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TMI Blog1976 (8) TMI 142X X X X Extracts X X X X X X X X Extracts X X X X ..... the Assistant Commissioner of Commercial Taxes refused to release the same. On the other hand, the said authority served a notice dated 11th June, 1973, under section 14(1) of the said Act directing the respondent to produce all its books of account since the inception of the business. Being aggrieved by such seizure, retention of documents and omnibus notice under section 14(1) of the said Act, the respondent moved this court on 5th July, 1973, with a writ petition. In this writ petition, the respondent disputed the validity of the search and seizure, as aforesaid, as also the notice under section 14(1) and prayed for issue of an appropriate writ for setting aside the notice under section 14(1) of the said Act and also for return of the documents seized from its custody. The appellants unsuccessfully contested the said writ petition and the learned Judge in the trial court allowed the petition and issued a writ, as prayed for by the respondent. The learned Judge held that recording of reasons as prescribed by section 14(3) of the said Act is a condition precedent to a valid search and seizure and the appellants having failed to show that any such reason was so recorded, the sea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble accounts, registers and documents of the respondent were seized in such a manner that it is impossible for the respondent to carry on its ordinary business. According to Mr. Bhattacharjee, the learned Judge was right in his conclusion that the authority competent to search and seize has first to arrive at a bona fide suspicion that the dealer who is going to be subjected to search and seizure is evading or attempting to evade payment of taxes for the detection whereof it would be necessary to seize the accounts, registers and documents. He (the authority competent) is also to entertain a belief based on an information that such accounts, registers and documents are kept by the dealer at the places to be searched. Mr. Bhattacharjee has further contended that unless the power to search and seizure be not considered to be subject to that amount of limitation, the same would impose unreasonable restrictions on the citizen's right of carrying on his individual trade and business. In considering these rival contentions, we should first consider and find out the facts and circumstances under which the search was held and the seizure was made. It is not in dispute that such search an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to support them in such stand. Such a stand, again, is not at all supported by their minutes referred to hereinbefore. Hence, we are not in a position to believe or accept the case made out in the affidavit that the Inspectors themselves, upon their own suspicion and satisfaction, conducted the search and made the seizure. On the other hand, the order of Sri Dasgupta which could have thrown appropriate light on the issue is not being disclosed and is being withheld from the court. The said order, again, has not been owned by Sri Dasgupta. Therefore, no document is disclosed by the appellants wherefrom we can find any reason recorded by any authority for the necessity of the search and seizure before they were made. On these facts, we are now to consider how far the search and the seizure impugned in the writ petition can be said to be in accordance with law. The authority and the limit for such search and seizure are to be found in section 14(3) and (4) of the said Act and we prefer to set out section 14 hereunder: "14. (1) The Commissioner may, subject to such conditions as may be prescribed, require any dealer- (a) to produce before him any accounts, registers or documents, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and documents from him. Once he arrives at this mental state, he goes to search the premises where, on his information, he believes the accounts, registers and documents are kept. Such a conclusion, in our opinion, follows from the scheme of the section itself. On the other hand, if we accept the contention of Mr. Roy that sub-section (3) in no way limits the power of search under sub-section (4), then we not only ignore the material part of the sub-section, i.e., the first part thereof, but that would mean conferring arbitrary powers of search in the hands of these officers rendering the provision constitutionally invalid. Mr. Roy may be right in his contention that reasons for the seizure may be arrived at as well in course of the search or as a result of the discoveries made, but the purpose contemplated by sub-section (3) based on a bona fide suspicion must pre-exist and there must be a conscious application of mind by the authority authorised to search in considering that aspect before he proceeds to make the search. Unless he has a suspicion and unless he satisfies himself about the necessity for the search, he cannot conduct the search. The provision was never meant as a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... referred to hereinbefore the reasons recorded in the minutes for the seizure. In one case, all the documents were seized, as the same could not be explained except with reference to the books maintained in the head office. In the other, they were so seized only because the accountant or the partner capable of explaining such books of account and registers were not available and the other partner could not explain the books of account and registers. Such reasons obviously have no relevance to the purpose or object of the seizure, as prescribed by sub-section (3). Mr. Roy, on the other hand, refers to the preamble of the seizure list, which recites as follows: "As we have reasons to suspect that M/s. Oriental Rubber Works of 171A, Mahatma Gandhi Road, Calcutta-7 (RJ/2437A) attempting to evade payment of tax under the Bengal Finance (Sales Tax) Act, 1941, I/we have seized the following accounts and records of the said dealers from Sri Satyanarayan Jalan, partner, under section 14(3) of the said Act, as these are considered to be necessary for the purpose of taking action under the provisions of the said Act." and contends that appropriate reasons having been recorded in the seizu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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