Can the Income Tax department refuse to release documents to the assessee if SLP is pending Supreme court?

 Even otherwise, the statute confers authority to grant

authorisation for retaining the documents beyond the order of

assessment only till the proceedings under the Act is completed.

The word “proceedings under this Act” is a clear indication that

the power of the officers empowered to grant authorisation is

available only till the statutory proceedings are completed. Once

the statutory proceedings are completed, the authorities under

the statute are denuded of the power to grant further

authorisation. {Para 20}

21. The word proceeding is a term of wide importance and

it includes the original proceedings as well as the appellate

proceedings as it is trite law that an appeal is a continuation of

the original proceedings (see the decision in State of Tamil

Nadu and Others v. S. Subramaniam [(1996) 7 SCC 509]. In

the context in which the word ‘proceedings’ appear in section

132(8), it can be held to be used in a very comprehensive sense

to include even revisional proceedings, provided the same is

invoked under the statutory provisions of the Income Tax Act.

Thus an assessment proceeding, appellate proceeding, and even

revisional proceeding are all “proceedings under this Act”.

22. The proceedings under this Act expired by the disposal

of the appeal by this Court, as evidenced by Ext.P4 judgment

dated 08-01-2010. Thereafter, no proceedings under this Act are

in existence. On the contrary, the special leave petition having

been filed under Article 136 of the Constitution of India cannot

be regarded as a proceeding under this Act. As a taxing statute,

strict interpretation is to be adopted and that being so, recourse

by the assessee to the provisions of the Constitution by filing a

special leave petition before the Supreme Court cannot be

regarded as 'a proceeding under this Act'. Thus by the disposal

of the appeal filed before the High Court in I.T.A. No.819 of 2009

and I.T.A. No.1326 of 2009, the statutory authority lost its power

to grant further authorisation to retain the documents.

Therefore, even on this count, the respondents are not

authorised or justified in retaining the documents of title seized

by them under section 132 of the Act.

 IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C) NO. 12849 OF 2021

UDAYA SOUNDS Vs THE PRINCIPAL COMMISSIONER OF INCOME TAX

PRESENT

 MR. JUSTICE BECHU KURIAN THOMAS

 24TH DAY OF MARCH 2022 

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Bom HC: Conduct of search of house by police in violation of provisions of CRPC amounts to breach of right to privacy

 In the case reported as State v. Rehman (AIR

1960 SC 210) it is laid down by the Apex Court that as

search is a process exceedingly arbitrary in character,

stringent statutory conditions are imposed on the exercise

of the power. The provision of section 165 of the Cr.P.C. is

enacted to enable police to take search when there is

urgency and when it is not permissible to follow lengthy

process, securing search warrant from Magistrate. In the

case of Rehman (cited supra) the Apex Court has laid

down that as the provision of section 165(1) of the Cr.P.C.

is mandatory in nature, it should be strictly followed.

Thus, before entering a house, investigating officer has to

specify in writing the things for which search is to be

made and also the ground of his belief that such things

would be found in the house which is to be searched. In

view of the wording of the provision it can be said that

the provision is not restricted to search of what is stolen

or believed to be stolen and it permits the police officer to

make search for anything necessary for the purposes of

investigation into any offence. Thus, on one hand the

provision enables police to take search of the house for

investigation of any crime, on the other, it becomes

mandatory for police to record reasons as the first step

before entering the house.

16) Sub section (2) of section 165 of the Cr.P.C.

shows that police officer taking action should be either

police officer in charge of the police station or the

investigating officer. It can be said that in cases of

urgency, the investigating officer may depute his

subordinate but in view of the provision of section 165(1)

of the Cr.P.C. such deputation must be in writing. That is

also made clear in section 165(3) of the Cr.P.C.

17) The provision of section 165 of the Cr.P.C.

shows that it applies to searches when offence is

committed under general Act like Indian Penal Code, or

special Acts or also local Acts provided that the conditions

given in section 165 of the Cr.P.C. are satisfied. This Court

has gone through the provisions of the Arms Act 1959 as

the respondents have come with the defence that there

was specific secret information against the petitioner that

he was in possession of firearm illegally. There is nothing

in the Arms Act and the Rules framed under that Act to

enable police to take such search by ignoring the

provision of section 165 of the Cr.P.C. This Court has also

gone through the provisions of the Maharashtra Police Act

to ascertain the powers of police officer and this Act also

does not show that police can bypass the provision of

section 165 of the Cr.P.C.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

Criminal Writ Petition No.25 of 2019

Dnyaneshwar s/o Kachru Todmal,  Vs  The State of Maharashtra,

Coram: T.V. NALAWADE &

S.M. GAVHANE, JJ.

Judgment pronounced on : 29 November, 2019

JUDGMENT (Per T.V. Nalawade, J.):

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Whether it is mandatory to comply S 50 of NDPS Act if contraband is seized from bag of accused?

The question which arises before us is whether Section 50(1) was required to be complied with when charas was recovered only from the bag of the appellant and no charas was found on his person. 

 On the search of the appellant in the presence of the gazetted officer, a biscuit colour jute bag was recovered from the appellant, and Rs. 2,400/- cash in the denomination of 24 notes of Rs. 100/- each was found in the left pocket of the appellant’s trouser. When the bag was opened, a black polythene cover containing nineteen rectangular broken sheets of a blackish / deep brown colour weighing 1.5 kilograms was recovered. The sheets were tested and were found to be charas.

PW-2 conducted a search of the bag of the appellant as well as of the appellant’s trousers. Therefore, the search conducted by PW-2 was not only of the bag which the appellant was carrying, but also of the appellant’s person. Since the search of the person of the appellant was also involved, Section 50 would be attracted in this case. Accordingly, PW-2 was required to comply with the requirements of Section 50(1). As soon as the search of a person takes place, the requirement of mandatory compliance with Section 50 is attracted, irrespective of whether contraband is recovered from the person of the detainee or not. It was, therefore, imperative for PW-2 to inform the appellant of his legal right to be searched in the presence of either a gazetted officer or a magistrate.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No. 459 OF 2017

SK RAJU @ ABDUL HAQUE @ JAGGA Vs STATE OF WEST BENGAL .

Dr Dhananjaya Y Chandrachud

Dated:September 05, 2018.

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How to appreciate evidence of police officers?

Learned Counsel appearing on behalf of the defence argued

that all the witnesses are interested witnesses and they police

personnels. According to him, their evidences are not at alltrustworthy and their evidence should be discarded in its entirety. I

am in respectful disagreement with him on the ground, there is no

legal canon that the evidence of police witnesses should be thrown

out mechanically. It is a rule of caution as well as rule of prudence.

Before accepting their evidence, Court has to weigh the evidence with

a golden scale in its entirety and if it passes through the touchstone

of credibility, in that case their evidence cannot be brushed aside

under the carpet. It is not at all expected that these witnesses would

falsely implicate a person leaving the real culprits. After all they are

last persons to see that the real culprits are brought to book. On

perusal of the evidence of the witnesses I am of the view that their

statements are creditworthy and substantially in the same tone and

tune, which a Court of law cannot ignore

IN THE HIGH COURT AT CALCUTTA

(CRIMINAL APPELLATE JURISDICTION)

C.R.A No. 219 of 2015

Yeasin Sk. Vs.The State of West Bengal

Present :  Mr. Justice Siddhartha Chattopadhyay

Dated : 09.09.2016.

Citation: 2017 CRLJ (NOC) 87 Cal

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Leading Judgment on basic concept of panchnama

These provisions demonstrate that a search and seizure under the said Act has to be carried out in the presence of at least two respectable inhabitants of the locality where the search and seizure is conducted. These respectable inhabitants are witnesses to the search and seizure and are known as "panchas". The documentation of what they witness is known as the panchnama. The word 'nama', refers to a written document. Its type is usually determined by the word which is combined with it as a suffix. Examples being, nikah-nama (the written muslim marriage contract), hiba-nama (gift deed, the word hiba meaning - gift), wasiyat-nama (written will) and so on. So a panchnama is a written record of what the panch has witnessed. In Mohan Lal v. Emperor MANU/MH/0124/1940 : AIR 1941 Bom 149, it was observed that "[the panchnama is merely a record of what a panch sees...." Similarly, the Gujarat High Court in the case of Valibhai Omarji v. The State MANU/GJ/0067/1963 : AIR1963Guj145 noted that "[a] Panchanama is essentially a document recording certain things which occur in the presence of Panchas and which are seen and heard by them." Again in The State of Maharashtra v. Kacharadas D. Bhalgar MANU/MH/0222/1978 : (1978)80BOMLR396 , a panchnama was stated to be "a memorandum of what happens in the presence of the panchas as seen by them and of what they hear".

16. We have examined the meaning of the word panchnama in some detail because it is used in Explanation 2(a) to Section 158BE of the said Act although it has not been defined in the Act. A panchnama, as we have seen is nothing but a document recording what has happened in the presence of the witnesses (panchas). A panchnama may document the search proceedings, with or without any seizure. A panchnama may also document the return of the seized articles or the removal of seals. But, the panchnama that is mentioned in Explanation 2(a) to Section 158BE is a panchnama which documents the conclusion of a search. Clearly, if a panchnama does not, from the facts recorded therein, reveal that a search was at all carried out on the day to which it relates, then it would not be a panchnama relating to a search and, consequently, it would not be a panchnama of the type which finds mention in the said Explanation 2(a) to Section 158BE.

IN THE HIGH COURT OF DELHI

ITA 1198/2008

Decided On: 12.11.2008

Commissioner of Income Tax

Vs.

 Shri S.K. Katyal

Hon'ble Judges/Coram:

Badar Durrez Ahmed and Rajiv Shakdher, JJ.

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Whether police can conduct search and seizure in piecemeal for an extended period?

The term ‗search' as applied to searches and seizures, is an examination of a man's house or other buildings or premises, or of his person, with a view to the discovery of contraband or illicit or stolen property, or some evidence of guilt to be used in the prosecution of a criminal action for some crime or offence with which he is charged. As used in this connection, the term implies some exploratory investigation, or an invasion and quest, a looking for or seeking out. The quest may be secret, intrusive, or accomplished by force, and it has been held that a search implies some sort of force, either actual or constructive, much or little. A search implies a prying into hidden places for that which is concealed and that the object searched for has been hidden or intentionally put out of the way. While it has been said that
ordinarily searching is a function of sight, it is generally held that mere looking at that which is open to view is not a 'search'.‖
(emphasis supplied)
Accepting the above definition, the Karnataka High Court further observed:-

―All searches are inspections, but all inspections are not searches. A search is a thorough inspection of a man's house, building or premises or of his person, with the object of discovering some material which would furnish evidence of guilt for some offence with which he is charged. It implies a prying into hidden places for that which is concealed. If the object sought for is always in plain sight, then there is no search.‖

The second undisputed fact is that the search was discontinued on October 27, 1995, and resumed only on November 10, 1995. The reasons stated for the gap of 14 days is hardly convincing. There is no provision in the Criminal Procedure Code or in the Income-tax Act or the rules for postponing the search for such a long period. N. Subramanian in his book Search and Seizure stated at page 108 that when once the search starts it can go on continuously day or night, rain or shine. To keep the affected parties in a suspended animation about the probable continuation of search would be agonising.

 There is no bar for the operation to continue on holidays. The absence of the petitioners in the house is nothing but a lame excuse. If the respondents wanted the operation to be continued there are ways to secure the presence of the petitioners and continue the operations. Therefore, unless there is convincing reason for not resuming search immediately the proceedings undertaken by the second respondent for a second search cannot be held to be legal. It is invading the right and freedom of the petitioners for a period more than required or necessary. The averment that the petitioners were not available for two days is denied by them. Instead it is stated that they could not keep the house in order as the search was incomplete and that they had telephoned and required the officers to complete the search. Therefore, search has prolonged unreasonably without justification.‖
(emphasis supplied)

21. A search is necessarily an invasion of privacy and such an invasion cannot be permitted to be prolonged on a pretext. There must be some cogent plausible reason for splitting the search and in not conducting it continuously till its conclusion. Viewed in this light, even if it were assumed for the sake of argument that a search took place on 03.01.2001, the same could not be regarded as legal on account of the unexplained gap of about a month and a half (from 17.11.2000 to 03.01.2001).

Delhi High Court

Commissioner Of Income Tax Delhi ... vs Shri S.K. Katyal on 12 November, 2008

Author: Badar Durrez Ahmed

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Whether One spouse can consent to search of a house on behalf of other spouse?

Just from watching legal dramas on television, many people know that the police need a warrant to search your house. This is accurate, for the most part, as the Fourth Amendment protects private citizens from unreasonable searches and seizures. But did you also know that under the exclusionary rule generally anything seized during an illegal search cannot be used as evidence in court?

As a result of the exclusionary rule, there are important exceptions to the warrant requirement that have developed under the law that everyone should know about.

Let's start with the basics first. What is a search warrant? If a judge is convinced that there is "probable cause" of either criminal activity or contraband at a place to be searched, he or she will issue and sign a search warrant—a court order that allows the police to search a specific location for specified objects at a specific time.

That's a lot of specifics, to be sure,

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To what extent provisions of Criminal procedure Code are applicable to proceeding under Wild life protection Act?

 The scheme of Section 50 of the Wild Life Act makes it abundantly clear that Police Officer is also empowered to investigate the offences and search and seize the offending articles. For trial of offences, Code of Criminal Procedure is required to be followed and for that there is no other specific provision to the contrary. Special procedure prescribed is limited for taking cognizance of the offence as well as powers are given to other officers mentioned in Section 50 for inspection, arrest, search and seizure as well of recording statement. The power to compound offences is also conferred under Section 54. Section 51

provides for penalties which would indicate that certain offences are cognizable offences meaning thereby police officer can arrest without warrant. Sub-section (5) of Section 51 provides that nothing contained in Section 360 of the Code of Criminal Procedure or in the

Probation of Offenders Act, 1958 shall apply to a person convicted of an offence with respect to hunting in a sanctuary or a national park or of an offence against any provision of Chapter 5A unless such person is under 18 years of age. The aforesaid specific provisions are contrary to the provisions contained in Code of Criminal Procedure and that would prevail during the trial. However, from this, it cannot be said that operation of rest of the provisions of the Code of Criminal Procedure are excluded.

IN THE SUPREME COURT OF INDIA

Hon'ble Justice M.B.Shah and Hon'ble Jusitce  B.N.Agarwal.

MOTI LAL  Vs. CENTAL BUREAU OF INVESTIGATION 

Reported in 2002 AIRSCW 1626 = AIR 2002 SC 1691

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Right to privacy includes that bank should maintain confidentiality in respect of documents in its custody

Right to privacy deals with 'persons and not places', the documents or copies of documents of the customer which are in Bank, must continue to remain confidential vis-`-vis the person, even if they are no longer at the customer's house and have been voluntarily sent to a Bank. If that be the correct view of the law, we cannot accept the line of Miller in which the Court proceeded on the basis that the right to privacy is referable to the right of 'property' theory. Once that is so, then unless there is some probable or reasonable cause or reasonable basis or material before the Collector for reaching an opinion that the documents in the possession of the Bank tend, to secure any duty or to prove or to lead to the discovery of any fraud or omission in relation to any duty, the search or taking notes or extracts therefore, cannot be valid. The above safeguards must necessarily be read into the provision relating to search and inspection and seizure so as to save it from any unconstitutionality.

Supreme Court of India

Distt. Registrar & Collector, ... vs Canara Bank Etc on 1 November, 2004

Author: L . R.C.

Bench: R Lahoti, A Bhan

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