Ramaprasada Rao, J.
1. The petitioner is a dealer in electrical goods carrying on business under the name of Electrical Engineering Equipment Co., Errabalu Chetty Street, Madras-1. He is an assessee under the Tamil Nadu General Sales Tax Act. On the 18th March, 1967, the business premises of the petitioner was raided and in the course of such a raid, which occupied considerable time of the searching officers, a number of account books and documents were seized. The petitioner has given a list of such documents which according to the department were handed over by the assessee and which according to the petitioner were seized from the premises. As the law then was, the seizure itself was illegal as Section 41 was held to be violative of certain articles of the Constitution of India. But the Supreme Court in Commissioner of Commercial Taxes v. R.S. Jhaver  20 S.T.C. 453, upheld the validity of Section 41 of the Tamil Nadu General Sales Tax Act and in the course of their observation their Lordships expressed the view that any account books etc., seized without following the procedure under Section 165 of the Code of Criminal Procedure must be returned to the assessee whose premises has been so raided and searched. The petitioner's case is that even in the search made, in the instant case, the safeguards provided in Section 165 of the Code of Criminal Procedure were not followed. After the books were so seized, the petitioner has come up to this Court for the issue of a writ of mandamus directing the revenue to return the account books etc., so seized and as listed by him. He relies upon the observations, already referred to by me, made by the Supreme Court in Commissioner of Commercial Taxes v. R.S. Jhaver  20 S.T.C. 453. The writ asked for is one for a writ of mandamus.
2. The revenue would state that they have a right to retain the books for purposes of assessing the petitioner, though they are obliged in law and in accordance with the ratio in Commissioner of Commercial Taxes v. R.S. Jhaver  20 S.T.C. 453, to return the books to him. They would say that they were prevented from assessing the petitioner after placing reliance on the material obtained by them during the course of the raid, as this Court by interim orders passed in this writ petition has prevented the original authority to finalise the assessment. The respondents state that they are bound to return, but their contention is they would return it as soon as the assessment is over.
3. In this case, there are three noticeable stages:--The first one is the factum of seizure of account books, the second one is the assessment proceedings by the revenue and the third one is the return of such books so seized to the assessee. In so far as the seizure of the account books is concerned, it is conceded that the limbs of Section 165 of the Code of Criminal Procedure were not borne in mind when the inspection was made on 18th March, 1967. Prima facie, therefore it is an illegal search. But, the seizure of books or material effected in a search which was made in violation of the prescriptions in Section 165 of the Code of Criminal Procedure, cannot be said to be material on which no reliance can be placed by the revenue for any purpose whatsoever. As a matter of fact, in Annamalai Chettiar & Co. v. Deputy Commercial Tax Officer  16 S.T.C. 687, which was referred to with approval by a Division Bench of this Court, to which I was a party, in Sha Hastimal Khimchand v. Deputy Commercial Tax Officer, Tiruchirapalli Town-2 Writ Petitions Nos. 1199 and 1200 of 1967 reported at  28 S.T.C. 255, it was made clear that the revenue is in order in relying upon such account books or material seized by them in the course of a search though inchoate or violative of the statutory safeguards mentioned in Section 165 of the Code of Criminal Procedure. Merely because the raid or the search was illegal, it does not follow automatically that the material seized or the account books recovered in the course of such search would serve no purpose whatsoever in the eye of law and particularly for the purposes of completing the assessment proceedings on the basis of such material secured. If this is, therefore, the law which is accepted and ruling, it follows that the department would be in order in relying upon such material seized in the business premises of the petitioner on 18th March, 1967.
4. But, it is very vehemently contended by Mr. K. Ramagopal, the learned Counsel for the petitioner, that the observation of the Supreme Court in Commissioner of Commercial Taxes v. R.S. Jhaver  20 S.T.C. 453 is clinching and that a mandamus should issue forthwith to the department to return the account books as the seizure by itself is illegal. Since the search contravened Section 165 of the Code of Criminal Procedure, the observation of the Supreme Court is that all material such as account books etc., seized in such circumstances and context ought to be returned. But, the learned Judges did not say that they should be returned without such material being used for purposes of assessment proceedings. It was this aspect which came up for consideration before this Court in Annamalai Chettiar and Co. v. Deputy Commercial Tax Officer  16 S.T.C. 687 and in Sha Hastimal Khimchand v. Deputy Commercial Tax Officer, Tiruchirapalli Town-2, Writ Petitions Nos. 1199 and 1200 of 1967; reported at  28 S.T.C. 255 wherein the proposition has been laid down in unambiguous terms that an assessment on the basis of such incriminating material seized in the course of an inchoate and inappropriate search is not illegal. If therefore this is the reasonable conclusion that could be arrived at, the mandate given by the Supreme Court in Commissioner of Commercial Taxes v. R.S. Jhaver  20 S.T.C. 453 has to be understood equally in a reasonable way.
5. The poser therefore is as to when the return of such material has to be effected. Though, it is imperative on the part of the department to return them to the assessee or to the person from whom they were secured, as far as the time factor is concerned, it appears to me that, having regard to the view of this Court that such material can be the basis of an assessment, the only possible view is that such material or account books etc., could be retained by the revenue, until the assessment is over. Assessments are not over in the eye of taxation law, until it becomes final. There are appeals, there are revisions and again tax revision cases in such matters. If, therefore, any proceeding is pending in connection with an assessment under the Madras General Sales Tax Act and if such material or account books etc., are required for purposes of reliance or support to make the final order of assessment, then, it would not be unreasonable to expect the revenue to keep such records with them until such a finality is reached, in that process of assessment. In the instant case, the assessment has been interdicted by an order of stay made by this Court. It is for no fault of the revenue that the assessment proceedings are not yet over. It, therefore, follows that the retention of the account books etc., as listed by the department on the date of the search, are kept with them lawfully and for the purpose of finalising assessments which could be completed on the basis of such account books etc., seized, though the search is inchoate in the eye of law.
6. There is, therefore, no public duty on the part of the revenue to return the account books as on date. Writ of mandamus is issued only when a person refuses to do what he is enjoined in law to do or fails to perform a public duty. I am, therefore, unable to agree with the learned Counsel for the petitioner that a writ of mandamus should issue in the instant case when the very essence for the issue of such a rule is absent. The rule nisi is discharged. The writ petition is dismissed with costs. Advocate's fee is Rs. 100.