JUDGMENT R.S. Pathak, J. - On September 8, 1970, the petitioner made an application for the cross-examination of the second respondent Rajendra Prasad Bhatt, S.T.O., on the counter-affidavit filed by him in reply to the writ petition. The application came on for hearing before us on October 16, 1970. After hearing learned counsel for the parties and considering the matter carefully we came to the view that Bhatt should be summoned for cross-examination, and as learned counsel for the parties were agreed that October 20, 1970 would be a convenient date for that purpose we made an order accordingly. Mr. R. M. Sahai, learned Standing Counsel for the first to fourth respondents, undertook to produce Bhatt, for cross-examination on that date. In our order we mentioned that the reasons, for making it would be pronounced later. We do so now. 2. The petitioner is a partner of M/s. Bharat Oil Co. and of M/s. Ajodhya Prasad and Sons. M/s. Bharat Oil Company is an agent of the Indian Oil Corporation for the distribution of its products, kerosene, high speed motor spirits and lubricants. M/s. Ajodhya Prasad and Sons are stockist of cement manufactured by Bharat Oversees Cement Co. 3. On October 14, 1969, the premises of the Budaun Branch of M/s. Bharat Oil Co. were raided by Rajendra Prasad Bhatt and an Assistant Sales Tax Officer, Sadiq Ali Khan. They were accompanied by a police force. The premises of the Ujhani Branch of M/s. Bharat Oil Co. were also raided. The premises of M/s. Ajodhya Prasad & Sons at Ujhani as well as the premises of the Bareilly branch of M/s. Bharat Oil Co., were similarly raided. A large number of account books and documents were seized and removed. The petitioner filed a writ petition, challenging the validity of the search and seizure, and prayed for the return of the books and documents. 4. The case of the petitioner in the writ petition is that there was no possible ground for the Sales Tax Officers conducting the raid to believe that the firms were trying to avade liability for tax, and that the entire raid was made at the instance of one, Sri Krishna Goel, a member of the U.P. Legislative Council, and resident of Ujhani, Budaun, who was hostile to the firms and was attempting to build up a rival business. It is alleged that out of malice and spite he got a complaint made against the firms and because of his political influence with the Government he was able to secure some orders for action against the firms, with the result that the second respondent, Rajendra Prasad Bhatt, Sales Tax Officer, the third respondent, Sadiq Ali Khan, Assistant Sales Tax Officer, and the fourth respondent, K. S. Pande, Deputy Supdt., Sales Tax Department made these raids, indiscriminately searched the business premises, invaded and searched the residence of the Munim and also molested his wife. It is also stated that the books and documents were removed, not because there could possibly be any evasion of tax but because the fifth respondent, Sri Krishna Goel wanted them for his own purposes to assist him in obtaining the dealership of the Indian Oil Corporation in which he had been unsuccessful so far. In short, therefore, the petitioner says that the search of the premises at different places and the seizure of the books and documents was mala fide and no grounds existed for taking action under Section 13 (3) of the U.P. Sales Tax Act. These form the principal grounds set out in the petition. 5. In reply to the writ petition, Rajendra Prasad Bhatt filed a counter affidavit dated January 5, 1970. The allegation that the search and seizure were motivated by mala fide is not admitted. Paragraph 9 of the counter-affidavit contains the following averment : "......... It is stated that a complaint was received against the petitioner's firm of evasion of Sales Tax. As a result of the complaint a raid way organised by the Sales Tax Officer (Special Investigation Branch), Bareilly Sri Rajendra Prasad Bhatt along with the Assistant Sales Tax Officer (Special Investigation Branch) - Sri Sadiq Ali Khan, and the Deputy Superintendent of Police, Sales Tax (Sri K.B. Pande) Special Investigation Branch, Bareilly." This averment is deposed to, not on the personal knowledge of the deponent Bhatt, but on a perusal of the record. On the other hand, we have paragraph 6 of the writ petition stating that "there could be no basis of evasion, suppression, avoidance or non-disclosure of any sales tax by the petitioner in view of the business carried on by the petitioner". This averment is supported by an Affidavit and is sworn to the personal knowledge of the deponent. 6. On the other hand, we have paragraph 6 of the writ petition stating that "there could be no basis of evasion, suppression, avoidance or non-disclosure of any sales tax by the petitioner in view of the business carried on by the petitioner". This averment is supported by an Affidavit and is sworn to the personal knowledge of the deponent. 6. Learned counsel for the petitioner has laid great emphasis on the need to cross-examine Bhatt for the purpose of showing that he did not have reasonable ground for believing that the firms were trying to evade liability for sales tax and for the purpose of demonstrating that the raids of the premises and the seizure of the books and documents were motivated by mala fides. The application has been vehemently opposed by Shri R. M. Sahai on behalf of the first to fourth respondents. He urges that this is not a case where the Court should exercise its discretion in favour of summoning Bhatt for cross-examination on his, counter-affidavit. 7. The real question in the case seems to us to be whether Bhatt had reasonable grounds for believing that M/s. Bharat Oil Company and M/s. Ajodhya Prasad and Sons were trying to evade sales tax liability. As we have already pointed out, the averment of the petitioner that there could possibly be no ground for coming to that belief is supported by an affidavit sworn to the personal knowledge of the petitioner. Paragraph 9 of the counter-affidavit is sworn by Bhatt on a perusal of the record. It is not disputed that it is Bhatt who took action under Section 13 (3) for the search of the premises of the firms and the seizure of the books and documents. Under the law, the Sales Tax Officer concerned has himself to form the opinion that there was reasonable ground for believing that the search and seizure was called for. Whether or not Bhatt had reasonable ground for so believing is a matter which lies essentially within his own personal knowledge. The averments in paragraph 9 of his counter-affidavit sworn by reference to the records do not appear to us to be sufficient. Whether or not Bhatt had reasonable ground for so believing is a matter which lies essentially within his own personal knowledge. The averments in paragraph 9 of his counter-affidavit sworn by reference to the records do not appear to us to be sufficient. We sent for the record maintained by the Sales Tax Department, and it appeared from that record that a complaint had been made in the vaguest terms by the fifth respondent, Shri Krishna Goel to the Commissioner of Sales Tax that the firms were attempting to evade sales tax and that proceedings should be taken against them., Upon this, it appears that the Commissioner of Sales Tax directed the Sales Tax Officer to proceed in the matter. It seems that the matter remained with the Sales Tax Department for some time, and, then the raids were made. So far as we could discover, there was nothing on the record to show that Bhatt had applied his mind to the question whether there was reasonable ground for believing that the firms were trying to evade liability for tax. There was also no such averment in paragraph 9 of the counter-affidavit. 8. In R.S. Seth Gopikishan Agarwal v. R.N. Sen, Assistant Collector of Customs and Central Excise, Raipur, A.I.R. 1967 S.C. 1298, the applicant there contended that Section 105 of the Customs Act, 1962 conferred an unguided and arbitrary power on the Assistant Collector of Customs to make a search, the only condition being that he had reason to believe in the facts mentioned therein. The Supreme Court rejected the plea and, observing that an abuse of the power could be controlled by other means, explained : "Though under the Section the Assistant Collector of Customs need not give the reasons if the existence of belief is questioned in any collateral proceedings he has to produce relevant evidence to sustain his belief." And in Barium Chemical Ltd. v. Company Law Board, A.I.R. 1967 S.C. 295, Hidayatullah, J. (as he then was) pointed out : "No doubt the formation of opinion is subjective but the existence of circumstances relevant to the inference as the sine qua non for action must be demonstrable. If the action is questioned on the ground that no circumstances leading to an inference of the kind contemplated, by the section exists, the action might be exposed to interference unless the existence of the circumstances is made out. As my brother Shelat has put it trenchantly : It is not reasonable to say that the clause permitted the Government to say that it has formed the opinion on circumstance.; which it thinks exist..........." Since the existence of "circumstances" is a condition fundamental to the making of an opinion, the existence of the circumstances, if questioned, has to be proved at least prima facie. It is not sufficient to assert that the circumstances exist and give no due to what they are because the circumstances must be such "as to lead to conclusions of certain definiteness." In his counter-affidavit, Bhatt has not fulfilled the requirements contemplated by the law. Beyond asserting that a complaint had been received against the petitioner, he has not disclosed any material which could be relevant for the purposes of search and seizure. In view of the apparently evasive attitude of this officer, and inasmuch as he is the best person who could have explained how he came to the reasonable belief that the firms were evading liability for sales tax, we have considered it right to summon him for cross-examination. 9. Section 13 (3), before its amendment by the U.P. Sales Tax (Amendment) Act, 1958 required the Commissioner of Sales Tax himself to form the opinion on reasonable grounds for believing that a dealer was trying to evade liability for sales tax and that a search and seizure were necessary. After the amendment the power and responsibility has been entrusted to an officer as junior as a Sales Tax Officer. The law does not require him to record his reasons in writing before carrying out the search. In the circumstances, it becomes all the more necessary for the court to ensure that the power is not exercised by the Sales Tax Officer on frivolous grounds and is not abused for ulterior purposes. In the present case, there is a serious allegation of mala fide and abuse of power. Out of several respondents, Bhatt alone has taken upon himself to deny the charge of mala fides. No one else has come forward to file a counter-affidavit. In the present case, there is a serious allegation of mala fide and abuse of power. Out of several respondents, Bhatt alone has taken upon himself to deny the charge of mala fides. No one else has come forward to file a counter-affidavit. In view of the vague and evasive character of his averments, it has become necessary to determine where the truth lies. 10. We may advert to what was laid down by the Supreme Court in Barium Chemicals Limited, A.I.R., 1967 S.C. 295: "In a petition under Art. 226, there is undoubtedly ample power in the High Court to order attendance of a deponent in Court for being cross-examined. Where it is not possible for the Court to arrive at a definite conclusion on account of there being affidavits on either side containing allegations and counter-allegations, it would not only be desirable but in the interest of justice, the duty also of the Court, to summon a deponent, for cross-examination in order to arrive at the truth. As. observed in A.P.R.S.T. Corporation v. Satyanarayan Transports (Private) Ltd. Guntur, A.I.R. 1965 S.C. 1303 at p. 1307, if the evidence led by the parties is tested by cross-examination, it becomes easier to determine where the truth lies." 11. Moreover, we must also bear in mind the possibility of the counter-affidavit of this officer being disbelieved after hearing learned counsel for the parties on the merits of the case. In Seth Brothers v. I.T. Officer, Meerut, A.I.R. 1965 Alld. 487, this Court declared a search and seizure under Section 132 of the Income Tax Act to be invalid and promoted by mala fides in the sense that there was an abuse of powers conferred on the Income-Tax Officer. The Supreme Court, on appeal, set aside the order of this Court, and its observations, as italicised by us, read as follows : "In appropriate cases a writ petition may be challenging the validity of the action on the ground of absence of power or on a plea that proceedings were taken maliciously or for a collateral purposes. But normally the High Court in such a case does not proceed to determine merely on affidavits important issues of fact especially where serious allegations of improper conduct are made against public servants .. .. .. .. .. .. .. But normally the High Court in such a case does not proceed to determine merely on affidavits important issues of fact especially where serious allegations of improper conduct are made against public servants .. .. .. .. .. .. .. If the learned Judges of the High Court were of the view that the question was one in respect of which an investigation should be made in a petition for the issue of a writ, they should' have directed evidence to be taken viva voce .. .. .. .." 12. We may point out that Shri R.M. Sahai, learned Standing Counsel, vigorously opposed the summoning of this officer for cross-examination, and indeed urged us that if the counter-affidavit was deficient in material respects we could allow the writ petition and grant all, the reliefs claimed by the petitioner. One received the definite impression that on no account was it proposed to submit Bhatt for cross-examination. Nevertheless, we consider that in the interest of truth and justice it is necessary that he should appear for cross-examination. We accordingly made the order to that effect. 13. Sri R.M. Sahai has referred us to a number of cases. He relies upon Jeta Lal v. State, A.I.R. 1967 Guj. 186. That is a case where the Gujarat High Court did not consider it appropriate to allow oral evidence to be led by the parties. The facts of that case are wholly distinguishable. The petitioner there proposed to prove his case in the petition by leading oral evidence. Apparently, it was not a case where there was an application for cross-examination by the deponent upon his affidavit. It was a case where the petitioner sought to supplement his affidavit by adducing oral testimony. 14. We were also referred to R. v. Stokelslev, (1956) 1 All E.R. 563, where the Queens' Bench while allowing the cross-examination of the deponent of an affidavit observed that the procedure should not afford an easy precedent. 15. Shri Sahai pointed out that in Barium Chemicals Limited, A.I.R., 1967 S.C. 295, the High Court had exercised its discretion against summoning the deponent of the affidavit for cross-examination in the view that no positive result could be expected by recourse to such action, and urged that we should also exercise our discretion accordingly. 15. Shri Sahai pointed out that in Barium Chemicals Limited, A.I.R., 1967 S.C. 295, the High Court had exercised its discretion against summoning the deponent of the affidavit for cross-examination in the view that no positive result could be expected by recourse to such action, and urged that we should also exercise our discretion accordingly. Upon the considerations arising in this case, to which we have adverted, we do not think that we would be acting in the interest of justice in doing so. 16. The respondents rely on the counter-affidavit of Rajendra Prasad Bhatt. For an effective adjudication of the dispute before us, he should be produced for cross-examination. 17. These are the reasons for our order dated October 16, 1970. Pathak, J.- The petitioner has applied under Art. 226 of the Constitution for a writ in the nature of mandamus directing the respondents, the Sales Tax Officer, the Assistant Sales Tax Officer and the Deputy Superintendent (sales Tax) of the Spl. Investigation Branch, Bareilly and the State of U.P. to return their account books and other documents. 2. The petitioner is a partner of Bharat Oil Co. and of Ayodhya Prasad and Sons. It appears that on October 14, 1969 the aforementioned officer of the Special Investigation Branch of the Sales Tax Department searched the premises of the Bharat Oil Co. situated at Ujhani, Budaun and Bareilly and of Ayodhya Prasad & Sons situated at Ujhani, and a number of account books and other documents were seized and removed. The petition is found on several grounds, one of them being that the provisions of Section 13 of the U.P. Sales Tax Act were not satisfied before and during the search and seizure, that there was no reasonable ground for believing that the partnership firms were trying to evade liability for tax or any other dues under the U.P. Sales Tax Act, and that the raid was made at the instance of Shri Krishna Goel, a member of the Legislative Council and resident of Ujhani who was hostile to the firms and was attempting to build up a rival business. A counter affidavit was filed by Rajendra Prasad Bhatt in reply to the writ petition. He is the Sales Tax Officer, Special Investigation Branch, who organised and conducted the search and is impleaded as the Second respondent. A counter affidavit was filed by Rajendra Prasad Bhatt in reply to the writ petition. He is the Sales Tax Officer, Special Investigation Branch, who organised and conducted the search and is impleaded as the Second respondent. An application was made by the petitioner for cross-examining him on his counter-affidavit. It was strenously opposed. The application was allowed by our order of October 16, 1970, and the reasons for our order set out on October 27, 1970. We have, while setting out those reasons, discussed at some length the law governing the summoning of the deponent of an affidavit for his cross-examination. An appeal was filed by the State of U.P. before the Supreme Court against our order of October 16, 1970, and it appears, the appeal was dismissed. Therefore, Bhatt was produced for cross-examination and his testimony was recorded. And now the case is before us for oral arguments. 3. The impression received from Bhatt's statement is that before deciding to search the premises he did not apply his mind to the question whether the dealer was trying to evade liability for tax or any other dues under the U.P. Sales Tax Act. It would seem, therefore, that the search and seizure proceedings were without jurisdiction. However, it is unnecessary to arrive at any final decision in the matter, because Shri R.M. Sahai, learned Standing Counsel appearing for the respondents, gives an undertaking that in case the account books and documents seized and removed from the premises of the partnership firms have not been returned to the firms they will be returned to the representative of those firms on December 18, 1970 on his presenting himself at the office of the Sales Tax Officer, Special Investigation Branch, Bareilly. The undertaking is accepted. In view of the undertaking, it is not necessary to consider the grant of relief sought by the petitioner. 4. The petition is dismissed. However, in the circumstances of the case, the petitioner is entitled to his costs, which we assess at Rs. 100/-.