Amaresh Roy, J.
1. This Revisional application is directed against the order of the Chief Presidency Magistrate of Calcutta dated the 10th June 1963 by which he has directed that Income Tax authorities be given custody of certain documents of the petitioner which were seized by execution of Search Warrants issued by him in July 1961 under Section 172 of the Sea Customs Act, 1878. Facts relevant for the purpose of this Rule are that on 6th July, 1961 Assistant Collector of Customs and Superintendent, Preventive Service Calcutta made an 'application for issue of search warrants for seizure of certain goods and documents connected with alleged illegal importation into India prohibited, restricted and dutiable goods by infringements of provisions of Sea Customs Act, Export and Import (Control) Act and Foreign Exchange Regulation Act. By that application dated the 6th July 1961 three premises were prayed to be searched and by other applications dated the 7th July 1961 and 11th July 1961 some other premises were prayed to be searched. The learned Chief Presidency Magistrate directed issue of search warrants of those premises under Section 172, Sea Customs Act, expressly stating in his order dated the 6th July 1961 that he did not take notice of alleged infringements of provisions of other Acts at that stage. In execution of those search warrants large number of documents were seized from the premises of the present petitioner.
2. The documents seized were given to the custody of Customs Department who were allowed to retain them by orders made by the Chief Presidency Magistrate from time to time. During that period Customs Department had prayed for permission to return some of the documents, which they did not require to retain, to the parties from whom they had been seized and that was allowed by the learned Chief Presidency Magistrate. In March 1962, Enforcement Officer, Ministry of Finance, Government of India upon their prayer were allowed to inspect the documents which remained in custody of Customs Department. By 17th July 1962 as many as 88 items out of 259 items of documents seized from the possession of the petitioner had been returned to him and by an order of that date the learned Chief Presidency Magistrate turned down the prayer of Finance Department for having custody of the documents they wanted because the learned Magistrate held that Section 19A of Foreign Exchange Regulation Act had no application to the case as search warrants had not been issued under that section but under Section 172, Sea Customs Act. On 17th September 1962 the Customs Department wanted to return 62 items of the documents and Enforcement Directorate wanted the custody of 38 items out of those 82 items and also other documents the Customs Department still wanted to retain. The petitioner wanted to get back the documents seized from him as soon as possible. By an order of that date in consideration of the admitted fact that an adjudication proceeding had already been started and notice thereof had been received by the party, the learned Chief Presidency Magistrate allowed the Enforcement Directorate of Finance Department to have custody of 32 items of documents on 17th September 1962. On 6th November 1982 the learned Magistrate gave custody of 14 other documents to that Directorate and directed that out of previous 38 items only 6 items be retained by them and the other 32 items be returned to party. The Enforcement Directorate thus had 20 items of documents in their custody and they were permitted to retain them till 6th January 1963.
3. On 28th December 1962, Income Tax Officer by an application before the learned Chief Presidency Magistrate prayed that the Enforcement Directorate be directed to make over to them those 20 items of documents for inspection. The learned Magistrate called for a report by 7th January, 1962 and allowed the Income-Tax Department to have access to the documents in the hands of the Enforcement Directorate. Under later orders of the learned Magistrate the period of custody of Enforcement Department was extended and the facility of access for inspection granted to Income-tax Department was also continued, On 7th June 1963 the Enforcement Directorate reported to the Chief Presidency Magistrate that the adjudication proceeding had been completed and they did not want to retain the documents any longer. On that date Income-tax Department prayed for custody of those documents. That prayer was opposed by the petitioner. The learned Chief Presidency Magistrate by his order dated 10th June 1963 held that :
'As the Income-tax Department is having inspection of the documents since January 1963, it was reasonably expected that they would not come up with such a prayer for custody of the documents now. Having regard to the nature of the work they are to perform, the custody of the documents with them for a further reasonable time cannot however be considered as altogether unreasonable. And the fact that they got an opportunity to inspect and examine the documents along with the Enforcement Directorate should not debar them for getting the same into their custody for some time for their own purpose. On a consideration of the entire matter it is accordingly directed that the Enforcement Directorate shall make over these documents to the custody of the Income-tax Authorities who are permitted to retain the same for their own purpose for a further period of two months only, till 10-8-1963.'
4. Against that order the petitioner moved this Court on 27th June 1963 and present Rule issued. By the order issuing the Rule operation of the Order No. 36 dated the 10th June 1983, i.e., the order directing the Enforcement Directorate to make over the custody of the 20 items of documents to Income-tax Department was stayed ; but the Orders Nos. 31 and 32 by which the learned Magistrate had granted facility of inspection of those documents to Income-tax Department were neither stayed nor affected.
5. Mr. Ajit Kumar Dutta appearing in support of the Rule has laid emphasis on the events how by search warrants issued under Section 172 of the Sea Customs Act these documents were seized in July 1961 and thereafter, though the Customs Department has sought to return the documents, how one Directorate after another has laid hand on those documents and how the documents and books of account of a business firm been held back from them for over two years causing thereby immense hardship and loss of business to the petitioner firm.
6. Mr. Dutt points out that in the Sea Customs Act of 1878, while Section 172 authorised issue of search warrant for seizure of goods and commodities, Section 179 of that Act provided for making over to Customs Department only the goods liable to be confiscated that may have been seized, but not the documents. He refers to the Supreme Court decision in the case of Mohammad Serajuddin v. R.C. Misra, : 1983(13)ELT1370(SC) for submitting that the Chief Presidency Magistrate should remain in seisin of the documents and not make over custody even to Customs department unless they make out clearly that the documents are required for any proceeding. It is submitted by the learned Advocate that unless the Magistrate adheres to his judicial discretion and if he is subjected to any sort of requisition by other departments of the Government, then the Magistrate is using his power to issue search warrant either under Sections 94 and 96 of the Criminal P. C. or under Section 172 of the Sea Customs Act, 1878. He contends that unless there is any provision in the particular statute covering the powers of the particular Department of the Government to seek the aid of the Magistrate to get hold of the documents then it is a gross misuse of the powers given to the Magistrate under the Code to make over documents to, or even make those available for inspection by one or more of the Departments of Government and for the matter of that to any party. Mr. Dutt points out that unlike Sea Customs Act, 1878 or Foreign Exchange Regulation Act, or even previous Income-tax Act, the Income-tax Act, 1961 contains provisions by which. Income-tax Authorities may themselves conduct searches and effect seizures without invoking the aid of the Magistrate's Court for issue of search warrant. He refers to Section 132 of the Income-Tax Act to show the distinction from Section 172 of Sea Customs Act, 1878 and Section 19B of Foreign Exchange Regulation Apt and has argued that Income-Tax Department in the present case has not employed any of the extensive powers given to them by the Act of 1961, but has sought to secure the possession of the documents through the Chief Presidency Magistrate to avoid the limits of use that law provides if they had obtained the documents under the provisions of that Act, particularly to bypass the salutary provision in Section 137 of that Act, by which section 'documents produced under the provisions of this Act' require to be treated as confidential. The documents given to the department by the Chief Presidency Magistrate will not, according to Mr. Dutt's argument, attract that section and will not have that protection. In the present case the income Tax Department had the opportunity to inspect the documents from January 1963 not only till June 10th, 1983 when the Chief Presidency Magistrate passed the order, but also thereafter up to now, as there had not been any order of stay in respect of inspection, though making over the documents as been stayed by the order of this Court. In view of that Mr. Dutt has contended that custody of the documents should not be given to the Income-Tax Department and those should be returned to the petitioner.
7. Opposing the Rule on behalf of the Income-Tax Department the learned Advocate Dr. Debi Pat has raised the contention that the application that was made before the Chief Presidency Magistrate on 28th December, 1962 under Section 131 of Income Tax Act was in exercise of the powers vested by that section for discovery and inspection under clause (a) and also compelling the production of ail books of account and other documents under clause (c) of that section. Powers so vested are in terms of that section:
'Same powers as are vested in court under the Code of Civil Procedure, 1908 when trying a suit.'
8. That attracts, according to Dr. Debi Pal, not only the provisions of Order 11, Rule 14 of that Code, but also of Order 13, Rule 10. His contention therefore is that the application made by the Income-Tax Officer on December 28, 1962 was a requisition to send for the documents and books of account from the court of the Chief Presidency Magistrate in exercise of the power under Order 13 Rule. 10 of the Code of Civil Procedure. According to that argument, it was the legal duty of the Chief Presidency Magistrate to make those available to the Income-Tax Officer without any condition or time limit. The actual order made by the learned Chief Presidency Magistrate on June 10, 1963 to make over the documents and books of account to the Income-Tax Officer for inspection for a period of two months is, according to Dr. Debi Pal, not only a legal order hut also a proper order and should not be interfered with. For this proposition Dr. Debi Pal has relied on the Division Bench decision of this Court in the case of Union of India v. The State reported in : 42ITR753(Cal) . Particular passage of that judgment relied on by Dr. Debi Pal occurs at p. 758 of the said report. It reads:
'We do not, however, think that when a valid letter of request under Order XIII, Rule 10, of the Civil Procedure Code has been issued by the Income-tax Officer acting as a civil Court on another court the latter court is entitled to go into the question whether the document could be otherwise legally obtained by the requisitioning court or authority. Reference has already been made to the terms of Order XIII, Rule 10, of the Civil Procedure Code, and to the old decision, Golap Coomary Dossee v. Rajah Soondur Narain Deo, 4 Cal. L. R. 36. Order XIII, Rule 10, Sub-rule (3), provides that nothing in this rule should be deemed to enable a court which makes the requisition to use in evidence any document which under the law of evidence would be inadmissible in the suit. It appears to us that not only the objection on this score of inadmissibility but the objection on other legal grounds may be pressed by the party affected, that is, Sohan Lal Sethia, before the Income-tax authority or the appellate tribunal or the High Court, but it is not the function of the Court on which requisition has been made to enter into the question of admissibility or other legal questions which may be raised by the party concerned. It is not for the Chief Presidency Magistrate or for us to decide at this stage whether in view of the settlement made between the parties on January 27, 1959, the income-tax authority could legally reopen the assessment for the years 1940-41 to 1958-59.'
9. In reply to this contention of Dr. Debi Pal the learned Advocate for the petitioner, Mr. Dutt, has contended that the powers given to the Income Tax Department under section 131 of the Income-Tax Act, 1981 do not include the power of sending for papers from a Court given by Order 13 Rule 10 of the Code of Civil Procedure. Mr. Dutt refers to several clauses in Sub-section (1) of Section 131 of the Income-Tax Act. 1981 and argues that only clauses (a) and (c) therein are really relevant. He compares clause (a) in that section to contend that it is the same power as in Order 11 of the Code of Civil Procedure which has the same heading. With regard to clause (c) in section 131(1) of the Income-Tax Act, 1961 Mr. Dutt contends that it is not the power given in Order 13 of the Code of Civil Procedure which has the heading 'Production Impounding and Return of Documents.' According to Mr. Dutt's argument the power in that clause (c) is the power of 'compelling the production of hooks of account and other documents' from a party and not from a Court. To read m it a power similar to that given by Order 13 Rule 10 would, according to Mr. Dutt, defeat Sub-section (2) of section 131 in which the Income Tax authority has been given power to impose fine for omitting to produce the books of account and documents sent for by exercise of the power given in sub-section (1) of that section. Mr. Dutt therefore proceeds to argue that although by section 131 of the Income-Tax Act, 1981 the authorities mentioned therein have been given the same powers as are vested in a Court under the Code of Civil Procedure, 1908 the authorities thereunder have not been made a Court and it is inconceivable that such authority will have not only the power to send for documents from the records of a Court but also have the power to impose fine for omitting to produce the books of account and documents so sent for. If Order 13 Rule 10 of the Code of Civil Procedure is held to be included in the power given by section 131 of the Income Tax Act, 1981 then the omission mentioned in Sub-section (2) of that section can only be by a Court.
10. Regarding the decision relied on by Dr. Debi Pal Mr. Dutt raises a contention that it was assumed in that decision that the power under Order 13 Rule 10 of the Code of Civil Procedure was also included in the power given by section 131 of the Income-Tax Act, 1961 and the judgment proceeded on that assumption. In that respect, Mr. Dutt submits, the decision reported in (1981) 42 ITR 753 requires re-consideration,
11. If it could be held in this case that the application made by the Income Tax Officer on December 28. 1962 was in exercise of the power under Order 13 Rule 10, C. P. Code then certainly the Division Bench decision above referred to supports Dr. Debi Pal's contention- In that event the argument raised by Mr. Dutt for re-consideration of that Division Bench decision can only be dealt with by a Division Bench; sitting singly I need have to refer this case to a Division Bench even if I would agree with Mr. Dutt's contention. But upon a consideration of the whole matter I have come to the conclusion that neither the application made by the Income Tax Officer on December 28, 1992 was in exercise of the power under Order 13 Rule 10 of the Code of Civil Procedure nor the order made by the learned Chief Presidency Magistrate is under that provision of law. The decision relied on by Dr. Debi Pal itself shows that in that case when the application was made by the Income Tax authority there was a letter of request expressly under Order 13 Rule 10 of the Code of Civil Procedure. In the present case there is no such letter of request. It may be mentioned that in the Civil Rules and Orders, chapters 5 provides the manner in which a court has to act in calling for documents from another court and there is a form prescribed for requisition for records in the Civil Rules and Orders in Form No. (M) 10. That form is the letter of request, a court has to send while acting under Order 13, Rule. 10 of the Code of Civil Procedure. In the present case the Income Tax Officer has not acted in that manner at all. Moreover, the petition made before the learned Chief Presidency Magistrate, while mentioning that it was made under Section 131 of the Income-Tax Act, makes a prayer in para. 5 of that petition in these terms r
'that it is prayed your honour will be pleased to direct the Enforcement Directorate to produce the said 20 documents and files etc. of the assessee firm Premsukhdas Sitaram before the Income Tax authorities who may be permitted to retain them for a period of three months at the least for inspection, scrutiny and conclusion of assessment proceeding of the assessee firm Premsukhdas Sitaram and for which act of kindness your petitioner as in duty bound shall ever pray.'
Such a prayer is a far cry from requisition sending for documents from a court under Order 13, Rule. 10 of the Code of Civil Procedure for several reasons. First, it prays for direction on the Enforcement Directorate to produce the documents and files etc., second, it prays permission to retain for a limited period of three months. The decision relied on by Dr. Debi Pal has clearly laid down that when a letter of request under Order 13, Rule. 10 of the Code of Civil Procedure has been issued by the Income Tax Officer acting as a Civil Court on another court, the latter Court is not entitled to go into the question whether the documents: could be otherwise legally obtained by the requisitioning court and despite the provision in the Income Tax Act by which the documents and account books must be returned to the party, (in that case, Section 37 (3) of the income Tax Act of 1922, which was a corresponding provision to Section 131 (3) of the present Income Tax Act, 1981), while complying with the requisition under Order 13, Rule 10 of the Code of Civil Procedure it is not necessary to limit the period for which he may retain the documents. In that judgment by Sen, J. it was clearly stated that :
'It is quite true that ultimately the documents and the account books must be returned to the party Sohanlal Sethia and the Income Tax Officer must comply with the provision of Section 37 (3). It is not necessary for us however to limit the period for which he may retain the documents. We may only pass the direction that the Income Tax Officer will return the documents to opposite party no. 2 Sohanlal Sethi as soon as possible having regard 'to the terms of Section 37 (3) of the Income-Tax Act.'
The orders passed by the learned Chief Presidency Magistrate in the present case clearly show that in giving the facility for inspection of the documents and books of account the learned Chief Presidency Magistrate was not making an order in compliance with Order 13 Rule. 10 of the Code of Civil Procedure, but was really making a discretionary order to give that facility to the Income Tax Department. On the very day on which the petition was made, i.e. on December 28, 1962, the order passed by the learned Chief Presidency Magistrate was in these terms :
'Seen the petition filed by Income Tax Dept. praying that the Enforcement Directorate be directed to make over 20 documents (or inspection. Call for a report by date fixed i.e. 7-1-63. In the meantime, Enforcement Directorate may give access to Income Tax Dept. as prayed for if they have no objection.'
On the next date, i.e. January 8, 1963 the learned Chief Presidency Magistrate again said in his order of that date
'Inspections by Income Tax Dept. as directed in order No. 31 dated 28-12-62 should continue in the meantime, so that any further retention of the documents can be eliminated as tar as possible.'
Thereafter, when the Income Tax Officer wanted custody of the documents the learned Chief Presidency Magistrate heard the parties and said in the order dated June 10, 1963.
'As the Income Tax Department is having inspection of the documents since January, 1963, it was reasonably expected that they would not come up with such sprayer for custody of the documents now. Having regard to the nature of the work they are to perform, the custody of the documents with them for a further reasonable time cannot however be considered as altogether unreasonable. And the fact that they got an opportunity to inspect and examine the documents along with the Enforcement Directorate should not debar them for getting the same into their custody for some time for (heir own purpose. On a consideration of the entire matter it is accordingly directed that the Enforcement Directorate shall make over these documents to the custody of the Income Tax authorities who are permitted to retain the same for their own purpose for a further period of two months only, till 10-8-63.'
From these successive orders it appears clear that the learned Chief Presidency Magistrate was not dealing with the requisition in terms of Order 13 Rule 10 of the Code of Civil Procedure, nor did he send the documents directly to the Income Tax Department, but be directed the Enforcement Directorate to make over the documents to the custody of the Income Tax authorities who were permitted to retain those for their own purposes for a further period of two months only, till August 10, 1963. 1 therefore hold, that the order by no means is an order under Order! 13 Rule 10 of the Code of Civil Procedure. The, Income Tax authorities also submitted to these orders and did not insist to have an order as should be made under Order 13 Rule 10 of the Code of Civil Procedure. They cannot therefore be allowed for the first time in this Revisional Court to take a stand, as, has been sought to be done by Dr. Debi Pal, claiming the custody of the documents as of right under Order 13 Rule 10, independent of any discretion of the learned Chief Presidency Magistrate.
12. The order impugned in this rule therefore must be viewed from the point of view of an order made by the learned Chief Presidency Magistrate in exercise of the control that he has to exercise over documents seized in execution of the search warrant issued by him under Section 172 of the Sea Customs) Act, 1878, The nature of that control was at one time controversial in this Court, two divergent views having been taken by two learned Judges of this Court ; Sinha J. in the case of Calcutta Motor Cycle Co. v. Collector of Customs : AIR1956Cal253 and Sen, J. in the case of S. K. Sribastava v. Gajanand Palriwalla : AIR1956Cal609 . Those divergent views were dealt with by their Lordships of the Supreme Court in Serajuddin's case : 1983(13)ELT1370(SC) . The dicta of the Supreme Court in that case clearly are that once the goods or documents hive been produced before the Magistrate it is for him to decide, in the circumstances of each case, whether he would make over the documents to any authority. One particular circumstance in the present case is that in the Income-Tax Act, 1961 the Income Tax authorities have now been given extensive powers to get hold of the documents from the parties directly by exercise of the powers given by sections 131 and 132 of that Act. Section 137 of that Act provides that all particulars contained in any statement made, returns furnished or account or documents produced under the provision of this Act shall be treated as confidential and that no public servant shall disclose any particulars contained in any such statement, return of account and documents etc. Sub-section (3) provides the exceptions where the prohibition of disclosure shall not apply. Had the Income Tax authorities obtained the documents by exercise of powers under the provisions of the Act, section 137 will apply in terms. That section in large parts of its content is a protection afforded to the assessee against indiscriminate disclosure of matters affecting his trade. It is a valuable protection which the Parliament enacted in Section 137 of the income-Tax Act, 1961 as enshrined in that statute. The custody obtained by the income Tax authorities by any manner otherwise than prescribed in the provision of that Act would not have the protection of Section 137. Dr. Debi Pal appearing on behalf of the Income-Tax Officer has not only contended that Section 137 will apply because according to his contention the' custody obtained by his client was under the provision of the Act, the learned Advocate in his fairness has also categorically stated that even when the Income-Tax 'authorities obtained custody of documents not under the provisions of that Act, the principle of S, 137 will fully apply and the Income-Tax authorities will be under obligation and legal duty to treat the documents as confidential and not to disclose any particulars contained therein which are not covered by Sub-section (3) of Section 137. Despite that concession by Dr. Debi Pal, in my view, the point is very much open to doubt. It is not necessary to decide in the present case whether Section 137 of the Income-Tax Act, 1981 will apply in terms to the documents custody of which has been ordered to be given to the Income-Tax authorities by the learned Chief Presidency Magistrate not under the provisions of the Income-Tax Act, 1961 but by a discretionary order in exercising the control over documents seized in execution of search warrant issued by that learned Magistrate under Section 172 of the Sea Customs Act, 1878. It is, however, pre-eminently necessary that before making over the custody the learned Chief Presidency Magistrate should ensure the same guarantee which Section 137 of the Income-Tax Act, 1961 enacts. It cannot be overlooked that the learned Chief Presidency Magistrate himself in his order dated 10th June 1963 had taken into consideration the length of time during which the Income-tax authorities had the opportunity of inspection of these documents. I have already mentioned in the earlier parts of this judgment that since that order of the learned Chief Presidency Magistrate, when rule was issued by this Court the operation of the order to make over custody was stayed but there was no stay order against inspection by the Income-tax authorities, Dr. Debi Pal has submitted that the effect of the order that was made by this Court while issuing the rule was so, yet the Income-tax authorities, either by misunderstanding or by way of abundant caution, have not continued that inspection since the issue of this rule. The order of this Court was clear enough and there was no scope for misunderstanding. If, therefore, the Income-tax authorities have not utilised the long period that has elapsed since the issue of this rule regarding inspection of the documents, they have only thrown away their own time and opportunity by such forbearance.
13. In the result, I hold that the learned Chief Presidency Magistrate in exercise of his control over the documents seized in execution of a search warrant under Section 172 of the Sea Customs Act, 1878 had legal power to grant inspection of the documents to the Income-Tax Officer. But the order to make over the custody of the documents to an authority other than the Customs authorities is not a proper exercise of the discretion and control ordinarily, yet in the circumstances of the present case the Income-Tax Officer may be given facility to have custody of the documents for a reasonable period of one month only on the condition that the Officer of that department, who will obtain the custody, shall give a personal undertaking to the court of the Chief Presidency Magistrate that he will treat the documents as confidential and shall not disclose any particulars in these documents as is provided in Section of the Income-Tax Act, 1981. The order of the learned Chief Presidency Magistrate therefore requires modification and for that purpose I set aside the order impugned in this rule. The learned Chief Presidency Magistrate will direct the Enforcement Department to produce the documents in his court and then he will make those documents available to the Income-Tax Officer by giving custody thereof to that Income-Tax Officer for a period of one month upon a personal undertaking being given by the said Income-Tax Officer to the court of the Chief Presidency Magistrate to treat the documents as confidential and not to disclose any particulars thereof. At the end of the period during which the custody may be given to the Income-Tax Officer that Officer shall return the documents to the Court of the Chief Presidency Magistrate who shall then without delay return the documents to the present petitioner from whose custody the documents were seized in execution of a search warrant. I make it clear that when the documents have been so made over to the petitioner nothing in this order shall be deemed to put any obstruction or limitation to the exercise of any powers that the Income Tax Authorities have under the provisions of the Income-Tax Act, 1961.
14. The rule is disposed of on those terms.