9911796707
TMI Blog1990 (8) TMI 11X X X X Extracts X X X X X X X X Extracts X X X X ..... orted to be under sub-section (3) of section 132 of the Act. Seizure panchanama (exhibit 21) was drawn. P.W.-3, Prasad, and his party next day, i.e., on October 30, 1985, resumed and continued their search. They opened the almirah and found that some articles were missing. On verification, they noticed that the steel plates on the rear side of the almirah have been cut at two places. P.W. 2, Krishnamachari, the local Income-tax Officer, thereafter lodged a report, vide exhibit 16, to the Police Station, Yavatmal. P.W.-6, Tiwari seized the almirah in question, vide panchanama (exhibit 23). The almirah was then handed over to the accused on supratnama. After completing the investigation, the accused was charged and tried for the offences enumerated hereinabove. The defence of the accused was one of denial. The trial court observed that (a) prior sanction of the Commissioner as envisaged under section 279 of the Act to prosecute the accused for the offence punishable under section 275A of the Act was not obtained, (b) the authorised Officer, namely, P.W.-3, Prasad had not reached the conclusion that the pawned articles kept in the almirah were undisclosed property for the purpose of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eached such conclusion or formulated the opinion that the pawned articles kept in the almirah in question were such property. Besides this, due to late hours, it cannot be said that, for the raiding party, it was not practicable to complete the search. In the absence of the requisite ingredients and conditions, it is urged that subsection (3) of section 132 of the Act could not be resorted to for issuing the prohibitory order. Consequently, the order (exhibit 18) prohibiting the accused was without any legal foundation and void ab initio. Breach or violation of such order, in the submission of learned counsel for the accused, does not constitute any offence punishable under section 275A of the Act. Authorisation under sub-section (1) of section 132 of the Act empowers the concerned officer firstly to make an entry into the premises of particular person, then to search and hold enquiry, thereafter to seize and lastly to prepare an inventory of such articles, valuables or jewellery. This is a single, continuous and homogenous process with various stages as described. Search, enquiry and formulating opinion are the stages prior to effecting seizure. There could not be a valid seizure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reated an impediment in the way of the Officer formulating the opinion and effecting seizure of the objectionable materials ; as such, in view of our finding that it being a continuous and homogeneous process, incompletion of the search has certainly affected the ultimate act of effecting seizure of the property undisclosed for the purpose of the Income-tax Act. In the situation, P.W.-3, Prasad, was competent to resort to sub-section(3) of section 132 of the Act for issuing the prohibitory order marked as exhibit 16. The order has a legal foundation and is within the parameters of the relevant provision. The same was, therefore, binding on the accused. Now coming to the merits of the prosecution case, we find the testimony of P.W.-2, Krishnamachari, P.W.-3, Prasad and P.W.-6, P.S.I. Tiwari, coupled with exhibit 16 complaint, exhibit 21 search panchanama and exhibit B-5 seizure panchanama, P.W.-3, Prasad in examination-in-chief has deposed that " the bundles of the pawned articles along with some cash that was found were then kept in that almirah which became full. Before actually keeping ornaments in that almirah, I and Mani checked and verified that that almirah was quite safe an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e level of the bags as witnessed by the officers on October 30, 1985. P.W.-6, P.S.I.Tiwari, who seized the almirah, vide exhibit 23, has stated that he also noticed two cuts in the rear side and small particles of the steel plates inside the almirah. This version of the witness has also not been challenged. In the cross-examination, this witness has stated that, " did not seize the very small tiny particles of the iron plate of the almirah as I did not think it necessary as their quantity was very small. These particles were visible to the eye. There were colour patches on the almirah back side but I did not take any photograph of those patches. I did not take any photograph of the two cuts that were made to the almirah back side. The sizes of the cuts as given in the panchanama are 3 inches by 6 and a half inches and 6 and a half inches by 5 and a half inches". Considering the assertion of this witness read with that of others, the aspect of cutting the iron plate from the rear side at two places of almirah is established beyond doubt. This substantive testimony of the witnesses is further supported by complaint ( exhibit 16 ) and seizure panchanama (exhibit 23 ) wherein the cond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... des the substantive testimony is also supported by the text of the complaint marked as exhibit 16. The complainant ( P.W.-2 ) has specifically stated that " the entire almirah along with gold and silver ornaments was entrusted to the accused by the complainant from 10.30 p.m. of October 29, 1985 The articles in the almirah were removed while the same were under the custody and domain of the accused. It is true that the officers did not prepare an inventory of the jewellery which was kept in that almirah. However, it is undisputed from the testimony, as discussed earlier that on the next day, on opening the almirah, it was noticed that the level of the bags of jewellery as dumped on the earlier day had gone down. It is true that the prosecution could not exactly quantify or estimate the material or the articles missing from the almirah, but the aspect as discussed is definitely suggestive of the removal of the jewellery when the almirah was in the trust of the accused-respondent. The accused-respondent is, therefore, liable to be punished for the offence under section 406 of the Indian Penal Code. We heard Shri Palshikar on the question of sentence. According to Shri Palshikar, th ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
