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Andhra Pradesh High Court
Judges : ANANTA NARAYANA AYYAR, JAGMOHAN REDDY
Rai Bahadur Seth Sreeram Durgaprasad P Ltd., Visakhapatnam - Appellant
Versus
Deputy Collector, Customs Dept., Visakhapatnam - Respondent
Decided On : 11-13-64
CUSTOMS ACT - SECTION 105 - SEARCH AND SEIZURE - VALIDITY - SCOPE AND PURPOSE OF THE ACT - REASON TO BELIEVE - INTERPRETATION OF STATUTES - FUNDAMENTAL RIGHTS - ARTICLE 14 AND 19 - WRIT PETITION - MAINTAINABILITY.
Fact of the Case:
The petitioner, Rai Bahadur Seth Durga Prasad Private limited, of Visakhapatnam, has filed this writ petition with a prayer as follows:- "to issue a writ in the nature of mandamus or any other appropriate writ or order or direction restraining the respondents. . . . . from proceeding any further under the colour and guise of the warrants Nos. 9 and 10, dated 24-9-1963 and dated 27-9-1963, respectively, issued by the first respondent herein to respondents 2 and 3 herein and to strike down the said warrants. . . . . . as being void and illegal and direct the return of all the account-books, documents, other files and records and other articles. . . . . seized and removed from the premises of the petitioner. "
Finding of the Court:
The Court held that the power given under section 105 of the Customs Act is not an unguided, uncanalised, absolute or naked power and is, therefore, not ultra vires the Constitution. The Court also held that section 105 does not violate Art. 14 of the Constitution. The Court further held that the warrants were issued by the Deputy Collector of Customs, whose authority to issue warrant under Section 105 of the Act has not been challenged before the Court. The Court also held that the alleged defects (i) to (v) have one feature in common namely, that the warrants did not give full details. The Court also held that the search is all embracing and that various documents and things have been taken into custody by the Search Officer and detained by him though they are not useful or relevant to any proceeding under this Act. The Court also held that the provisions of section 165 Cr. P. C. have not been followed. The Court also held that no order of seizure has been passed. The Court also held that the articles of search has been illegally taken into the custody except the two bottles are detained illegally and that otherwise the contention regarding defect (item ix) cannot be accepted by the Court. The Court also held that the alleged defect (x), Shri D. Narasaraju for the petitioner contends that in Warrant No. 10 of 1963, the Warrant Officer did not file the names of the various owners of the premises which are searched and that search officer noted down the names of the owners. The Court also held that the words "any proceeding under this Act" in section 105 (1) must mean only any proceeding which are pending or which was in contemplation at the time when the Assistant Collector of Customs authorises a search under Section 105 (1 ). The Court also held that the proceedings are vitiated and illegal as there was no basis which gave reason to the Warrant Officer to believe as mentioned in S. 105.
Issues: 1. Whether section 105 of the Customs Act is ultra vires the Constitution? 2. Whether the warrants issued by the Deputy Collector of Customs were valid? 3. Whether the search and seizure conducted by the Search Officer was legal? 4. Whether the provisions of section 165 Cr. P. C. were followed? 5. Whether an order of seizure was passed? 6. Whether the articles of search were illegally taken into custody? 7. Whether the alleged defect (x) vitiates the issue of warrants and search? 8. Whether the words "any proceeding under this Act" in section 105 (1) must mean only any proceeding which are pending or which was in contemplation at the time when the Assistant Collector of Customs authorises a search under Section 105 (1 )? 9. Whether the proceedings are vitiated and illegal as there was no basis which gave reason to the Warrant Officer to believe as mentioned in S. 105?
Ratio Decidendi: 1. The power given under section 105 of the Customs Act is not an unguided, uncanalised, absolute or naked power and is, therefore, not ultra vires the Constitution. Section 105 does not violate Art. 14 of the Constitution. 2. The warrants were issued by the Deputy Collector of Customs, whose authority to issue warrant under Section 105 of the Act has not been challenged before the Court. 3. The alleged defects (i) to (v) have one feature in common namely, that the warrants did not give full details. 4. The search is all embracing and that various documents and things have been taken into custody by the Search Officer and detained by him though they are not useful or relevant to any proceeding under this Act. 5. The provisions of section 165 Cr. P. C. have not been followed. 6. No order of seizure has been passed. 7. The articles of search has been illegally taken into the custody except the two bottles are detained illegally and that otherwise the contention regarding defect (item ix) cannot be accepted by the Court. 8. The alleged defect (x), Shri D. Narasaraju for the petitioner contends that in Warrant No. 10 of 1963, the Warrant Officer did not file the names of the various owners of the premises which are searched and that search officer noted down the names of the owners. 9. The words "any proceeding under this Act" in section 105 (1) must mean only any proceeding which are pending or which was in contemplation at the time when the Assistant Collector of Customs authorises a search under Section 105 (1 ). 10. The proceedings are vitiated and illegal as there was no basis which gave reason to the Warrant Officer to believe as mentioned in S. 105.
Final Decision: The Court dismissed the Writ Petition except for ordering that the two quart bottles of Indian made beer should not be detained by the Customs Authorities.
( 1 ) THE Petitioner, Rai Bahadur Seth Durga Prasad Private limited, of Visakhapatnam, has filed this writ petition with a prayer as follows:-"to issue a writ in the nature of mandamus or any other appropriate writ or order or direction restraining the respondents. . . . . from proceeding any further under the colour and guise of the warrants Nos. 9 and 10, dated 24-9-1963 and dated 27-9-1963, respectively, issued by the first respondent herein to respondents 2 and 3 herein and to strike down the said warrants. . . . . . as being void and illegal and direct the return of all the account-books, documents, other files and records and other articles. . . . . seized and removed from the premises of the petitioner. "
( 2 ) THERE are three respondents. The first respondents is the deputy Collector of Customs, Vizag, Respondents 2 and 3 are preventive officers of the Customs Department, Vizag.
( 3 ) THE petitioner has extensive business in the territories of Union of India including export trade of manganese ore to overseas buyers from Viskhapatnam Port. On 24-901963, the first respondent issued a warrant No. 9/63 to the third respondent which runs as follows:-"section 105 of the Customs (Preventive ) Act whereas I have reason to believe that goods liable to confiscation, documents and things, which, in my opinion, are useful for or relevant to proceedings under Customs Act, 1962 (52 of 1962) are secreted at premises No. Eagles Next opposite to Government Circuit House, Uplands. Therefore, in exercise of the powers conferred upon me under S. 105 (1) of the Customs Act 1962 (52 of 1962), I authorise and require you to search for the said goods. documents and things in the aforesaid premises and if found to produce the same forthwith before me and return this warrant to the Collector of Customs, Madras, with endorsement certifying what you have done under it, immediately upon its execution. "he issued a similar warrant No. 10/63 on the same date addressed to the second respondent (in the Writ Petition, the date of warrant No. 10 is put as 27-9-1963 obviously by mistake) but the premises mentioned there are No. 24-1-13 Upstairs, Thomsan Street, Visakhapatnam.
( 4 ) IN pursuance of the warrant No. 9/63, the third respondent conducted search and took into his custody various articles and prepared a mahazar in the presence of panchayatdars. It mentions as follows:-"during the search of a steel almyrah (opened by Shri S. J. Malewar ). . . . . the Customs party recovered three quart bottles of beer and one opened part bottle, Spey Royal whisky the level of which has been marked by us and the bottle sealed. The bottles bear the following labels:- (1) Two quart bottles: Drummer, Best Indian Loger Beer, with original seals. (2) One quart bottle. . . . the cap bears the following: RACHMOND BREWERY HALSOUENE. (3) One flat bottle: Gilbye spey Royal scotch Whisky/ Shri S. J. Malleswar was unable to produce any permit in the possession of the abovesaid liquor, nor could he prove the legal importation of the foreign liquor. The said liquor has been seized by the customs party under this mahazar. . . . . "
( 5 ) THE 3rd respondent could not complete the search on 24-9-1963. He continued the search on 25-9-1963 and 26-9-1963. On 25-9-1963 he took into custody files which he described in a mahazar prepared that days. He also prepared a mahazar on 26-9-1963.
( 6 ) IN pursuance of the warrant No. 10/1963, the second respondent made a search of the premises mentioned in that warrant on 24-9-1963 and prepared a mahazar in which he showed 128 files which he took into custody.
( 7 ) SHRI D. Narsaraju, the learned advocate for the petitioner, has urged the following main contentions:- (1) Section 105 of the Customs Act (Central Act 52 of 1962) must be given a liberal interpretation in favour of the petitioner. (2) If S. 105 is interpreted liberally, the search and taking into custody of various articles is illegal because of (a) the foll
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