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Rai Bahadur Seth Sreeram Durgaprasad (P) Ltd., Visakhapatnam Vs. Deputy Collector, Customs Dept., Visakhapatnam and ors. - Court Judgment

LegalCrystal Citation
SubjectCustoms
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Petn. No. 1136 of 1963
Judge
Reported inAIR1965AP294; 1965CriLJ180
ActsCustoms Act, 1962 - Sections 11, 105, 110, 111 and 136(2); Constitution of India - Article 14; Sea Customs Act, 1878 - Sections 19 and 172; General Clauses Act - Sections 8
AppellantRai Bahadur Seth Sreeram Durgaprasad (P) Ltd., Visakhapatnam
RespondentDeputy Collector, Customs Dept., Visakhapatnam and ors.
Appellant AdvocateD. Narsa Raju, Adv.
Respondent AdvocateGovt. Pleader (P. Ramachandra Reddy)
Excerpt:
- - drummer, best indian loger beer, with original seals. ..(4) this act shall apply to all goods which are subject to the control of customs at the commencement of this act notwithstanding that the good were imported before such commencement. ..(1) the effect of the rule of strict construction might almost be summed up in the remark that where an equivocal word or ambiguous sentence leaves a reasonable doubt of its meaning which the canons of interpretation fail to solve, the benefit of the doubt should be given to the subject and against the legislature which has failed to explain itself. 518, 527, the legislature clearly and distinctly authorise the doing of something which is physically inconsistent with the continuance of an existing right. they are subject to strict.....anantanarayana ayyar, j. (1) the petitioner, rai bahadur seth durga prasad private limited, of visakhapatnam, has filed this writ petition with a prayer as follows:- 'to issue a writ in the nature of mandamus or any other appropriate writ or order or direction restraining the respondents..... from proceeding any further under the colour and guise of the warrants nos. 9 and 10, dated 24-9-1963 and dated 27-9-1963, respectively, issued by the first respondent herein to respondents 2 and 3 herein and to strike down the said warrants...... as being void and illegal and direct the return of all the account-books, documents, other files and records and other articles.....seized and removed from the premises of the petitioner.' (2) there are three respondents. the first respondents is the deputy.....
Judgment:

Anantanarayana Ayyar, J.

(1) The Petitioner, Rai Bahadur Seth Durga Prasad Private limited, of Visakhapatnam, has filed this writ petition with a prayer as follows:-

'To issue a writ in the nature of mandamus or any other appropriate writ or order or direction restraining the respondents..... from proceeding any further under the colour and guise of the warrants Nos. 9 and 10, dated 24-9-1963 and dated 27-9-1963, respectively, issued by the first respondent herein to respondents 2 and 3 herein and to strike down the said warrants...... as being void and illegal and direct the return of all the account-books, documents, other files and records and other articles.....seized and removed from the premises of the petitioner.'

(2) There are three respondents. The first respondents is the deputy Collector of Customs, Vizag, Respondents 2 and 3 are preventive officers of the Customs Department, Vizag.

(3) The petitioner has extensive business in the territories of Union of India including export trade of manganese ore to overseas buyers from Viskhapatnam Port. On 24-901963, the first respondent issued a warrant No. 9/63 to the third respondent which runs as follows:-

'Section 105 of the Customs (Preventive ) Act whereas I have reason to believe that goods liable to confiscation, documents and things, which, in my opinion, are useful for or relevant to proceedings under Customs Act, 1962 (52 of 1962) are secreted at premises No. Eagles Next opposite to Government Circuit House, Uplands.

Therefore, in exercise of the powers conferred upon me under S. 105(1) of the Customs Act 1962 (52 of 1962), I authorise and require you to search for the said goods. documents and things in the aforesaid premises and if found to produce the same forthwith before me and return this warrant to the Collector of Customs, Madras, with endorsement certifying what you have done under it, immediately upon its execution.'

He issued a similar warrant No. 10/63 on the same date addressed to the second respondent (in the Writ Petition, the date of warrant No. 10 is put as 27-9-1963 obviously by mistake) but the premises mentioned there are No. 24-1-13 Upstairs, Thomsan Street, Visakhapatnam.

(4) In pursuance of the warrant No. 9/63, the third respondent conducted search and took into his custody various articles and prepared a mahazar in the presence of panchayatdars. It mentions as follows:-

'During the search of a steel almyrah (opened by Shri S. J. Malewar)..... the Customs party recovered three quart bottles of beer and one opened part bottle, 'Spey Royal' whisky the level of which has been marked by us and the bottle sealed. The bottles bear the following labels:-

(1) Two quart bottles: Drummer, Best Indian Loger Beer, with original seals.

(2) One quart bottle....the cap bears the following: RACHMOND BREWERY HALSOUENE.

(3) One flat bottle: Gilbye spey Royal scotch Whisky/

Shri S. J. Malleswar was unable to produce any permit in the possession of the abovesaid liquor, nor could he prove the legal importation of the foreign liquor. The said liquor has been seized by the customs party under this mahazar.....'

(5) The 3rd respondent could not complete the search on 24-9-1963. He continued the search on 25-9-1963 and 26-9-1963. On 25-9-1963 he took into custody files which he described in a mahazar prepared that days. He also prepared a mahazar on 26-9-1963.

(6) In pursuance of the warrant No. 10/1963, the second respondent made a search of the premises mentioned in that warrant on 24-9-1963 and prepared a mahazar in which he showed 128 files which he took into custody.

(7) Shri D. Narsaraju, the learned advocate for the petitioner, has urged the following main contentions:-

(1) Section 105 of the Customs Act (Central Act 52 of 1962) must be given a liberal interpretation in favour of the petitioner.

(2) If S. 105 is interpreted liberally, the search and taking into custody of various articles is illegal because of (a) the following defects in the warrant resulting in non-compliance with the provision of that section:- (i) there is no mention of specific no mention of any specified documents or things as useful or relevant to any proceeding; (iii) there is no mention or indication of any reason which the deputy Collector, who had issued the warrant had to believe; (iv) there is no mention as to what are the goods liable to confiscation; (v) there is no mention of any specific offences under the Customs Act or under any Act; (vi) the search was all-embracing.

(b) Following defects in connection with the conducting of search and taking into custody of articles which resulted in non-compliance with the provisions of S. 105(2), Customs Act and S. 165(5), Cr. P.C. :-

(vii) the provisions of S. 165(5), Cr. P. C. were not followed and no report was sent as required by those provisions; (viii) no order of seizure was passed; (ix) articles which could not be lawfully covered by the warrants were taken into custody; (x) search officer entered in warrant No. 10 names which had not been entered by Warrant Officer. (3) If S. 105, on a correct interpretation, is such that the warrant Nos. 9 and 10 comply with the requirements of S. 105, then that S. 105 is ultra vires as (a) authorising unjustifiable interference with the civil liberties of the petitioner as a citizen, and (b) violative of Art. 14 of the Constitution.

(4) In view of the words 'any proceeding under this Act' in S. 105, warrant can be issued under that section for search of articles which would be useful for or relevant to any proceeding directly under the Customs Act and not under any other Act or law.

(5) The proceedings of the officer who issued the warrant can be valid only if there was proceeding under this Act, pending or contemplated. There was no such proceeding, pending or contemplated, when the warrants were issued and, therefore, proceedings consisting of issue of warrants and the search in pursuance thereof are illegal.

(6) There was no basis which gave reason to the Warrant Officer to believe as mentioned in S. 105. Therefore, the proceedings are vitiated and illegal.

(8) Shri D. Narasaraju has not pressed his contention, which he originally raised, regarding the violation of Art. 19 of the Constitution as there is in force a proclamation of emergency by the President under Art. 358 of the Constitution.

(9) Some petitions, which were similar to the present petition in many respects were filed in the Bombay High Court and were disposed of on 25-2-1964 by a Division Bench consisting of Abhyankar, J. and Wagle, J. by an elaborate judgment, in which the learned Judges considered numerous contentions and aspects and they dismissed all those petitions. The above Judgment has been referred to by both sides in the course of their arguments. We are referring to various portions in that judgment which are useful for disposal of the present case.

(10) Five special civil applications were disposed of by that judgment as follows:-

437/1963 - Search of the present petitioner's premises at Tumsar (24-9-1963).

448/1963 - Search of the present petitioner's premises at Nagpur (24-9-1963 to 28-9-1963).

449/1963 - Search of the premises of the present petitioner on 19-8-1963 and 20-8-1963.

459/1963 - Search of the premises of one Agarwal (on 24-9-1963).

(11) The judgment of the learned Judges mentioned as follows:-

'The respondent No. 2 in the return has given the background and the information which ultimately led to the present search....The petitioner in those cases (S. C. A. 437,448,490, and 449/1963) is Seth Durga Prasad and his brother Gulab Das and during that search, certain documents in the shape of files, note/books, loose-papers and nakhal bahis were detained and subsequently seized under S. 110(3) of the Act. Examination of those documents indicated that the said Durga Prasad had resorted to dealings constituting breaches of the Customs Regulations and the Regulations under the Foreign Exchange Regulation Act on a large scale. In this context were found entries referring to petitioner Gopikisan Agarwal (petitioner in S. C. A No. 459) indicating that this petitioner had definite and direct interest of a dubious nature with the petitioner in the other petitions in the above dealings constituting breaches of the customs regulations and regulations under the Foreign Exchange Regulations Act. In view of these circumstances, it was considered necessary premises of the petitioner and his close associates for seizing documents which could be relevant to any proceeding under the Act and also for recovering any undeclared gold actionable under the Gold Control Rules kept in those premises.'

The warrant issued in S. C. A. 459/1963 was only under S. 105 of the Customs Act (read with S. 98 of the Crl. P. C.). The warrants issued in the other cases, that is, S. C. A. 437,438,449 and 490 of 1963 were under rule 126-A (2) of the Defence of India Rules also. In the counters (Returns) filed in those cases facts were given in detail explaining the circumstances which led to the issue of the warrants and the background which indicated how the officer, who issued the warrant, had reason to believe as contemplated in S. 105 of the Act. In the counters filed in the present case before us, such details are not given.

(12) Contention No. 1:- Section 172 of the Sea Customs Act, 1878 runs as follows:

'Any Magistrate may, on application by a Customs Collector, stating his belief that dutiable or prohibited goods (or any documents relating to such goods) are secreted in any place, within the local limits of the jurisdiction of such Magistrate issue a warrant to search for goods or documents. Such warrant shall be executed in the same way and shall have the same effect as a search-warrant issued under the law relating to Criminal Procedure.'

(13) In 1962, Parliament passed the Customs Act, 1962 (Central Act 52 of 1962) (hereinafter referred to as the Act) which was 'an Act to consolidate and amend the law relating to customs'. The following sections are relevant for this case.

Section 105(1). If the Assistant Collector of Customs,....has reason to believe that any goods liable to confiscation, or any documents or things which, in his opinion will be useful for or relevant to any proceeding under this Act, are secreted in any place, he may authorise any officer of Customs to search or may himself search for such goods, documents or things.

(2) The provisions of the Code of Criminal Procedure, 1898 (V of 1898), relating to searches shall, so far as may be, apply to searches under this section subject to the modification that sub-s (5) of S. 165 of the said Code shall have effect as if for the word 'Magistrate', wherever it occurs, the words 'Collector of customs' were substituted.

Section 110(1). If the proper officer has reason to believe that any goods are liable to confiscation under this Act, he may seize such goods.........

(2) ......................................................................

(3) The proper officer may seize any documents or things which in his opinion, will be useful for, or relevant to, any proceeding under this Act.

(4) The proper officer may seize any documents are seized under sub-s. (3) shall be entitled to make copies thereof or take extracts therefrom in the presence of an officer of customs.

Section 111. The following goods brought from a place outside India shall be liable to confiscation..................

Section 160(1). The enactments specified in this schedule are hereby repealed to the extent mentioned in the fourth column thereof......................................................................................................

(4) This Act shall apply to all goods which are subject to the control of customs at the commencement of this Act notwithstanding that the good were imported before such commencement.................................

THE SCHEDULE

Year. No. Short title Extent of Repeal.

1878 8 The Sea Customs The whole.

Act

(14) For purposes of convenience in discussion and avoiding cumbrous language, we are using words in this judgment as follows:- We refer to the officer who issued the warrants or is competent to issue the warrants under S. 105 of the Act as 'We refer to the officer who issued the warrants or is competent to issue the warrants under S. 105 of the Act as 'Warrant Officer', the person in whose favour the search who searches the premises as 'search officer' and the owner of the premises which are mentioned in the warrant and which are searched as 'house-owner'. We are also referring to the act of taking into possession of goods, documents, and things under S. 110 of the Act by the proper officer as 'seizure' and the taking into custody by the search officer of goods, documents and things in the course of the search as 'detention'. We use the term 'articles of search' to refer to 'goods liable to confiscation or any documents or things which in his (warrant officer's) opinion will be useful or relevant to any proceeding under this (Customs) Act, S. 105(1)' We use the term 'reason to believe' to refer to 'reason to believe' that any articles of search are secreted in any place in the wording of S. 105.

(15) In Maxwell on the Interpretation of Statutes (11th Edition, 1962) it is stated as follows:-(at pp. 274-275):

'The tendency of modern decisions, upon the whole, is narrow materially the difference between what is called a strict and beneficial construction........It is unquestionably right that the distinction should not be altogether erased from the judicial mind, for it is required by the spirit of our free institutions that the interpretation of all statutes should be favourable to personal liberty................

(1) The effect of the rule of strict construction might almost be summed up in the remark that where an equivocal word or ambiguous sentence leaves a reasonable doubt of its meaning which the canons of interpretation fail to solve, the benefit of the doubt should be given to the subject and against the legislature which has failed to explain itself.

(2) But it yields to the paramount rule that every statute is to be expounded according to its expressed or manifest intention and that all cases within the mischiefs aimed at are, if the language permits, to be held to fall within its remedial influence.

Statues which encroach on the rights of the subject whether as regards person or property are similarly subject o a strict construction in the sense before explained...........'

(The numbers are given by us for convenience in reference).

(16) In Craies on Statute Law (6th Edition, 1963) it is stated as follows:-(at p.118):

'Therefore, rights whether public or private, are not to be taken away, or even hampered, by mere implication from the language used in statute, unless as Fry, J., said in Mayor, etc., of Yarmouth v. Simmons (1878) 10 Ch. D. 518, 527, the legislature clearly and distinctly authorise the doing of something which is physically inconsistent with the continuance of an existing right.

(3) In order to take away a right, it is not sufficient to show that the thing sanctioned by the Act, if done, of sheer physical necessity, put an end to the right; it must also be shown that the Legislature have authorised the thing to be done at all events, and irrespective of its possible interference with existing rights: Western Counties Ry. v. Windsor, etc., Ry. (1882) 7 Application Cas 178, 189 (PC)'.

(17) In Empress Mills, Nagpur v. Municipal Committee, Wardha, : [1958]1SCR1102 , it was observed regarding the wording of certain provisions of the C.P. and Berar Municipalities Act (Act 2 of 1922) relating to imposition of certain tax as follows:-(at p. 344):

'The efficacy of the relative contentions of the parties, therefore, requires the determination of the construction to be placed on the really important words of which are 'terminal tax', 'imported into or exported from' and 'the limits of the Municipality'. In construing these words of the statute, if there are two possible interpretations, then effect is to be given to the one that favours the citizen and not the one that imposes a burden on him.'

(18) Beyond doubt, provisions as to search of the premises of a citizen place certain restrictions adversely on his possession and enjoyment of his properties and thereby encroach upon his civil liberties. They are subject to strict interpretation, just like statutory provisions imposing a tax on a citizen. They have to be interpreted in the light of the three principles quoted above. But, search of premises and seizure of property, such as provided in Ss. 105 and 110 of the Customs Act do not amount to restrictions on right to hold or acquire property and do not form and unjustifiable encroachment on any fundamental right.

(19) In M. P. Sharma v. Satish Chandra, : 1978(2)ELT287(SC) , their Lordships observed as follows (at p. 302):

'.......A search by itself is not a restriction on the right to hold and enjoy property. No doubt a seizure and carrying away is a restriction of the possession and enjoyment of the property seized. This, however, is only temporary and for the limited purpose of investigation........Statutory regulation in this behalf is a necessary and reasonable restriction and cannot 'per se' be considered to be unconstitutional. The damage, if any, caused by such legal authority, is a matter for redress in other proceedings. We are unable to see how any question of violation of Art. 19(1)(f) is involved in this case in respect of the warrants in question which purport to be under the first alternative of S. 96(1) of the Criminal P. C.'

Their Lordships have also observed as follows (at p. 306):-

'A power of search and seizure is in any system of jurisprudence an over-riding power of the State for the protection of social security and that power is necessarily regulated by law.'

The learned Advocate for the petitioner is right in contending that where there are two possible interpretations of the provisions of S. 105 or any other provision of statute, that construction which is favourable to the petitioner should be adopted. As stated by Maxwell, this rule yields to the second rule, which is a paramount rule, if the latter also applies. Also principle No. 1 does not mean that the ordinary canons of interpretation in other ways should be given a stained construction or should be added to by words which are not there, so as to give an interpretation in favour of the petitioner while a plain reading of clear words of statute indicates an obvious meaning without any doubt and does not yield to or give scope for any such interpretation. We find that the words of S. 105 of the Act are clear and not equivocal and that the sentences are not ambiguous and do not leave any doubt of their meaning.

(20) Principle No. 2 is a paramount rule and prevails over principle No. 1. In later portions of this judgment, we are discussing the important provisions of the Act and from that discussion as well as the object, purpose and policy of the Act, it will be clear that only if S. 105 is interpreted according to its plain language and the intention is gathered from that plain language, all the cases within the mischiefs aimed at would fall within the remedial influence of S. 105 read with other sections. IT is also clear from that discussion that the power given and action sanctioned by S. 105 of the Act have been authorised by the legislature to be exercised and taken at all events and irrespective of its possible interference with existing rights of citizens, i.e., rights in enjoying possession of property. Therefore, principle No. 3 as found in the passage which we have extracted from Craies on Statute Law, is also satisfied by interpretation of S. 105 with reference to the express meaning of the plain words used and, therefore, such interpretation cannot be avoided or departed from or yield to the strained interpretation put forward by Shri D. Narasa Raju. Therefore, on the first contention, we find that S. 105, has to be given a liberal interpretation but such interpretation is not helpful to the petitioner in considering the second contention which we deal with later in this judgment.

(21) Contention No. 3: Shri D. Narasa Raju contends that section 105 of the Act gives power which is uncanalised, unbridled, naked and arbitrary and is capable of being abused by the Warrant Officer and the Search officer. In Pannalal Binjraj v. Union of India, : [1957]1SCR233 their Lordships of the Supreme Court observed as follows: (at p. 409.)

'There may be cases where improper execution of power will result in injustice to the parties. As has been observed, however, the possibility of such discriminatory treatment cannot necessarily invalidate the legislation and where there is an abuse of such power, the parties aggrieved are not without ample remedies under the law (vide Dina Bandhu Sahu v. Jadu Moni Mangaraj, AIR 1954 SC 411 at P. 414). What will be struck down in such cases will not be the provision which invests the authorities with such power but the abuse of the power itself.'

(22) In Ramakrishna Dalmia v. S.R. Tendolkar, : [1959]1SCR279 , their Lordships of the Supreme Court referred with approval to the following passage from Budhan Choudhry v. The State of Bihar, (S) : 1955CriLJ374 (at p. 547):

'...........In order, however, to pass to pass the test of permissible classification (which is not forbidden by article 14), two conditions must be fulfilled, namely (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are group and (ii) that the differentia must have a rational relation to the object sought to be achieved by the statute in question. The classification may be founded in different bases, namely geographical or according to objects or occupations or the like. What is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration...........'

Their Lordships also held as follows: at p. 547-548

'The decisions of this court further establish.. (b) that there is always a presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles.

(c) That it must be presumed that the Legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds..

(e) that in order to sustain the presumption of constitutionality the court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation; and

(f) that while good faith and knowledge of the existing conditions on the part of a legislature are to be presumed, if there is nothing on the face of the law or the surrounding circumstances brought to the notice of the court on which the classification may reasonably be regarded as based, the presumption of constitutionality cannot be carried to the extent of always holding that there must be some undisclosed and unknown reasons for subjecting certain individuals or corporations to hostile or discriminating legislation.

The above principles will have to be constantly borne in mind by the court when it is called upon to adjudge the constitutionality of any particular law attacked as discriminatory and violative of the equal protection of the laws'.

Shri D. Narasaraju relies on principle (f). The learned Government Pleader has pointed out various surrounding circumstances and intrinsic features in the Act to show that the authority given under section 105 to warrant officer is not an arbitrary or unguided power which can be exercised for search of premises of any house-owner at random and thus discriminate against him, as compared to other house-owners and that there are ample safeguards in section 105 itself and other provisions in the Act.

(23) In Jyoti Pershad v. Union Territory of Delhi, : [1962]2SCR125 , their Lordships referred with approval to the principle enunciated in : [1957]1SCR233 In that case, S. 19 and particularly sub-s. (3) of that section in the Slum Areas (Improvement and Clearance) Act, 1956 (Central Act 96 of 1956) Was challenged on the ground that it offended the fundamental right of the petitioners guaranteed to them by Arts. 14 and 19 (1) (f) of the Constitution. A contention was raised on behalf of the petitioner that the Act vested, in the competent authority, the power to withhold eviction in pursuance of orders or decrees of Courts without affording any guidance or laying down any principle for his guidance on the basis of which he could exercise his discretion, in other words, that the Act lays no fetters and has vested in him an arbitrary and unguided power to pick and choose the decree-holders to whom he would permit execution and those to whom he would refuse such relief. On the other hand, the learned Attorney General submitted that the discretion vested in the competent authority was not unguided and that, though S. 19 of the Act did not in terms lay down any rules for his guidance, the same could be gathered from the policy and purpose of the Act as set out in the Preamble and in the operative provisions of the Act itself. Their Lordships discussed the various provisions of the Act including the Preamble and chapters and concluded as follows: (at p. 1611).

'In view of the foregoing, we consider that there is enough guidance to the competent authority in the use of his discretion under S. 19(1) of the Act and we, therefore, reject the contention that S. 19 is obnoxious to the equal protection of laws guaranteed by Art. 14 of the Constitution, we need only add that it was not, and could not be disputed that the guidance which we have held could be derived from the enactment, and that it bears a reasonable and rational relationship to the object to attained by the Act and, in fact, could fulfil the purpose which the law seeks to achieve, viz., the orderly elimination of slums..........'

In the present case, guidance is available in S. 105 itself as well as from other provisions of the Act to the warrant officer for taking action under S. 105 and this guidance bears a reasonable and rational relationship to the object to be attained by the Act, and, in fact, would fulfil the purpose which the Customs Act seeks to achieve as mentioned in S. 11 of that Act.

(24) In State of Bengal v. Anwar Ali, : 1952CriLJ510 , their Lordships dealt with certain provisions in the West Bengal Special Court's Act, 1950 and held as follows: at pp. 86 and 87:

'Even if it be said that the statute on the face of it is not discriminatory, it is so in its effect and operation inasmuch as it vests in the executive Government unregulated official discretion and, therefore, has to be adjudged unconstitutional.

It was suggested that good faith and knowledge of existing conditions on the part of a Legislature has to be presumed. That is so; yet to carry that presumption to the extent of always holding some undisclosed intention or reason for subjecting certain individuals to a hostile and discriminatory legislation is to make the protection clause of Art. 14, in the words of an American decision a mere rope of sand, in no manner restraining State action.....'

(25) This has been taken into account in principles (c) and (f) out of the five principles laid down by the Supreme Court in : [1959]1SCR279 (supra). As regards principle (c), it is obvious that the legislature has often to face difficult problems and pass legislation to solve those problems and provide remedial measured to deal with difficult situations arising out of anti-social activities indulged in secretly by clever people using clever and ingenious methods not only to do unlawful acts and evade the law but to conceal them.

(26) We find that S. 105 of the Customs Act conforms to the standards set down by their Lord-ships of the Supreme Court for complying with Article 14 of the Constitution and does not violate that article.

(27) It was also urged before the learned Judges of the Bombay High Court in S. C. A. Now. 437, 448,449,490 and 459/1963 that S. 105 of the Act was ultra vires. The learned Judges stated as follows:

'The petitioner has challenged the law under which action has been taken by the respondent as ultra vires and invalid and, therefore the action taken thereunder as unauthorised by law..........

It was urged that S. 105 as well as S. 110 invest unguided, uncanalised and absolutely naked power in certain officers of customs to trespass upon the privacy and property of citizens and search and seize their goods, documents and things without the legislature giving any indication or guidance as to the circumstances in which such power of search or seizure should be used........'

Regarding the varying circumstances under which the warrants may be issued, the learned Judges observed, contrasting those circumstances with circumstances under which documents could be summoned under S. 108 or required to be produced under S. 107, as follows:-

'It is possible either for an investigation officer to pin-point, specify or identify a document in advance which may prove useful or relevant in proceeding under the Act. It is also unnatural to expect that when evasions of the provisions of the Act or any provision of the repealed Act, such as smuggling of contraband goods, or smuggling of foreign currencies, are suspected, entries will be found honestly disclosing these transactions. The entries may be made in a surreptitious manner so as to screen, as much as human ingenuity could devise, the true nature of the transaction, as was found in the Calcutta case reported in Surajmull v. Commissioner of Income-tax, : AIR1961Cal578 . In that case, a Bhajan book contained a slip of paper which led to the discovery of assets worth ten lakhs of rupees and therefore was found to be extremely relevant .......... It is thus not possible to predict in advance what book or particular book or document, or account may contain information necessary, useful or relevant in a proceeding under the Act. The provisions of S. 105, therefore have to be judged in this background. Could it be said that the Legislature has granted excessive powers i.e., in excess of the need, to prevent the mischief and advance the purpose of the investigation in entrusting to the Assistant Collector of Customs a power of search of documents and things in the circumstances mentioned in the section? In our opinion it could not be said in view of the object with which the powers are given and the conditions by which the exercise of the power is limited that power in excessive or unbridled.'

In this passage learned Judges have held to the effect that (a) section 105, as it stands does not require detailed description or particulars being given by warrant officer in his search warrant, of book, document, things and goods which, in his opinion, would be useful or relevant to any proceeding under the Act; (b) the provision in S. 105 has been mace with due regard to the object and purpose for which the powers are given and to practical considerations; (c) the powers given under section 105 cannot be considered excessive or unbridled in view of the object with which the powers are given and the conditions by which exercise of the power is limited.

(28) The learned Judges referred to the conditions imposed for exercising of the power and held to the following effect:

(1) If a person is called upon to produce such a document (incriminating). It would amount to testimonial compulsion and could be resisted as violative of Article 20(3) of the Constitution.

(2) The argument also assumes that the officer knows in advance what kinds of documents are required to be produced containing information or entries incriminating the person against whom enquiry is being held.

When a decision is taken (under section 105, Customs Act) to make a search in exercise of the powers under these section, it is impossible for the officer to formulate or predict either the nature of the documents, except by vague reference, like account books or documents, or to specify them with any defniteness.

(3) It often happen that the power of search and seizure of documents and things has to be exercised for searching places not directly connected with or under the control or possession of the person who is proceeded against. In fact the section does not limit the power of search or seizure for goods, and documents and things to the premises either in occupation or under control of any particular person.

(4) We also do not think that the power to search entrusted to the officers of the grade of Assistant Collector of Customs who is a fairly responsible person in the hierarchy, is an unguided and uncanalised power. That, is given circumstances, the power is liable to be abused or misused is not relevant in considering whether the grant of the power is absolute or naked as it is sometimes described. The exercise of the power is conditions by the requirements that the Officer must have a reason to believe. It is necessary to note the difference in the phraseology used under the Sea Customs Act when the power was given under S. 178A to seize goods.

(5) There are several safeguards available in the law as follows :-

(i) the Assistant Collector must have information and must act in the circumstances which furnish him reason to believe; (ii) the documents or things should be relevant and useful though it true that their relevance of usefulness in a proceeding under the Act is left to the exclusive determination of the officer concerned. In other words, it may be a subjective decision; (iii) the provisions of the Code of Civil Procedure, so far as may be, have been made applicable to searches under section 165(1), (iv) power is given under S. 105 to a responsible officer of the rank of Assistant Collector; that in itself would constitute a safeguard to a certain extent against improper or arbitrary exercise of power of search and seizure. (The numbering is given by us for convenience). We respectfully agree with always views expressed by the learned Judges of the Bombay High Court and hold that the power given under S. 105, cannot be said to be an unguided, uncanalised, absolute or naked power and is, therefore, not ultra vires the Constitution. We also agree with them that S. 105 does not violate Art. 14 of the Constitution.

(29) For securing purpose and policy of the Customs Act, Parliament enacted provision contained in section 105 of the Act. In doing so, it had to in a way restrict the civil liberty of the citizen. But, in chose to do so in the broader interests of the country and community as a whole. The Legislature has the power and duty of enacting laws (within the field given to it by the Constitution indicating legislative competent) for what it considers to be necessary and in the best interests of the community as a whole. Where such legislation affects the right of the individual, it has got to fulfil the requirements of not contravening any of the provisions regarding fundamental rights enshrined in Part III of the Constitution. But power of search and seizure relating to premises of citizen does not affect any fundamental right under the Constitution.

(30) The Legislature is in the best position to know what is required at any particular time, by way of legislation to deal with the problems general and special, which face the country and the community. When the Sea Customs Act was enacted in 1878, the legislature considered section 172 of that Act as necessary and sufficient to suit the requirements of the country at that time. It provided for a Customs Collector applying to a Magistrate for issue of a search warrant when he (customs Collector) wanted that any premises could be searched for dutiable or prohibition goods, documents etc., Long afterwards in 1962, when the Legislature repealed the Sea Customs Act and enacted in its place, the Customs Act in 1962, the legislature obviously considered that the provision as in section 105 was necessary and that provision such as in section 172 of the Sea Customs Act was not sufficient to achieve the object and purpose of the new Act and had to be replaced by a different provision (as in section 105, Customs Act). The Legislature, as being made up of legislators all whom are citizens who have their houses and premises, must have known the effect of this new enactment on the right and desire of an ordinary citizens to enjoy peace and privacy in house without being made liable to searches, as far as possible. With full knowledge, the legislature made the provision in section 105 as it considered that the comfort and convenience, by way of ordinary civil liberties, of the individual had to be sacrificed to a certain extent in the larger interests of the community as a whole. Obviously, the legislature introduced section 105 by way of striking a balance between the rights of the individual citizen and the needs of society as a whole. While doing so the Legislature thought it necessary and sufficient to introduce new safeguards, which have already been referred to to compensate for the fact that an officer of the Customs Department could himself issue a warrant for search, doing away with the original safeguards available for the citizen originally under section 172 of the Sea Customs Act by way of only the Magistrate having power to issue a warrant.

(31) The substituted safeguards include the placing of power in the hands of a responsible officer of customs holding a high rank which is similar to provision in the law relating to investigation of cases regarding corruption. Originally, certain offences relating to public servants were non-cognizable with the result that they could not be investigated without the order of a Magistrate under S. 155 (2) Cr. P. C. Subsequently, the legislature made those offences cogniziable with the result that they could, in the absence of provision to the contrary, thereby be investigated by competent police officer without any order by any Magistrate. But, the legislature also made a provision in S. 5(4) of the Prevention of Corruption Act (which later substantially became section 5-A of that Act) providing that the investigation should be only by police officer of a designated high rank. Their Lordships of the Supreme Court observed in Rishbud v. State of Delhi, (S) : 1955CriLJ526 as follows at p. 202.

'When, therefore the legislature thought fit to remove the protection from the public servant, in so far as it relates to the investigation of the offences of corruption comprised in the Act, by making them cognizable, it may be presumed that it was considered necessary to provide a substituted safeguard from undue harassment by requiring that the investigation is to be conducted normally by a police officer of a designated high rank.'

(32) Another provision was introduced in the Customs Act, 1962, providing an additional safeguard. Section 136(2) of the Customs Act runs as follows :

'136 (2) if any officer of Customs . .. . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . ..................................................................................................................................................................

(c) searches or authorises any other officer of customs to search any place without having reason to believe that any goods, documents, or things of the nature referred to in section 105 are secreted in that place;

he shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees or with both.'

This makes it a serious offence on the part of a customs officer with liability to serious consequences to himself, if he issue a search warrant without having reasons to believe as mentioned in S. 105 of the Act.

(33) The object of search under S. 105 is generally to reach at articles of search namely, goods liable to confiscation etc., which are secreted, which articles could not be secured by requisition under S. 107, or by summons to produce, issued under S. 108. Persons, who secure such things, would ordinarily be smugglers or others who are contravening the concerned provisions of law for the benefit or advantage of themselves. For purposes of convenience, we may refer to them as 'evaders'. They include smugglers to deal with the activities concerned officers. Government had to equip them with suitable and necessary powers to enable them to reach at the articles of search, to seize them, to scrutinise them and find out the real meanings, purport and significance of documents (including administrative files and accounts) just as Government may furnish them with X ray equipment to find out the contents of articles of search which are concealed in containers which are opaque to ordinary visual light. The race between the evaders of the law and the authorities who enforce the law may, in some fields (like techniques and methods), be one continuous process in which each tries to get the better of the other; In such circumstances, the Legislature and the Government may try to equip the enforces of the law at any time with powers required at tat time, considering the prevailing circumstances, the nature and extent of activities of evaders and extent of power requisite for the offences enforcing the law including rules and notifications to deal with the evaders. This contention No. 3 is not tenable.

(34) Contention No. 2. In the present case, the warrants were issued by the Deputy Collector of Customs. His authority to issue warrant under Section 105 of the Act has not been challenged before us. Alleged defects (i) to (v) have one feature in common namely, that the warrants did not give full details. In raising this contention regarding items (i) to (v), the learned Advocate for the petitioner assumes that full details should be mentioned in the warrants. Section 105 itself does not indicate that details such as concerned in the alleged defects (i) to (v) should be mentioned in the warrant. Even the rule of strict construction already referred to does not affect the principles that the plain words of statute should be given their plain meaning and that it is not ordinarily permissible to add to the words of a statute for the purpose of interpreting it. Item (vi) is also not a defect independent of alleged defects (i) to (v). It is only a result of specific details not being mentioned in the warrant such as concerned in items (i) to (v).

(35) In the counter-affidavit filed by the Deputy Collector, it is mentioned as follows :

'For taking action under section 105 of the Customs Act, 1962 it is not necessary for the respondent to indicate the nature of the proceedings either pending or contemplated under the Act. There is no obligation on my part to specify and communicate either the goods or documents liable to be searched.

The allegation ................. that the warrant amounts to 'carte blanche' is incorrect and the second and third respondents were informed by me to search and seize the nature of goods required by me ..............There is no wholesale seizure of the goods that are relevant for purposes of the enquiry were seized and in the said seizure all the provisions of the Customs Act, 1962 are complied with.

The allegation ...................... that the proceedings envisaged by S. 165 of the Cr. P. C. violated in the said search and seizure by respondents 2 and 3 is incorrect and the mahazars drawn are self explanatory ................. The petitioner will be given ample opportunities when the proceedings are initiated under the Customs Act and the petitioner can reserve (resort) to statutory mode of appeal envisaged by the said Act .........'

(36) The wording adopted in the Warrants Nos. 9 and 10 concerned in this case amounts to practically an extract of the wording in S. 105 of the Customs Act.

(37) In S. C. A. No. 459 of 1968, the warrant issued was as follows :-

'Authority to search after information of a particular offence . . . . . . . . . . . . . . . . . . . . . . . Whereas information has been laid before me of the suspected commission of the offence under S. 11 read with S. 111 of the Customs Act, 1962 (52 of 1962) and it has been made to appear that the production of contraband goods and documents relating thereto are essential to the enquiry about to be made in the suspected offence.

This is to authorise and require you to search .......................................................'

The warrant issued in the case concerned in S. C. A. No. 490 of 1963 ran as follows:

'Permission to search premises under Rule 126 (L) (2) of the Defence of India (Amendment) Rules 1963.

. . . . . . .. . . . . . . . . . . . . . . . . . . . . . .

Whereas information has been laid before me and on due enquiry thereupon I have been led to believe that the premises/vaults/lockers specified below and said to be in possession and control of Shri R. B. Sir Rama Durga Prasad are used for storage of gold/gold-ornaments in contravention of the provisions of Gold Control Rules . ............... This is to authorise and require you to enter the said premises ......................... and to search every part of the said premises and to seize and take possession of all gold/gold ornaments .............. and also of such books of account, returns or any other documents as you may reasonably believe to be connected with any contravention of Gold Control Rules ...............' It will be observed that in the above warrant in S. C. A. No. 490/1963, there is specific mention that the warrant officer had been led to believe on information and due enquiry that the house-owner was in possession and control gold/gold ornaments in contravention of Gold Control Rules. The gold/gold ornaments and accounts etc., 'connected with any contravention of Gold Control Rules' That was a warrant issued under Defence of India Rules and with the Gold Control Rules in view. The warrant in S. C. A. No. 459/1963 mentioned only 'contraband goods and documents relating to' an 'offence under S. 11 read with S. 111 of the Customs Act'. It did not mention any more details of things and documents to be searched for and seized. The warrant was drawn up so because the warrant officer issued it when he had information of suspected commission of 'a particular offence'. The warrant itself states so.

(38) The above two warrants show two different circumstances in which two different types of warrants with differences in wording had to be issued by Warrant Officer. The difference was due to the fact that circumstances were different and the nature and extend of information which the Warrant Officer had was also different. In one case, he had definite information that gold and gold ornaments were being kept. In the other cases, warrant officer had only information that contraband goods and documents were kept in the premises. The details, which are given in a warrant, are necessarily dependent on the circumstances in which the warrant officer issues the warrant and the degree of detail of information which he himself had in his possession then and which furnished to him reason to believe such as mentioned in section 105. It would also depend on whether the entire information which he had or only that part of it which he considered safe, necessary, desirable or expedient in the public interest to mention in the warrant. There might be cases in which information available to a warrant officer is just to the effect that goods liable to confiscation and documents or things which would be useful for relevant proceeding under this Act were searched in a particular place. Supposing that, in such a case, the information is sufficient to give him reason to believe about such secreting is he to issue warrant for search or is he to remain inert without taking any action. Section 105 itself, in clear unambiguous terms, gives him power to issue warrant for search in such circumstances.

(39) It was urged before the learned Judge of the Bombay High Court also that the provisions of section 105 of the Customs Act were not complied with on substantially the same grounds as urged here. The learned Judge observed thus :

'The petitioner also challenge the authority of respondent No. 2 to act on the authorisation dated 24-9-1963 issued by respondent No. 1 (Warrant Officer), on the ground that respondent No. 1 has not acted within limitations of Section 105 of the Customs Act, nor fulfilled the conditions precedent which would enable him to act under that section. The search and seizure is also challenged on the ground of non-compliance with the provisions of the Code of Criminal Procedure ........................'

The learned Judge rejected this contention :-

(40) So, we find as follows: Section 105 of the Customs Act does not mention that any details should be mentioned such as contended for by the learned Advocate for the petitioner. In particular, it does not require that the 'reason to believe' which the Warrant Officer has (such as mentioned in the section) should be mentioned in the warrant though it is necessary that he should have no such 'reason to believe' as a condition precedent to his issuing a warrant lawfully. Therefore, the warrant does not suffer from illegality for non-mention of details mentioned as alleged defects i.e., items (i) to (v) by Shri Narasaraju. But the requirements of section 105 should be satisfied by the Officer really having reason to believe as mentioned in that section.

(41) Alleged defects Nos. (vi) and (ix) are that the search is all embracing and that various documents and things have been taken into custody by the Search Officer and detained by him though they are not 'useful or relevant to any proceeding under this Act'. In the warrants, the warrant officer slated in the specified premises and he authorised the search officer to search for ' the said goods, documents and things'. In search proceedings in execution of these warrants, the Search Officer seized the material which he considered to be articles of search. This was inevitable when the warrant officer did not himself choose to conduct the search personally but issued a warrant to another officer as search officer. Shri Narsa Raju contends that a large number of files seized are prima facie not useful for or relevant to any proceeding under the Customs Act and are not liable for confiscation. It is not possible for this court to decide at this stage, as to whether any of the documents seized will be useful for or relevant to any proceeding under the Customs Act. The question as to their usefulness and relevancy will have to be decided by the concerned customs authorities after careful scrutiny and consideration not only of their express contents but also of what can be readout of them or into them by studying and scrutiny with reference to other material at their disposal. one material may be relevant by itself. Another material may be relevant when considered with some other material. The competent officer, who has power to seize III. will have to exercise that power after scrutinising them with reference to the relevant provisions of the Act. We are not in a position to say that any of the articles of search has been illegally taken into the custody except the two bottles are detained illegally and that otherwise the contention regarding defect (item ix) cannot be accepted by us. Alleged defect (iv) is not a real defect.

(42) Alleged defect (No. vii) is that the provisions of section 165 Cr. P. C. have not been followed. It is counted by Shri Narasaraju that no report has been sent as contemplated by section 165(5) Cr. P.C. have not been followed. Under section 165(5) Cr. P. C. read with section 105 of Customs Act, record of the search has to be sent to the Collector of Customs and a copy of the record shall be furnished to the house-owner on application by him. The learned Government pleader contends that a report (record) has been duly sent by the Assistant Collector to the Collector of Customs regarding searches under the two warrants. He also produced the concerned record in Court. It is not shown to us that copy of the record was applied for by the petitioner or was refused. No contravention of provisions of Cr. P. C. is proved

(43) As regards alleged defect (No. viii), the learned Government pleader represents that order of seizure will be passed in due course by the proper officer. The action of the search officer in taking into custody the various articles of search did not amount to seizure udder the Customs Act. Therefore, there was no need for him to pass an order of seizure. The fact that the proper officer of customs has not already passed an order of seizure does not amount to contravention of any provision of law, as there was an order of this court in C. M. P. No. 9515 of 1963 dated 4-11-1963 which prevented him from scrutinizing the contents of the documents. That order runs as follows:

'The documents records etc. seized by the official of the Customs Departments, Visakapatnam, from the petitioner, shall be kept in the boxes supplied by the petitioner in safe custody, in the possession of the department officials; but the boxes shall be kept sealed by the seal of the customs department as well as that of the petitioner. The result of this interim direction will be that departments officials shall not inspect the records, documents etc., pending the decision of the writ petition (W. P. No. 1136) which the petitioner has failed, challenging the power of the Department to act under S. 105 of the Customs Act, 1962.'

(44) Alleged defect (x), Shri D. Narasaraju for the petitioner contends that in Warrant No. 10 of 1963, the Warrant Officer did not file the names of the various owners of the premises which are searched and that search officer noted down the names of the owners. The learned Government Pleader explains that the premises searched strictly came within the description given by the warrant officer in the warrant namely, 'premises No. 24-1-13 Upstairs, Thomson Street, Visakapatnam' and that the warrant and search would be perfectly legal even if the names of all the owners were not filled up at the root of the warrant (coming after the signature of the warrant officer) and even if only some of the names were mentioned. He also explains that every one of the five entries of owners is a partnership in which the petitioner Rai Bahadur Sait Sri Ram Durga Prasad is a partner. The premises to be searched have been indicated clearly and completely in the warrant by the Warrant Officer. We agree that the search of those premises would have been valid and lawful even if the owner or person in possession of those premises was not specified as contended before us.

(45) Thus, the alleged defects (i) to (x) do not vitiate the issue of warrants and search except to the extent of detention of Indian made beer already referred to by us. Accordingly, we find that there was sufficient compliance with the provisions of S. 165 Cr. P. C. and that it is not shown that there is any failure to comply with the provision, except regarding the detention of Indian made beer. We find accordingly on contention No. 2.

(46) Contention No. 4 :-Section 11 of the Customs Act runs as follows:

'11 (1) If the Central Government is satisfied that is if necessary so as to do for any of the purposes specified in sub-section (2), it may, by notification in the Official Gazette, prohibit either absolutely or subject to such conditions (to be fulfilled before or after clearance) as may be specified in the notification, the import or export of goods of any special description.

(2) The purposes referred to in sub-section (1) are the following:-

(a) the maintenance of the security of India.

(b) the maintenance of public order and standards of decency or morality .........................

(c) the prevention of smuggling ...............

(d) the prevention of the contravention of any law for the time being in force; and

(v) any other purpose conducive to the interest of the general public.'

The heading (a) to (v) in sub-section (2) cover numerous fields relating to the security and well-being of the country (India) and its citizens. Several other statues contain provisions by way of reference to the law relating to Customs. Thus, the Foreign Exchange Regulation Act (Central Act VII of 1947) contains section 23-A which runs as follows :

'................ the restrictions imposed by sub-sections (1) and (2) of section 8 ............. shall be deemed to have been imposed under section 19 of the Sea Customs Act, 1878 (VIII of 1878) and all the provisions of that Act shall have effect accordingly except.............................'

The Sea Customs Act of 1878 was repealed by S. 160 of the Customs Act 1962. Section 8 of the General Clauses Act (Central Act X of 1897) runs as follows:-

'Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals and re-enacts, with or without modification, any provision of a former enactment, then references in any other enactment or in any instrument to the provision so re-enacted.'

In view of this provision, the reference to S. 19 of the Sea Customs Act, 1878 in S. 23A of the Foreign Exchange Regulation Act 1947 has to be construed as a reference to the corresponding provision in Customs Act (Central Act 52/1962) which is section II of that Act.

(47) Shri D. Narasa Raju himself states that the purpose and policy of the Act is to enforce compliance with the provisions of the Act and to prevent violation of the provisions of the Act. The Act, directly by its own provisions and indirectly by various provisions in other Acts like S. 23-A of the Foreign Exchange Regulation Act read with S. 11 of the Customs Act, has wide scope and field for the purpose of ensuring the security and well-being of the country and its citizens. This contention No. 4 is not tenable.

(48) Contention No. 5 Shri D. Narasaraju, contends that the words 'any proceeding under this Act' in section 105(1) must mean only any proceeding which are pending or which was in contemplation at the time when the Assistant Collector of Customs authorises a search under Section 105(1). The learned Judges of the Bombay High Court have considered these aspects and observed as follows :

'Attention was focused on the popular prejudice against any search or seizure as a violation of individual, personal liberty or rights in property. The search under the section is styled as a reving search or an exploratory crusade, or a fishing expedition, in utter disregard of the dignity and privacy of the person concerned. In our opinion, this approach is from a wrong perspective. Whenever invasion of liberty and freedom is complained, there is an obvious tendency to forget the corresponding obligations of citizenship. There is no such immunity in our Indian law from search or seizure ..........................'

(49) The learned Government Pleader concedes that, for purpose of section 105, a proceeding must be pending or in contemplation if a warrant for search is to be issued. But, he contends that the issue of a warrant and institution of search thereby from the first step in a proceeding against the petitioner under the Act. It is clear from the wording of S. 105 of the Customs Act that the 'proceeding under this Act' must be one pending or contemplated and for the purpose of which, the warrant is to be issued and therefore cannot be identical with the proceeding consisting of mere issue of warrant. This contention No. 5 is tenable.

(50) Contention No. 6 Shri D. Narasaraju contends that the proceedings are vitiated and illegal as there was no basis which gave reason to the Warrant Officer to believe as mentioned in S. 105. In Walvekar v. Emperor, AIR 1926 Cal 966 it was held that 'reason to believe' was entirely different from the expression 'cause to suspect'. That case related to a warrant issued by a Deputy Commissioner of Police under s. 46 of the Calcutta Police Act (4 of 1866).

(51) In Pukhraj v D. R. Kohli, : 1983(13)ELT1360(SC) their Lordships of the Supreme Court observed as follows at p. 1563:

'After all, when are dealing with a question as to whether the belief in the mind of the officer who effected the seizure was reasonable or not, we are not sitting in appeal over the decision of the said officer. All that we can consider is whether there is ground which prima facie justifies the said reasonable belief. That being so, we do not think there is any substance in the argument that the seizure was effected without a reasonable belief and so is outside section 178-A.'

Their Lordships were referring to section 178-A (1) of the Sea Customs Act which runs as follows:

'Where any goods to which this section applied are seized under this Act in the reasonable belief that they are smuggled goods, the burden of proving that they are not smuggled goods shall be on the person from whose possession the goods are seized.'

The Supreme Court observed regarding section 172 of the Sea Customs Act in Mohd. Serajuddin v. R. C, Misra, : 1983(13)ELT1370(SC) as follows at p. 762-763 :

'Section 172 of the Sea Customs Act, by its second paragraph, brings into operation the provisions of the Criminal Procedure Code, and, therefore, the Magistrate's jurisdiction is both under section 172 of the Sea Customs Act and the Criminal Procedure Code. There can be no doubt also that unlike section 96, the Magistrate is to be guided by the belief of the customs authorities, though he may prevent undue harassment in cases, where it can be seen that the belief is not entertained by the Customs Officer or his action is mala fide. The Magistrate is certainly entitled to satisfy himself about the belief of the Customs Officer, but is not required to make up his own mind independently of that belief. To this extent only is the matter in the control of the Magistrate, before he issues the warrant ......................................'

The above passage makes it clear that even under section 172 of the Sea Customs Act, warrant would issue by the Magistrate only on the basis that the Customs Officer had 'reason to believe' and that, if the Magistrate felt satisfied that the Customs Officer did not have reason to believe or acted mala fide, the Magistrate would be entitled to refuse to issue warrant. Under S. 105 of the Customs Act, the Customs Officer can himself issue a Warrant if he himself has 'reason to believe'. He, can, in fact, though not lawfully, also do the act of issuing warrant even where really, he has no reason to believe though he mentions in the warrant that he has reason to believe. But, in such a case, he is liable to punishment under S. 136(2)(c) of the Act. Obviously, the Legislature considered it necessary to introduce provision in section 105 by giving power to the Customs Officer to issue warrant himself but introduced safeguards by way of fixing a high rank for the officer and providing under section 136(2)(c) of the Act.

(52) It is not possible to lay down precisely or exhaustively as to what constitutes 'reason to believe'. It would depend on various circumstances. The issue of a warrant would involve the following elements :(1) Articles of search (2) Place in which they are secreted; (3) manner in which they are secreted, (4) person who is in possession of the articles of search or the place where they are secreted. It may be that 'he information which the Warrant Officer has regarding each of the elements is not precise or absolutely certain without any possibility of doubt. But still, if the information is such as leads him to believe that articles of search are secreted in a place which concrete, he may thereby have ' reason to believe' as contemplated in S. 105. He may in such circumstances issue a warrant even if he does not know for certain the name of the person who is in possession of the articles of search or the place where they are secreted. As laid down by their Lordships of the Supreme Court in : 1983(13)ELT1360(SC) (supra) all that the court can consider as whether there is ground which prima facie justifies the statement in the warrant by the warrant officer that he had 'reason to believe'.

(53) In the warrants concerned in this case, the Warrant Officer has specifically mentioned that he had 'reason to believe'. In the counter-affidavit filed by the Deputy Collector Customs in this case, details are not given to show what was the basis on which the Warrant Officer had reason to believe. The learned Government Pleader has produced some records before us. One of them is a report by the Assistant Collector to a higher authority dated 15-10-1963 about conduct and result of the relating to this case. We do not propose to deal with the detailed contents of those documents. But there is no room to hold that there was no basis which gave the warrant officer reason to believe at the time when he issued the warrants. This contention is not tenable.

(54) In view of our finding on the various contentions, we hold that no ground has been made out for the issue of a writ as prayed for except bottles of Indian made beer. So, we dismiss the Writ Petition except for ordering that the two quart bottles of Indian made beer should not be detained by the Customs Authorities. As the petitioner has substantially failed, we direct the petitioner to pay the costs of the respondents. Advocate's fee Rupees 100/- (one hundred only).

(55) Petition dismissed.


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