T.P. Mukherji, J.
1. The nine petitioners before us are all Commercial Tax Officers serving in the commercial tax directorate of the State Government and the rule issued at their instance is directed against an order passed by the Judge, Calcutta, 4th Additional Special Court, requiring them to produce certain documents as mentioned in the summonses served on them under Section 94 of the Code of Criminal Procedure. The summonses were issued in connection with a case under Sections 409/109 and 417/120B, Indian Penal Code, started against 83 accused persons.
2. On the prayer of the prosecution the learned Judge issued summonses on the petitioners directing them to produce the documents mentioned therein. The petitioners produced certain documents in sealed covers along with individual petitions which sought to draw the attention of the court to the provisions of Section 25 of the Bengal Finance (Sales Tax) Act of 1941, stating that the documents called for are protected against disclosure under the provisions of that section and praying for a decision as to whether the exception to disclosure contained in Section 25(3) of the Act would be attracted to the cases, submitting at the same time that the petitioners will abide by whatever orders might be passed by the court.
3. The learned Judge found that some of the documents called for are not covered by the protection against disclosure contained in Section 25(1) of the Bengal Finance (Sales Tax) Act, 1941, and that some others which are entitled to that protection are liable to disclosure under Section 25(3) of the Act in view of the fact that they are required for the purpose of a prosecution under the Indian Penal Code in respect of those documents. On these findings he directed the petitioners to make disclosure of the documents called for. It is against this order that the present rule was obtained.
4. Mr. B. C. Dutt appearing in support of the rule contended first, that the summonses issued on the petitioners are bad in law inasmuch as the learned Judge did not have any materials before him before issuing the summonses to satisfy him that the embargo on production of the documents was not attracted under the provisions of Section 25(1) of the Act, or that even if attracted they were liable to be produced in accordance with the provisions of Section 25(3) thereof; and secondly, that the petitioners themselves, who are liable to incur the penalty provided for in Section 25(2) of the Act, were also to be satisfied before they produced the documents called for that the embargo on their production was not attracted in the case of those documents but the summonses served on them contained nothing which might satisfy them in that regard.
5. It was urged further that the documents called for are all covered by the protection against disclosure under Section 25(1) of the Act and that that protection is not lifted in the case in view of the fact that the present prosecution is not in respect of these documents.
6. Mr. A. K. Dutt, who appeared for M/s. Regal Hosiery Mills, whose returns and assessment orders for the year 1954-55 were called for from petitioner No. 1 contended that these papers are protected under Section 25(1) of the Act and that his clients not being accused in the case it can never be said that these papers are required for the purpose of a prosecution under the Indian Penal Code in respect thereof.
7. So far as the production of documents in the custody of officers of the sales tax directorate is concerned, the law in respect of the same is embodied in Section 25 of the Bengal Finance (Sales Tax) Act, 1941. Sub-section (1) of that section provides a prohibition against disclosure of the documents mentioned therein. This prohibition is absolute and Sub-section (2) of the section makes the Government servant contravening the provisions of Sub-section (1) liable to be punished with imprisonment. This absolute prohibition, however, is lifted by Sub-section (3) of the section in cases where the documents mentioned in Sub-section (1) might be required for the purpose of a prosecution under the Indian Penal Code in respect of those documents for the purpose of a prosecution under the Sales Tax Act itself. The prohibition contained in Sub-section (1) above applies also to production of the documents before any court with the result that no court is authorised to require the production of the specified documents unless it is satisfied that those documents are required for the purpose of a prosecution in respect thereof under Section 25(3).
8. The above position in law was not disputed before us. The question came up for decision before a Division Bench of this Court in Criminal Revision No. 1003 of 1964, and the judgment is reported in S. K. Bose, Commissioner of Commercial Taxes, West Bengal v. The State of West Bengal 3 R.L.R. 215, wherein it was held that before issuing any summons on the Sales Tax Authorities the court will have to bear in mind the provisions of Section 25 of the Act and summons will also have to include particulars which should satisfy the witness concerned that the documents called for are liable to be produced in court.
9. The fact stands, however, that the documents called for have been produced in court in sealed covers and if it is found that they are in law liable to be disclosed, they should, in our opinion, be directed to be disclosed even though not called for strictly in accordance with law. As a matter of fact, the concerned witnesses produced the documents in sealed covers with a prayer that the learned Judge should first satisfy himself that they are liable to be disclosed before directing their disclosure.
10. We shall now consider first whether the documents called for are protected against disclosure and secondly, if so, whether in spite of that they are liable to be disclosed in accordance with the provisions of Sub-section (3) of Section 25 of the Act. An examination of the summonses containing the list of documents called for shows that the following documents were required to be disclosed :-
(1) Issue ledgers, which, we are told, are registers maintained by the Commercial Tax Officers and giving the particulars of declaration forms issued to the dealers.
(2) Correspondence files.
(3) A receipt for declaration forms seized from a party by a C.T.O.
(4) A register described as Register No. XXIII which is provided for in Rule 27A of the Bengal Sales Tax Rules and is one which is kept in the place of business of a dealer and is open to inspection by the Commissioner or by some authority authorised by the Commissioner. The Register called for is stated to have been seized by the C.T.O. from the dealer concerned.
(5) Sales tax files.
(6) Returns and assessment orders of certain dealers, and
(7) Surrendered declaration forms of certain dealers in the custody of the C.T.O. concerned.
11. Of the above documents the sales tax returns of the dealers are undoubtedly covered by the protection given in Section 25(1). The correspondence with dealers are likely to be in connection with assessment proceedings and letters received from the assessees would contain statements made by them. If the file contains any correspondence which has nothing to do with the assessment, they are required to be particularised but as the summonses stand the correspondence files are not liable to be disclosed unless the prosecu-tion be in respect of matters in those files. The returns are specifically provided for in Section 25(1) and unless the present prosecution is in respect of such returns they are not liable to be disclosed. These returns were called for from opposite party No. 1 and relate to M/s. Regal Hosiery Mills, M/s. Golden Hosiery and Cotton Mills and M/s. Madhusudan Hosiery Mills which are not accused in the case, namely, M/s. Steel Equipment and Construction Limited and M/s. Bhagwandas Jhabarmal. As these two firms are accused in the case their returns though covered by Section 25(1) are liable to be produced under Section 25(3) of the Act; but not the returns of the three other firms.
12. Regarding the rest of the documents, there are, first, the issue ledgers. These, as already stated, are registers maintained by the department and contain particulars of declaration forms issued to different dealers. It was contended on behalf of the petitioners that the order for issue of declaration forms is passed in a. proceeding under the Act and as such they are based on statements made by the assessees which the law protects against disclosure. The forms might be issued on the basis of statements made, but the particulars in the issue registers would not contain any such statement. As we construe Section 25(1) of the Act the conclusion becomes irresistible that papers maintained by the department are not protected against disclosure and what are protected against disclosure are papers and statements produced by parties or witnesses in connection with a proceeding under the Act. As issue ledgers by themselves are merely documents maintained by the department they are, in our opinion, not protected against disclosure.
13. The receipt for declaration forms and. the Register XXIII called for from petitioner No. 3 were seized from the dealers concerned and are not documents produced before the taxing authority in accordance with the Act. As such, they are also not protected against disclosure.
14. Coming to the next item, which is sales tax files relating to the assessment of certain dealers, it is true that these files are likely to contain papers protected against disclosure. But the files minus those documents would only contain papers of the department which are not protected against, disclosure. In this connection we may also consider the assessment orders in the sales tax files some of which were separately called for from petitioner No. 1. Mr. A. K. Dutt contended that these assessment orders must also be protected against disclosure inasmuch as they contained particulars of statements and documents produced in the assessment proceeding.
15. In this connection we may consider Section 54 of the Income-tax Act which contains a provision similar to that in Section 25 of the Bengal Finance (Sales Tax) Act of 1941, but is much wider in its content and includes within the list of protected papers the assessment record as well. The assessment record of the department has been deliberately refused protection by the Bengal Act and the reason obviously is that this latter Act refuses to give protection to papers maintained by the taxing authority. Section 25, in our opinion, should be strictly construed and no protection against disclosure should be extended to documents not specifically mentioned therein on the ground that that protection is implied. When a prohibition is imposed it must be imposed explicitly and in clear terms and no implied prohibition should be inferred. As neither the sales tax files minus the papers, statements and evidence nor assessment orders which apparently form part of that file are expressly mentioned in Section 25(1) of the Act we must find that these documents are not entitled to any protection and are liable to be disclosed.
16. The last item of document as per list above comprises certain surrendered declaration forms. These are blank forms and are obviously not included in Section 25. As such, no protection would attract to them.
17. In view of all that we have stated above we find that out of the documents called for from the petitioners the correspondence files and the sales tax returns of M/s. Regal Hosiery Mills, M/s. Golden Hosiery and Cotton Mills and M/s. Madhusudan Hosiery Mills are protected against disclosure in this case and all the other documents, excepting the documents, statements and evidence in the sales tax files called for are liable to be produced and disclosed.
18. Considering all that we have stated above we find that although the summonses issued in the case are not in accordance with law in every respect we should not be justified in setting aside the order moved against and directing issue of fresh processes in the light of our findings above. The order of the learned Judge is upheld with this modification that the correspondence files and the sales tax returns of M/s. Bengal Hosiery Mills, M/s. Golden Hosiery and Cotton Mills and M/s. Madhusudan Hosiery Mills as called for in the case are not liable to be disclosed. The rest of the documents called for from the petitioners are not entitled to the protection of Section 25 of the Bengal Finance (Sales Tax) Act, 1941, and are as such liable to be disclosed. So far as the sales tax files are concerned the same minus the papers, statements and evidence as specified in Section 25(1) of the Act will be liable to disclosure. With this modification the rule stands discharged.
R.N. Dutt, J.
19. I agree.