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TMI Blog2013 (4) TMI 87X X X X Extracts X X X X X X X X Extracts X X X X ..... that - The law as laid down by Honorable Apex Court in judgement of Income Tax Officer v. Lakhmani Mewal Das [1976 (3) TMI 1 – SUPREME] Court has been used in it. - the authority which had issued warrant which was ultimately executed had not applied its mind to form “reasonable belief” and the material on record does not support any such satisfaction. - The Search carried on, therefore, cannot be said to be in accordance with law. The same is accordingly quashed and set aside. - Decided in favor of assessee - Writ Petition No. 6043 of 2011 - - - Dated:- 14-8-2012 - B.P. Dharmadhikari and Sunil P. Deshmukh, JJ. Shri Raviraj R. Chandak, Advocate, for the Petitioner. Shri Alok Sharma, ASG, for the Respondent. JUDGMENT Hear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , learned ASG has assisted the court. He has invited attention to original records to show the material looked into has been correctly shown there and on the strength of that material honestly, the responsible Officers have reached a particular belief. He contends that name of the person, who gave secret information cannot be disclosed and, therefore, it has not been recorded. He further contends that additional Director Shri Ashish Chandan, has on further appreciation of material, put a remark may be permitted under the search mode please and authorized search. This remark dated 20-12-2010 is, thereafter accepted by still higher authority, namely, Shri Jitendra Chaturvedi, Additional Director General. 5. His contention is, in this situ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to us as Ashish Chandan appears. He has stated above his signature, May be permitted under Search Mode Please . He has not marked the file/papers thereafter to anybody else. At the bottom, there is again remark dated 12-1-2011 signed by the Inspector (SIO) and IO (IMD). This remark is obviously after search on 21-12-2010. In open space between this last remark and signature of Mr. Ashish Chandan, a signature appears and that signature is disclosed to us to be of Jitendra Chaturvedi, Additional Director General. Thus, this document which reveals mention of Intelligence Report dated 21-12-2010, is first page in the file. It is not very clear whether Intelligence Report dated 20-12-2010 was accompanying it. The note prepared on the basis o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istrate , wherever it occurs, the words Commissioner of Customs were substituted. Thus, the authority named therein, must have a reason to believe that any goods liable to confiscation or any document or things, which in his opinion, will be useful for or relevant to any proceedings under the Act are secreted in any place, then, he can authorize the search or may himself search for such goods, documents or things. Therefore, a reason to believe that the goods liable to confiscation or documents or things, are secreted in any place, must be recorded by the concerned officer. Inspector (MKD), SIO (VMD) are not the Officers who could have recorded any such satisfaction. The note which we have extracted above, does not contain any such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y applied mind and granted necessary authorization. It is also not very clear whether note styled as Intelligence Report dated 20-12-2010 was perused by Shri Mane, or Shri Chandan or then Shri Chaturvedi. Thus authority who reached the satisfaction is untraceable. Similarly there is nothing to show that any such satisfaction has been reached at all before the search was conducted or ordered. 10. In this situation, grant of authorization by Shri Mane cannot be said to be legal and valid. Warrant issued is under signature of Shri D.S. Mane and in it, he has stated that there are reasons to believe that excisable goods liable to confiscation and documents and things, which in his opinion would be useful for and relevant to proceedings under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... supra) considers the provisions of Section 123 of the Customs Act, which deals with proof and it s sub-section (1) stipulates that where goods to which Section 123 applies are seized under the said Act, in the reasonable belief that they are smuggled goods, the burden of proving that they are not smuggled goods is on the person from whose possession same are seized. Paragraph 2 of the judgment shows that secret information that smuggled diamonds have been kept by petitioner Nos. 1 and 2 in a particular premises was received and, thereafter, after obtaining the necessary search warrant, the Customs Officer searched the business premises on 16-11-1979. The following two questions were referred to this High Court :- (1) Whether, in the fact ..... X X X X Extracts X X X X X X X X Extracts X X X X
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