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TMI Blog1996 (2) TMI 473X X X X Extracts X X X X X X X X Extracts X X X X ..... led for. No copy of the list of the goods seized was given to him. Before commencement of the proceedings of search and seizure, no reason for suspicion was recorded. Under threat, coercion and undue influence, his statement was recorded, an application for compounding the offence was taken from him and composition fee of Rs. 19,224 was got deposited by him. All these proceedings took place the same day. 3.. In their reply, it is admitted by the respondents that on January 20, 1988 the business premises of the petitioner was inspected and searched, 29 cartons containing goods worth Rs. 64,080 were seized, petitioner moved an application for composition of the offence, composition fee of Rs. 19,224 was deposited by him and, thereafter, goods seized were released. It is further averred that a show cause notice was issued under section 22(4) of the RST Act to the petitioner for February 4, 1988, at his instance the case was taken up the same day, he himself voluntarily moved the said application and deposited Rs. 19,224 as composition fee. There was no threat, coercion or undue influence. All proceedings took place in accordance with the provisions of section 22 of the RST Act. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d complete figures of the unaccounted for goods could be found and not otherwise. He also contended that the burden to prove the actual possession of unaccounted for goods is upon the respondents and they have utterly failed to discharge it. He further contended that under threat, coercion and undue influence, the raiding party got the petitioner's statement and the said application from him to make its quota of search and seizure and such admissions are not valid and binding. He relied upon Shri Krishan v. Kurukshetra University AIR 1976 SC 376. He lastly contended that the admission of the petitioner could not be taken into consideration while compounding the offence under section 16(9)(b), RST Act as the petitioner was in the position of an accused within the meaning of article 20(3) of the Constitution of India. 5.. In reply, it has been contended by Shri S.K. Vyas, Advocate, learned counsel for the respondents, that the writ petition is not maintainable as the petitioner had the remedy of appeal under section 13, RST Act, all proceedings were held in accordance with law, no threat was given, no undue influence or coercion was exercised and no complaint on this score was ever ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch and seizure were illegal. Reference of K.L. Subhayya v. State of Karnataka AIR 1979 SC 711, may also be made here. 8.. Search and seizure were also illegal as admittedly the provisions of rule 58 of the Rules and sub-sections (2) and (3) of section 103 of the Code of Criminal Procedure, 1973 were not complied with. Search and seizure took place in Ghas Mandi, Jodhpur. The seizure memo (annexure 3) shows that the attesting witness-Rupa Ram was a resident of Akhlian Crossing, Baldava Nagar, Jodhpur and the other witness, Tara Chand belonged to Kalal Colony, Inside Nagori Gate, Jodhpur. Rule 58(2)(a) of the Rules (as it then stood) required respectable inhabitants of the locality in which the building and place to be searched was situated to be witnesses. Baldava Nagar and Kalal Colony are at the great distances from Ghas Mandi. There is also nothing on the record to indicate that a list of the goods seized was given to the petitioner and was also sent to the Commissioner, Commercial Taxes Department as required under rule 58(2)(c) of the Rules. It has been observed in Khanna Electrical Stores v. State of Rajasthan [1992] 2 WLN 341 (Raj) (DB) at page 348, para 12, as follows: " ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner has averred that he made statement (annexure I) and moved application, (annexure 5) for the composition of offence in an atmosphere of awe, terror, fear and mental tension. It has also been repeatedly said at several places in the writ petition that the entire proceedings took place the same day in a very hurried, arbitrary and capricious manner. He was very anxious to get 29 cartons released which were seized. The petitioner has filed his affidavit in support of the writ petition, verifying the above averments on the basis of his own personal knowledge. On the contrary, counter-affidavit of the officer in-charge of the case Sri B.R. Joshi, has been verified on the basis of the record. Admittedly, he had no personal knowledge about the said search and seizure. No affidavit of the Commercial Taxes Officer who conducted the said search and seizure or any member of the raiding party has been filed. Thus the petitioner's affidavit on this important aspect of the case has gone unrebutted and unchallenged. In the famous case of Partap Singh v. State of Punjab AIR 1964 SC 72 at page 85, para 14, it has been observed as follows: ".............In the present case there were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mission of his superior officers. But as the respondent was bent on prohibiting him from taking the examination he had no alternative but to write a letter per force. It is well-settled that any admission made in ignorance of legal rights or under duress cannot bind the maker of the admission. In these circumstances we are clearly of the opinion that the letter written by the appellant does not put him out of court." 12.. In Kanpur Vanaspati Stores v. Commissioner of Sales Tax [1973] 32 STC 655 (SC); (1973) 4 SCC 110, interpretation of the words "tax admitted" was involved, and the appellant's contention was found to be an afterthought. In Assistant Commercial Taxes Officer v. Raja Glass House [1989] 75 STC 417 (Raj), the assessee did not put his appearance and his admission was simply relied upon. Thus the writ petition deserves to be allowed. 13.. In the result, the writ petition is allowed. The respondents are directed to refund the amount of Rs. 19,224 (rupees nineteen thousand two hundred and twenty-four) received from the petitioner as composition fee with interest at 15 per cent per annum from the date of deposit to the date of refund, within three months from today. No ..... X X X X Extracts X X X X X X X X Extracts X X X X
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