1. This is an application for revision of an order passed by the acting Chief Presidency Magistrate on September 5,1933, refusing the petitioner's application for the return of certain documents seized under a search warrant issued by the Court on August 15, 1933. The petitioner is one of the partners in a firm, Messrs. Soho House, manufacturers' representatives doing business in Bombay and other ports. The premises of the firm were searched by order of the Chief Presidency Magistrate on August 15, 1933, and a large number of books and files belonging to the firm were seized and handed over to the Customs authorities. A warrant was issued under Section 96 of the Criminal Procedure Code on the strength of a letter addressed to the Chief Presidency Magistrate by the Collector of Customs, Bombay, and signed for the Collector of Customs by Mr. F.J. Karaka, Assistant Collector of Customs. The letter is as follows :
I have the honour to state that I have received information from the Collector of Customs, Madras, making it reasonably certain that the proprietors Mr. M. Tahir Khan, Mr. K.M. Idris Khan, Mr. M. Liaqat Khan of Messrs. Soho House, Lohar Chawl, Bombay No. 2, carrying on business at Vithal Sayana Buildings, Lohar Chawl, Bombay No. 2, have by means of false declarations in their Customs Bills of Entry and production of false invoices, defrauded Government revenue in respect of the duty payable on consignments of goods imported by them at Bombay and Madras.
As the proprietors of the firm have thereby committed an offence punishable under Section 167(72) of the Sea Customs Act and Section 417 of the Indian Penal Code, I have to request you, with reference to the provisions of Section 96 of the Criminal Procedure Code, to issue a search warrant for the search of the following premises and for the seizure of any goods, documents or correspondence which may be relevant to the investigation of the offence:
Soho House, Vithal Sayana Buildings, Lohar Chawl, Bombay.
I am deputing Mr. P.M. Khambatta, Principal Appraiser, Bombay Customs House, to conduct the search and shall be obliged if you will kindly direct that any goods or documents seized by him be forwarded for the production before me.
2. It appears that the letter was presented to the Magistrate by Mr. Karaka himself who was examined by the Magistrate on solemn affirmation before he issued a warrant. The warrant was issued to an officer of police who searched the premises and took possession of about 139 documents including, according to the petitioner, all the books of the firm as pointed out by an Appraiser of the Customs Department who was present at the search. After these documents were produced in Court the Magistrate made this order on August 16, 1933, 'All the documents and papers seized under the search warrant to be given in charge of the Customs Authorities for their investigation.' The warrant which was in the form prescribed by the Criminal Procedure Code stated that whereas information had been laid before the Magistrate of the commission of the offence under Section 167(72) of the Sea Customs Act and Section 417 of the Indian Penal Code by so and so (here the names of the partners in the petitioner's firm were given) and it has been made to appear that the production of goods, documents, or correspondence which may be relevant to the investigation of this offence is essential to the inquiry about to be made into the said offence, the police-officer was authorised to search for the said documents.
3. Subsequently the petitioner applied for return of the documents alleging that the order under Section 96 was ultra vires. This application was refused by the Magistrate on September 5, 1933, on the authority of Clarke v. Brajendra Kishore Roy Chowdkury.I.L.R. (1912) Cal. 953 : 14 Bom. L.R. 717 At the time of the issue of the warrant and even at the time of the application which was rejected on September 5 no complaint of any offence had been made to the police. On September 15, 1933, the petitioner was arrested, but even now there has been no formal complaint and no charge sheet has been submitted to the Magistrate, although we are informed that the charge sheet is now nearly ready. Section 94(1) of the Criminal Procedure Code provides that whenever any Court considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Code by or before such Court, such Court may issue a summons, to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it, or to produce it, at the time and place stated in the summons. Section 96(1) provides that where any Court has reason to believe that a person to whom a summons or order under Section 94 has been or might be addressed, will not or would not produce the document or thing as required by such summons or where such document or thing is not known to the Court to be in the possession of any person, or where the Court considers that the purposes of any inquiry, trial or other proceeding under this Code will be served by a general search or inspection, it may issue a search warrant.
4. In this revision petition the following points have been urged against the orders of the Chief Presidency Magistrate: (1) That the learned Magistrate had not taken cognizance of any offence and the documents seized were not required for investigation, inquiry or trial or other proceedings under the Criminal Procedure Code before him. (2) That the Customs Authorities are not authorised to conduct the investigation under the Criminal Procedure Code as contemplated by Section 96 read with Section 94 of the Criminal Procedure Code. (3) That the learned Magistrate has not complied with the terms of Section 96, Criminal Procedure Code, in that it does not appear that he had reason to believe that the documents in question would not be produced in response to an order under Section 94, Criminal Procedure Code. (4) That there was no information before the learned Magistrate upon which he could come to a judicial finding that the production of the said documents was necessary or desirable for the purposes mentioned in Section 94. (5) That the document upon which the learned Magistrate was pleased to take action is a class of document unknown to the Criminal Procedure Code. It is merely a request for the issue of a search warrant coupled with an allegation of the receipt of hearsay information without stating the facts which constitute any offence.
5. It is assumed in the petition, and the learned Counsel who appeared for the petitioner has also assumed for the purposes of part of his argument, that Section 96 is governed by Section 94, that a Magistrate can never issue a warrant except in cases in which he might first have issued a summons under Section 94, and he can only do so if he has reason to believe that a summons would be useless. But though the first two clauses of Section 96(1) obviously relate back to Section 94, Clause (3)-'where the Court considers that the purposes of any inquiry, trial or other proceeding under this Code will be served by a general search or inspection'-apparently does not. It is independent of the provisions of Section 94. The learned Government Pleader says, I think rightly, that the warrant in this case must be taken to have been issued under Clause 3, and it is on the construction of that clause that the legality of the issue of the warrant depends. The real point in issue is, in my opinion, whether the Magistrate in fact considered or had legal grounds for considering that the issue of the warrant would serve the purposes of an inquiry, trial or other proceeding under the Code, and the special emphasis in the present case is on the words 'under the Code.'
6. It is conceded by the learned Government Pleader that the Customs Authorities, although they have ample power under Section 29 of the Sea Customs Act to compel the production of documents for fiscal purposes, had no authority to investigate the offences specified in the letter addressed to the Magistrate or the further offence of cheating which we understand is to be included in the charge sheet. The former offence indeed being non-cognizable could not even be investigated by the police without an order from the Magistrate (see Section 155 of the Code). It has also been conceded that the Magistrate's order directing the documents seized to be handed over to the Customs Authorities cannot be supported. The proper procedure, it is suggested, would have been to retain the documents in Court. That would have been a somewhat futile proceeding, since it was the Customs Authorities who wanted the documents, and if they were not to have them it is difficult to see what object was to be gained by issuing the warrant. However that may be, what actually happened was that the Magistrate ordered the documents to be handed over to the Customs Authorities, and in their custody apparently they still remain. The Magistrate's order of August 16 specified in so many words that all the documents and papers seized under the warrant were to be handed over to the Customs Authorities for their investigation, and in view of that order, I think, the only possible conclusion is that that was the purpose for which the warrant was issued. But the inquiry which the Customs Authorities were making was not an inquiry under the Code. Therefore, the issue of the warrant was not justified by the terms of Clause (3) of Section 96.
7. Turning now to the authorities, the learned Magistrate and the learned Government Pleader have relied on Clarke v. Brajendra Kishore Roy Chowdhury. The facts in that case differed completely from those with which we are concerned and the decision turned for the most part upon considerations which are entirely absent here. There is only one short passage in the judgment of their Lordships which can be said to have any application at all. At p. 965 of the report Lord Macnaghten, who delivered the judgment, referred to the opinion of Mr. Justice Harrington, which was as follows (p. 965) :
In my opinion Section 96 only authorises the Magistrate to issue a search-warrant when sitting as a Court, i.e., when some proceeding under the Code has been initiated before him. And this view is strengthened by the form of the search-warrant given in Schedule V which recites that information has been laid or complaint has been made.
Lord Macnaghten's comment on this was (p. 965) :
If his Lordship had read to the end of the form in Schedule V he would have seen that it disposes of his theory altogether. The form contemplates the issue of a search warrant before any proceedings of any kind are initiated and in view of an 'enquiry about to be made'.
These observations and the form of warrant prescribed in the schedule do, I think, negative Mr. Carden Noad's contention that there must necessarily be a proceeding actually pending before the Magistrate at the time he issues the warrant. A warrant may be issued for the purposes of an enquiry about to be made, provided it is an enquiry under the Code, but not for the purpose of an enquiry either being made or about to be made otherwise than under the Code. If I had been able to accept the learned Government Pleader's argument that this warrant was issued for the purposes of a police investigation to be followed in the ordinary course by proceedings before the Magistrate himself, I should not have been prepared to say that the order was illegal. But the facts show that the warrant was issued for the purposes of an enquiry by the Customs Authorities into non-cognizable offences.
7. Mr. Carden Noad has relied on In re Harilal Buch I.L.R. (1897) Bom. 949 and Pratt v. Emperor I.L.R. (1920) Cal. 597 In the Bombay case it was held that a Magistrate cannot issue a warrant under Section 96 unless there is a proceeding under the Code pending before him, of which he has taken cognizance under Section 191, which is now Section 190, of the Code. This case must be read subject to the observations of their Lordships of the Privy Council in Clarke v. Brajendra Kishore Roy Chowdhury. Moreover, it can be distinguished on the ground that the warrant there was issued merely on the strength of a telegram received from the authorities in a Native State, whereas here the Magistrate had the sworn statement of the Assistant Collector, Mr. Karaka, who, as appears from an affidavit put in before us, had supplied the Magistrate with more or less definite information in support of his application. The case in Pratt V. Emperor can also be distinguished. A great deal depended there on the form of the warrant, which referred to an enquiry then being made, not about to be made, and the enquiry then being made was one by an authority appointed ad hoc by Government, and not acting under the Code. However, whether these are good authorities or not, they are authorities against the validity of the Magistrate's order in this case and cannot possibly be invoked in support of it. There is nothing, therefore, in the cases cited inconsistent with the view which the language of Section 96(3) itself suggests as the correct one.
8. As we are of opinion that the possession of these documents has been obtained by illegal process, we must set aside the relevant orders of the learned Magistrate and direct that the documents be returned to the petitioner.