Sukhdev Singh Kang, J.
1. Whether in exercise of the powers under Section 132A of the I.T. Act, 1961 ('the Act', for short), the Director of Inspection or the Commissioner, can authorise any of the officers mentioned in this section to require a treasury officer to deliver the case property deposited with him for safe custody under order of a competent criminal court, is the significant question which has arisen for determination in this writ petition.
2. A brief survey of the material facts will illumine the contours of a pristinely legal controversy.
3. Assistant Sub-Inspector, Sheonath, registered First Information Report No. 242, dated September 5, 1977, Under Section 411, Indian Penal Code, at Police Station, Bahadurgarh, on the allegations that Balbir Singh (the present petitioner) and two others had amassed wealth by organising thefts at far away places and they were habitual receivers of stolen properties. A raid was conducted by a police party on the house of Balbir Singh, petitioner, on September 6, 1977. On search of his house, currency notes of the value of Rs. 2,99,000 were recovered. The police took into possession this money Under Section 102 of the Code of Criminal Procedure (for short, 'the Code') suspecting the same to be stolen property. This property was produced before the Chief Judicial Magistrate, Rohtak. The Chief Judicial Magistrate on September 7, 1977, ordered that the case property (currency notes of Rs. 2,99,000) be deposited in the treasury at Rohtak for safe custody.
4. Balbir Singh moved an application Under Section 451/457 of the Code for the return of this money. This prayer was accepted and the Chief Judicial Magistrate, Rohtak, vide orders dated October 15, 1977, directed the police to hand over the money abovementioned on sapurdari to him. When Balbir Singh went to collect his money from the treasury officer, the latter told him that he had received on September 15, 1977, an order from Shri Vidya Sagar, Senior Superintendent of Police, Rohtak, that the case property in question has been requisitioned by the Commissioner of Income-tax Under Section 132A of the Act and the same may not be released to anybody else except the officers of the I.T. Department. He also informed the petitioner that he had received orders from the ITO, Rohtak, directing him not to hand over the money in question to the petitioner andinstead the same be delivered to the officers of the I.T. Department. Thetreasury officer showed his inability to hand over the money to the petitioner. He wrote a letter to the Chief Judicial Magistrate, Rohtak, intimating him that the case property in case F.I.R. No. 242 of September 5, 1977, Under Section 411, Indian Penal Code, pertaining to police station, Bahadurgarh, was deposited with him under the court's order dated September 7, 1979, and the ITO had issued a warrant on September 15, 1977, ordering that the above money be. handed over to Shri Balhara, ITO. He requested that the parcel be taken back and given to the proper person.
5. Aggrieved by the orders of the income-tax and the police authorities, Balbir Singh filed the present petition on November 14, 1977. During the pendency of this writ petition, Balbir Singh died and his legal representatives have been brought on the record.
6. Mr. Kuldip Singh, advocate, learned counsel for the petitioner, has argued that the search conducted and the seizure made of Rs. 2,99,000 by the police from the petitioner's house was illegal. This money had been deposited under the orders of the Chief Judicial Magistrate passed Under Sub-section (3) of Section 102 of the Code for safe custody, with the treasury officer, Rohtak. The custody in the real sense was still of the court. The Chief Judicial Magistrate directed the police to release the case property in the form of currency notes recovered from the house of the petitioner to him on sapurdari. The Commissioner could not issue a requisition to the ITO, Rohtak, authorising him to require the treasury officer to hand over the case property to him Under Section 132A of the Act. No requisition can be issued to any person, who under orders of a competent criminal court, is holding any property or documents, which are case property, in any criminal case. If such a power is invested in the Director of Inspection or the Commissioner that will be a clear interference in the due course of justice, which is not permissible in law.
7. There is merit in this contention. The treasury officer was holding the case property under orders of a competent criminal court. The custody of the property in law was with the court. Without the permission of the court, the treasury officer could not hand over the case property to any other authority. The orders passed by the Commissioner and that passed by the Senior Superintendent of Police, if implemented, would have frustrated the orders passed by the Chief Judicial Magistrate, Rohtak, directing the police to release the case property to the petitioner on sapurdari. In the Constitution the powers of the three wings of the State, namely, the Legislature, the executive and the judiciary have been well defined, and the principle of their separation has been accepted. An occasional peripheral overlapping does not detract from the principle of separation of powers of these three organs. If any outside authority can be credited with the authority to requisition or take away the case property or other documents, which may be necessary for the trial of any offence, the court may not be able to do justice. If such a construction of Section 132A of the Act, as canvassed by Mr. Ashok Bhan, learned counsel for the respondents, is accepted, then this provision will do violence to the basic structure of the Constitution. It will be an executive inroad in the sphere of administration of justice, a sole preserve of judiciary.
8. It was argued by Mr. Ashok Bhan, that the provision of Section 132A of the Act have been enacted by the T.L. (Amend.) Act, 1976, and enforced with effect from October 1, 1975. Previous to that, similar powers were available to the authorities under the Act in Section 132. There was a divergence of opinion in different High Courts as to whether a requisition, like the one issued by the Commissioner in the present case, could be issued to acourt of law. In order to clarify this position of law, this new section has been introduced and power has been conferred on the superior ITOs to requisition the property or documents from the courts if the conditions laid down in this section were satisfied. In support of this contention, he has relied upon a Division Bench decision of the Allahabad High Court in Sudarshan and Co. v. CIT : 139ITR1032(All) . Indeed, it has been observed that there was, however, a difference of opinion amongst various High Courts regarding the power to seize Under Section 132(1) the assets or documents which were in the custody of courts, officers or other authorities. In order to remove the lacuna pointed out by some High Courts that such a power could not be exercised Under Section 132, the Act was amended and Section 132A was introduced and the power of requisitioning the books of account, assets, etc., from the custody of the officer, court or other Government authority was conferred.
9. It seems that it was not argued before the learned judges. If the intention had been to remove any lacuna the Legislature would have provided in Sub-section (1) that the ITO authorised by the Director of Inspection or the Commissioner may require any officer, authority or court to deliver books of account, other documents or assets which are in his or its custody to the requisitioning officer. The expression 'court' has not been used in this section. The word 'court' has acquired a universally recognised and understood connotation. The term 'authority' cannot be construed to include 'court' also. Whatever be the historical background, the language employed in framing Sub-section (1) does not support the view that Parliament wanted that the Director of Inspection or the Commissioner should be authorised to direct the courts to deliver the case property and books of account in their custody to the ITOs authorised by the Commissioner Under Section 132A to receive such case property. There is ample provision in the Cr. PC enabling the ITO to approach the court and request for the transfer of the custody or possession of any case property or documents which are in the custody of the court or have been produced before it. In Sudarshan and Co's case : 139ITR1032(All) the ITO had himself made a request to the learned magistrate for the delivery of the property in dispute. It was a request, pure and simple. It was not a requisition. So this decision is not applicable to the facts of the case. It is not the ratio of the case that the ITO could, on the authority of a requisition issued by the Commissioner, go and require the court to hand over the case property or documents to him.
10. The orders passed by the Commissioner and the Senior Superintendent of Police if allowed to stand, go directly opposite to the orders passed by the learned Chief Judicial Magistrate. The latter had ordered that the case property should be handed over to the petitioner on sapurdari whereasthe respondents and the Senior Superintendent of Police had ordered that this money should not be given to anybody else except to the officers of the I.T. Department. The respondent and the Senior Superintendent of Police cannot issue any orders in defiance of the orders passed by a court of law. The proper course for the respondents in the present case was to go and make a request to the learned Chief Judicial Magistrate to allow them to receive the money in question from the treasury officer. If such a prayer was declined, they had to approach the superior courts for the redress of their grievance. The respondents could not themselves order the treasury officer to deliver the custody of the case property which he was holding on behalf of the court and under orders issued by the court Under Section 102 of the Code.
11. The learned counsel for the petitioner has also argued that the basic requirements for exercising jurisdiction Under Section 132A of the Act were not satisfied. There was no material before the Commissioner to be satisfied that the money in question represented wholly or partly income or property which had not been or would not have been disclosed for the purpose of the Act. In view of my decision on the first point, it is not necessary to decide this question.
12. For the foregoing reasons, I allow this writ petition and quash the requisition and directions issued by the Commissioner, the ITO and the Senior Superintendent of Police to the treasury officer, directing him to deliver the currency notes, i.e., case property, to an ITO. The bank guarantee furnished by the petitioner in compliance with the order dated October 6, 1978, passed by this court is released. Respondents Nos. 1 and 2 shall pay to the petitioner Rs. 300 as costs.