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TMI Blog1986 (7) TMI 9X X X X Extracts X X X X X X X X Extracts X X X X ..... ustoms authorities and gave certain consequential directions. In order to appreciate the points involved, it is necessary to refer to certain facts as found by the High Court. On August 23, 1970, the petitioner before the High Court, who is the respondent here, was travelling by car, alleged to belong to his brother from Ambala to Batala. He was intercepted near the Beas river by the Customs Officer and was forcibly taken along with the driver, Gurnam Singh, to the Customs House at Amritsar. The said petitioner in that application was searched along with his driver and the Customs authorities took into possession Rs. 93,500 in Indian currency, 10 gold sovereigns and the car. On August 24, 1970, the petitioner was produced before a Duty Magistrate at Amritsar and was granted bail. In the meantime, the Customs Department took proceedings under section 110(2) of the Customs Act, 1962, and extended the period of issuing of the showcause notice under section 124 of the Customs Act, 1962. These proceedings were challenged in the High Court by a writ petition and the order of the Customs authority under section 110(2) was quashed by an order of the learned single judge of the High Court o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 110 of the Customs Act, 1962. The Income-tax authorities could not seize such an amount from the Customs authorities under section 132 of the Act. Moreover, the authorisation was illegal if issued in the name of the person who did not have possession of the article, in respect of which it was issued. The High Court further held that in the facts and circumstances of the case, the order under section 132 of the Act was not justified. Therefore, the High Court held that the search and seizure warrants were liable to be quashed and the money returned to the Customs Department. The judgment of the High Court is reported as Tarsem Kumar v. CIT [1974] 94 ITR 567. The validity of the judgment is impugned in this appeal. It is necessary in order to appreciate the contentions urged in this case to refer to the relevant provisions of section 132 of the Act. Sub-section (1) of section 132 provides as follows : " Search and seizure.-(1) Where the Director of Inspection or the Commissioner or any such Deputy Director of Inspection or Inspecting Assistant Commissioner as may be empowered in this behalf by the Board, in consequence of information in his possession, has reason to believe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on any such books of account, other documents, money, bullion, jewellery or other valuable article or thing; (iii) seize any such books of account, other documents, money, bullion, jewellery or other valuable article or thing found as a result of such search ; (iv) place marks of identification on any books of account or other documents or make or cause to be made extracts or copies therefrom ; (v) make a note or an inventory of any such money, bullion, jewellery or other valuable article or thing; " The only other sub-section to which reference need be made is subsection (3) which is as follows : " The authorised officer may, where it is not practicable to seize any such books of account, other document, money, bullion, jewellery or other valuable article or thing, serve an order on the owner or the person who is in immediate possession or control thereof that he shall not remove, part with or otherwise deal with it except with the previous permission of such officer and such officer may take such steps as may be necessary for ensuring compliance with this sub-section. " It is not necessary to refer to the other provisions for the present purpose. But the procedure indicated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been clearly dealt with by judgment of the Division Bench of the Allahabad High Court in Motilal v. Preventive Intelligence Officer, Central Excise and Customs [1971] 80 ITR 418, where the judgment was delivered by one of us (R. S. Pathak J.). There the court held that the power conferred under section 132(1) of the Act was contemplated in relation to those cases where the precise location of the article or thing was not known to the Income-tax Department and, therefore, a search was necessary for it, and where it would not be ordinarily yielded over by the person having possession of it. The view that section 132(3) of the Act would include a case where the location of the article or thing was known and where ordinarily the person holding custody of it would readily deliver it up to the Income-tax Department was not correct, it was so held by the Division Bench of the Allahabad High Court. It was further held that consequently goods in the custody of the Assistant Collector of Customs and Central Excise were not things which could be the subject of an order under section 132(3) of the Act. Pathak J. spoke for the Division Bench there at page 422 of the report thus : " In my ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eved to be that of undisclosed income or property does not change. The seizure of the cash amount of Rs. 3,05,530 by the Central Excise Authorities in the instant case no doubt transferred physical possession of that amount from the petitioner to the Central Excise Department, but the legal ownership of that money still continued to be with the petitioner. As long as that amount was not confiscated or did not become the property of the Central Excise Department by virtue of an order passed under the relevant provision of law, if at all any order could be so passed, the property or the money did not cease to be that of the petitioner. Though the Collector of Central Excise and Customs was in possession of the money, since its alleged character of being undisclosed income or property remained unattended, the Collector satisfied the description of 'any person' being in possession of undisclosed income or property though the property represented the undisclosed income or property of the petitioner himself. The words used in section 132(1)(c) are 'any person'. Such a person may be a person who is in possession of his own undisclosed income or property or a person who is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat if the Commissioner has definite knowledge that the books of account, documents, money, bullion, etc., sought to be searched and seized are in the possession of a particular person, he cannot issue an authorisation for search and seizure of the same. In our opinion, it may be mentioned that if the location was certain, then there was nothing to search or look for. The Madhya Pradesh High Court, however, observed that the expression " has reason to believe " signified that the Commissioner has reason to be satisfied that the things to be searched are in the possession of a particular person. The object of section 132 was, according to the High Court, not merely to get information of the undisclosed income but also to seize the money, bullion, etc., representing the undisclosed income and to retain them for purposes mentioned in section 132(5). Section 132(1)(c) of the Act did not contain a condition either expressly or impliedly that the thing to be seized should not be in the possession of a person who may willingly part with his possession. There is no obligation on any one, not even on Government officers of other departments, to deliver anything to the income-tax authorities ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Madras High Court where similar view was taken in Gulab and Co. v. Superintendent of Central Excise (Preventive) [1975] 98 ITR 581. For the reasons we have indicated hereinbefore, we are also unable to sustain this view. The Kerala High Court in the case of Assainar v. ITO [1975] 101 ITR 854 has also accepted this view. We are, for the aforesaid reasons, unable to sustain this view with respect. The High Court observed that the word " search" has varied meanings and it should be given the general meanings " to look for " or " seek " which are also well known. But, in the context, the expression " seizure " and in the context, the expression " search " where the location of the property was known to the Government, we are of the opinion that it could not be said that one government department could search any other government department and seize those documents. Relying on the decision of the Allahabad High Court in Motilal's case [1971] 80 ITR 418 as well as the decision of the Calcutta High Court in Laxmipat's case [1971] 82 ITR 306, the learned single judge of the Punjab and Haryana High Court in Ramesh Chander v. CIT [1974] 93 ITR 244, held that the word " seizure " im ..... X X X X Extracts X X X X X X X X Extracts X X X X
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