Magistrate u/s 96 Cr.P.C. 1898 cannot issue search warrant.

This is a petition under Article 226 of the Constitution praying for the issue of a writ of mandamus or other appropriate writ to direct the respondent, the Superintendent of Police, Special Police Establishment, Madras, to return all the files seized upon search, after declaring the investigation to be illegal. On 3rd September, 1960, two Police Inspectors, working in the Special Police Establishment, Madras, armed with warrants issued by the Second Presidency Magistrate, Madras, made searches of the office and the residence of the petitioner. The warrant purported to authorise the Inspectors to search for incriminating documents in connection with the suspected commission by the petitioner of the offence of trafficking in import licences, punishable under section 5 of the Imports and Exports Control Act, 194.7. The petitioner claims that at no time before the search was any summons issued to him to produce any documents. The warrant authorising a general search without any reference to the seizure of particular documents is claimed to be improper. The officers who conducted the search made wholesale seizure of all the files and papers without even looking into the documents to see if the nature of the document had any relevance to whatever offence it was that they were investigating. The petitioner attacks the issue of the search warrants of such a general nature as based upon misrepresentations on the part of the Police Officers with a view to fish out evidence against the petitioner, and he attacks the bona fides of the officers in question and the obtaining of the warrants as a gross abuse of judicial process. The further contention advanced is that no complaint has been filed and that no Court authorised the investigation of any offence. It is urged that an offence under section 5 of the Imports and Exports Control Act is a non-cognizable offence, investigation into which has to be authorised by the previous sanction of a Magistrate. The failure to comply with section 155 of the Criminal Procedure Code, according to the petitioner, has rendered the investigation wholly illegal and the seizure of any documents in the course of such investigation is claimed to be also without jurisdiction. For these reasons, the petitioner prays that the investigation may be declared to be illegal and a writ issued to direct the respondent to return all the files seized from the petitioner.

On behalf of the respondent, it is contended that on receipt of reliable information that the petitioner was trafficking in import licences, an application was made to the Second Presidency Magistrate and warrants obtained, on 3rd September, 1960. On a search of the office and the residential premises, various documents were seized. Some of them are said to be of an incriminating nature. The documents were produced before the Magistrate, who issued the warrants and with the permission of the Magistrate, the documents were retained in the custody of the police for the purpose of investigation. In pursuance of the orders of the Court, some of the documents were returned to the petitioner and several of the licences recovered were also returned to the concerned parties under orders of the Court. Subsequently, the petitioner moved the Court for the return of the remaining documents. Except for a small number of documents which were required for completing the further investigation, the respondent was prepared to return the rest. But the petitioner sought for time to consult his headquarters at Calcutta. In the mean-time the present writ petition had been filed so that during the pendency of the writ petition, the respondent could not return the remaining documents.

The respondent further contends that the documents that were seized were required for the purpose of investigation and that no illegal act has been committed by the respondent and that no duty has been cast upon him to return the documents at this stage when the investigation is not complete