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TMI Blog2020 (1) TMI 973X X X X Extracts X X X X X X X X Extracts X X X X ..... ted to searching the entire premises. Once the premises are searched, the search party would have to leave the premises and cannot wait there indefinitely for days on end under the expectation that the person whom they are searching for may return home or may contact his family members. In the facts of the present case, the authorised officer was authorised to search only the premises. The nature of the search conducted by him is discernible from the panchnama of the search proceedings drawn by the authorised officer in the presence of panchas, a copy whereof has been produced for the perusal of this court. In terms of the panchnama, on 11.10.2019, in the afternoon, the officers searched the residential premises of the petitioner; and the books of accounts and other documents which they found were brought to the main room, which included the bank pass-books and cheque books, etc. of the family members. On a perusal of the contents of the panchnama, it is evident that during the time the officers were present in the premises, the movements of the family members were restricted and they were required to take permission of the officers concerned if they had to go out of the hous ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... EN Mr Chetan K Pandya for the Petitioner Mr Mihir Thakore, Sr. Advocate with Ms Maithili Mehta, Asst. Government pleader for the Respondent ORAL ORDER PER: HONOURABLE MS.JUSTICE HARSHA DEVANI 1. In this case, pursuant to an authorisation issued under sub-section (2) of section 67 of the Central Goods and Services Tax Act, 2017/- Gujarat Goods and Services Tax Act, 2017 (hereinafter referred to as the GST Acts ), a search came to be conducted at the residential premises of the petitioner herein, which went on from 11.10.2019 to 18.10.2019. The manner in which the search has taken place, whereby a search for any goods liable to confiscation or any documents or books or things, has literally been converted to a search for the taxable person and the search party has camped in the residential premises of the petitioner for in all eight days, during which period the family members of the petitioner were at the mercy of the authorised officer and were confined to the searched premises and kept under surveillance and were not permitted to leave the premises without the permission of the authorised of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Section 67 of the CGST Act, reads thus:- 67. Power of Inspection, search and seizure. (1) Where the proper officer, not below the rank of Joint Commissioner, has reasons to believe that (a) a taxable person has suppressed any transaction relating to supply of goods or services or both or the stock of goods in hand, or has claimed input tax credit in excess of his entitlement under this Act or has indulged in contravention of any of the provisions of this Act or the rules made thereunder to evade tax under this Act; or (b) any person engaged in the business of transporting goods or an owner or operator of a warehouse or a godown or any other place is keeping goods which have escaped payment of tax or has kept his accounts or goods in such a manner as is likely to cause evasion of tax payable under this Act, he may authorise in writing any other officer of central tax to inspect any places of business of the taxable person or the persons engaged in the business of transporting goods or the owner or the operator of warehouse or godown or any other place. (2) Where the proper officer, not belo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pectively, as may be prescribed or on payment of applicable tax, interest and penalty payable, as the case may be. (7) Where any goods are seized under Sub-section (2) and no notice in respect thereof is given within six months of the seizure of the goods, the goods shall be returned to the person from whose possession they were seized: Provided that the period of six months may, on sufficient cause being shown, be extended by the proper officer for a further period not exceeding six months. (8) The Government may, having regard to the perishable or hazardous nature of any goods, depreciation in the value of the goods with the passage of time, constraints of storage space for the goods or any other relevant considerations, by notification, specify the goods or class of goods which shall, as soon as may be after its seizure under sub-section (2), be disposed of by the proper officer in such manner as may be prescribed. (9) Where any goods, being goods specified under subsection (8), have been seized by a proper officer, or any officer authorised by him under sub-section (2), he shall prepare an inventory of such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use coercive measures against family members to find out the whereabouts of the taxable person. It is shocking to see that in a premises where there are three ladies, namely, the petitioner s mother, wife and young daughter, male officers together with a CRPF Officer have stayed throughout day and night despite the fact that the goods, articles and things were already seized on 11.10.2019. The entire exercise carried out by the concerned officers from 12.10.2019 to 18.10.2019 was totally without any authority of law and in flagrant disregard of the provisions of the Act and the rules and in total abuse of the powers vested in them under the Act. The manner in which the officers have conducted themselves by overreaching the process of law and acting beyond the powers vested in them under sub-section (2) of section 67 of the CGST Act needs to be deprecated in the strictest terms. Therefore, a proper inquiry needs to be made in respect of the action of the respondent officers of staying day and night at the premises of the petitioner without any authority of law. 6. In the aforesaid premises, the first respondent Commissioner of State Tax, Ahmedabad shall carry out a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... action of the respondents of staying in the residential premises of the petitioner, wherein five members, including three female members, out of whom one was a young unmarried girl, for a period of eight days, despite the fact that the search was concluded on the first day itself, the court was deeply concerned about the matter, and more particularly that such incidents should not be repeated. Therefore, Mr. Tushar Hemani, Senior Advocate, was requested to assist the court as an amicus curiae. 7. Mr. Mihir Thakore, learned counsel for the respondent State authorities, submitted that sub-section (2) of section 67 of the GST Acts empowers the proper officer to search and seize goods, documents, books or things secreted at a place. Thus, an authorization is issued qua a place and not a person. Referring to sub-section (10) of section 67 of the GST Acts, it was pointed out that the same provides that the provisions of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code ) relating to search and seizure apply to search and seizure under that section. Reference was made to the provisions relating to search and seizure as provided in the Code, to subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt opined that a search warrant was addressed to an officer and not to the accused and did not violate Article 20(3). In the present discussion the case is of limited help. In fact, the law as to privacy was developed in later cases by spelling it out from the right to freedom of speech and expression in Article 19(1)(a) and the right to life in Article 21. 36. Two later cases decided by the Supreme Court of India where the foundations for the right were laid, concerned the intrusion into the home by the police under State regulations, by way of domiciliary visits . Such visits could be conducted any time, night or day, to keep a tab on persons for finding out suspicious criminal activity, if any, on their part. The validity of these regulations came under challenge. In the first one, Kharak Singh v. State of UP, the U.P. Regulations regarding domiciliary visits were in question and the majority referred to Munn v. Illinois and held that though our Constitution did not refer to the right to privacy expressly, still it can be traced from the right to life in Article 21. According to the majority, clause 236 of the relevant Regulations in U.P., was bad in law; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... od, procreation and child-bearing. This list was however not exhaustive. He explained (see para 25) that, if there was State intrusion there must be a reasonable basis for intrusion . The right to privacy, in any event (see para 28), would necessarily have to go through a process of case-by-case development. 38. Coming to the particular U.P. Regulations 855 and 856, in question in Gobind, Mathew, J. examined their validity (see para 30). These, according to him, gave large powers to the police and needed, therefore, to be read down, so as to be in harmony with the Constitution, if they had to be saved at all. Our Founding Fathers were thoroughly opposed to a Police Raj he said. Therefore, the Court must draw boundaries upon these police powers so as to avoid breach of constitutional freedoms. While it could not be said that all domiciliary visits were unreasonable (see para 31), still while interpreting them, one had to keep the character and antecedents of the person who was under watch as also the objects and limitations under which the surveillance could be made. The right to privacy could be restricted on the basis of compelling public interest. The learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 92(1) has been, or might be, addressed, will not or would not produce the document or thing as required by summons or requisition, or (b) where such document or thing is not known to the court to be in the possession of any person, or (c) where the court considers that the purposes of any inquiry, trial or other proceeding under the Code, will be served by a general search or inspection, it may issue a search warrant; and the person to whom such warrant is directed, may search or inspect in accordance therewith and the provisions contained in the Code. Under Section 93(2), the court may, if it thinks fit, specify in the warrant, the place or part thereof to which only the search or inspection shall extend; and the person charged with the execution of such warrant shall then search or inspect only the place or part so specified. Under Section 93(2), a warrant to search for a document, parcel or other thing in the custody of the postal or telegraph authority, has to be issued by the District Magistrate or the Chief Judicial Magistrate. 50. Section 165 of the Code deals with the power of a police officer to search. Under Section 165(1) he must have reasonable g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rights, privacy and freedom of the tax payer, the power must be exercised strictly in accordance with law and only for the purposes for which the law authorises it to be exercised. 8.3 Reliance was placed upon the decision of the Allahabad High Court in the case of Dr. Nand Lal Tahiliani v. Commissioner of Income-tax, (1988) 170 ITR 592 (Allahabad), wherein the court has held that the dwelling house of a person is a high fortress. Every householder, the good and the bad, the guilty and the innocent, is entitled to the protection designed to secure the common interest against unlawful invasion of the house. Ransacking of the house and the act of taking away the property is an inroad on citizens right of privacy, one of the values of civilization. Any unwarranted intrusion of it cannot be countenanced. Reasonable belief exists if the information is not only trustworthy, but reasonable and sufficient in itself to warrant the conclusion that the provisions of section 132 were being violated. Because if the exercise of power is bad or unlawful from its inception, then it is not validated or changes character from its success. It would not, therefore, be asking too ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tax Act, 1961, to submit that the same empowers the authorised officer to examine on oath any person who is found to be in possession or control of any books of accounts; whereas no such power is conferred on the authorised officer under section 67 of the GST Acts. It was submitted that under sub-section (2) of section 67 of the GST Acts, the authorised officer does not have any power to record statement/s of the person/s residing in the premises inasmuch as this is not an inquiry or investigation, but a search. Therefore, the family members cannot be questioned about anything. 8.8 It was further submitted that sub-section (2) of section 67 of the GST Acts speaks of goods liable to confiscation and documents or books or things. The expression books is not defined in the GST Acts, but finds place in subsection (12A) of section 2 of the Income Tax Act, 1961 which says that books or books of account includes ledgers, day-books, cash books, account-books and other books, whether kept in the written form or as print-outs of data stored in a floppy, disc, tape or any other form of electromagnetic data storage device. It was submitted that, therefore, the expression ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l for the authorized officer executing the authority, with such assistance of police officers or of officers of the Central Government or of both, as may be required, to enter such building or place. It was submitted that, therefore, assistance of police can be taken only for the limited purpose of entry into the premises. 8.13 Lastly, it was submitted that a search action is an invasion of the privacy of an individual, and hence, search must be carried out in a continuous manner and the Department cannot carry out search action in bits and pieces as per their convenience. 9. Mr. Mihir Thakore, learned counsel for the respondent State authorities, submitted that the right to privacy exists and is recognized under article 21 of the Constitution of India and any infringement of such right has to be supported by a statutory provision. It was submitted that in this case the overstay at the search premises was because the search party was scrutinising the phone calls recorded in the mobile phone of the mother of the petitioner, as material relevant to the search was contained therein. It was submitted that under sub-section (2) of section 67 of the GST Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s has to be read with section 144(ii) thereof, and hence, a mobile phone can certainly be seized from the custody or control of any person present at the searched premises. Accordingly, the authorised officer has the power to seize a mobile phone, which would not violate the right of privacy of the concerned person. 9.2 It was further submitted that if during the course of search, the authorised officer finds it necessary to record the statement of any person present at the premises, it is permissible for him to issue a summons under section 70 of the GST Acts to such person in the searched premises and record his/her statement accordingly. He, however, admitted that once the search is over, the search party has to leave the premises and they cannot prolong their stay to find out a person. It was urged that the action of the concerned officers carrying out the search was bona fide and the prolonged stay at the searched premises was in the light of the previous precedents. Moreover, the efforts of the concerned officers during the course of their continuous stay to find out where goods, documents, books or things were secreted were successful inasmuch as on the last ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ings. Sub-section (4) of section 67 empowers the officer so authorised to seal or break open the door of any premises or to break open any almirah, electronic devices, box, receptacle in which any goods, accounts, registers or documents of the person are suspected to be concealed. Sub-section (10) of section 67 makes the provisions of the Code of Criminal Procedure, 1973, relating to search and seizure, so far as may be, applicable to search and seizure under that section subject to the modification that sub-section (5) of section 165 of the Code shall have effect as if for the word Magistrate , wherever it occurs, the word Commissioner were substituted. 12. The provisions relating to search and seizure insofar as the same are relevant for the purposes of section 67 of the GST Acts are contained in sections 93, 94, 99, 100, 102, 103 and 165 of the Code, which read as under: 93. When search warrant may be issued.- (1)(a) Where any Court has reason to believe that a person to whom a summons or order under section 91 or a requisition under sub-section (1) of section 92 has been, or might be, addressed, will not or would not prod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een privy to the deposit, sale or production of any such property or article knowing or having reasonable cause to suspect it to be stolen property or, as the case may be, objectionable article to which this section applies. (2) The objectionable articles to which this section applies are- (a) counterfeit coin; (b) pieces of metal made in contravention of the Metal Tokens Act, 1889 (1 of 1889), or brought into India in contravention of any notification for the time being in force under Section 11 of the Customs Act, 1962 (52 of 1962); (c) counterfeit currency note; counterfeit stamps; (d) forged documents; (e) false seals; (f) obscene objects referred to in Section 292 of the Indian Penal Code (45 of 1860); (g) instruments or materials used for the production of any of the articles mentioned in clauses (a) to (f). 99. Direction, etc., of search warrants.- The provisions of Sections 38, 70, 72, 74, 77, 78 and 79 shall, so far as may be, apply to all search warrants issued under Section 93, Section 94, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss a search under this section, when called upon to do so by an order in writing delivered or tendered to him, shall be deemed to have committed an offence under Section 187 of the Indian Penal Code (45 of 1860). 102. Power of police officer to seize certain property.- (1) Any police officer may seize any property which may be alleged or suspected to have been stolen, or which may be found under circumstances which create suspicion of the commission of any offence. (2) Such police officer, if subordinate to the officer in charge of a police station, shall forthwith report the seizure to that officer. (3) Every police officer acting under sub-section (1) shall forthwith report the seizure to the Magistrate having jurisdiction and where the property seized is such that it cannot be conveniently transported to the Court or where there is difficulty in securing proper accommodation for the custody of such property, or where the continued retention of the property in police custody may not be considered necessary for the purpose of investigation, he may give custody thereof to any person on his executing a bond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovisions as to searches contained in section 100 shall, so far as may be, apply to a search made under this section. (5) Copies of any record made under sub-section (1) or sub-section (3) shall forthwith be sent to the nearest Magistrate empowered to take cognizance of the offence, and the owner or occupier of the place searched shall, on application, be furnished, free of cost, with a copy of the same by the Magistrate. 13. Sections 93 and 94 of the Code are more or less similar to sub-section (2) of section 67 of the GST Acts and provide for the contingencies when a search warrant can be issued and the scope of powers of search and seizure. Section 95 relates to powers of search in case of the specific instances set out therein. Section 100 of the Code casts an obligation upon the persons in charge of a closed space to allow search. Sub-section (3) of section 100 provides that where any person in or about such place is reasonably suspected of concealing about his person any article for which search should be made, such person may be searched and if such person is a woman, the search shall be made by another woman with strict regard to decency. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nk guarantee equivalent to the amount of applicable tax, interest and penalty payable. Explanation. For the purposes of the rules under the provisions of this Chapter, the applicable tax shall ― ‖ include central tax and State tax or central tax and the Union territory tax, as the case may be and the cess, if any, payable under the Goods and Services Tax (Compensation to States) Act, 2017 (15 of 2017). (2) In case the person to whom the goods were released provisionally fails to produce the goods at the appointed date and place indicated by the proper officer, the security shall be encashed and adjusted against the tax, interest and penalty and fine, if any, payable in respect of such goods. 141. Procedure in respect of seized goods.- (1) Where the goods or things seized are of perishable or hazardous nature, and if the taxable person pays an amount equivalent to the market price of such goods or things or the amount of tax, interest and penalty that is or may become payable by the taxable person, whichever is lower, such goods or, as the case may be, things shall be released forthwith, by an order in FORM GST INS05 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner in question-answer form. It is recorded in the panchnama that at 4:45 pm, upon asking the mother of the dealer (petitioner) to keep the dealer present and upon making her to listen the recording of her phone call, she behaved in an inappropriate way and said that every mother lies to protect her son and that even if she lies, what is wrong with it. It is further recorded that the dealer s mother, in his presence as well as in the presence of panchas and officers, said that every person sitting there must have done something wrong. Thus, the dealer s mother conduct was uncooperative. At 5:14 pm it is recorded that Alpesh Wadher of Hollywood Shoes having remained present, a team with one officer and panchas set off to the dealer s shop for investigation. At 6:10 pm, it is recorded that the officer along with the panchas returned and they had brought along with them passbooks related to the bank and Shri H.T. Barad an officer of the office was informed about the documents which were found there. It is further recorded that an expert was called to obtain a mirror image of the calls made from the phone of the petitioner s mother, which was found at the said premises and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gating Officer of the earlier day having returned and having relieved the panchas and officer R.B Dodiya, the new officer and panchas have arrived at the spot. At 01:55 pm, it is recorded that during the course of search, they recorded the statements of the dealer s wife Shrimati Mamtaben and her daughter Honey in question-answer form and asked them as to where the dealer was and as to whether they had any news about him. However, they had informed that till then, they had no news about the dealer. At 8:05 pm, it is recorded that after resting his (the petitioner s) father s statement was recorded in question answer form. Moreover during the said search different officers has recorded statements of Pareshbhai s father Nathalal Chauhan in question answer form and had questioned him as to where the Pareshbhai was; and different officers had recorded statements of the Pareshbhai s wife, his mother/father and inquired as to whether or not they had any talk with the Pareshbhai and upon Officer Shri B.H. Modi arriving to relieve them, the officers of that morning as well as the panchas were being relieved and the charge of the search was handed over to the new officer. It is further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and she returned after 15 minutes. It is recorded that on 14.10.2019, the Investigating Officer Shri Rabari had presented himself and had taken charge of the proceedings. 16.5 The proceedings of the other days are similar in nature and do not reflect search of any kind having been carried out, but show that the officers have remained in the house and have kept surveillance over the members of the house. All that is recorded is when, where, why, at what time and for how long any family member went out of the premises and that time and again the family members were asked as to whether they had any information about the petitioner. It also appears that every time when a family member left the premises, he/ she was required to inform the concerned officer the reason why he/she wanted to go out and such member was required to take the permission of the officer concerned. Several times, it has been recorded that liquor bottles were found at the premises during the course of search and that the family members were interrogated in respect of the same and as to whether they had a permit to keep such liquor bottles and the fact regarding Anandnagar Police Station being inform ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mr. Chetan Pandya, learned advocate for the petitioner has vehemently assailed the action of the respondents by submitting that the officers of the respondents have camped inside the house of the petitioner since 11.10.2019 wherein his family members are residing and that the family members of the petitioner are virtually under house arrest. Issue notice returnable on 21st October, 2019. Direct service is permitted today. 16.10 Thereafter, on 18.10.2019, at 4:30 pm, it is recorded that at the site upon hearing the recording from the mobile phone of Pareshbhai s mother, in her recording (7.10.2010, 6:52 pm) of 4 minutes 13 seconds it could be heard that the office record was kept at Harishbhai s house, after which it was transferred to the house next door where a single person was residing which was being said by his wife, and his mother was saying that the record which was inside the house was kept at Munni s house (Pinkyben Gohil). Hence, officer A. L. Rabari obtained summons and went to the said place to record statement.At 5:20, it is recorded that at the search place, as Pareshbhai s wife was required to go to fetch vegetables and get the grains ground at t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce where certain accounting record was secreted. In this regard, it may be noted that from the contents of panchnama of the search proceedings as recorded hereinabove, it is apparent that the authorised officer on day one of the search itself, that is on 11.10.2019, had got a mirror copy of the data contained in the mobile phone of the petitioner s mother copied in a pen drive which was sealed in the presence of panchas and a working copy thereof was also made in a pen drive. Therefore, the details contained in the mobile phone of the petitioner s mother were already available with the respondents. For the purpose of hearing what was recorded therein, there was no necessity of staying at the searched premises. Moreover, from the contents of the panchnama, there is nothing whatsoever to indicate that at any point of time any member of the search party or the authorised officer was hearing the recording. The only reason why the search party remained back appears to be to intimidate the family members of the petitioner to extract information about the petitioner or records of his business, and to either coerce the petitioner to return home or to apprehend him if he returns home. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner to the house and of interrogating them time and again is nothing but a blatant abuse of powers. Since, the continued stay at the premises of the petitioner after 11th October, 2019 was not for search of the premises but to search for the petitioner and to obtain further information about where else he could have secreted documents, books or things relevant for any proceedings under the GST Acts, such continued stay was totally unauthorised as it was not backed by any statutory provision. As discussed hereinabove, the powers conferred by subsection (2) of section 67 of the GST Acts is to search for goods liable to confiscation, documents, books or things which in the opinion of the proper officer shall be useful for or relevant to any proceedings under that Act. 21. From the contents of the panchnama as referred to hereinabove, it is evident that the concerned officers remained at the residential premises of the petitioner with a view to extort confessions from the family members of the petitioner regarding the presence of the petitioner and the place where the petitioner might have secreted the documents regarding his business dealings. Section 348 of the Indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... illegal actions. 23. As noticed earlier, it has come on record that throughout the search, an SRP constable was present in the residential premises of the petitioner. As pointed out by learned amicus curiae, the assistance of the police can be taken for the purpose of entry into the premises if there is some reason to believe that there may be any kind of obstruction in conducting the search. In the present case, there is nothing on record to indicate that there was any resistance by the family members during the course of search warranting the presence of an SRP constable during the entire search proceedings. Therefore, it appears that the idea behind taking assistance of the SRP constable appears to be to intimidate and shame the family members, more so, in view of the prolonged presence of the search party at the residential premises of the petitioner. On behalf of the respondents, it has been stated that the officers concerned had asked the SRP constable to stand outside the premises, but it was the petitioner s father who requested that he may remain inside the premises. In the report dated 19.11.2019 submitted by the Chief Commissioner of State Tax, it has be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. It would not, therefore, be asking too much from the authorities to comply with the basic requirements of the section before they are permitted to invade the secrecy of one s home. 24. At this juncture, reference may be made to the report dated 19.12.2019, that came to ultimately be submitted by the Chief Commissioner of State Tax pursuant to the directions issued by this court vide order dated 25.10.2019. The relevant extracts whereof are reproduced hereunder: Prior to 01/07/2017, the search and seizure proceedings were carried out under the provisions of Section 67 of the Gujarat Value Added Tax Act, 2003. As per the provisions of section 67(7), the provisions of the Code of Criminal Procedure, 1973 relating to search are applicable to the search proceedings under the Gujarat Value Added Tax Act, 2003. As per section 88 of the said Act, the Commissioner is empowered to authorise any officer or person subordinate to him to investigate offences and can exercise the power conferred by the Code of Criminal Procedure, 1973. The provision of section 88 of the said Act is reproduced below. (1) Subject to such conditions as may be p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if for the word Magistrate , wherever it occurs, the word Commissioner were substituted. The said provision coupled with the last para of form GST INS-1 specified in rule 139(1) which is reproduced as below, has been relied upon to record statements of persons present in the premises where search is conducted. Any attempt on the part of the person to mislead, tamper with the evidence, refusal to answer the questions relevant to inspection/ search operations, making false statement or providing false evidence is punishable with imprisonment and /or fine under the Act read with section 179, 181, 191 and 418 of the Indian Penal Code. Taking into consideration the above provisions, the departmental authorities have been recording statements during search. Further, for the purpose of ascertaining truth and real facts of the case, investigation is carried out as was done under the Gujarat Value Added Tax Act, 2003. In this case also the authorised officers have followed the past precedents considering that they have the power or investigation and acted accordingly in good faith. So far as the issue of prolonge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch premises were being recorded. The Chief Commissioner has placed reliance upon the provisions of section 88 of the Gujarat Value Added Tax Act, 2003 which relates to authorisation to investigate; overlooking the fact that in the present case the authorisation was for search and seizure and not investigation inasmuch as recording of statements under section 161 of the Code finds place in Chapter XII thereof which pertains to Information to the police and their powers to investigate and not under the provisions of the Code relating to search and seizure. Be that as it may. At best, giving benefit of doubt to the concerned officers, such defence may be accepted, namely that they were under the impression that statements of family members could be recorded during the course of search. That however, does not justify the stay at the residential premises of the petitioner for eight days, despite the fact that the search for documents, books and things was over on the very first day. Moreover, even after the search was over, it was always open for the concerned officers to summon any of the family members of the petitioner under section 70 of the GST Acts if they wanted to record their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction (2) of section 67 of the GST Acts has not only not been exercised strictly in accordance with law, but has also not been exercised for the purposes for which the law authorises it to be exercised, namely that though the power was to be exercised for carrying out search and seizure of goods liable to confiscation, documents, books or things at the place in respect of which the authorisation of search was given, the search was converted to a search for the dealer and into an investigation to find out other places where documents, books or things could have been secreted, which was beyond the scope of the powers vested in the authorised officer. 26. Article 21 of the Constitution of India reads thus: 21. Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law. In the facts of the present case, the family members of the petitioner have been deprived of their personal liberty not only by being confined in the residential premises and being permitted to leave only with the consent of the authorised officer, and that too, at times with an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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