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TMI Blog2015 (4) TMI 14X X X X Extracts X X X X X X X X Extracts X X X X ..... e was no material or information with the authorising authority to believe that there was money, jewellery, etc. in the lockers and, therefore, the action of the respondents was wholly illegal is bereft of merit. It may be noted here that only a bald assertion has been made in para 59 of the writ petition which paragraph has been sworn on legal advice. Such assertion based on legal advice without making the foundational assertion cannot be investigated. Making such allegation without corroborative support is by itself not sufficient to challenge the action taken by the authority under Section 132 of the Act, nor can the Court call upon the authority to disclose the information on the basis of an allegation made on legal advice. Since the petitioners did not furnish adequate and cogent material, we are not inclined to call the respondents to disclose the information. We are also of the opinion, that in the given circumstances, information received on the first date of the search by itself caused a reasonable belief for issuance of the warrant of authorisation against the petitioners' for search of their lockers. Such search conducted and the lockers seized on 2nd February, 2012, on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .455, Civil Lines, Moradabad. The petitioners further contend that the kitchen of the petitioners is common. The petitioners contend that plot No.455, Civil Lines, Moradabad was purchased jointly in the name of six persons, namely, Late Sri Gurbachan Singh (father of petitioner no.1), Late Kulwant Singh, Harbhajan Singh (petitioner no.1), Late Surinder Singh, Late Gurbax Singh and Surjeet Singh, who are sons of Late Gurbachan Singh. Over a period of time a residential house was constructed and, it is alleged, that the petitioners started residing on the first floor. Other portions of the residential building was occupied by other co-owners. The petitioners contended that there is no partition by metes and bounds of the premises in question between the co-owners and, by a mutual arrangement, each co-owner is residing and living in their residential portions along with their family. It is alleged that each portion of the residential complex has a separate electric connection. The petitioners, however, admit that there is a common entrance, common car parking and the guard room is also common. However, the name plates of each co-owner is shown at the main gate as well individual na ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned in the warrant of authorization. The learned Senior Counsel contended that the search was conducted at premises No.455, Civil Lines, Moradabad which is one composite property and has not been partitioned by metes and bounds nor was there anything to show that each person mentioned in the warrant of authorization as well as the petitioners had separate identifiable portions. The statements of the petitioners recorded under Section 132(4) does not indicate that the petitioners' portion was separate. On the other hand, the petitioners themselves admit that there is a common entrance to premises No.455 and there is common parking lot and a common guardroom. The learned Senior Counsel submitted that the search was conducted at the residential premises at 455, Civil Lines, Moradabad as well as the business premises at Chaddha Palace, Prince Road, Moradabad on the basis of a warrant of authorization dated 31st January, 2012 after recording the satisfaction separately. The learned Senior Counsel submitted that the jewellery seized was released subsequently on 16th February, 2012 upon taking a bank guarantee. It was further contended that the petitioners have a business link with Gu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed under Section 132(1) will become illegal and will have to be quashed as held in L.R. Gupta and others Vs. Union of India and others, 194 ITR 32. In order to attract clause (c) of Section 132(1) of the Act, there must be information with the authorising authority relating to two matters, namely, that any person is in possession of money, etc. and secondly, that such money, etc. represents either wholly or partly income or property, which has not been or would not be disclosed for the purposes of the Act. The search would be valid if the authorising authority had reasonable ground for believing that a search was necessary and that he further believes that the required object cannot otherwise be obtained without undue delay. In our opinion, clause (a), (b) and (c) of Section 132(1) of the Act spells out the circumstances under which authorising authority may issue a warrant of authorisation. Such authorisation is possible only if the authorising authority in consequence of information in his possession has reason to believe the existence of the circumstances enumerated in clause (a), (b) and (c) of Section 132(1) of the Act. In order to justify the action under Section 132, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 132(1) is a condition precedent to the authorisation of search and seizure. It is basically a subjective step essentially to make up one's mind as to whether on the basis of information available he had or had not formed the reasons to believe. This belief, cannot be a mere pretence nor can it be a mere doubt or suspicion but has to be something more than that. In the light of the aforesaid, a warrant of authorisation issued by an authorising authority under Section 132 of the Act can authorise the Authorised Officer to enter and search any building, place, vessel, vehicle, etc. where he has reasons to believe that such books of accounts, documents, money, bullion, jewellery or other valuable articles or things are kept. The authorising authority is under law expected to sign a warrant of authorisation, which is complete in all aspect. The warrant of authorisation should be in the name of the persons whose premises, etc. are sought to be searched. When it is not clear whether one or more persons are in occupation or control of the premises, it would be safe and proper to issue the authorisation against all the unknown persons, who may be owners or in possession of the articl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e authorising officer to have a reason to believe that an action under Section 132 of the Act was called for any of the reasons mentioned in clause (a), (b) or (c) of Section 132 of the Act. We are of the opinion that persons mentioned in the warrant of authorisation alone can contend that on the facts or information disclosed, action under Section 132 of the Act was wholly illegal. The petitioners' contend that they are living on the first floor of premises no.455, Civil Lines, Moradabad and that their residence was illegally searched and, therefore, the action of the respondents was wholly illegal and the search and seizure conducted was liable to be quashed. We find that admittedly, premises no.455, Civil Lines, Moradabad was purchased jointly in the name of six persons, namely, Late Sri Gurbachan Singh (father of petitioner no.1), Late Kulwant Singh, (Harbhajan Singh) petitioner no.1, Late Surinder Singh, Late Gurbax Singh and Surjeet Singh, who are all sons of Late Gurbachan Singh. We find that the property is still joint and no partition by metes and bounds has taken place. The petitioners' themselves admit that there is a common entrance, common car parking and a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ound various bank accounts and lockers of the petitioners' and, based on the search, fresh warrant of authorisation for searching the lockers was obtained on 1st February, 2012. The contention of the petitioners that there was no material or information with the authorising authority to believe that there was money, jewellery, etc. in the lockers and, therefore, the action of the respondents was wholly illegal is bereft of merit. It may be noted here that only a bald assertion has been made in para 59 of the writ petition which paragraph has been sworn on legal advice. Such assertion based on legal advice without making the foundational assertion cannot be investigated. Making such allegation without corroborative support is by itself not sufficient to challenge the action taken by the authority under Section 132 of the Act, nor can the Court call upon the authority to disclose the information on the basis of an allegation made on legal advice. Since the petitioners did not furnish adequate and cogent material, we are not inclined to call the respondents to disclose the information. We are also of the opinion, that in the given circumstances, information received on the first d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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