( 1 ) WE are unanimous on this Special Bench that the Rule' must be discharged.

( 2 ) SEARCH of a citizen's home and seizure of his books and documents without a warrant from any Court or Magistrate are, on this application, challenged as unconstitutional and illegal. Many sleeping lions, if not passions, are roused and the old forgotten war cries of the 18th Century legal battle of Entick v. Carrington (1765) 19 State Tr 1029, came roaring through the corridors of history to face the jaded jurisprudence of the 20th Century to find it unresponsive. Prized freedoms, newly won then, have now after two centuries, become too old to defend themselves.

( 3 ) THIS Reference to the Special Bench under Art. 226 of the Constitution of India read with the Original Side Rules for Special Bench (Chapter V, Rules 2 and 3 of the Original Side Rules) raises (1) the question of constitutional validity of Section 37 (2) of the Income-tax Act and (2) the question of the statutory legality of the steps taken under the same, section of the same Act. This application challenges the constitutional validity of the statutory powers of search and seizure under Section 37 (2) of the Income-tax Act.

( 4 ) SECTION 37 (2) of the Income-tax Act deals "with the powers of the Income-tax Authorities to enter and search any building or Place and to seize books of account and other documents. It will be necessary to set out the section whose constitutional validity has been challenged. Before doing so the facts may be briefly stated.

( 5 ) THE search relates to premises Nos. 57, 61 and 63/1, Harrison Road and also. premises No. 212, Cornwallis Street and 8/a, Beniatolla Lane. The search continued from 4th July, 1956. Certain books and papers were seized. It is against this search and seizure that the present application is directed. It is said that search and seizure were illegal and unconstitutional.

( 6 ) THE search was conducted both by the Customs as well as by the Income-tax authorities but it is the action of the Income-tax authorities which is under challenge in this application.

( 7 ) THE petitioners in this case are Messrs. Soorajmull Nagarmull. A short statement of the facts leading to the present search and seizure will be relevant for the determination of this Present application. In 1946-47 under the Taxation on Income (Investigation Commission) Act, the Income-tax cases of the petitioner firm and its partners were referred to the Income-tax Investigation Commission under Section 5 (1) of the said Act. It included what is known as 'soorajmull Nagarmull group of companies. After elaborate Proceedings a settlement was arrived at in the year 1951 between the Union of India and the firm of Soorajmull Nagarmull and its partners. The said settlement expressly made reference to concealed income and provided that -"in case any other item of concealed income not covered by this settlement or by the report of -the Commission made in connection therewith or by the report of the Authorised. Official comes to light in future, the Commission shall be free to report on the same and the Department shall be free to bring the same under assessment either upon such report or by proceedings taken under the ordinary Income-tax Law. "

( 8 ) THEREAFTER on the 27th January, 1955, notices were issued under Section 34 (1) (A) of the Indian Income-tax Act on Messrs. Soorajmull Na-garmull and its partners. These proceedings are pending relating to the assessment of Soorajmull Nagarmull and its partners under the Income-tax Act.

( 9 ) AS the attack is upon Section 37 (2) of the Income-tax Act both under the Constitution and on its statutory interpretation it will be desirable to set out in extenso this Particular section at this stage. Section 37 (2) of the Income-tax Act Provides as follows:-"subject to any rules made in this behalf, any Income-tax Officer specially authorised by the Commissioner in this behalf', may - (i) enter and search any buildi