Judgement

WANCHOO, CJI.:- These five appeals on certificates granted by the Madras High Court raise common questions of law and will be dealt with together. We shall give brief facts in one of the appeals (No. 150 of 1967) arising out of writ petition No. 1321 of 1964 in order to understand the questions that fall to be decided in the present appeals. On August 19, 1964, at about 5.00 p. m. the officers of the Commercial Tax Department (hereinafter referred to as the Department) raided the premises of Zenith Lamps and Electricals Ltd., (hereinafter referred to as the Company). It is said that the premises were searched and a suit-case was seized and forcibly removed by the officers who made the raid in spite of the fact that they were informed that the box did not contain any papers or documents belonging to the Company and its contents consisted merely of personal effects of one of the Managing Directors, namely, Shri Ramkrishan Shrikishan Jhaver. The raid and search were made by the authorities concerned on information that Shri Goenka, one of the Directors of the Company had removed a box containing secret accounts relating to it. The main contention of the petitioner in support of his prayer that the articles seized should be returned to him was under three heads. It was first contended that on a proper construction of Section 41 of the Madras General Sales Tax Act, No. 1 of 1959 (hereinafter referred to as the Act), the officers of the Department had no authority to search the premises and seize either the account books or the goods found therein. Secondly, it was contended that if Section 41 (4) authorised seizure and confiscation of goods, it was beyond the legislative competence of the State Legislature, for it could not be covered by item 54 of list II of the Seventh Schedule to the Constitution relating to "taxes on the sale or purchase of goods". Lastly, it was contended that of various provisions in Section 41 were capable of being construed as authorising search and seizure the provision contained therein were unconstitutional in view of Article 19 (1) (f) and (g) of the Constitution.

2. It is not necessary to refer to the facts in the other petitions which have resulted in the other appeals before this Court because in those cases also there was search and seizure by the officers of the Department and their action is being attacked on the same grounds. All the petitions were opposed on behalf of the State Government and its case was firstly, that Section 41 authorised search and seizure; secondly, that the State Legislature was competent to enact Section 41 (4) under item 54 of List II of the Seventh Schedule to the Constitution and thirdly, that the provisions in question did not offend Art. 19 (1) (f) and (g) of the Constitution and were in any case protected by Article 19 (5) and (6).

3. The High Court held that S. 41 (2) did not allow search being made thereunder, as it only provided for inspection, and that search was a different thing altogether from inspection. The High Court further held that if Section 41 (2) provided for search it would be within the legislative competence of the State Legislature. The High Court took the view that the power of seizure and confiscation of goods contained in sub-section (4) could not be said to be ancillary and incidental to the power to tax sale or purchase of goods and therefore this provision was beyond the legislative competence of the State Legislature. Finally, the High Court held that sub-secs. (2), (3) and (4) of Section 4 were unconstitutional as they were unreasonable restrictions on the fundamental rights guaranteed under Article 19 (1) (f) and (g) of the Constitution. Besides the above, the High Court also found with respect to one of the petitions that the search warrant issued for the search of the residential house by the magistrate disclosed that the magistrate had not applied his mind at all to the necessity of the search of the residential house, for colum