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G.M. Agadi and Bros. Vs. the Commercial Tax Officer, Enforcement, Northern Zone, Belgaum - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtKarnataka High Court
Decided On
Case NumberWrit Petition No. 2794 of 1971
Judge
Reported in(1973)2MysLJ87; [1973]32STC243(Kar)
ActsMysore Sales Tax Act, 1957 - Sections 28(3); Code of Criminal Procedure (CrPC) , 1898 - Sections 103(2) and 165(5)
AppellantG.M. Agadi and Bros.
RespondentThe Commercial Tax Officer, Enforcement, Northern Zone, Belgaum
Appellant AdvocateB.P. Gandhi, Adv.
Respondent AdvocateM.P. Chandrakantharaj Urs, High Court Government Adv.
Excerpt:
- sections 13(1)(ia)(ib): [k.l. manjunath & b.v. nagarathna, jj] divorce - decree of divorce sought by the appellant/husband -dismissal of m.c. case appealed against ground that plea of mental and physical torture and desertion re-appreciation of evidence - held, the very fact that the marriage has not been consummated for over a period six years would disclose the conduct of the appellant.. evidence of wife further discloses that the appellant/husband is having illicit relationship with another lady which portion of the evidence of wife has not been touched in the cross-examination. the appellant has not even stated various instances which according to him caused physical cruelty or mental cruelty. when there is lack of evidence of the appellant in his pleadings as well as in..........under the rules. the respondent had information that the petitioner was maintaining two sets of account books, one for the purposes of assessment under the act, and another for their own purposes and that the entries in the private account books were recorded after 7 p.m. in the shop premises. he had also information that some sale exigible to tax were not recorded in the regular account books but were brought into account in the private account books. on that information, the respondent decided to inspect the petitioner's premises at 8 p.m. on 6th october, 1971, so as to get hold of the private account books which, according to him, would furnish evidence of evasion of tax on the part of the petitioner. 2. when the respondent inspected the shop premises of the petitioner on 6th.....
Judgment:
ORDER

Govinda Bhat, C.J.

1. This matter arises under the Mysore Sales Tax Act, 1957 (hereinafter called the 'Act'). The petitioner is a partnership firm registered as dealers under the Act and, therefore, required to maintain accounts as prescribed under the Rules. The respondent had information that the petitioner was maintaining two sets of account books, one for the purposes of assessment under the Act, and another for their own purposes and that the entries in the private account books were recorded after 7 p.m. in the shop premises. He had also information that some sale exigible to tax were not recorded in the regular account books but were brought into account in the private account books. On that information, the respondent decided to inspect the petitioner's premises at 8 p.m. on 6th October, 1971, so as to get hold of the private account books which, according to him, would furnish evidence of evasion of tax on the part of the petitioner.

2. When the respondent inspected the shop premises of the petitioner on 6th October, 1971, at 8 p.m. Sri G. M. Agadi, one of the partners of the firm, produced the regular accounts; the respondent found two credit books on the counter of the petitioner's premises and on making a test check of the sales recorded in the said credit books with the regular account books, he found that there was lot of discrepancy between the two sets of books. Therefore, the respondent seized the account books in exercise of his powers under section 28(3) of the Act. He made an order for seizure of the account books.

3. The petitioner has challenged the seizure on the ground that the responded raided their shop premises and made an illegal search without obtaining a search warrant and complying with the provisions of the Code of Criminal Procedure, particularly section 103(2) and 165(5) of the Code. The contention of the petitioner was that the search being illegal, the seizure of the account books made on the said search is also illegal. Therefore, the petitioner has prayed for a writ in the nature of mandamus to the respondent to return the books and documents seized on 6th October, 1971, under annexure A along with all notes made from them.

4. The short question for decision is whether the account books and documents seized as per annexure A was on a search of the petitioner's premises or was it merely after inspection of the said premises. If the said account books had been seized merely after inspection of the premises as contended on behalf of the respondent, there is no illegality attached to the seizure; but if the seizure was made on search of the petitioner's premises, as admittedly, the provisions of section 103(2) and 165(5) of the Code of Criminal Procedure was not complied with, the seizure would be illegal and the petitioner is entitled to the relief prayed for.

5. The question for decision, therefore, turns on our decision as to whether the petitioner's premises were searched or the respondent merely inserted the premises. The meaning of the word 'search', according to Webster's New International Dictionary (Vol. I - Second Edition), is to subject to a thorough inspection for an articles or articles presumably concealed. The Corpus Juris Secundum (79 C.J.S. 775) gives a neat definition of the word 'search' and it is useful to set out the same :

'The term 'search' as applied to searches and seizures, is an examination of a man's house or other buildings or premises, or of his person, with a view to the discovery of contraband or illicit or stolen property, or some evidence of guilt to be used in the prosecution of a criminal action for some crime or offence with which he is charged. As used in this connection, the term implies some exploratory investigation, or an invasion and quest, a looking for or seeking out. The quest may be secret, intrusive, or accomplished by force, and it has been held that a search implies some sort of force, either actual or constructive, much or little. A search implies a prying into hidden places for that which is concealed and that the object searched for has been hidden or intentionally put out of the way. While it has been said that ordinarily searching is a function of sight, it is generally held that the mere looking at that which is open to view is not a 'search'.'

6. It was contended by Sri Chandrakantharaj Urs, learned Senior High Court Government Advocate, that there was no search when the object viz., the private books of account, were in plain sight. He relied on the observations of Justice Burton in McDonald v. United States (93 Law. Ed. 153 at 161).

7. All searches are inspections, but all inspections are not searches. A search is a thorough inspections of a man's house, building or premises or of his person, with the object of discovering some material which would furnish evidence of guilt for some offence with which he is charged. It implies a prying into hidden places for that which is concealed. If the object sought for is always in plain sight, then there is no search. If the private account books had been kept in the curter openly at all times and they could have been found on inspection at any time of the day, then the seizure of such account books cannot be said to have been made after a search. The facts stated in the counter-affidavit of the respondent lead us to infer that the private account books were not kept openly but were kept concealed and were brought out only after 7 p.m. before the shop premises were closed. The respondent wanted to seize the said account books for the purpose of providing that the petitioner was maintaining two sets of account books and that in the regular account books some sale transactions were not recorded. When the respondent entered the premises of the petitioner on 6th October, 1971, he had only one purpose in view and, that is to seize the private account books which were normally kept hidden or intentionally put out of the way. On the facts and circumstances of the case, the action of the respondent, in our opinion, amounts to a search of the petitioner's premises for the purpose of securing hold of the concealed account books. Admittedly, the provisions of the Code of Criminal Procedure required to be followed were not complied with by the respondent. Therefore, the search being illegal, the seizure of the account books also becomes illegal. The search and seizure being illegal, the petitioner is entitled to the return of the account books and other papers seized from his premises.

8. We, accordingly, issue a direction to the respondent to return to the petitioner the account books and other documents seized on 6th October, 1971, as per annexure A together with copies of notes, if any, made therefrom. No costs.

9. Ordered accordingly.


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