindi) pages 1 to 10; 10. Shri Jaipur ki Hisab Bahi (in Hindi) pages 1 to 101 (loose papers) and 1 to 39 (regular pages); 11. C.N.A. 1956-58 (A/c Book in English) pages 1 to 101; 12. Account Book similar to No. 11 above (in English) back card-board cover missing pages 1 to 129; 13. June Shan Jakhiramji Bhagwandasji pages 1 to 2 loose pages. Pages 1 to 71 regular pages; 3rd November, 1956 to 2nd May, 1959 :- Total thirteen exercise book type account books; 14. Eight bunches of loose sheets stitched together containing sheets as detailed below : Bunch No. 1 containing sheets 5 : Bunch No. 2 containing sheets 6 : Bunch No. 3 containing sheets 4 : Bunch No. 4 containing sheets 5 : Bunch No. 5 containing sheets 4 : Bunch No. 6 containing sheets 2 : Bunch No. 7 containing sheets 2 : Bunch No. 8 containing sheets 3; 15. Loose papers 25 sheets (including small chits) recovered from Shri Ram Bhawan, Nagpur and whereas I am of the opinion that the said documents are useful for and relevant to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... these Rules to make any order, or to exercise any other power may, in addition to any other action prescribed by or under these Rules, take, or cause to be taken, such steps and use, or cause to be used, such force as may, in the opinion of such authority, officer or person, be reasonably necessary for securing compliance with, or for preventing or rectifying any contravention of, such order, or for the effective exercise of such power. (2) Where in respect of any of the provisions of these Rules there is no authority, officer or person empowered to take action under sub-rule (1), the Central or the State Government may take, or cause to be taken, such step and use, or cause to be used, such force as may in the opinion of that Government be reasonably necessary for securing compliance with, or preventing or rectifying any breach of, such provision. (3) For the avoidance of doubt, it is hereby declared that the power to take steps under sub-rule (1) or under sub-rule (2) includes the power to enter upon any land or other property whatsoever." It was submitted that the Superintendent of Customs and Central Excise was an officer empowered by the Central Government to exercise the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich he suspects that any provision of this Part has been, or is being, or is about to be, contravened and thereafter take all measures necessary for their safe custody." By the same amendment the following sub-rule was inserted after sub-rule (2) : "(3) Any officer authorised by the Board by writing in this behalf may search any person if that officer has reason to believe that such person has secreted about this person - (a) any gold in respect of which such officer suspects that any provision of this Part has been, or is being, or is about to be contravened; (b) any document relating to such gold." It is important to notice that Rule 126L(2) has not been amended by the Seventh Amendment and there is no provision in this sub-rule for such a seizure of any document. We are, therefore, of the opinion that respondent No. 1 had no authority under Rule 126L(2) of the Defence of India Rules to order respondent No. 2 to seize and take possession of the documents in the premises of the appellant. 5. The appellants will not, however, be entitled to the relief of grant of a writ, because we are of the opinion that there is a valid order of seizure of the same documents on September 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... point because we are of the view that, in any event, the Collector of Customs would be a "proper officer" in relation to the functions to be performed by the Act because as the matter of principle the Collector of Customs who had assigned the powers of a "proper officer" to the subordinate officer must himself be deemed to have the powers of a "proper officer" under Section 110(3) of the Customs Act. We accordingly reject the contention of Mr. Pathak on this point. 7. It was next submitted on behalf of the appellant that on both the dates—September 6, 1963 and September 11, 1963—the documents were not in physical possession of respondent No. 2 and there could not be a valid seizure of documents as contemplated by Section 110(3) of the Customs Act. It is the admitted position that when seizure orders were passed by the Collector of Customs on September 6, 1963 and September 11, 1963 the documents were not in Nagpur or within the territorial jurisdiction of respondent No. 3. But we do not accept the argument of the appellant that the power of seizure must necessarily involve, in every case, the act of physical possession of the person who had a right to seize the articles. It is tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts were retained at Delhi for a specific purpose will not affect the legality of the order of seizure and there was, in law, transfer of possession in respect of the documents from respondents Nos. 1 and 2 to respondent No. 3. 9. On behalf of the appellants Mr. Pathak referred to the decision of this Court in Gian Chand v. State of Punjab, (1962) Supp. 1 SCR 364 = 1983 E.L.T. 1365. In that case, the question debated was whether the presumption under Section 178A of the Sea Customs Act, 1878 would arise in respect of an article which was originally seized by the police and handed over to the authorities of the Customs Department and was actually with one of them when it was seized. In this context this Court observed at p. 378 of the Report (Supp. SCR) : "A `seizure' under the authority of law does involve a deprivation of possession and not merely of custody and so when the police officer seized the goods, the accused lost possession which vested in the police. When that possession is transferred, by virtue of the provisions contained in Section 180 to the Customs authorities, there is no fresh seizure under the Sea Customs Act. It would, therefore, follow that, having regard to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lared by him under Rule 126-I of the Defence of India (Amendment) Rules, 1963, and for this purpose a raid was made for search of gold and gold ornaments. Respondent No. 2 had further stated as follows :- "During this search, I also came across certain documents and records which indicated that the petitioner had acquired considerable quantity of gold which was far in excess of the quantity of gold declared by the petitioner and his family members in the declaration submitted by them under Rule 126-I of the Defence of India (Amendment) Rules, 1963. In addition, I also found documents indicating that the petitioner had resorted to dealings constituting breach of the Customs Regulations and the Regulations under the Foreign Exchange Regulation Act punishable under the Sea Customs Act, 1878 and/or the Customs Act, 1962. The documents, notebooks and files which I came cross also indicated that the petitioner had resorted to under-invoicing of export of mineral ores to the extent of millions of rupees, large-scale purchase of gold to the tune of lakhs of rupees, unauthorised sale of Foreign Exchange involving lakhs of dollars (U.S.) to parties of whom some are persons known to be direc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... toms specially empowered by name in this behalf by the Board, has reason to believe that any goods liable to confiscation, or any documents or things which in his opinion will be useful for or relevant to any proceeding under this Act, are secreted in any place, he may authorise any officer of customs to search or may himself search for such goods, documents or things. (2) The provisions of the Code of Criminal Procedure, 1898, relating to searches shall, so far as may be, apply to searches under this section subject to the modification that sub-section (5) of Section 165 of the said Code shall have effect as if for the word "Magistrate", wherever it occurs, the words "Collector of Customs" were substituted.' According to the appellant the power of seizure under Section 105 of the Customs Act cannot be exercised unless the Assistant Collector had reason to believe that the documents were secreted. It was argued that the word "secreted" is used in Section 105 in the sense of being hidden or concealed and unless the officer had reason to believe that any document was so concealed or hidden, a search could not be made for such a document. We are unable to accept the submission of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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