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Karnataka High Court
HASTIMAL KOTHARI - Appellant
Versus
COMMERCIAL TAX OFFICER, (Int.) BANGALORE - Respondent
Decided On : 03-25-83
W.P. : 42181 of 1982
Search Warrant - Commercial Tax - Karnataka Sales Tax Act 1957 - S. 93 of the Criminal Procedure Code and S. 28 (2) of the Act
Fact of the Case:
A partnership firm engaged in the business of dealing in electrical goods challenged the search warrant issued by the Magistrate and the order of seizure made by the Commercial Tax Officer (CTO) under the Karnataka Sales Tax Act 1957. The petitioner sought a writ in the nature of mandamus to return the seized books and documents.
Finding of the Court:
The court examined the validity of the search warrant and the seizure, and rejected the petitioner's contentions. The court held that the search warrant and the seizure were valid, and the petitioner's challenges failed.
Issues: Validity of the search warrant, order of seizure, and retention of documents by the CTO under S. 28 (3) of the Act.
Ratio Decidendi: The court found that the search warrant and seizure were valid, and the challenges raised by the petitioner were rejected. The court also discussed the nature of power exercised by the next higher authority under S. 28 (3) of the Act and the requirement of communication of orders to the person from whom the documents were seized.
Final Decision: The writ petition was rejected with costs, and the High Court Government Pleader was permitted to file her Memo of appearance for the respondent within 15 days.
( 1 ) A partnership firm called 'vaishali traders' engaged in the business of dealing in electrical goods consisting of the petitioner as one of its partners is a registered dealer on the file of the Commercial Tax Officer, IV Circle, Bangalore under the Karnataka sales Tax Act 1957 (hereinafter re ferred to as the Act') The petitioner has his residence at No. 763 Mariswamy Mutt Lane, Cottonpet Cross, bangalore-53.
( 2 ) ON 10. 11. 1982 one Sri P. S. Chengappa working as Commrl. Tax Officer (Int.) i Bangalore (hereinafter referred to as 'the C. T. O. ') made an application in C. Mis. No. 19311982 before the metropolitan Magistrate II Court bangalore, under S. 93 of the Criminal procedure Code and S. 28 (2) of the act to issue a search warrant to search the residential premises of the petitioner and to seize the incriminating do cuments found therein relating to the firm. On an examination of that application the learned Magistrate made an order on the same day in these terms:"perused the application and I am satisfied with reasons. Hence issue search warrant to search the premises No. 763 (Old No. 108) belonging to Hastimal of Mariswamy Matada- galli Binny Mill, Bangalore for the purposes stated in the application. Report by 1. 12. 1982. "hastimal referred to in the order of the learned Magistrate is the petitioner in the case.
( 3 ) IN pursuance of the aforesaid order, the learned Magistrate issued a search warrant addressed to the CTO on that day which reads thus:"warrant to search after information of a particular offence. (See Sec. 93 ). To c. T. O. I, Bangalore City (Intelligence) (Name and designation of the police Officer or other person or persons who is or are to execute the warrant ). C. T. O. (Int.) I South Zone, Bangalore. Whereas information has been laid (Or complaint has been made) before me of the Commission (or suspected commission) of the offence of (mention of the offence concisely) US 93 Cr. P. C. and it has been made to appear to me that the production of (specify the thing clearly) residential premises of Hastimal is essential to the inquiry now being made or about to be made into the said offence (or suspected offence ). This is to authorise and require you to search for the said (the thing specified) residential premises of Hastimal in the (describe the house or place or part thereof to which the search is to be confined) Hastimal No. 76 3 (Old no. 108) Mariswamy Matadagal, binni Mill Road, Bangalore City for the purpose stated in the application, and if found to produce the same forthwith before this Court returning this warrant with an endorsement certifying what you have done Under it immediately upon its execution. Dated this 11th day of November 1982. Sd/ -. . . Metropolitan Magistrate, II Court bangalore City. "
( 4 ) ARMED with the search warrant issued by the Magistrate the CTO. accompanied by six other officers of the Department searched the residential premises of the petitioner on 11. 11. 82 from about 10. 15. A. M. to 11. 30 A M and seized certain account books and documents detailed in a mahazar drawn up thereto (Annexure-C) on that day. Ever since then, the C. T. O. has retained the seized account books and documents obtaining permission from his superior officer for the same. In this petition under Art. 226 of the constitution presented on 9. 12. 82, the petitioner has challenged the search warrant issued by the Magistrate (Annexure-A), the order of seizure made by the C. T. O. (Annexure-B) and has sought for a writ in the nature of mandamus to the C. T. O. to forthwith return the books and do cuments to him.
( 5 ) THE petitioner has challenged the search and seizure on a number of grounds, which will be noticed and dealt in due course.
( 6 ) IN his return, the respondent has justified the order of seizure made by the Magistrate, and the search and seizure effected by him. He has asserted that his action was bona fide and was for purpose of achieving the object of the A
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