JUDGMENT

SABYASACHI MUKHARJI, C.J.I. :— This is a special leave petition directed against the judgment and order of the High Court of Rajasthan, dated 18th July, 1989. The petitioner herein i.e. Smt. Kusum Lata Singhal carried on, at all relevant times, business under the name and style of M/s. Lata & Company and she claims to be an authorised stockist of Baba Brand Tobacco manufactured by M/s. Dharampal Premchand Ltd., New Delhi. Mr. R. K. Singhal is the husband of the petitioner. In the judgment under appeal, it has been stated that Mr. R. K. Singhal owns a house No. E-117, Shastri Nagar in Jaipur and the petitioner lived with her husband at all material times. Mr. Singhal was a partner in Lata Sales Centre and is said, to be a sub-dealer of M/ s. Lata & Company.

2. A search under Section 132 of the Income-tax Act, (hereinafter called the Act) was conducted at the said premises on 25/26th Nov. 1987. During the search, valuables and books of accounts were seized on 26th November, 1987, and a notice under rule 112A of the Income-tax Rules, 1962 (hereinafter referred to as the Rules) read with subsection (5) of Section 132 of the Act was issued to the petitioner by the Income-tax Officer. The notice was served on the husband of the petitioner.

3. In the application under Article 226 of the Constitution of India filed before the High Court, the petitioner claimed return of account books and other valuables which were seized on 26th November, 1987 . The return was claimed because, according to the petitioner, the retention of the books and valuables was in violation of the provisions of S. 132 of the Act. The High Court in the judgment under appeal came to the conclusion that the authorisation for search in the instant case under Section 132(1) of the Act was not valid or legal. Therefore, the High Court held that search was bad. At the time of search the silver and gold ornaments worth about Rs. 4,58,080/ - were found and some other silver and gold ornaments were also found but these were not seized. The High Court had directed return of account books to the petitioner on furnishing photostat copies thereof. The High Court came to the conclusion that the authorisation under Section 132(1) of the Act was not in accordance with law and, therefore, the search and seizure of the assets could not be said to have been in accordance with law. The High Court noted that in view of the fact that by virtue of the power under Section 132(7) and the order made under Section 132(5) of the Act against the husband of the petitioner, the valuables etc. could not be ordered to be returned to the petitioner.

4. Aggrieved thereby, the petitioner seeks to challenge the said order under Article 136 of the Constitution Mr. C. S. Agarwal appearing for the petitioner, contended before us that if search and seizure were illegal then the evidence obtained by such search and seizure could be utilised in subsequent proceedings, but the items of jewellery and goods worth, according to him, over Rs. 2,97,000/-were liable to be returned. We are, however, unable to entertain this appeal. In the instant case the husband of the wife stayed in the same premises. The authorisation of search and seizure in respect of account books and goods which were seized was against the wife but in the proceedings under Section 132(5) of the Act the husband Mr. Singhal has contended and claimed that the ornaments in question or the jewellery belonged to him.

5. Mr. Vaish, learned counsel appearing for the revenue, has drawn our attention to an authorisation issued against the husband Mr. Singhal under sub-section (5) of Section 132 of the Act. Indeed, Mr. R. K. Singhal has stated on oath before the authorised officer at the time of search that the same belonged to him and he has claimed the same to be treated, as representing his undisclosed income. Mr. R. K. Singhal, the husband, as his evidence has recorded in the proceedings against him, has disclosed the same and surrendered a t