The provisions of Section 132 of the Income-tax Act cannot override the mandatory provisions of Section 110(2) of the Customs Act.

1. This is a petition under Articles 226 and 227 of the Constitution of India and is directed against the order of the income-tax department dated 10th May, 1972, passed under Section 132 of the Income-tax Act, 1961, and Rule 112(11) of the Income-tax Rules, 1962.

2. The relevant facts are simple. On the 23rd August, 1970, at about 5 a.m., the petitioner, Tarsem Kumar, was travelling in an Ambassador car No. DHA 561 alleged by him to be belonging to his brother, Satish Kumar, from Ambala to Batala. He was intercepted near the Beas river by the Customs officer and was forcibly taken along with the driver, Gurnam Singh, to the Customs House at Amritsar at 6 a.m. The petitioner was searched and so also his driver and the customs people took into possession Rs. 93,500 in Indian currency, 10 gold sovereigns and the car. On the 24th August, 1970, the petitioner was produced before a Duty Magistrate at Amritsar and was granted bail. In the meantime, the Customs department took proceedings under Section 110(2) and extended the period of issuing of the show-cause notice under Section 124 of the Customs Act, 1962 . These proceedings were challenged in this court in Civil Writ No. 1645 of 1971 and the order of the Custom authorities under Section 110(2) was quashed by Tuli J. by his order dated 24th April, 1972. Against this decision, two Letters Patent Appeals were preferred, one by Tarsem Kumar, petitioner, and the other by the Custom authorities. Both these appeals (L.P.A.S. Nos. 208 & 233 of 1972) have been dismissed by us to-day.

3. When the order of Tuli J. was psssed, the petitioner approached the Custom authorities for the return of the money and the car. The gold sovereigns were not claimed, because, according to the petitioner, they did not belong to him. This application was made to the Customs authorities on 11th May, 1972. The petitioner, according to him, was directed to come on the following day, i.e., 12th May, 1972, to get back the currency notes and the car. On the 12th May, 1972, the Income-tax Officer, B-Ward, Ambala Cantonment, served the warrant of authorisation, dated 10th May, 1972, obtained under Section 132 of the Income-tax Act, 1961, and Rule 112(11) of the Income-tax Rules, on the petitioner as well as on the Customs department, with the result that only the cash was taken possession of by the income-tax authorities. This led to the present petition by Tarsem Kumar.

4. The contention of the learned counsel for Tarsem Kumar is that the authorisation warrant is illegal, because the money was not in his possession and was in the possession of the Customs authorities. Therefore, no such warrant could be issued to get hold of the money under Section 132 of the Income-tax Act. The second contention, though not set up in the petition, is that the action taken by the income-tax authorities under Section 132 would militate or set at naught the provisions of Section 110(2) of the Customs Act. It is the validity of these contentions that we are called upon to determine.

5. So far as the first contention is concerned, the matter is not res integra. It is in fact concluded by the decision of this court in Commissioner of Income-tax v. Ramesh Chander, [1974] 93 I.T.R. 450, 478-79 (Punj.). The following observations in this case fully support the contention of the learned counsel :

"I have come to the conclusion that the search and seizure warrants issued under Sub-section (1) of Section 132 of the Income-tax Act were illegal, firstly, because the search and seizure warrants were issued in the name of Ramesh Chander and he was in fact not in possession of either the currency notes or account books, and, secondly, the income-tax authorities could not seize the currency notes and account books from the police officer who is duty bound to proceed with the case property in accordance with the provisions of the Code of Criminal Procedure."

6. In the present case, the cash was in the possession of the Customs authorities