2023 (7) TMI 1134 - HC - Customs

Authority and jurisdiction - Power to search versus Power to seal u/s 105 - Power of Assistant Commissioner of Customs to seal the office premises of the petitioner in exercising powers under Section 105 of the Customs Act, 1962, without any notice to petitioner - HELD THAT - The power to search cannot mean a power to seal. A power to seal the premises is a drastic power. In our opinion, such powers cannot be exercised unless the same is expressly conferred by law. Also the respondents have not supported their contention of such power being vested with the Customs Officers citing any authority on such proposition. As to how Section 105 of the Customs Act has been considered and interpreted by the Supreme Court in upholding its validity can be seen from the observations of the Supreme Court in R. S. Seth Gopikisan Agarwal Vs. R. N. Sen, Assistant Collector of Customs and Central Excise, Raipur Ors. 1967 (1) TMI 39 - SUPREME COURT . The Supreme Court interpreting Section 105 of the Customs Act, observed that the object of the section is to make search for the goods liable to be confiscated or the documents secreted in any place which are relevant to any proceeding under the Act. It was observed that the legislative policy reflected in the section is that the search must be in regard to the two categories mentioned therein, namely, goods liable to be confiscated and documents relevant to the proceedings under the Act. The customs authorities would not have an explicit power under Section 105 of the Customs Act to seal the premises. This also for the reason that sealing of premises, is a drastic action. It results in tinkering with substantive rights of a person to hold, use and occupy any immovable property. The property may be used for the business purposes or otherwise, hence, any action to seal the premises would have a direct bearing and effect on legal rights of the person to use and occupy the premises as guaranteed by Article 300A of the Constitution - Once the sealing of the premises is of business premises, it would adversely affect the right to carry on business which is a fundamental right as guaranteed under Section 19(1)(g) of the Constitution. It is for such reasons in providing for powers under Section 105 of the Customs Act of search, the legislature has kept out and/or has not included within its purview a power to seal, and has confined the power only to search the premises. In the present case, it does not appear that the premises of the petitioner were not available for the purpose of search and it appears that the customs authorities had straightaway resorted to take a drastic action against the petitioner to seal the premises for the purpose of searching the premises. This is certainly not permissible under the provisions of Section 105 of the Customs Act - the petitioner has shown willingness to co-operate in the search action to be undertaken by the customs authorities. The customs authorities need to unseal the office premises of the petitioner in the presence of the representatives of the petitioner, so that the customs authorities can undertake search of the office premises in regard to the relevant material only - Petition disposed off.

Summary

Issues involved:
The issues involved in the judgment are the authority and jurisdiction of customs officers to seal office premises without notice under Section 105 of the Customs Act, 1962, the legality of sealing premises for search purposes, and the rights of individuals in relation to property and business under the Constitution.

Issue 1: Authority to Seal Premises
The petitioner sought relief to unseal their office premises sealed by the Assistant Commissioner of Customs without notice. The petitioner argued that the Assistant Commissioner did not have the authority to seal the premises under Section 105 of the Customs Act, 1962 without providing any notice. The petitioner expressed willingness to cooperate in the investigation related to transactions involving a principal importer/supplier, S. T. Electricals, emphasizing that the search should be specific to relevant transactions only.

Issue 2: Legal Implications of Sealing Premises
The High Court analyzed the powers granted under Section 105 of the Customs Act, emphasizing that the power to search does not inherently include the power to seal premises. The Court highlighted that sealing premises is a drastic action affecting substantive rights and legal guarantees under the Constitution, such as the right to property and the right to carry on business. The Court concluded that the Customs authorities did not have explicit power to seal premises under Section 105, as it goes beyond the scope of search powers provided by the legislature.

Issue 3: Court's Decision
After considering the arguments of both parties and reviewing relevant legal provisions, the Court concluded that the Customs authorities should unseal the petitioner's office premises to conduct a search operation specific to the relevant material. The Court directed the customs officers and the petitioner's representatives to be present for the unsealing and search operation, emphasizing the need for cooperation from both sides. The judgment highlighted the importance of following legal procedures and respecting individual rights while conducting search operations.