S.N. Shankar, J.
(1) On February 2, 1973 an officer of the Income-Tax Department duly authorised by the Commissioner of Income-Tax, Delhi (Central) under section 132(1) of the IncomeTax Act, 1961 (hereinafter called 'the Act)' carried out search of the residence of the petitioner. He sealed a steel almirah in the premises. A list of articles found in the almirah was prepared and they were put in two packets and sealed. During the search he also found keys of two lockers of the Delhi Safe Deposite Company. One of these lockers No. 2046 stood in the name of the petitioner and the other, bearing No. 1799, was in the joint names of the petitioner and her daughter Mrs. Mala Singh. Both these lockers were scaled. On February 7, 1973 the lockers were opened in the presence of the petitioner and inventories of their contents were prepared and orders under sub-section (3) of section 132 were issued to the Bank restraining it from parting with or allowing the contents to be removed. Sub-section (5) of section 132 of the Act provides that the IncomeTax officer, after affording a reasonable opportunity to the person concerned of being heard and making such enquiry' as may be prescribed, shall within ninety days of the seizure, make an order, with the previous approval of the Commissioner, estimating the undisclosed income and calculating the amount of tax in terms of the sub-section on this income and specifying the amount that would be required to satisfy any existing liability under the Act. The sub-section further provides that the Income-Tax Officer shall retain in his custody the seized assets or part thereof as are in his opinion sufficient to satisfy the dues so calculated 'and forthwith release the remaining portion if any, of the assets to the person from whose custody they were seized'. The petitioner contends that contents of the two lockers were seized by the authorised officer but after seizure of these assets the Income-Tax Officer failed to make an order within the prescribed period of ninety days and she, is thereforee, entieled to a writ of mandamus or any other appropriate writ, direction or order directing the concerned authorities to release the said assets, and to a declaration that the seizure of the assets from the lockers was illegal. She has also prayed for such other order or direction as may be considered necessary. Respondents to the petition are Union of India, Commissioner of Income-Tax, Assistant Director of Inspection and the Income-tax Officer as respondents 1, 2, 3 and 4 respectively.
(2) In the counter-affidavit filed by Shri S. R. Gupta. Income-Tax Officer, it is stated that consequent upon an information received by the Commissioner of Income-Tax that there was reason to believe that the petitioner was possessed of money, bullion, jewellery etc. which had not been disclosed for the purpose of income-tax, an authorisation under section 132 was issued to carry out search and seizure' at the residential premises of the petitioner. On search being taken, jewellery found in the steel almirah was seized and keys of the two lockers were taken into possession and the lockers were sealed. The sealed lockers were thereafter opened on February 7, 1973 and inventories of their contents were prepared. In respect of one of these two lockers, No. 2046 'the petitioner' on being examined under subsection (4) of section 132, stated that the jewellery and money in this locker belonged to her daughter, Mrs. Mala Singh, except one pair of ear tops which was stated to belong to one Mrs. Mohini Puri In respect of the second locker No. 1799 the petitioner stated that some items in it belonged to her daughter Mrs. Mala Singh and that some other items belonged to the H.U.F. of which she and her brother Shri A. S. Dua were members. These statements of the petitioner, the affidavit says, could not be immediately verified and, thereforee, the contents of the two lockers could not be seized and in these circumstances the authorised officer sealed the two lockers and passed orders under section 13(3)2 for ensuring sate custody of their contents pending enquiry. The contents of the lockers having not been seized, it is maintained, the limitaiton of ninety days prescribed under sub-section (5) of section 132 did not come into plav and the question of releasing the said contents does not arise.
(3) It may be clarified at this stage that as far as the assets seized from the almirah from the residence of the petitioner are concerned, there is no dispute between the parties to the petition because it is admitted that on February 23, 1973 a notice under section 132 of the Act read with rule 112A of the Income-Tax Rules, 1962 was issued to the petitioner and it is stated at the bar that an assessment has also been made which is the subject-matter of a pending appeal.
(4) It appears that on February 7, 1973 when the two lockers were opened, two panchnamas and two separate lists of articles foimd in them were also prepared. Annexure R/IO(i) is the Panchnaina and Annexure R/3 is the list of articles found in locker No. 2046. Annexure R.ll(i) and Annexure R/4 are the Panchnama and the list of articles relating to locker No. 1799. Copies of two statements of the petitioner recorded in respect of the contents of each one of the lockers have also been filed with the counter-affidavit as Annexure R/5 and Annexure R/6.
(5) The sole contention raised in support of the relief before us is that on the facts stated the contents of the lockers should be held to have been seized within the meaning of section 132(1) and no order under sub-section (5) having been made within ninety days thereafter, the petitioner was entitled to their release.
provisions of section 132 relevant for the decision of this controversy are as under :--
132.'(1) Where the Director of Inspection or the Commissioner, in consequence of information in his possession, has reason to believe that-
(C)any person is in possession of any money, bullion, jewellery or other valuable article or thing and such money, bullion, jewellery or other valuable article or thing represents either wholly or partly income or property which has not been disclosed for the purposes of the Indian Income-tax Act, 1922 or this Act (hereinafter in this section referred to as the undisclosed income or property),
HEmay authorise any Deputy Director of Inspection, Inspecting Assistant Commissioner, Assistant Director of Inspection or Income-tax Officer (hereinafter referred to as the authorised officer) to-
(I)enter and search any building or place where he has reason to suspect that such books of account, other documents, money, bullion, jewellery or other valuable article or thing are kept:
(II)break open the lock of any door, box, locker, safe, almirah or other receptacle for exercising the powers conferred by clause (i) where the keys thereof are not available;
(III)seize any such books of account, other documents, money, bullion, jewellery or other valuable article or thing found as a result of such search;
(IV)place marks of identification on any books of account or other documents or make or cause to be made extracts or copies there from;
(V)make a note or an inventory of any such money, bullion, jewellery or other valuable article or thing.
'(3)The authorised officer may, where it is not practicable to seize any such book of account, other document, money, bullion, jewellery or other valuable article or thing, serve an order on the owner or the person who is in immediate possession or control thereof that he shall not remove, part with or otherwise deal with it except with the previous permission of such officer and such officer may take such steps as may be necessary for ensuring compliance with this subsection.
(4)The authorised officer may, during the course of the search or seizure, examine on oath any person who is found to be in possession or control of any books of account, documents, money bullion, jewellery or other valuable article or thing and any statement made by such person during such examination may thereafter be used in evidence in any proceeding under the Indian Income-tax Act, 1922 or under this Act.
(5)Where any money, bullion, jewellery or other valuable article or thing (hereinafter in this section and section 132A referred to as the assets) is seized under sub-section (1), the Income-tax Officer, after affording a reasonable oppor- tunity to the person concerned for being heard and making such enquiry as may be prescribed shall, within ninety days of the seizure, make an order, with the previous approval of the Commissioner.-
(I)estimating the undisclosed income (including the income from the undisclosed property) in a summary manner to the best of his judgment on the basis of such materials as are available with him;
(II)calculating the amount of tax on the income so estimated in accordance with the provisions of the Indian Incometax Act, 1922 or this Act;
(III)specifying the amount that will be required to satisfy any existing liability under this Act and any one or more of the Acts specified in clause (a) of sub-section (1) of section 230A in respect of which such person is in default or is deemed to be in default,
ANDretain in his custody such assets or part thereof as are in his opinion sufficient to satisfy the aggregate of the amounts referred to in clauses (ii) and (iii) and forthwith release the remaining portion, if any, of the assets to the person from whose custody they were seized:
(6)The assets retained under sub-section (5) may be dealt with in accordance with the provisions of section 132A.
(13)The provisions of the Code of Criminal Procedure, 1898 relating to the searches and seizure shall apply, so far as may be, to searches and seizure under sub-section (1).
(14)The Board may make rules in relation to any search or seizure under this section, in particular, and without prejudice to the generality of the foregoing power, such rules may provide for the procedure to be followed by the authorised officer-
(I)for obtaining ingress into such building or place to be searched where free ingress thereto is not available;
(II)for ensuring safe custody of any books of account or other documents or assets seized.
(6) Shri V. M. Tarkunde, appearing for the petitioner, argued that the authorised officer took over the keys of the two lockers so that the petitioner thereupon unable to deal with the contents of the lockers, and thereafter he also opened the lockers and prepared inventories of the contents in the presence of witnesses in terms of the Panchnamas and this amounted to seizure of the contents of the lockers. Within ninety days of this seizure, the learned counsel maintained, the Income-tax Officer was bound to make an order under sflbsection (5) of section 132 and this having not been done the petitioner was entitled to the Crothwith release of the contents of the lockers. In support of his contention he relied on Commissioner of Income-tax, U.P. and others v. Jawahar Lal Rastogi : 78ITR486(SC) where pursuant to letters of authorisation under section 132 account-books of the respondent were seized which were not returned within one hundred eighty days prescribed thereforee by sub-section (8) of section 132 and the Court held that the detention of the books beyond this period was contrary to law.
(7) It would be seen from the provisions of section 132 reproduced above that sub-section (1) of the section authorises the Director of Inspection or the Commissioner to issue an authorisation in favor of any officer mentioned in the sub-section in circumstances mentioned there in. By this authorisation, the authorised officer has the power to enter upon or search any building, break open the lock etc. in terms of clauses (i) and (ii) of the sub-section. By clause (iii) the authorisation also invests him with the power to seize money, bullion or jewellery or other valuable article found as a result of the search and to make a note or an inventory of the same. Sub-section (3) then envisages a situation where seizure is not practicable. In such a case the authorised officer is empowered to serve an order on the owner or the person who is in immediate possession or control of the said articles that he shall not remove, part with or otherwise deal with the said articles except with the previous permission of such officer and to lake such further steps as may be necessary to ensure compliance with the sub-section. These provisions unmistakably show that the exercise of power conferred by sub-section (3) of section 132 does not tantamount to seizure.
(8) In respect of the seized assets section 132A, which follows section 132, provides that the assets retained under sub-section (5) of section 132 may be dealt with in the manner provided in this section. In terms of clauses (i), (ii) and (iii) of sub-section (1) of section 132 the same may be applied for the recovery of the existing liability etc. and according to sub-section (3) of this section any assets or proceeds of the seized articles which remain after the liabilities referred to in clause (i) of sub-section (1) are discharged shall forthwith be made over or paid to the person from whose custody the assets were seized. Sub-section (4) makes the Central Government liable to pay interest at the rate of six per cent. per annum on the amount by which the aggregate of money retained under sub-section (5) of section 132 exceeds the aggregate of the liabilities referred to in clause (i) of sub-section (1) of this section.
(9) The Central Board of Revenue, in exercise of powers conferred by section 295 of the Act and all other provisions in this regard, has framed Rules called the Income-Tax Rules, 1962 (hereinafter called 'the Rules'). Rule 112 of these Rules relates to 'search and seizure' under section 132. It lays down in details how the Director of Inspection or the Commissioner may issue authorisation and in what manner and how search in pursuance of the authorisation may be carried out. Sub-rule (1) of this Rule relates to bullion, jewellery or other valuable articles or things seized. It provides that the authorised officer shall place or cause to be placed such articles in a package or packages which shall be listed with their details and every such package shall bear an identification mark and the seal of the authorised officer or any other income-tax authoritiy not below the rank of Income-tax officer and the occupant of the building or place searched or any other person in his behalf shall also be permitted to place his seal on them. Sub-rule (11) of the rule then provides:-
'THEauthorised officer may convey the books of account and other documents, if any, seized by him in the course of the search made by him and the package or packages, if any, referred to in sub-rule (10) to the office of any income-tax authority not below the rank of Income-tax Officer (hereinafter referred to as the Custodian). Any money seized in the search referred to above may also be deposited with the Custodian'.
(10) SUB-RULE (12) then enjoins the Custodian to take such steps as he may consider necessary for the safe custody of the seized articles and package or packages. He may deposit for safe custody all or any of them with any branch of the Reserve Bank of India or the its subsidiaries or a Government Treasury. In case of cash seized, clause (iii) of sub-rule (12) provides that the Custodian may credit this money, or remit the same through the nearest Government Treasury for being credited in the Personal Deposit Account of the Commissioner in the Government Treasury at the place where the office of the Commissioner is situate. Sub-rule (13) prescribes that whenever any sealed package is required to be opened for any of the purposes of the Act, the authorised officer may break any seal and open such package in the presence of two respectable witnesses after giving a reasonable notice to the person from whose custody the contents were seized to be present who, according to clause (ii) of the sub-rule will be entitled to remain present till all or any of the contents of such package are placed in a fresh package or packages and sealed in the manner specified in the rules.
(11) No definite mode of 'seizure' under sub-section (1) of section 132 is prescribed in the Act but a reference to the above provisions of the Act and the Rules shows that the seizure of money, bullion, jewellery or other valuable article or thing envisaged in clause (iii) of section 132(1) is effected only when the authorised officer takes possession of the seized articles to enable the Revenue to appropriate the same towards the payment of the amount that may be determined to be due under the Act.
(12) According to Stroud's Judicial Dictionary also, the word 'seizure' in its ordinary and natural sense means 'forcible taking possession'. According to Webster's Dictionary, the word 'seize' means 'to effect legal possession'. In Shorter Oxford English Dictionary the said word means 'to put in possession'. We have no reason to think, and none has been pointed out to us, that in section 132(1)(iii) of the Act the Legislature used this expression to carry any meanings different from the ordinary meanings of the word.
(13) The expression 'seized' also occurs in section 178A of the Sea Customs Act, 1878. Tn Gian Chand and others v. State uf Punjab : 1983(13)ELT1365(SC) some bars of gold were recovered by the police as a result oi a search from the house of the appellant. The appellant and some of his relations were arrested, the gold found was seized and a complaint under section 411 and 414 Indian Penal Code was filed. This was, however, not proceeded with. Meanwhile, the Assistant Collector of Customs contacted the city police and on an application to the concerned magistrate obtained delivery of the recovered gold, obviously under section 180 of the Sea Customs Act. Very soon thereafter, a notice was issued to the appellant to show cause why the gold in possession of the Customs authorities should not be confiscated under section 167(8) of the Sea Customs Act and after considering the Explanationn of the appellant, the Collector passed an order confiscating the gold. During the proceedings before the Customs authorities, sanction was accorded to prosecute the appellant for an offence under section 167(81) for his having acquired possession of the gold or being concerned in carrying, removing, depositing, harbouring, keeping or cancelling or in any manner dealing with the said gold with intent to defraud the Government of the duty payable thereon. The appellant was convicted in these proceedings and the correctness of the conviction was challenged before the Supreme Court. The learned Magistrate held that provisions of section 178A of the Sea Customs Act were attracted to the case so that the gold recovered from the appellant was the gold 'seized' under this provision of the Sea Customs Act and the burden according to this provision had shifted on to the accused. The Supreme Court disagreed with this view because it held that the delivery of the gold to the Customs authorities by the Magistrate under the latter part of section 180 of the Sea Customs Act was not 'seizure' under the Act within the meaning of section 178A as 'seizure' under the Act necessarily involved a deprivation of possession of the accused. The Court said:-
'WHENthe goods were seized by the police they ceased to be in the possession of the accused and passed into the possession of the police and when they were with the Magistrate it is unnecessary to consider whether the Magistrate had possession or merely custody of the goods. The suggestion that the goods continued to be, at that stage, in the possession of the accused does not embody a correct appreciation of the law as regards possession. A 'seizure' under the authority of law does involve a deprivation of possession and not merely of custody and so when the police officer seized the goods, the accused lost possession.'
On page 499 of the report, after noticing the meaning of the word 'seize' in Ballantyne's Law Dictionary where it is equated to 'taking a thing into possession', the Court observed:
'NOdoubt, ill cases where a delivery is effected by an owner of the goods in pursuance of a demand under legal riglit, whether oral or backed by a warrant, it would certainly be a case of seizer but the idea that it is the unilateral act of the person seizing is the very essence of the concept.'
For all these reasons, we are of the view that the concept of 'seizure' under section 132 is also the same, namely, the dispossession of the person from whom seizure is made and its assumption by the authorised officer. In the instant case. the authorised officer simply issued orders under section 132(3) and did not take possession of the contents of the lockers. They remained where they were and the authorised officer in no manner assumed their possession.
(14) It was argued that the keys of the lockers were seized during the search of the residential premises of the petitioner and the lockers were also subsequently opened and a list of their contents along with the panchanamas were prepared and this amounted to dispossession of the petitioner and seizure of the contents. Reference in support of this was also made to sub-rule (7) of rule 112 which provides that a list of all things seized in the course of search shall be prepared when they were seized. We are unable to sustain this submission. The mere taking over of the keys of the lockers did not amount to dispossession of the petitioner in respect of their contents. The order under section 132(3) on the Bank restraining them from the lockers being operated also did not have this effect. The contents of the lockers remained, in fact and in law, in the same state as to their possession and custody as they were before. These acts of the authorised officer did have the effect of disabiling the petitioner from dealing with the contents of the lockers but they did not amount to the same being taken over by the authorised officer on behalf of the Department. The prepartion of the Panchanama or the lists of their contents also made no difference in this regard. These actions of the authorised officer are prima fade covered by the latter part of sub-section (3) of section 132, namely, steps considered by him to be necessary to obtain compliance with the sub-section.
(15) The case of Jawhar Lal Rastogi (supra) cited by Shri Tarkunde does not help the petitioner. In this case it was admitted by the appellant, Commissioner of Income-tax, that the account-books of the respondent had been 'seized' under section 132 of the Act. The Court. thereforee, held that the retention of the seized books for a period exceeding the prescribed 180 days was without the authority of law and contrary to terms of section 13(3)2 of the Act.
(16) It may specifically be noticed that the petitioner has neither challened before us the legality of the action taken by the authorised officer nor has she attributed any mala fides to him and we are not called upon in this case to decide whether in the facts before him, the authorised officer had no just cause for his view that the seizure was impracticable.
(17) We should also not be understood to mean that the authorised officer has an unfettered discretion in the matter and has a right to idefinitely keep under seal and detain the goods found during search by recourse to section 132(3) of the Act.
(18) The petitioner in this case has made a residuary prayer for such reliet as may be found to be proper. We find that in the instant case the reason given in the counter-affidavit for not effecting seizure is that the authorised officer was unable to decide if the contents of the lockers belonged exclusively to the petitioner or to her and her brother Shri Dua or to her daughter. It is admitted that the petitioner's daugher Mrs. Mala Singh who was stated to be in London has since returned to India and has also been examined by the. Department. Affidavit of Shri Dua has also been filed. In these circumstances, we direct that steps may forthwith be taken to decide within two weeks if the contents of the lockers in respect of which orders under section 132(3) have been passed are to be seized or not, and if necessary, to proceed further according to law, if any action is called for, under sub-section (5) of section 132.
(19) The contention of the petitioner that the sealing of the contents of the lockers as above stated and the issuance of the restraint order under section 132(3) on the Bank by the authorised officer amounted to seizure of the contents of the lockers, for reasons aforesaid, being not sustainable, this writ petition fails and is dimissed but in the circumstances of the case, we leave the parties to bear their own costs.