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TMI Blog1965 (12) TMI 135X X X X Extracts X X X X X X X X Extracts X X X X ..... fter called the 'Customs Act'). Civil Appeal No. 678 of 1965 : This appeal arises out of Special Civil Application no. 490 of 1963 which relates to the search and seizure of the premises of Sri Durga Prasad on August 19, 1963 and August 20, 1963. The authorisation was granted by the 1st respondent-Assistant Collector of Customs and Central Excise, Nagpur to the second Respondent-Superintendent of Customs and Central Excise -on August 19, 1963 to search the appellant's premises "Shreeram Bhawan" and to seize and take possession of all gold, gold ornaments etc. which were believed to have been kept in contravention of Gold Control Rules and also account books and documents. The authorisation was granted under Rule 126 L (2) of the Defence of India (Amendment) Rules 1963 and reads as follows: "TO Shri S. H. Joshi, Superintendent of Customs and Central Excise, Nagpur. Whereas information has been laid before me and on due inquiry thereupon I have been led to believe% that the premises/vaults/lockers specified below and said to be in possession and control of Shri R. B. Shri Ram Durga Prasad are used for storage of Gold/Gold ornaments in contravention of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hri Jaipur Ki Hisab Bahi (in Hindi) pages 1 to 101; (loose papers) and 1 to 39 (regular pages); 11. C.N.A. 1956,58 (A/c Book in English) pages 1 to 101; 12. Account Book similar to no. II above (in English) back cardboard cover missing pages 1 to 129; 13. June Shan Jakhiramji Bhagwandasji pages 1 to 2 loose pages. Pages 1 to 71 regular pages; 3-11-56 to 2-5-59;--Total thirteen exercise book type account books; 14. Eight bunches of loose sheets stitched together containing sheets as detailed below Bunch no. 1 containing sheets 5 : Bunch no. 2 containing sheets 6 : Bunch no. 3 containing sheets 4: Bunch no. 4 containing sheets 5 : Bunch no. 5 containing sheets 4 : Bunch no. 6 containing sheets 2; Bunch no. 7 containing sheets 2 : Bunch no. 8 containing sheets 3; 15. Loose papers 25 sheets (including small chits) recovered from Shriram Bhawan, Nagpur and whereas I am of the opinion that the said documents are useful for and relevant to the proceedings under Customs Act 1962 (Act 52 of 1962) 1, Shri Tilak Raj, the Collector of Central Excise, having been empowered as Collector of Customs under Notification no. GSR 214 dated 1-2-1963 of the Government of India in this behalf in exe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... person, be reasonably necessary for securing compliance with, or for preventing or rectifying any contravention of, such order, or for the effective exercise of such power. (2) Where in respect of any of the provisions of these Rules there is no authority, officer or person empowered to take action under sub-rule (1), the Central or the State Government may take, or cause to be taken, such steps and use, or cause to be used, such force as may, in the opinion of that Government be reasonably necessary for securing compliance with, or preventing or rectifying any breach of, such provision. (3) For the avoidance of doubt, it is hereby declared that the power to take steps under sub-rule (1) or under sub-rule (2) includes the power to enter upon any land or other property whatsoever. " It was submitted that the Superintendent of Customs and Central Excise was an officer empowered by the Central Government to exercise the power under Rule 126 L (2) and under Rule 156 the Superintendent had the additional power to take or cause to be taken such steps as may be reasonably necessary for the effective exercise of such power. The argument was stressed that under Rule 156 the Superinte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by writing in this behalf may search any person if that officer has reason to believe that such person has secreted about his person (a) any gold in respect of which such officer suspects that any provision of this Part has been, or is being, or is about to be, contravened, (b) any document relating to such gold." It is important to notice that Rule 126 L (2) has not been amended by the Seventh Amendment and there is no provision in this sub-rule for such a seizure of any document. We are, therefore, of the opinion that respondent no. 1 had no authority under Rule 126 L (2) of the Defence of India Rules to order respondent no. 2 to seize and take possession of the documents in the premises of the appellant. The appellants will not however be entitled to the relief of rant of a writ, because we are of the opinion that there is a valid order of seizure of the same documents on September 11, 1963 by the Collector of Customs under s. 110(3) of the Customs Act. Section 1 1 0 of the Customs Act states "110.(1) If the proper officer has reason to believe that any goods are liable to confiscation under this Act, he may seize such goods: Provided that where it is not practicabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "proper officer" to the subordinate officer must himself be deemed to have the powers of a " proper officer" under S. 110(3) of the Customs Act. We accordingly reject the contention of Mr. Pathak on this point. It was next submitted on behalf of the appellant that on both the dates-September 6, 1963 and September 11, 1963-the documents were not in physical possession of respondent no. 2 and there could not be a valid seizure of documents as contemplated by S. 110(3) of the Customs Act. It is the admitted position that when seizure orders were passed by the Collector of 'Customs on e documents were not in Nagpur or within the territorial of respondent no. 3. But we do not accept the argument of the appellant that the power of seizure must necessarily involve, in every case, the act of physical possession of the person who had a right to seize the articles. It is true that the documents had been sent to Delhi by respondent no. 2 for a limited purpose and for a limited period. But though the documents were sent to Delhi, respondent no. 2 was still in legal possession of the documents, for he had the right to control the use of the documents and to exclude perso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cision of this Court in Gian Chand v. The State of punjab(1962 Supp.1 R). In that case, the question debated was whether the presumption under S. 178A of the Sea Customs Act, 1878 would arise in respect of an article which was originally seized by the police and handed over to the authorities of the Customs Department and was actually with one of them when it was seized. In this context, this Court observed at page 373 of the Report : "A 'seizure' under the authority of law does involve a deprivation of possession and not merely of custody and so n the police officer seized the goods, the accused lost possession which vested in the police. When that possession is transferred, by virtue of the provisions contained in s. 180 to the Customs authorities, there is no fresh seizure under the Sea Customs Act. It would, therefore, follow that, having regard to the circumstances in which the gold came into the possession of the Customs authorities, the terms of S. 178A which requires a seizure under the Act were not satisfied and consequently that provision cannot be availed of to throw the burden of proving that the gold was not smuggled, on the accused." The ratio of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the petitioner had acquired considerable quantity of gold which was far in excess of the quantity of gold declared by the petitioner and his family members in the declarations submitted by them under Rule 126 1 of the Defence of India (Amendment) Rules, 1963. In addition, I also found documents indicating that the petitioner had resorted to dealings constituting breach of the Customs. Regulations and the Regulations under the Foreign Exchange Regulation Act punishable under the Sea Customs Act, 1878 and/or the Customs Act, 1962. The documents, note-books and files which I came across also indicated that the petitioner had resorted to under invoicing of export of mineral ores to the extent of millions of rupees, large-scale purchase of gold to the tune of lakhs of rupees, unauthorised sale of Foreign Exchange involving lakhs of dollars (U.S.) to parties of whom some are persons known to be directly or indirectly involved in smuggling activities." We accordingly hold that there is sufficient material to support the information of the Collector of Customs under s. 110(3) of the Customs Act that the documents would be useful or relevant to the proceedings under the Act and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to search or may himself search for such goods, documents or things. (2) The provisions of the Code of Criminal Procedure, 1898, relating to searches shall, so far as may be, apply to searches under this section Subject to the modification that subsection (5) of section 165 of the said Code shall have effect as if for the word "Magistrate", wherever it occurs, the words "Collector of Customs" were substituted." According to the appellant the power of seizure under s. 105 of-the Customs Act cannot be exercised unless the Assistant Collector had reason to believe that the documents were secreted. It was argued that the word "secreted" is used in s. 105 in the sense of being hidden or concealed and unless the officer had reason to believe that any document was so concealed or hidden, a search could not be made for such a document. We are unable to accept the submission of the appellant as correct. In our opinion, the word "secreted" must be understood in the context in which the word is used in the section. In that context, it means 'documents which are kept not in the normal or usual place with a view to conceal them' or it may ..... X X X X Extracts X X X X X X X X Extracts X X X X
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