1965 Supreme(SC) 346

Supreme Court Of India
DURGA PRASAD
Versus
H. R. Gomes,superintendent (Prevention) central Excise,nagpur,another
Decided On : December 9, 1965

1. The power of seizure under S. 105 of the Customs Act cannot be exercise unless the Assistant Collector had reason to believe that the documents were secreted. 2. The power of search under S. 105 of the Customs Act is a power of general search.

Headnote:

GOLD CONTROL RULES - SEARCH AND SEIZURE - POWER OF EXCISE AUTHORITIES - DOCUMENTS - RELEVANCE TO PROCEEDINGS UNDER CUSTOMS ACT - SEIZURE OF DOCUMENTS - VALIDITY - CUSTOMS ACT, 1962, SS. 105, 110(3) - DEFENCE OF INDIA (AMENDMENT) RULES, 1963, R. 126L(2).

Fact of the Case:

The appellants challenged the search and seizures carried out by the respondents at their residential-cum-business premises in exercise of the power derived from R. 126 L (2) of the Defence of India (Amendment) Rules, 1963 (hereinafter called the gold Control Rules) and Sections 105 and 110 of the Customs Act, 1962 (hereinafter called the customs Act ).

Finding of the Court:

1. The Superintendent of Customs and Central Excise had no power to seize documents under Rule 126 L. (2) of the Defence of India (Amendment) Rules, 1963 which only gives authority to seize any gold in respect of which there is suspicion of contravention of the Gold Control Rules along with the package, covering or receptacle, but there is no provision in the rule for search or seizure of any documents. 2. The Collector of Customs was a "proper officer" within the meaning of the Customs Act and so he had the authority to seize documents from the possession of the Superintendent or the Assistant Collector, Central Excise. 3. The Collector, by his order of seizure, dated 6/09/1963 or Sept 11/09/1963, could transfer the legal possession of the documents to himself. The legal effect of the order of seizure made by the Collector was the transfer of the legal possession of the documents from respondent No. 2 or respondent No. 1 to the Collector. 4. There is sufficient material to support the information of the Collector of Customs under S. 110 (3) of the Customs Act that the documents would be useful or relevant to the proceedings under the Act. 5. The authorisation issued by the Assistant Collector of Customs under S. 105 of the Customs Act is legally valid since there is an averment by the Assistant Collector that the documents were "secreted". 6. The power of search under S. 105 of the Customs Act is a power of general search. But it is essential that before this power is exercised, the preliminary conditions required by the section must be strictly satisfied, that is, the officer concerned must have reason to believe that any documents or things, which in his opinion are relevant for any proceedings under the Act, are secreted in the place searched.

Issues: 1. Whether the Superintendent of Customs and Central Excise had the power to seize documents under Rule 126 L. (2) of the Defence of India (Amendment) Rules, 1963? 2. Whether the Collector of Customs was a "proper officer" within the meaning of the Customs Act? 3. Whether the Collector, by his order of seizure, could transfer the legal possession of the documents to himself? 4. Whether there is sufficient material to support the information of the Collector of Customs under S. 110 (3) of the Customs Act that the documents would be useful or relevant to the proceedings under the Act? 5. Whether the authorisation issued by the Assistant Collector of Customs under S. 105 of the Customs Act is legally valid? 6. Whether the power of search under S. 105 of the Customs Act is a power of general search?

Ratio Decidendi: 1. The power granted to the authority empowered under R. 156 is an ancillary or incidental power for making effective seizure of suspected gold. In other words, the power granted under R. 156 is the power to take such action as may be necessary for seizing the gold and does not include the power of seizure of documents which is not an ancillary but an independent power. 2. The Collector of Customs who had assigned the powers of a "proper officer" to the subordinate officer must himself be deemed to have the powers of a "proper officer" under S. 110 (3) of the Customs Act. 3. The legal effect of the order of seizure made by the Collector was the transfer of the legal possession of the documents from respondent No. 2 or respondent No. 1 to the Collector. 4. The orders of the Collector, dated 6/09/1963 and Sep 11/09/1963 both state that the Collector was of opinion "that the documents were useful for and relevant to the proceedings under the Customs Act, 1962". 5. The word "secreted" must be understood in the context in which the word is used in the section. In that context, it means documents which are kept not in the normal or usual place with a view to conceal them, or it may even mean documents, or things which are likely to be secreted In other words, documents or things which a person is likely to keep out of the way or to put in a place where the officer of law cannot find it. 6. The object of grant of power under S. 105 is not search for a particular document but of documents or things which may be useful or necessary for proceedings either pending or contemplated under the Customs Act.

Final Decision: 1. The appeal arising out of Special Civil Application No. 490 of 1963 is dismissed. 2. The appeal arising out of Special Civil Application No. 437 of 1963 is dismissed. 3. The appeals arising out of Special Civil Applications Nos. 448 and 459 of 1963 are dismissed.