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TMI Blog1978 (1) TMI 149X X X X Extracts X X X X X X X X Extracts X X X X ..... ok up to 5th March, 1976, on which the closing balance was not struck and I have signed the same on page 27. Katcha cash book was written up to 6th March, 1976, in which closing balance was not struck and the regular cash book was written up to 9th February, 1976, in which the closing balance was Rs. 105.04 and I have signed the same on pages 124 and 150 respectively, and have also signed on the last labour bill No. 2714 dated 8th March, 1976, for Rs. 1,000.00 and the last sale bill No. 242 dated 20th January, 1976, for Rs. 795.00 for sale of brass lotas. In the course of my inspection I noticed a small pocket note book written from 1st September, 1975, to 1st November, 1975, three tippen books, six diaries and one letterhead book containing certain transactions kept along with the regular books of account. On test check it was noticed that some of the transactions contained in the above books have not been accounted for in the regular books of account. An opportunity was given to the partner present to explain the descrepancies noticed, which he failed to do. Therefore, I have every reason to suspect that the dealer has been suppressing some of the transactions recorded in the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in section 28(2) of the K.S.T. Act and the provisions of the Code of Criminal Procedure." 3.. As stated above, it is not in dispute that the date of the impugned action is 10th March, 1976. Apart from questioning the legality of the search and seizure, the petitioner has also questioned the competence of the respondent before whom admittedly no assessment proceedings relating to the petitioner's firm were pending, to make the search and also the legality of the retention of the books for such a long period. The petitioner has prayed for the issue of a writ of mandamus to the respondent to return to the petitioner all the seized articles, documents and all copies or notes made from the seized documents. 4.. No statement of objection has been filed in the case. A memo was filed on 22nd September, 1977, on behalf of the respondent which is signed by the High Court Government Pleader, who is the Advocate for the respondent, which was also not supported by any affidavit of the respondent. After the case was partly heard and after the above infirmity was pointed out, an affidavit dated 6th January, 1978, is filed swearing to the contents of the memo. This affidavit is also not sworn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earch. He submitted that irrespective of the "name" sought to be given by the respondent to his impugned action, it was a clear case of search and seizure, and as, admittedly, the procedural safeguards set out in the proviso to sub-section (2) of section 28 of the Act have been violated, the petitioner is entitled to the relief claimed for in the petition. 7.. Elaborating the point, he submitted that but for the procedural safeguard provided in the proviso to sub-section (2) of section 28 of the Act, the section itself would have suffered the vice of unconstitutionality, viz, violation of article 19(1)(f) and (g) of the Constitution, as observed by the Supreme Court while considering the constitutional validity of a similar provision in the Madras General Sales Tax Act (see Board of Revenue, Madras v. R.S. Jhaver[1967] 20 S.T.C. 453 at 467 (S.C.); A.I.R. 1968 S.C. 59 at 66, para 17. He pointed out that the safeguard provided in that provision as well as section 28 of our Act is the same, viz., provision of section 165 of the Criminal Procedure Code is made applicable and, therefore, without first forming an opinion as to the necessity of search and seizure on the basis of relevan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unt maintained by a dealer with respect to his business together amount to giving the officer concerned the powers to enter and search the offices, etc., and if he finds any account in the offices, shops, etc., to inspect them. Otherwise we can see no sense in the legislature giving power to the empowered officer to enter the offices, etc., for the purpose of inspection as the officer concerned would only do so for the purpose of finding out all accounts, etc., maintained by the dealer and if necessary to inspect them for the purposes of the Act. We cannot therefore agree with the High Court that there is no power of search whatsoever in sub-section (2) because the sub-section in terms does not provide for search." On the above basis, he submitted that the so-called inspection said to have been done in this case is clearly a search of the business premises of the petitioner and seizure of the account books as a result of such search. Alternatively, it was urged that in view of the facts of this case and the specific averments made by the petitioner in the writ petition, which have not been controverted, it has to be held that the seizure of account books in the present case is on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... " It is unnecessary to examine in this case as to whether there can be inspection and seizure of account books without search. Therefore, I proceed to examine this case accepting the difference between "inspection" and "search" as pointed out for the respondent and supported by the observations in the judgment aforesaid. In the said case also, on the question of fact, the court recorded a finding that it was a case of search rejecting the contention of the department that it was only a case of inspection. As referred to earlier in the first case also Harikisandas Gulabdas Sons v. State of Mysore[1971] 27 S.T.C. 434., the court refused to accept the stand of the department that it was a case of voluntary handing over of account books in the course of an inspection. 10.. Coming to the present case, it is no doubt true, as pointed by the Advocate for the respondent, that in the impugned order, which is extracted earlier, the respondent has stated that he conducted inspection and during the course of inspection he noticed the account books in question and seized them as he found some inconsistency between the entries in those books and regular account books. But it should be poin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e by the petitioner by the respondent through a proper statement of objections supported by his affidavit as also affidavits of other officers present at that time, lead to the inevitable conclusion that the impugned action is a clear case of search and seizure and the "camouflage" of inspection is sought to be given by the respondent, with the object of escaping the consequences of law as admittedly, the procedural safeguards guaranteed by the proviso to sub-section (2) of section 28 of the Act was not followed. 12.. The powers given to the officers in section 28 of the Act and in the other provisions of the Act authorising the officers to take action against registered dealers for violation of the law are certainly intended for the proper enforcement of the sales tax law and designed in the public interest. At the same time it should be remembered that the procedural safeguards are also of equal importance because the fundamental rights of individuals under article 19 could only be subjected to reasonable restriction in the public interest and the procedural safeguards are meant to protect the individual's right without affecting the public interest. Therefore, while the office ..... X X X X Extracts X X X X X X X X Extracts X X X X
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