Order.— 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. 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. It is claimed that it is open to the petitioner to move the Second Presidency Magistrate, under whose authority the documents have been seized for the return of the documents and that the writ jurisdiction of this Court cannot be invoked when other suitable remedies are open to the petitioner. It is further claimed that on or about 8th September, 1960, orders of the Third Presidency Magistrate were obtained for commencing and continuing the investigation into this case. It is accordingly contended that there is no defect of any description attaching to the proceedings which the police are seized of. It is further claimed that on or about 8th September, 1960, orders of the Third Presidency Magistrate were obtained for commencing and continuing the investigation into this case. It is accordingly contended that there is no defect of any description attaching to the proceedings which the police are seized of. It is unnecessary to canvass the other averments in the counter-affidavit except to mention that the respondent is prepared, and was prepared in the proceedings before the Second Presidency Magistrate to return the major portion of the documents still in his custody. The warrant issued by the Second Presidency Magistrate states: “Whereas information has been laid before me of the suspected commission of the offence of trafficking in import licences....and it has been made to appear to me that the production of the incriminating documents connected with the above offence is essential for the enquiry about to be made into the said offence......” It is common ground however that no enquiry was pending before the Magistrate and that the expression “ enquiry” found in the warrant really means “ investigation” into the said offence. The petitioner moved the Second Presidency Magistrate for certain copies of documents to be furnished to him, which were the information on which the search warrant was issued and the statement of any officer recorded by the Court before the issue of the search warrant. In the order of the Magistrate dated 8th September, 1960, in that regard, it is stated that when the Court was moved for the issue of a search warrant on the allegation that the petitioner was suspected of having committed certain offences under the Imports and Exports Control Act, the Inspector of Police, Special Police Establishments was examined on oath. The Magistrate stated: “From the materials placed before me, I found that there was reliable information that Agarwala had contravened the provisions of the Import Control Order and that the offence is punishable under the Imports and Exports Control Act. As such, I passed an order for issuing search warrants and accordingly search warrants were issued to search the premises and seize the incriminating documents connected with the offence from both the premises. As such, I passed an order for issuing search warrants and accordingly search warrants were issued to search the premises and seize the incriminating documents connected with the offence from both the premises. I had reason to believe that Agarwala would not produce the incriminating documents if summons were issued to him.” This was part of the order made by the Magistrate upon the petition filed by the petitioner seeking for certain copies. In the order dated 3rd September, 1960, preceding the issue of the search warrant, the learned Second Presidency Magistrate stated: “From the petition, the sworn statement and the report regarding the substance of information, it is seen that there is reliable information to show that Agarwala has contravened orders under the Imports Control Order punishable under section 5 of Imports and Exports Control Act, 1947. The records relating to the unlawful purchase of import licences are said to be in the premises mentioned in the petition. Agarwala is not likely to produce these documents if summons are issued since they incriminate him.” M. K. Nambiar for the petitioner contends that the search is illegal. The basis for this contention is that under section 6 of the Imports and Exports Control Act, no Court shall take cognizance of any offence punishable under section 5 except upon a complaint in writing made by an officer authorised in this behalf by the Central Government. Section 5 dealing with the penalty for offence under the Act, provides for imprisonment for a term which may extend up to one year or with fine or with both. Under Schedule 2 to the Code of Criminal Procedure, it is provided that in respect of offences punishable with imprisonment for one year and upwards but less than three years, the police shall not arrest without warrant. Such offence is a bailable one but not compoundable. Section 4 (f) of the Criminal Procedure Code defined a cognizable offence to mean an offence in respect of which a Police Officer may arrest even without a warrant. From these provisions, it is quite clear that an offence punishable under section 5 of the Imports and Exports Control Act is a non-cognizable offence. Mr. Section 4 (f) of the Criminal Procedure Code defined a cognizable offence to mean an offence in respect of which a Police Officer may arrest even without a warrant. From these provisions, it is quite clear that an offence punishable under section 5 of the Imports and Exports Control Act is a non-cognizable offence. Mr. Nambiar argues on the basis of section 6 of Imports and Exports Control Act that a duly authorised officer, which in the present case, would mean the Customs Collector, had not filed any complaint before the Magistrate, so that the Magistrate could not take cognizance of the offence. It is urged that the Magistrate cannot even order investigation into a non-cognizable offence until he takes cognizance of the offence in the manner provided by the law. If he had not taken cognizance of the offence, it is contended that any proceeding by the Magistrate whereunder he purports to issue a warrant for the search in connection with the alleged offence is illegal. To my mind there is a certain amount of confusion in so far as the scope of section 6 of the Imports and Exports Control Act is concerned. Section 6 only placed a bar upon the Court to take cognizance of any offence punishable under section 5 except upon a complaint in writing by an officer properly authorised. The taking of the cognizance for the purpose of section 6 is relevant only when the Magistrate proceeds with the enquiry or the trial of such offence. After stating that no Court shall take cognizance except in the manner indicated, the section proceeds to say: “and no Court inferior to that of a Presidency Magistrate or a Magistrate of the First Class shall try any such offence.” It seems to me to be clear that this provision relating to cognizance of offences only deals with the enquiry or the trial by the Magistrate and has no relevance whatsoever to a stage anterior thereto. This section imposes no bar whatsoever against the Magistrate from ordering a search. There is a clearly marked distinction between an investigation conducted by a Police Officer and an enquiry or trial held by a Magistrate. This section imposes no bar whatsoever against the Magistrate from ordering a search. There is a clearly marked distinction between an investigation conducted by a Police Officer and an enquiry or trial held by a Magistrate. In the present case, it is admitted that the matters had not reached the stage of enquiry or trial by a Magistrate and what all was being proceeded with by the Police Officers was an investigation into a suspected offence. The question however is whether the investigation in the present case in the course of which it is claimed the search was ordered was properly undertaken or whether it was vitiated for any reason whatsoever. Learned Counsel for the petitioner argues that the suspected offence being one of a non-cognizable nature, no investigation thereinto could have been undertaken without the permission of a Magistrate under section 155 (2), Criminal Procedure Code, and if an investigation cannot be lawfully undertaken it should follow that for the purpose of aiding that investigation the Magistrate is equally incompetent to issue a search warrant. The question is how far this contention can be accepted. Section 94 of the Criminal Procedure Code deals with the issue of summonses for the production of any document or other thing. Where any Court considers that the production of any document or other thing is necessary for the purposes of any investigation, trial or other proceedings under this Code by or before such Court or officer, such Court may issue summons. This provision accordingly contemplates the assistance of the Court by way of issue of summonses for the purpose of any investigation. Section 96 provides for the issue of a search warrant. The relevant part of that section is extracted below: “Where any Court has reason to believe that a person to whom a summons or order under section 94 has been or might be addressed will not or would not produce the document or thing as required by such summons........it can issue a search warrant.” Before the issue of the search warrant, what the Court has to be satisfied about is that a person is suspected to be in possession of a document or a thing and that the summons issued to that person for the production of the document or the thing was not likely to produce the document or the thing. On its being satisfied on these aspects, the Court is entitled to issue the search warrant. It will be noticed that section 94 enables the Court to issue summons when it considers that production of the document is necessary for the purposes of any investigation and where the Court believes that such a summons might not be complied with, it is competent under section 96 to issue the search warrant. The expression "for the purpose of any investigation" does not seem to refer only to a stage where an investigation has already been commenced. If the Police Officer receives information that an offence of a non-cognizable nature may be, has been committed, or is suspected to have been committed, is it open to him to ask for a search warrant or for the Court to grant one ? It is true that under section 155 (2), Criminal Procedure Code, no Police Officer shall investigate a non-cognizable case without the order of Magistrate. The short question then is whether it is necessary for the Police Officer to obtain the orders of the Magistrate for the investigation of the non-cognizable case before he can seek the assistance of the Magistrate under sections 94 and 96, as the case may be. In the present case, it is true that specific orders for the investigation of the alleged offence were not obtained till 8th September, 1960. So it is conceded in the counter-affidavit of the respondent. The search warrant was however issued on 3rd September, 1960. I have already expressed my view that it is unnecessary for the Magistrate to have taken cognizance of any offence or case before he can issue a search warrant. If under section 94 a Court can issue summons for the production of a document for the "purposes of investigation", that would be at a stage before any enquiry or trial. The Court does not take cognizance of an offence at the stage of investigation. That has been laid down in Gopaldas v. State of Assam1. In that case, a complaint was presented before the Additional District Magistrate, who forwarded it to the First Class Magistrate, for disposal. The First Class Magistrate directed the officer in charge of Gauhati Police Station to register a case, investigate and if warranted submit a charge-sheet. After investigation, a charge-sheet was laid. In that case, a complaint was presented before the Additional District Magistrate, who forwarded it to the First Class Magistrate, for disposal. The First Class Magistrate directed the officer in charge of Gauhati Police Station to register a case, investigate and if warranted submit a charge-sheet. After investigation, a charge-sheet was laid. It was contended before the High Court that the Magistrate acted without jurisdiction in directing the police to register a case and investigate it. This contention was dealt with by their Lordships of the Supreme Court. They pointed out that though the Magistrate was certainly empowered to take cognizance under section 190, Criminal Procedure Code, upon receiving a complaint, he however decided not to take cognizance but to send the complaint to the police for investigation as the offences complained of were cognizable offences. The Supreme Court pointed out that Chapter XVI of the Code would come into play only if the Magistrate had taken cognizance of the offence. If he took cognizance of the offence on the complaint filed before him, he was bound under section 200 and the succeeding sections to deal with the matter in a particular way. But if he did not take cognizance, he was not obliged to examine the complainant on the oath and the witnesses present. It was open to the Magistrate acting under section 156 (3) of the Code to direct the police to undertake an investigation. It is clear from the above that the mere fact that a complaint is presented to a Magistrate, even if it discloses the commission of a cognizable offence, does not result in the Magistrate taking cognizance of the offence then and there. It follows therefore that the failure of the Magistrate to take cognizance of the case does not prevent the Magistrate from directing investigation into the case and if the investigation into that case required that a search for any documents should be ordered, the Magistrate was fully competent to issue a warrant under section 96 of the Code. It follows therefore that the failure of the Magistrate to take cognizance of the case does not prevent the Magistrate from directing investigation into the case and if the investigation into that case required that a search for any documents should be ordered, the Magistrate was fully competent to issue a warrant under section 96 of the Code. The further contention however is that section 94 of the Code refers to investigation of an offence and that since under other provisions of the Code an investigation into a non-cognizable offence is incompetent except under the orders of the Magistrate section 96, which is complementary to section 94 would also be inapplicable in so far as the issue of a search warrant in connection with an investigation into a non-cognizable case is concerned. I am not satisfied with the validity of this argument. Section 96 to my mind is of far greater amplitude than section 94. I am generally in agreement however with the proposition that an investigation into a non-cognizable offence can be undertaken only on the orders of the Magistrate, a proposition which rests upon a provision in the Code itself. But I am unwilling to accede to the contention that the expression “for the purpose of any investigation” occurring in section 94 cannot deal with a stage anterior to the commencement of the investigation itself. It is easy to see that though some information might be conveyed to the Police Officer of the suspected commission of a non-cognizable offence whether or not to proceed with the investigation thereinto and obtain the orders of the Magistrate, would depend upon the material on the basis of which alone the Police Officer can accept the complaint at its face value. In the present case, the offence of trafficking in licenses was suspected on the basis of information received by the Police Officer. Except for the information, there was nothing which could form the starting point of an investigation in this case. Whether or not such an offence was committed, or even whether there was any basis for holding that such an offence had probably been committed would depend upon the scrutiny of the documents relating to licenses covering imports. Such documents were upon the information given to the Police Officers in the possession of the party who was suspected of having committed the offence. Such documents were upon the information given to the Police Officers in the possession of the party who was suspected of having committed the offence. It seems to me therefore that even for the purpose of commencing the investigation, it was necessary for the Police Officers to examine these documents and it is only after a scrutiny of the documents that the question of undertaking the investigation into the suspected offence could possibly arise. Where in such a case the Police Officer seeks the assistance of the Court to obtain possession of any documents, that is not part of the investigation into the offence. It is only for the purpose of enabling the investigation to be started that such a course has to be adopted. The argument of the learned Counsel if accepted would seek to interpret the expression “for the purpose of investigation” as “during an investigation.” That, to my mind, is not the correct meaning of that expression. Learned Counsel for the respondent has referred to Kalinga Tubes, Limited v. D. Suri1. In that case, a search warrant of a general nature had been issued. In that case also, the suspected offence was one of a non-cognizable nature, being one punishable under section 5 of the Imports and Exports Control Act. The learned Judges observed that the contention that a general search cannot be ordered before investigation under Chapter XIV of the Criminal Procedure Code had been commenced could not be accepted. They refer to the expression “for the purpose of” occurring in section 96, sub-section (2), clause (iii) and hold that it could not be construed as meaning “during the pendency of” an interpretation which accords with what I have stated above. Proceeding further they observe: “It is however contended that in any case since the Special Police Officer is not shown to have been authorised under section 6, Delhi Special Police Establishment Act, 1946, it cannot be predicated that the search is a link in the chain which is likely to lead to the stage of investigation or enquiry under the Criminal Procedure Code. This argument however cannot be sustained. It is true as admitted, that the stage at which the search warrants were issued was only a kind of preliminary investigation by the Special Police outside the Criminal Procedure Code. This argument however cannot be sustained. It is true as admitted, that the stage at which the search warrants were issued was only a kind of preliminary investigation by the Special Police outside the Criminal Procedure Code. But the fact cannot be ignored that the moment the Special Police Officer is able to gather all the materials a proceeding under the Criminal Procedure Code is bound to be initiated.” It seems to me that these observations support the view that I have taken that section 96 read with section 94 of the Criminal Procedure Code, does not prohibit the issue of warrants for search even at a stage prior to the commencement of the actual investigation into the suspected offence. The learned Judges also examined the contention that the issue of the search warrants was intended to aid a roving enquiry and that the Magistrate had not applied his judicial mind to all the requirements of section 96. I have already extracted the order of the Magistrate preceding the issue of the search warrant and though no doubt it was a general search that was ordered by the Magistrate, it was impossible in the circumstances for the Police Officer to specify any particular document as the one that was necessary. The learned Judges point out that while no doubt the issue of search warrants, whether of general nature or of a particular nature, must rest upon the strict requirements of the law, it is equally important in the interests of administration of justice that reasonable facilities for searches should be afforded to all public officers engaged in the discharge of their duties connected with investigation of suspected offences and that the duty of balancing these two conflicting considerations was vested by section 96 in the Magistrate. Whether or not in any particular case the Magistrate had applied his mind to this aspect of the matter had to be examined independently of the general question. In the present case, I am satisfied that the Magistrate had adequate reasons before him which justified the issue of a general search warrant. One of the grounds taken by the petitioner is that Article 19 (1) (f) of the Constitution has been infringed. This ground has however not been argued and in view of the order that I propose to make, it is not necessary to examine that contention. One of the grounds taken by the petitioner is that Article 19 (1) (f) of the Constitution has been infringed. This ground has however not been argued and in view of the order that I propose to make, it is not necessary to examine that contention. I may also point out that where a Magistrate on the basis of a statement on oath made before him by a Police Officer issues a search warrant in connection with or for the purpose of an investigation into an offence, even if such an offence is non-congnizable it can be that the issue of a search warrant itself indicates an implied order to investigate into the offence if such order should be necessary. The Magistrate was fully aware that the offence was a non-cognizable one. Even assuming that the search warrant was asked for the purpose of the commencement of the investigation, I am prepared to hold in the circumstances of the case that the Magistrate can be deemed to have ordered the investigation. In addition, it may also be pointed out that immediately following the search of the premises and on the production of the documents into Court after search and on the application of the Police Officer, a formal order directing investigation into the offence was made. For the reasons stated above, I am unable to agree that the investigation was without any authority or on that ground the issue of the search warrant should be declared to have been illegal. Notwithstanding the above conclusion, it seems to me that the further relief sought by the petitioner, viz., for the return of the documents seized, can be dealt with independently of the other question. Most of the documents seized from the petitioner appear to have been returned to him with the exception of a few. The search was made on 3rd September, 1960 and the documents were seized on that date. More than two years have passed and no step for bringing the matter to Court by way of laying a charge-sheet appears to have been taken. I am unable to see any justification for keeping back the documents of the petitioner for such an unconscionable lengthy period, when there is no indication that the matter is being further prosecuted by the Special Police Establishment. I am unable to see any justification for keeping back the documents of the petitioner for such an unconscionable lengthy period, when there is no indication that the matter is being further prosecuted by the Special Police Establishment. In M. P. Sharma and others v. District Magistrate of Delhi1, their Lordships, in dealing with Article 19 (1) (f) of the Constitution, pointed out that a search and seizure is only a temporary interference with the right to hold the property searched and the article seized and that the statutory recognition in this behalf conferred in section 96 of the Criminal Procedure Code is a necessary and reasonable restriction and cannot be considered to be unconstitutional. The constitutionality of the provision was rested on the basis that it was not a permanent deprivation of the property but was only a temporary interference with the right of enjoyment of the property and for the limited purpose of investigation. In the present case, more than two years have passed since the seizure of the documents and far from being a temporary dispossession, the retention of the documents by the Police Establishment has practically become permanent. Unless it is a case where the original documents themselves are necessary for being retained, on the ground that they are either forged documents or the like reasons, there should be no objection to the return of the documents to the party concerned. The reasons for such return are all the more imperative, because nothing has been stated even in the counter-affidavit to indicate that any stage of taking the matter to the Court is at all likely to be reached. It seems to me therefore that this is a proper case where a writ of mandamus should issue to the respondent directing the return of the documents still in his possession, but subject to the following conditions. The respondent will report to the Court which ordered the issue of the search warrants and satisfy that Court whether any particular document has to be retained in original for the purpose of investigation or trial, and unless the Court is satisfied in that regard and makes suitable orders for further retention of any particular document, the documents shall be returned to the petitioner within one month from today. The rule nisi will be made absolute subject to the condition indicated. The rule nisi will be made absolute subject to the condition indicated. In the circumstances of the case, there will be no order as to costs. V.S. ------------- Petition allowed. Rule made absolute.