A. K. SEN, J. ( 1 ) BEING aggrieved by an investigation now being conducted under Chapter XIV of the Code of Criminal Procedure (hereinafter referred to as the Code) by the Delhi Special Police Establishment of the Central Bureau of Investigation, New Delhi and a seizure made in course of such investigation between June 15, 1967 and June 18, 1967 at the Mill premises of the petitioner company at 42. Garden Reach Road, 24-Parganas, the petitioner moved this Court with a writ petition and obtained the above Rule. ( 2 ) THE facts relevant to the present dispute are as follows: petitioner, Kesoram Industries and Cotton Mills Limited was incorporated under the Indian Companies Act 1913 and is an existing Company within the meaning of Companies Act 1956. It has its registered office at 15, India Exchange Place and mill at 42, Garden Reach Road, P. S. Garden Reach, District 24-Parganas near Calcutta. On June 9, 1967 V. S. Naik, Assistant Collector (Appraising Division) Directorate of Revenue Intelligence, New Delhi lodged the following information with the Delhi Police Establishment at New Delhi. ( 3 ) SECRET report dated 9. 6. 1967 of Shri V. S. Naik, Assistant Collector (Appg. Division), Directorate of Revenue Intelligence, New Delhi forwarded to Shri G. Koruthu, Director of Revenue Intelligence, New Delhi to the Central Bureau of Investigation under his D. O. No. 1000/36/67 dated 9. 6. 67 to Shri D. Sen, I. P. S. , Special I. G. of Police Central Bureau of Investigation, New Delhi and received in this office today reads as follows: - ?the Directorate of Revenue Intelligence has been receiving information that serious fraud has been practiced during 1963-67 by the Managements of the following Birla Group of Textile Mills, namely: - 1. Mill of the Technological Institute of Textiles, Bhiwani Haryana. 2. M/s. Bhiwani Textile Mills, Bhiwani. 3. M/s. Birla Cotton Mills Ltd. , Delhi 4. M/s. New Swadeshi Mills of Ahmedabad Ltd. , Ahmedabad. 5. M/s. Manjushri Textiles, Ahmedabad. 6. M/s. Centrury Spinning and Manufacturing Co. Ltd. , Bombay 7. M/s. Jiyajirao Mills, Gwalior, and 8. Mill of the Technological Institute of Textiles, Bhiwani Haryana. 2. M/s. Bhiwani Textile Mills, Bhiwani. 3. M/s. Birla Cotton Mills Ltd. , Delhi 4. M/s. New Swadeshi Mills of Ahmedabad Ltd. , Ahmedabad. 5. M/s. Manjushri Textiles, Ahmedabad. 6. M/s. Centrury Spinning and Manufacturing Co. Ltd. , Bombay 7. M/s. Jiyajirao Mills, Gwalior, and 8. M/s. Keshoram Cotton and Industries Ltd. , Calcutta and proper payment of Excuse Duties has been evaded, and wrongful gain obtained by the party by adopting one more of the following methods: (a) By making dishonest misrepresentation of facts in the matter of submission of statements and returns and giving 'trade names' to clear cloth manufactured in the mills on payment of no duty or less duty than actually recoverable from the mills by the Government; (b) By contravening the previous of Cotton Textile (Control) Order and notifications issued by the Textile Commissioner under the said Order as well as the ESSENTIAL COMMODITIES ACT, 1955 and thereby causing heavy pecuniary loss to the Government in the shape of non-payment of proper excise duties. (c) By the management of the local units in agreement with certain textile officers and excise officials causing to be misdeclared dishonesty or fraudulently clothe manufactured in the mill and thereby causing loss of revenue to the Central Government. (d) That certain Excise Officials posted in the various units were obtaining pecuniary advantage for themselves and for the management at the cost of Government revenue by adopting corrupt, or illegal means, or by otherwise abusing their position as public servants: as the informations were piling up, a preliminary check in one unit of the mills, that is M/s. Technological Institute of Textiles, Bhiwani, Harayana, was made and it has come to notice that by giving false declaration either with or without connivance of textile and Excise Officers, the Mill had been able to clear cloth of different variety by paying normal duty when the amount of duty chargeable was much more, and huge loss has been caused to the Central Revenues. A few instances are given below: - (1) The mill has manufactured and cleared Shirting Cloth with trade name 'ladies Choice' which actually contains 53 reads and 50 picks as against 60 reeds and 44 picks declared. A few instances are given below: - (1) The mill has manufactured and cleared Shirting Cloth with trade name 'ladies Choice' which actually contains 53 reads and 50 picks as against 60 reeds and 44 picks declared. Since the incidence of duty on controlled categories of cloth (for which the reed pick difference should a minimum of 16) is less than the duty on the decontrolled categories, by this mis-declaration, the Mill was able to clear the cloth as a controlled variety, thereby evading duty to a considerable extent. (ii) The Mill has also manufactured and cleared Sarees of 3 to 4 meters lengths in contravention of the Textile Commissioner's Notification which prescribed a minimum length of 4. 15 meters. Such short length of Sarees have also been misdeclared as Controlled variety and excise duty has thereby been evaded to a considerable extent. (iii) The Mill has also manufactured and cleared Prints with specifications 22-28 counts 52-42 reed picks misdeclaration them as 22-28 counts 56-40 or 60-44 reed picks so as to make them eligible for clearance as controlled duty to a considerable extent. 3. As the information appears reliable and is found corroborated from the enquiry made and the extent of fraud being indulged by the various units is expected to be very huge, it is suggested that the Central Bureau of Investigation may be moved to take up these cases for regular investigation. Open enquiries into other units have not been made by this office as there is likelihood of the persons concerned becoming aware of the enquiry and destroying the material evidence. ? ( 4 ) ON receipt of such an information, S. R. Rattan, Superintendent of Police of the Central Bureau of Intelligence drew up a First Information Report of a case under sections 120b I. P. C. read with Section 420 I. P. C. , 7 ESSENTIAL COMMODITIES ACT, 1955 and 5 (2) of the PREVENTION OF CORRUPTION ACT, 1988 (Act II of 1947) and under sections 420 I. P. C. , 7 ESSENTIAL COMMODITIES ACT, 1955 and section 5 (2) of Act II of 1947. Such information was drawn up on June 13, 1967 and investigation was immediately taken up. ( 5 ) THE said Superintendent of Police thereupon immediately issued the following authorization in favour of Joginder Singh and/or R. N. Singh :- whereas a case RC No. 6/67/spe/fs-I/new Delhi dated 13. 6. Such information was drawn up on June 13, 1967 and investigation was immediately taken up. ( 5 ) THE said Superintendent of Police thereupon immediately issued the following authorization in favour of Joginder Singh and/or R. N. Singh :- whereas a case RC No. 6/67/spe/fs-I/new Delhi dated 13. 6. 67 u/ss 120b and 420 I. P. C. 7 ESSENTIAL COMMODITIES ACT, 1955 and 5 (2) of Act II of 1947 against M/s. Keshoram Cotton and Industries Ltd. , Calcutta, and others has been registered with the C. B. I. /spe/divn. 6. 67 u/ss 120b and 420 I. P. C. 7 ESSENTIAL COMMODITIES ACT, 1955 and 5 (2) of Act II of 1947 against M/s. Keshoram Cotton and Industries Ltd. , Calcutta, and others has been registered with the C. B. I. /spe/divn. /f. S - I, New Delhi on the allegations that serious fraud has been practiced by the said managements during 1963-1967 and proper payments of excise duties has been evaded, and wrongful gain obtained by adopting one or more of the following methods: - (A)by making dishonest misrepresentation of facts in the matter of submission of statements and returns and giving 'trade names' to clear cloth manufactured in the mills on payment of no duty or less duty then actually recoverable from the mills by the Government; (B)by contravening the provisions of the Cotton Textile (Control) Order and notifications issued by the Textile Commissioner under the said order as well as the ESSENTIAL COMMODITIES ACT, 1955 and thereby causing heavy pecuniary loss to the Government in the shape of non-payment of proper excise duties; (C)by the management of the local units in agreement with certain textile officers and excise officials causing to the misdeclared dishonestly or fraudulently cloth manufactured in the mill and thereby causing loss of revenue to the Central Government; (D)that certain excise officials posted in the various units were obtaining pecuniary advantage for themselves and for the management at the cost of Government revenue by adopting corrupt or illegal means, or by otherwise abusing their position as public servants; and whereas there are reasonable grounds to suspect that the documents/articles as detailed in the attached list, which are essential and vital for the purpose of investigation of the said case, are in the possession or under the control of the management or M/s. Keshoram Cotton and Industries Ltd. , Calcutta and whereas there are further reasonable grounds to suspect that the said management may not produce the said documents/articles otherwise than upon a search' and whereas delay is likely to result in the disappearance/destruction of the said documents/articles; and whereas I shall be engaged in supervising simultaneous searches in this case at Ahmedabad, Shri Tejinder Singh SPE/g. W. Calcutta and/or Shri R. N. Singh, Dy. S. P. , F. S.- I is hereby authorized and directed to conduct a search of the offices/premises of the said Mill and its management, and seize the said documents/articles and produce them before me. Sd/- S. K. Rattan, 13. 6. 67 superintendent of Police, Central Bureau of Investigation/spe/ divn. /f. S.- I, New Delhi-22. List of documents/articles to be seized in case RC No. 6/67/spe/fs-I/new Delhi U/ss 120b and 420 IPC 7 ESSENTIAL COMMODITIES ACT, 1955 and 5 (2) of Act II of 1947. 1. DOCUMENTS relating to the constitution of the company and its shareholders. 2. Records showing plant and machinery installed at the mills during the period from 1963 to date. 2. Minute Books of the company from 1963 to date. 3. Profit and Loss Account and balance sheets of the company from 1963 to date. 4. Files containing correspondence with the Textile Commissioner and his subordinate cognate offices from 1963 to date. 5. Records showing receipt of raw material e. g. cotton, yarn, etc. at the mills premises during the period from 1963 to date. 6. Records showing issue of raw materials to the various manufacturing units for the aforesaid period. 7. Stock books showing the stocks of finished goods for the period i. e. E. B. IV Register etc. 8. Records maintained at various manufacturing units regarding production of finished goods for the said period i. e. R. G. I. Register etc. 9. Files containing correspondence with Mills Head Office including all statements submitted regarding production. 10. Records showing disposal of raw materials and finished goods including sales invoices, sale contract books, etc. for the same period. 11. All returns/statements filed with the Textiles authorities, e. g. in forms C and D etc. for the period. 12. All similar returns/statements filed with the Central Excise authorities during the material period. 13. All returns statements filed with their Bankers towards hypothecation of stock. 14. Account books maintained e. g. cash books, ledgers, journal and vouchers for the above period. 15. All samples of controlled and decontrolled items manufactured like Sarees, Dyed and Printed Shirting, Bleaches and Dyed cloth etc. 16. Any other document/article having relevancy to the case manufacturing, stacking processes sale of finished goods or otherwise ancillary thereto. Sd/- S. K. Rattan, 13. 6. 67 superintendent of Police, CBI/spe/ divn. /f. S.- I, New Delhi-22. 15. All samples of controlled and decontrolled items manufactured like Sarees, Dyed and Printed Shirting, Bleaches and Dyed cloth etc. 16. Any other document/article having relevancy to the case manufacturing, stacking processes sale of finished goods or otherwise ancillary thereto. Sd/- S. K. Rattan, 13. 6. 67 superintendent of Police, CBI/spe/ divn. /f. S.- I, New Delhi-22. ( 6 ) ON the authorization as aforesaid the said Jaginder Singh and R. N. Singh along with an Inspector conducted a continuous search for four days at the petitioner's Mill premises at Garden Reach and seized a very large number of books, documents and other articles. ( 7 ) PETITIONER feels that such an investigation is unauthorized and the search and the indiscriminate and bulk seizure are illegal. Hence moving this Court under Article 226 of the Constitution, the petitioner is praying for an appropriate writ directing the respondents to withdraw, recall and cancel the investigation and return all papers, documents and articles seized. There is a further prayer for quashing the investigation now being held. The Rule is being contested by the Respondents and two separate affidavits have been filed by respondents 1 and 2 respectively. ( 8 ) MR. Dutt, appearing on behalf of the petitioner has first challenged the legality of the investigation on two grounds. He has first contended that the entire investigation is without jurisdiction as there is not factual basis for a cognizable case in the First Information Report which alone could have conferred jurisdiction on the police to investigate. According to him, offence, if any, made out in the First Information is one under the Central Excise and Salt Act, 1944 which could be investigated in accordance with that Act and the Rules framed thereunder and the present investigating authorities have not authority to hold any such investigation. Such information is again only against the Mill of the Technological Institute of Textiles, Bhiwani, Hariyana and not against the petitioner. Secondly it is contended by him that the investigation so far held being in violation of mandatory provisions of the code is illegal. ( 9 ) MR. Dutt has next challenged the search and the seizure on two fold grounds. Secondly it is contended by him that the investigation so far held being in violation of mandatory provisions of the code is illegal. ( 9 ) MR. Dutt has next challenged the search and the seizure on two fold grounds. According to him the search and the seizure are not lawful because (1) they are not made in due compliance with the requirements of section 165 of the Code and (2) they were not made bonafide and on due application of mind by respondents Nos. 1 to 3. ( 10 ) MR. Deb, appearing on behalf of the respondents has contested all these points raised by Mr. Dutt. I shall refer to the contentions of the learned Counsel for the parties more in details hereinafter when I shall consider each of the points raised by Mr. Dutt. ( 11 ) IN considering Mr. Dutt's challenge to the legality of the investigation and petitioner's prayer for quashing the investigation, it would be necessary for this Court to remember the very limited authority of this Court to interfere with an investigation under Chapter XIV of the Code by the police. Such limitation is well recognized on the authority of the decision of the Judicial Committee in the case of (13) King Emperor v. Khaza Nazir Ahammad (1944) 71 I. A. 203 which has been approved by the Supreme Court in the case of (29) State v. S. N. Basak A. I. R. 1963 S. C. 447. Mr. Dutt no doubt has strongly relied on an observation in the aforesaid decision of the Judicial Committee towards the close of the judgment wherein approving the decision in the case of (6) M. M. S. T. Chidambaram Chettiar v. Summugam Pillai A. I. R. 1938 Mad. 129, Judicial Committee observed : ?if no cognizable offence is disclosed, and still more if no offence of any kind is disclosed the police would have no authority to undertake an investigation. ? Mr. Dutt has also relied on the decision of the Supreme Court in the case of (25) S. N. Sharma v. Bipin Kumar Tiwari A. I. R. 1970 S. C. 786 wherein the Supreme Court observed that the High Court under Article 226 is entitled to quash a malafide investigation. Mr. ? Mr. Dutt has also relied on the decision of the Supreme Court in the case of (25) S. N. Sharma v. Bipin Kumar Tiwari A. I. R. 1970 S. C. 786 wherein the Supreme Court observed that the High Court under Article 226 is entitled to quash a malafide investigation. Mr. Dutt has asked me to extend the same principle in case of investigation being held illegally or without jurisdiction and on the authority of the aforesaid observations of the Judicial Committee to quash the investigation. I shall presently give reasons why I do not consider the investigation carried on in the present case by the respondents to be totally without jurisdiction and therefore it will not be necessary to consider or decide any abstract issue as to whether this Court under Article 226 should or should not quash an investigation carried on without jurisdiction. On the other hand if Mr. Dutt succeeds in establishing that in conducting the investigation any mandatory obligation under the law is not being fulfilled, this Court would certainly direct due compliance with the provision of law imposing the obligation. But all the same the approach should be strictly conservative and this Court never be too liberal in interfering with such an investigation. ( 12 ) THE first point raised by Mr. Dutt in contending that the investigation is without jurisdiction is on the ground that the First Information recorded under section 154 of the Code in the present case does not make out any cognizable offence which could confer any jurisdiction on the police to hold any investigation under Chapter XIV of the Code. Mr. Dutt contends that the First Information makes out no case of cognizable offence as there are no factual allegations to make out such an offence. According to Mr. Dutt the First Information Report indulges in certain generalities without any factual basis except in respect of one of the companies viz. Mill of the Technological Institute of Textiles, Bhiwani, Hariyana which again makes out, if any, an offence under section 9 of the Central Excise and Salt Act which cannot be investigated by the ordinary police. According to Mr. Dutt foundation must be laid on facts recorded in the First Information before the police can exercise their powers of investigation under Chapter XIV. For such requirement in law Mr. According to Mr. Dutt foundation must be laid on facts recorded in the First Information before the police can exercise their powers of investigation under Chapter XIV. For such requirement in law Mr. Dutt contends no difference should be made between a complaint on which the Magistrate takes cognizance and the First Information on which the police initiates an investigation. Mr. Dutt relies on three decisions of this Court in the cases of (19) Pulin Behari Das v. King Emperor 16 C. W. N. 1106; (15) Moni Mohan v. King Emperor 35 C. W. N. 673 and (27) Sukumar Chatterjee v. Mofizuddin Ahammad 25 C. W. N. 357. He also relies on a decision of the Lahore High Court in the case of (17) Mst. Naurati v. The Crown I. L. R. 6 Lahore 375. cases so relied on it should be pointed out that both in the case of Pulin Behari Das and Sukumar Chaterjee this Court was considering what should be the requirement of a complaint on which a Court can take cognizance. It is instructive to note that this Court pointed out in the case of Sukumar Chatterjee that definition of the term complaint does not require any statement of facts but read in the context of section 190 (1) (a) a mere repetition of the words of the section without any basis on factual allegations does not amount to a valid complaint on which cognizance could be taken. Similarly, in Pulin Behari Das's case Mr. Justice Mookherjee was considering whether any case of conspiracy had been made out in the complaint. It was held by him that a complaint which does not set out the fact which constitute the offence but merely states that certain persons have committed certain offences punishable under certain sections of certain enactments is no complaint. In that context it was observed:it is well settled that in accordance with the general rule in criminal prosecutions an indictment or information for conspiracy must contain a statement of facts relied upon as constituting the offence in ordinary and concise language with as much certainty as the nature of the case will admit. ( 13 ) SUCH is also the position with the decision of the Lahore High Court wherein the true requirement of a complaint on which cognizance could be taken by a Magistrate was being considered. ( 13 ) SUCH is also the position with the decision of the Lahore High Court wherein the true requirement of a complaint on which cognizance could be taken by a Magistrate was being considered. The decision in the case of Moni Mohan v. King Emperor was on a somewhat different point though it was observed that only that information would be the First Information which first indicates the commission of cognizable offence by what is therein stated and alleged by the informant. ( 14 ) GIVING due consideration to this contention of Mr. Dutt I am of the opinion that the principles inuntiated as above by this Court in the case of Pulin Behari Das and Sukumar Chatterjee and by the Lahore High Court in the case of Mst. Nourati in respect of complaints cannot be extended entirely in finding out the true elements of an information on which the police can acquire jurisdiction to investigate. It should be remembered that a Magistrate under section 190 (1) (a) takes cognizance then to proceed under Chapter XVI of the Code i. e. to examine the complainant and issue summons or dismiss the complaint if no case is made out or to direct a judicial enquiry. The proceeding so taken is materially different from an investigation under Chapter XIV of the Code which is essentially an enquiry6 to ascertain the truth or otherwise of the allegation and if found true to secure the evidence with reference to commission of an offence. Section 190 (1) (a) itself lays down that the cognizance can be taken of an offence upon receiving a complaint of facts which constitute such offence. Chapter XIV of the Code on the other hand provides for investigation which need not be confined to investigation in respect of cognizable offences. In section 155 (2) of the Code there is a bar to the police investigating a non-cognizable offence except on an order from the Magistrate. But that apart, the power of investigation is plenary. It is also a settled principle that in course of some investigation not being an investigation of a cognizable case, if the police comes across an information to suspect commission of a cognizable offence, they can switch over the investigation to one of a cognizable case. But that apart, the power of investigation is plenary. It is also a settled principle that in course of some investigation not being an investigation of a cognizable case, if the police comes across an information to suspect commission of a cognizable offence, they can switch over the investigation to one of a cognizable case. Reference may be made to the case of Moni Mohan v. King Emperor (supra) and (23) H. N. Rishbud v. State of Delhi A. I. R. 1955 S. C. 196. In my opinion, Mr. Deb, the learned Counsel for the respondents, is right in pointing out that under section 157 of the Code the power of investigation is widely different and is much too wide than the power of a Magistrate to take cognizance under section 190 (1) (a ). The difference arises out of the very difference in the nature of the powers exercised by the respective two authorities and their object. One should not forget a mere reason to suspect that a cognizable offence has been committed is sufficient to confer jurisdiction on the police to investigate whether such suspicion arises out of an information or otherwise. The Judicial Committee in the case of King Emperor v. Khaza Nazir Ahammad (supra) pointed out that section 154 of the Code was not enacted for the purpose of conferring jurisdiction to investigate and receipt and recording of an information are not conditions precedent to the setting in motion of a criminal investigation. Therefore I am of the view that even if the First Information Report suffers an infirmity of not containing factual allegations constituting a cognizable offence yet that would not debar a criminal investigation altogether and if the information furnishes reasonable grounds to suspect commission of a cognizable offence then there will be no legal bar to the police making an investigation under section 157 of the Code even if the information suffers the infirmity of not furnishing proper particulars of the facts constituting a cognizable offence. ( 15 ) NOW I proceed to consider the facts to find out whether there could be any foundation for a criminal investigation on the information lodged and secondly whether the information as lodged can be said to furnish any reasonable ground for a suspicion that a cognizable offence has been committed by the petitioner. I have set out the text of the information hereinbefore. I have set out the text of the information hereinbefore. When it was lodged with the Delhi Special Police Establishment what was entered in the column of offence is as follows:section 120b IPC read section 420 IPC Section 7, ESSENTIAL COMMODITIES ACT, 1955 and section 5 (2) of the Act II of 1947 and substantive offence under section 420 IPC Section 7, ESSENTIAL COMMODITIES ACT, 1955 and section 5 (2) Act II of 1947. I am in agreement with Mr. Dutt that the First Information was drawn up in a most unhappy and inappropriate manner. There is little foundation for the conspiracy in the information unless of course the conspiracy suggested is between the companies individually and the local excise officials for wrongful evasion of excise duties. There could be no case of an offence u/s. 420 IPC either as a substantive offence or read with section 120b because no element of cheating is even suggested. Mr. Dutt is equally right in his contention that the alleged fraudulent evasion of excise duty is an offence which could not have been investigated by the respondents. But at the same time in information indicates that in the process of evasion of excise duty the companies complained against are suspected to have submitted false declarations for passing out the products and such acts would constitute violation of statutory notifications issued by the Textile Commissioners and violation of Cotton Textiles Control Order, punishable under section 7 of the ESSENTIAL COMMODITIES ACT, 1955. Such an offence is undoubtedly cognizable. My attention has been drawn by Mr. Deb to a number of such notifications issued by the Textile Commissioner which are suspected to have been contravened by these companies in avoiding payment of excise duties. Secondly it has been pointed out by Mr. Deb that the information as lodged also suggests acceptance of illegal pecuniary advantage by Excise Officials aiding and abetting passing out of the products of these companies which will be an offence under section 5 (2) of the PREVENTION OF CORRUPTION ACT, 1988 1947 which is again cognizable offence. ( 16 ) MR. Deb that the information as lodged also suggests acceptance of illegal pecuniary advantage by Excise Officials aiding and abetting passing out of the products of these companies which will be an offence under section 5 (2) of the PREVENTION OF CORRUPTION ACT, 1988 1947 which is again cognizable offence. ( 16 ) MR. Dutt has not doubt contended that what has been set out in paragraph 1 of this information is a mere generality and is not an allegation against the companies other than the Mill of the Technological Institute, Bhiwani which would be apparent from paragraph 3 of the information which concludes by saying. Open enquiries into other units have not been made by this office as there is likelihood of the persons concerned becoming aware of the enquiry and destroying the material evidence. ? in my opinion it is true that there is a clear acknowledgement in paragraph 3 that allegations set out in paragraph 1 based on certain informations received by the directorate of Revenue Intelligence had not been verified in respect of companies other than the Mill of the Technological Institute of Textile Bhiwani, but then it cannot be said that it is such an information which cannot confer a reasonable ground for suspicion authorizing an investigation by the police. In this view I am unable to accept the contention of Mr. Dutt that the information as lodged with the Delhi Police Establishment is such that it could confer no jurisdiction for holding an investigation under Chapter XIV of the Code. ( 17 ) MR. Dutt has next challenged the investigation on the ground that it is being held in violation of the mandatory provisions of the Code and as such is liable to be set aside. He has contended that under section 157 of the Code respondent No. 1 could not have started the investigation unless he had submitted a report to a Magistrate empowered to take cognizance of such offence upon a police report as done in the present case. Section 157 no doubt provides that if from information received or otherwise an officer in charge of a police station has reason to suspect the commission of an offence which he is empowered to investigate he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of an offence upon a police report and shall proceed to investigate. Now in the present case what the respondent No. 1 did was to send a copy of the First Information Report to the Special Judge at Delhi and then authorize respondents 2 and 3 to come over to West Bengal and conduct the search and seizure. Respondents 2 and 3 in their turn conducted the search and the seizure from 15. 6. 67 to 18. 6. 67 and after the conclusion of the search send a report to the Magistrate at Alipore on 198. 6. 67 (which was received by the Magistrate on 20. 6. 67) ostensibly under section 165 (5) of the Code. There is no dispute that this is the only procedure adopted by the respondents in conducting the investigation so far held and in making the search and the seizure indourse of such investigation. Mr. Dutt has contended that such report is not a report to a Magistrate empowered to take cognizance of the offence against the petitioner company upon a police report. Mr. Dutt has next contended that the obligation to make such a report is mandatory under section 157 of the Code and non compliance thereof makes the investigation illegal. Reliance is placed on the decision of the Judicial Committee in the case of (16) Nazir Ahammad v. King Emperor 63 I. A. 372 which is approved by the Supreme Court in the case of (31) State of U. P. v. Shinghara Singh A. I. R. 1964 S. C. 358. Reliance is also placed on the Supreme Court decision in the case of H. N. Rishbud v. State of Delhi A. I. R. 1955 S. C. 196 and the decision of the Bombay High Court in the case of (20) Ramnijumal v. The State A. I. R. 1958 Bom. 125. The decision of the Judicial Committee in Nazir Ahammad's case as approved by the Supreme Court only enunciates the well settled principle that where a power is given to do a certain thing in a certain way the thing must be done in that way to the exclusion of all other methods of performance or not at all. In the case of H. N. Rishbud (supra) the Supreme Court declared that investigation in contravention of section 5 (4) of the PREVENTION OF CORRUPTION ACT, 1988 1947 must be considered to be an illegal investigation. In the case of H. N. Rishbud (supra) the Supreme Court declared that investigation in contravention of section 5 (4) of the PREVENTION OF CORRUPTION ACT, 1988 1947 must be considered to be an illegal investigation. But it should be remembered that in spite of such illegality the Supreme Court held that such illegality in the investigation would not vitiate the trial or the resultant conviction. ( 18 ) IN meeting this contention Mr. Deb, appearing on behalf of the respondents, has contended that the obligation cast by section 157 of the Code is not mandatory so that non-compliance thereof would not render the investigation illegal. Mr. Deb has next contended that sending a copy of the First Information Report to the Special Judge at Delhi in due compliance that section 157 of the Code as the offence made out includes an offence of conspiracy at Delhi. Alternatively it is suggested by Mr. Deb that the report that was submitted to the Magistrate at Alipore on the conclusion of the search and the seizure must be considered to be substantial compliance with section 157. I am, however, unable to accept the submission of Mr. Deb that sending a copy of the First Information Report to the Special Judge at Delhi can be said to be due compliance with the obligation under Section 157 of the Code. The First Information Report as recorded has not suggested or made out any case of conspiracy as amongst the different companies and there is no case of conspiracy being entered into at Delhi by the petitioner company. Therefore, in my view, the Special Judge at Delhi can be no substitute for a Magistrate contemplated by section 157 of the Code. Nor am I inclined to accept the submission of Mr. Deb that filing of a report under Section 165 (5) of the Code by respondents 2 and 3 before the Magistrate at Alipore after the conclusions of the search and the seizure can be said to be a substantial compliance with section 157 of the Code. In my opinion it was necessary for respondent No. 1 to make a formal report under section 157 of the Code to the Magistrate at Alipore when he started the investigation as against the petitioner but this was never done. In my opinion it was necessary for respondent No. 1 to make a formal report under section 157 of the Code to the Magistrate at Alipore when he started the investigation as against the petitioner but this was never done. ( 19 ) THE other question as to whether the provision for making a report to a Magistrate in section 157 of the Code is or is not mandatory is of some importance. While according to Mr. Dutt on the scheme of sections 157, 158 and 159 of the Code making of such a report is obligatory, Mr. Deb contends that when the officer in charge has his independent power of investigation irrespective of any authorization or order of the Magistrate it is merely thereof is a merely irregularity not affecting the investigation. Mr. Deb contends that where the officer in charge goes on to investigate a cognizable case the Magistrate to whom the report is to be submitted under section 157 of the Code has no supervisory control over the investigation, hence failure to make a report may result in no consequence. In my opinion, however, whether the requirement in this respect of section 157 of the Code is mandatory or not is not entirely dependent on the question whether an authorization or order from a Magistrate is necessary for investigation. It is not obligatory for the officer in charge to investigate and he may in exercise of his discretion refuse to make an investigation. Section 158 of the Code again provides that the report to be made to a Magistrate under section 157 of the Code is to be submitted through the superior officer and such superior officer may give such instruction to the officer in charge as he thinks fit. Under Section 159 of the Code the Magistrate on receipt of the report made under section 157 of the Code may direct an investigation or himself hold a preliminary enquiry. Code contemplates that the Magistrate empowered to take cognizance of the cognizable offence should be kept aware of a report of such an offence made to the police. The Code further contemplates that in case of refusal or neglect in the matter of investigation by the police the Magistrate may intervene. If no report is made to the Magistrate then these steps contemplated by the Code cannot be taken at all. The Code further contemplates that in case of refusal or neglect in the matter of investigation by the police the Magistrate may intervene. If no report is made to the Magistrate then these steps contemplated by the Code cannot be taken at all. Therefore I am unable to accept the suggestion of Mr. Deb that the provision for making a report to a Magistrate under section 157 of the Code is so directory that its non-compliance may very well be overlooked. That apart, though the officer in charge might have independent powers of investigation in respect of a cognizable offence yet on the provision of section 158 of the Code. I am unable to hold that when making such an investigation such a police officer is not subject to any supervisory control. In my opinion the very requirement to make a report to the Magistrate by itself is an important check against any abuse or neglect. Incidentally I should point out that even if I accept the contention of Mr. Deb that the requirement to make a report under section 157 of the Code to a Magistrate is a directory provision yet there is no sanction in law to override the provision and refuse to comply with the obligation thereunder because even directory provisions are required to be substantially complied with. Unfortunately, however, in the present case it was not complied with at all. It is no doubt a settled principle that infringement of such a provision would not invalidate any subsequent trial or conviction based on such an investigation unless the same had affected the merits. But that, in my opinion, is for other reasons and for that reason it would not be correct for this Court to overlook such non compliance even at the stage of investigation when brought to its notice. In my considered opinion the provision in this respect in section 157 of the Code is not obligatory that it merits enforcement at the stage of investigation. Therefore it not being a condition precedent to acquiring jurisdiction to investigate, its non-compliance would not render the investigation without jurisdiction but nonetheless the petitioner is entitled to a mandate directing the respondents to comply with it in conducting the investigation. ( 20 ) NEXT I proceed to consider Mr. Therefore it not being a condition precedent to acquiring jurisdiction to investigate, its non-compliance would not render the investigation without jurisdiction but nonetheless the petitioner is entitled to a mandate directing the respondents to comply with it in conducting the investigation. ( 20 ) NEXT I proceed to consider Mr. Dutt's challenge to the search and seizure as made on the dates from June 15 to 18, 1967 by respondents Nos. 2 and 3 on the authorization of respondent No. 1 dated June 13, 1967. According to Mr. Dutt such search and seizure are illegal. Search as made is illegal according to him firstly because it was not made on the basis of any reasonable grounds of belief as contemplated under section 165 (1) of the Code. Secondly it is claimed to be illegal because the search as conducted was in the nature of a general search and was not in respect of any particular thing necessary for the purpose of investigation specified as such in writing. Thirdly the search the said to be illegal as there was no compliance with section 165 (5) of the Code. To support this contention of Mr. Dutt has submitted that law has not invested any absolute or arbitrary power of search or seizure with a Police Officer. Certain preconditions have been provided for in section 165 (1) of the Code and if those conditions are not fulfilled then the resultant search or seizure would not be in accordance with law. Mr. Dutt has relied on the three decisions of the Supreme Court in the case of (4) Calcutta Discount Company v. Income-Tax Officer, A. I. R. 1969 S. C. 372, (1) Barium Limited Company v. Company Law Board, A. I. R. 1967 S. C. 295 and (22) Rotas Industries Ltd. v. S. D. Agarwalla, 1969 S. C. 707 as also an unreported Bench decision of this Court in Appeal No. 280 of 1970 in the case of (12) Hindusthan Motor Ltd. v. T. N. Kaul in contending that where power to be exercised is subject to certain preconditions as in section 165 (1) of the Code and such conditions must be fulfilled and where one of the preconditions is reasonable ground for belief with reference to objective considerations set out in the section itself, the grounds are justiciable though to a limited extent viz. that the same must be established to exist and the considerations are relevant. Relying on this principle and because of the infirmities referred to hereinbefore as claimed by him he has contended that the search and seizure are illegal and as such are liable to be set aside and the seized articles are liable to be returned to the petitioner. ( 21 ) MR. Deb on the other hand, has contended that the Police Officer's authority or the jurisdiction to make a search is not dependent on fulfillment of the conditions set out in section 165 (1) of the Code. He has further contended that on facts there has been substantial compliance with provisions of section 165 of the Code so that there is no real illegality in the search and seizure. Lastly Mr. Deb has contended in the alternative that even if it be assumed that the search as made is in contravention of section 165 of the Code that would not vitiate the seizure and as such this Court should not direct return of the articles seized. ( 22 ) IT is not possible to accept the suggestion of Mr. Deb that Police Officer's authority or jurisdiction to make a search is not dependent on fulfillment of the conditions specified in section 165 (1) of the Code. Section 165 (1) is on following terms: 165 (1) ?where an officer in charge of a police station or a police officer making an investigation has reasonable grounds for believing that anything necessary for the purposes of an investigation into any offence which he is authorized to investigate may be found in any place within the limits of the police station of which he is in charge, or to which he is attached, and that such thing cannot in his opinion be otherwise obtained without undue delay, such officer may, after recording in writing the grounds of his belief and specifying in such writing, so far as possible, the thing for which search is to be made, search or cause search to be made, for such thing in any place within the limits of such station. ? ( 23 ) FORMATION of the belief must be the foundation for proceeding to search as otherwise the power to search would be an arbitrary power not contemplated by the Code. ? ( 23 ) FORMATION of the belief must be the foundation for proceeding to search as otherwise the power to search would be an arbitrary power not contemplated by the Code. This provision contemplates that the Police Officer must have reasonable ground to believe that a particular thing having relevance to the offence under investigation may be found at the particular place to be searched and that such a thing in his opinion cannot otherwise be obtained without undue delay. Based on consideration of primary when the Police Officer arrives at such a belief, that he acquires the authority to search. Recording of such reasons in writing may be the procedural part but formation of the belief is a part of the jurisdictional fact. Such is the view adopted by the Appeal Court in the case of Hindusthan Motors v. T. N. Kaul (supra) while considering a parallel provision in section 19d of Foreign Exchange Regulation Act. ( 24 ) IN considering the respective arguments in the light of the above principles, let me now consider the facts. Compliance of the first part of section 165 (1) if any, is to be found in the authorization of respondent No. 1 dated June 13, 1967. I have set out the authorization hereinbefore. It first refers in short to the allegations of fraud against the companies as in the first information report and then it goes into say as follows:whereas there are reasonable grounds to suspect that documents articles as detailed in the attached list, which essential and vital for the purpose of investigation of the said case are in possession or under the control of the management of Messrs. Kesoram Cotton and Industries Ltd. , Calcutta and; whereas there are further reasonable grounds to suspect that the said management may not produce the documents/article otherwise than upon a search and; whereas delay is likely to result in disappearance/destruction of the said documents/articles, the respondent goes on to authorize respondents Nos. 2 and 3 to conduct the search as he himself would remain engage in supervising simultaneous searches at Ahmedabad. The attached list of documents/articles has also been set on hereinbefore. ( 25 ) THERE is no dispute that respondents Nos. 2 and 3 over from Delhi with this authorization and straightway initiated the search on June 15, 1967 at the petitioner's Mill at Garden Reach within the district of 24-Parganas. The attached list of documents/articles has also been set on hereinbefore. ( 25 ) THERE is no dispute that respondents Nos. 2 and 3 over from Delhi with this authorization and straightway initiated the search on June 15, 1967 at the petitioner's Mill at Garden Reach within the district of 24-Parganas. Such search was carried from day to day until June 18, 1967 in course of which the respondents Nos. 2 and 3 seized a lot of documents and articles the seizure list whereof runs from pages 47 to 136 of the Court's brief. It is only after the search and seizure were so completed that the respondents Nos. 2 and 3 forwarded on June 19, 1967 a copy of the authorization along with the seizure list to the learned Magistrate at Alipore District 24 Parganas. These are the undisputed facts. ( 26 ) ON these facts Mr. Dutt has strongly contended that respondent No. 1 could not have directed or conducted a search merely on a suspicion as he has done in the present case. Mr. Dutt has naturally distinguished the concept of ?reason to believe? from ?cause to suspect? and has contended that when the respondent No. 1 could have made the search only on the existence of reasonable grounds for brief as in section 165 of the Code he could not have done so merely on grounds to suspect. Mr. Deb on the other hand, has contended that on the meaning of the term ?suspect? or ?suspicion? as in Oxford English Dictionary there is no real difference between 'suspicion' and 'belief' and in any event, he has contended that reading this authorization along with first information report I should consider that what respondent No. 1 really meant was reasonable grounds for belief though he expressed himself not in too happy a manner. I am, however, unable to accept this contention of Mr. Deb. The expression ?reasonable grounds to believe? or ?reasons to believe? or ?cause to suspect? or ?grounds to suspect? are well recognized expression having particular implications of their own. It would not be proper for me to read the authorization not to mean what it says but in the manner suggested by Mr. Deb. Deb. The expression ?reasonable grounds to believe? or ?reasons to believe? or ?cause to suspect? or ?grounds to suspect? are well recognized expression having particular implications of their own. It would not be proper for me to read the authorization not to mean what it says but in the manner suggested by Mr. Deb. That would not be a correct approach; on the other hand, I would expect that an officer of the responsibility and status of respondent No. 1 must have known are true distinction between the concept of 'belief' and 'suspicion' so that when he directed the search on mere grounds of suspicion he did so either without any application of his mind or truly on suspicion and not on belief. Further such was the mechanical manner in which respondent No. 1 was proceeding that it is difficult to agree with the submission of Mr. Deb that the defect was only in the language and expression and not in the substance. This would be established from the findings made hereinafter. Mr. Dutt has rightly pointed out the decision of this Court in the case of (33) B. Walvekar v. King Emperor 30 C. W. N. 773, in pointing out that the expression 'reason to belief' is quite different from the expression 'cause to suspect'. Former always connotes a great deal more than what is conveyed by the latter. In coming to belief one is expected to bring his judicial mind to bear upon the question which however is not needed in the case of suspicion. Mr. Dutt has also relied on a Bench decision of Bombay High Court in Civil Application No. 1198 of 1967 disposed of on 13. 10. 67 in the case of (18) New Swadeshi Mills, Ahmedabad v. S. K. Rattan considering the effect of the very same authorization which is now under consideration. The said decision fully supports this contention of Mr. Dutt. 10. 67 in the case of (18) New Swadeshi Mills, Ahmedabad v. S. K. Rattan considering the effect of the very same authorization which is now under consideration. The said decision fully supports this contention of Mr. Dutt. Furthermore as found earlier some of the officers specified in the column of offences are not made out at all by the information and some could not be investigated by respondent No. 1; documents enumerated in the authorization are in widest terms some having no relevance to the offences and the relevance of others not being made out at all with reference to any particular offence; and lastly on my findings made hereinafter most of the documents are such that these could be no ground for belief that the same may be destroyed or caused to be disappeared believing the suspicion which led to the search. These circumstances lead to the only conclusion that respondent No. 1 never formed any bonafide opinion as required by section 165 (1) of the Code and the search was therefore without jurisdiction. ( 27 ) INCIDENTALLY it must be said that there is also great substance in the contention of Mr. Dutt that the obligation under the first part of section 165 (1) of the Code is not discharged by simply reciting the language of the section. When the section provides objective considerations for the belief and further provides that the grounds for such belief must be set out in writing, it would, in my opinion, be no compliance with the provision if the police officer merely quotes the language of section 165 (1) and then proceed to conduct the search. The reasons so set out must indicate the nature of the thing and its relation to the investigation and unless there is some factual foundation for the reasons given mere recital of the language of section 165 (1) would defeat the very object of the provision in respect. Reference may be made to the decision of the Supreme Court in the case of (7) Collector of Monghyr and Others v. Keshav Prosad Goenka and Others, A. I. R. (1962) S. C. 1964. Judged from this aspect even if I read the authorization by substituting the word 'belief' for the word 'suspect' that would not cure the defect. ( 28 ) THE next part of Mr. Dutt's objection is equally sound. Judged from this aspect even if I read the authorization by substituting the word 'belief' for the word 'suspect' that would not cure the defect. ( 28 ) THE next part of Mr. Dutt's objection is equally sound. Section 165 (1) of the Code unlike section 96 (3) does not contemplate any general search. On the scheme of the provisions of the Code of Criminal Procedure in respect of search and seizure it should be noted that search without a warrant from the Magistrate is not ordinarily contemplated. But is authorized only in the particular circumstances set out in section 165 (1 ). The text of section 165 (1) makes it quite explicit that it is not a provision for a general search. It is search for a particular thing which would be necessary for the purpose of investigation and which should be specified in writing as far as possible at the time when the search is taken up. Indeed, in the present case there was sham compliance with this requirement of law as enjoined by section 165 (1 ). No doubt the authorization refers to the attached list of documents/articles. The list sets out documents in the widest terms and concludes by referring to ?all samples of controlled and decontrolled items manufactured like sarees dried and printed shirting Bleched and dyed cloth etc. ? and ?any other document/article having relevance to the case manufacturing, stacking, processes, sale of finished goods or otherwise ancillary thereto. ? The authorization read along with the list leaves a clear impression that respondent No. 1 directed a roving search of the nature of a general search to find out any article or document supposed to be connected with the alleged offence. This is neither within the sanction of section 165 (1) nor its it due compliance with the requirement of specifying in writing the thing necessary for the purpose of investigation for recovery of which the search is to be made. Mr. Deb laid strong emphasis on the decision of the Supreme Court in the case of (8) Durga Prosad v. Gomes A. I. R. (1966) S. C. 1209 in contending that an authorization of like nature as in the present case can be a valid foundation for a search and a seizure in accordance with law. The decision relied on by Mr. The decision relied on by Mr. Deb, however, was the case of a search and seizure made under section 105 of the Customs Act which according to the Supreme Court authorizes a general search. Hence such a search cannot be equates with a search under section 165 (1) of the Code. The Supreme Court had in a later decision in the case of (11) Gopi Kissen v. Assistant Collector of Customs A. I. R. (1967) S. C. 1208 pointed out the distinction between section 105 of the Customs Act and section 165 of the Code of Criminal Procedure when it was pointed out that the two provisions deal with totally different situations. In that view I am of the opinion that the decision of the Supreme Court in Durga Prosad's case can be authority for a proposition that a search under section 165 (1) of the Code can be conducted without specifying the thing in particular to be searched for in writing or that such a search can be conducted on a wide and indefinite specification of such articles as in the present case. To this extent also, therefore, the search was not in compliance with section 165 (1) of the Code. ( 29 ) NEXT it is contended by Mr. Dutt that section 165 (5) requires that the copies of the record made under sub-section (1) and sub-section (3) shall forthwith be sent to the learned Magistrate empowered to take cognizance of the offence. According to him the respondents paid scant respect for this provision when they considered it unnecessary to make any such report to the Magistrate at Alipore during the entire course of the search conducted for four days. Mr. Deb, on the other hand, has contended that sending such copies is not a condition precedent to the holding of the search and when as in the present case the searching officers forwarded a copy of the authorization along with the search list to the learned Magistrate at Alipore after the completion of the search it must be held that there has been a substantial compliance with section 165 (5) of the Code. I may agree with Mr. Deb that sending such records is not a condition precedent to the holding of the search but I am unable to agree with him that there had been any substantial compliance with the requirements of section 165 (5 ). I may agree with Mr. Deb that sending such records is not a condition precedent to the holding of the search but I am unable to agree with him that there had been any substantial compliance with the requirements of section 165 (5 ). Whether the compliance is substantial or nor must be judged looking at the substance in the light of the implications of the provision itself. As I have pointed out earlier, search by a police officer without a warrant from the Magistrate is not normally favoured on the scheme of the Code of Criminal Procedure. What is normally contemplated is search on a warrant. Section 165 provides for an exception. In providing such an exception and authorizing a police officer to hold a search at his own responsibilities the Code provided that the grounds for belief leading to the search being put on record in writing along with the specification of the thing, the same should forthwith be sent to the nearest Magistrate. The word 'forthwith' was not used by the Legislature without any purpose. In my opinion, sending such a report by itself is a check against any arbitrary or wrongful search. That apart the person whose place or house is being searched would have no knowledge about the proceedings leading to the search except through the Magistrate to whom the records are so sent. Therefore, in my opinion, the respondents could not have just submitted with the Magistrate a copy of the seizure list along with a copy of the authorization two days after completion of a search particularly of the present nature which went on for four days and resulted in seizure of almost all the books of accounts and documents of the petitioner's business. When the respondents sent such copies to the Magistrate at Alipore they did not do it in the spirit of bona fide fulfillment of their obligations under section 165 (5 ). To this extent also the search must be held to be in contravention of section 165 (5) of the Code. ( 30 ) ON the findings as aforesaid next arises for consideration an important question as to what is the effect of the infringements found. While according to Mr. Dutt such infringement makes the seizure illegal and entitles the petitioner to get back all the articles seized, according to Mr. ( 30 ) ON the findings as aforesaid next arises for consideration an important question as to what is the effect of the infringements found. While according to Mr. Dutt such infringement makes the seizure illegal and entitles the petitioner to get back all the articles seized, according to Mr. Deb such infringement is merely an irregularity which does not render the seizure illegal. The provision of section 165 had been subject to judicial interpretation hereinbefore. On the text of the provision it lays down certain conditions to be fulfilled. First of all the police officer proposing to make the search must have reasonable grounds for believing that anything necessary for the purposes of an investigation may be found in the place to be searched. Secondly, he is to form an opinion that but for such an immediate search such thing cannot be obtained without undue delay. Thirdly, he is to incorporate in writing the grounds of his belief and fourthly, he must specify in such writing so far as possible the thing for which search is to be made. On the language it is quite explicit that very strict provisions have been made for the guidance of the police officer conducting a search at his own responsibility. Such provision is made as such search by its very nature is likely to be arbitrary in character. Strict compliance with such statutory provision is called for to avoid any abuse of the power or wrongful search violating citizens' privacy. Though the jurisdiction to conduct a search may not arise only on due compliance with each of these statutory requirements yet in order to make the search legal a mandatory requirement enforcing such compliance is called for. In the case of (30) state of Rajasthan v. Rahaman A. I. R. (1960) S. C. 210 the Supreme Court held that section 165 of the Code lays down various steps to be followed in making a search. The recording of reasons is an important step in the matter of search and to ignore a material part of the provision governing the searches. The Supreme Court further concluded that search in contravention of section 165of the Code is illegal. The recording of reasons is an important step in the matter of search and to ignore a material part of the provision governing the searches. The Supreme Court further concluded that search in contravention of section 165of the Code is illegal. Interpreting section 5a of the Bihar Private Irrigation Works Act, 1922 in the case of (7) Collector of Monghyr and Others v. Keshav Prosad Goenka and Others, A. I. R. (1962) S. C. 1694 the Supreme Court pointed out - the provision in section 5a being in comparable language with section 165 (1) of the Code - that on the texture of the provision recording of the reason is a condition for the emergence of the power to make an order. It was further held that a question whether circumstances recited in section 5a (1) exists or not is entirely for the Collector to decide in his discretion but the recording of the reasons by the Collector is the only protection which is afforded to the persons affected to ensure that reasons which impelled the Collector were germane to the content and scope of the power vested in it. In my opinion, these observations are applicable appropriately in the matter of construction of section 165 (1) of the Code. That it is so was made clear by the subsequent decision of the Supreme Court in the case of (3) Board of Revenue, Madras v. R. S. Javar A. I. R. (1968) S. C. 59. In that case the Supreme Court overruled the view of the Madras High Court that section 41 (2) of the Madras General Sales Tax Act, 1959 is a piece of void legislation as it invested arbitrary power of search. In overruling the said view the Supreme Court held that the power of search as provided in section 41 (2) of the Madras Act is not arbitrary inasmuch as on the provision of the proviso to sub-section (2) the provisions of the Code of Criminal Procedure have been made applicable to searches to be made under section 41 (2) of the Madras Act. The Supreme Court then pointed out the aforesaid four conditions set out in section 165 (1) and observed that these are the safeguards against possible exercise of arbitrary powers of search. The Supreme Court then pointed out the aforesaid four conditions set out in section 165 (1) and observed that these are the safeguards against possible exercise of arbitrary powers of search. It is clear, therefore, on the decisions of the Supreme Court as aforesaid that the requirement of section 165 (1) must be considered to be mandatory, non-compliance whereof would render the search to be illegal. The same view is taken by this Court in the case of (24) Samsul Huda v. State, 74 C. W. N. 701 and the Patna High Court in the cases of (32) Thakur Tanti v. State A. I. R. (1964) Pat. 493 and (5) Chandra Prosad v. Emperor, A. I. R. (1937) Pat. 501. ( 31 ) STRONG reliance on the other hand, has been placed by Mr. Deb on the decision of the Supreme Court in the case of (21) Radhakesan v. The State of U. P. A. I. R. (1963) S. C. 822 in contending that even if the search made in contravention of section 165 of the Code be held to be illegal that would not vitiate the seizure and the petitioner is therefore not entitled to any order for return of the articles seized. To support this contention he has also relied on the decision of the Supreme Court in the case of (26) Shyamal v. State of Madhya Pradesh, A. I. R. 1972 S. C. 886. A decision of the Orissa High Court in the case of (28) State of Satyanarayan A. I. R. 1965 Or. 136, a decision of the Delhi High Court in the case of (10) Feeder Llyod Corporation v. B. S. L. Swamy A. I. R. 1969 Delhi 26 and a decision of the Lahore High Court in the case of (14) Mahingal Singh v. Golam Mohammad A. I. R. 1939 Lah. 280. He has further contended that in the case of State of Rajasthan v. Rehaman (supra) the Supreme Court had left undecided the question as to whether a search made in contravention of section 165 of the Code amounts to a mere irregularity or illegality. Reliance is placed on paragraph 10 of the report. 280. He has further contended that in the case of State of Rajasthan v. Rehaman (supra) the Supreme Court had left undecided the question as to whether a search made in contravention of section 165 of the Code amounts to a mere irregularity or illegality. Reliance is placed on paragraph 10 of the report. To me it however, appears that in the aforesaid paragraph the Supreme Court merely observed that the learned Counsel for the appellant should not be allowed to raise a point that non-recording of reasons in making a search under section 165 of the Code is a mere irregularity and as such the respondents had no right to resist because such a contention was not raised earlier. Earlier in the judgment, however, the Supreme Court expressed itself very clearly that a search carried on in contravention of the provisions of section 165 (1) would be illegal. In the case of Radhakesan v. The State of U. P. (supra) appellant Radhakesan was convicted of an offence under section 52 of the Indian Post Office Act 1898 for wrongful secretion of registered letters. He was so convicted by the High Court which set aside an order of acquittal in his favour by the Additional Sessions Judge. Such conviction rested amongst others on the evidence of seizure from his custody of certain incriminating articles. In the appeal before the Supreme Court one of the points raised in challenging the order of conviction was to the effect that the search resulting in the seizure of those articles having been held in contravention of provisions of sections 103 and 165 of the Code evidence of seizure would not be admissible evidence. In repelling this argument the Supreme Court observed:so far as the alleged illegality of the search is concerned it is sufficient to say that even assuming that the search was illegal, the seizure of the articles is not vitiated. It may be that where the provisions of sections 103 and 165, Code of Criminal Procedure are contravened the search could be resisted by the persons whose premises are sought to be searched. It may also be that because of the illegality of the search the Court may be inclined to examine carefully the evidence regarding the seizure. But beyond these two consequences no further consequence ensures. ( 32 ) THOUGH Mr. It may also be that because of the illegality of the search the Court may be inclined to examine carefully the evidence regarding the seizure. But beyond these two consequences no further consequence ensures. ( 32 ) THOUGH Mr. Deb strongly relies on the observation that illegality of the search does not vitiate the seizure of the articles, in my opinion, this observation should not be read except in the context in which it was made. Such observation was made only with reference to the question whether if the search is not legal, the evidence of seizure made in course of such search would be admissible evidence to bring home a conviction or not. Supreme Court was not considering any issue like the one now under consideration and the observation aforesaid cannot be considered to be an authority for a contention that though seized in course of an illegal search yet the authority making the seizure can lawfully resist a claim for return of the articles so seized on a plea that it is the search and not the seizure which is illegal. On the other hand in this very case the Supreme Court further observed that in the case of such illegality the person whose premises are sought to be searched can lawfully resist the same and in my opinion right to claim return of articles seized in course of such illegal search is an integral part of the right to resist. The decision of the Orissa High Court relied on by Mr. Deb is to the same effect and what was held was that notwithstanding the illegality in the search seizure effected in course of such search would be admissible evidence at the subsequent trial. The same court on the other hand in the case of Jagabandhu v. State (1962) (2) Cr. L. J. 569 held that search in contravention of section 165 (1) is illegal. In the case of Shyamlal v. The State of Madhya Pradesh A. I. R. 1972 S. C. 886 the Supreme Court was considering totally a difference question. There the appellant forcibly brought back the searching officer after he had completed the search in the premises and then wrongfully confining him, compelled him to write a memo under threat of assault. In the case of Shyamlal v. The State of Madhya Pradesh A. I. R. 1972 S. C. 886 the Supreme Court was considering totally a difference question. There the appellant forcibly brought back the searching officer after he had completed the search in the premises and then wrongfully confining him, compelled him to write a memo under threat of assault. Appellant was convicted of an offence under sections 342 and 353 of the Indian Penal Code and it was contended in his defence that the search being not inconformity with section 165 of the Code what he did in resisting such a search was not wrongful. Supreme Court, however, held that his right to resist physically ended with the completion of the search and the seizure and the appellant's subsequent forcibly bringing back of the searching officer in the manner aforesaid was an independent offence. This decision, in my opinion, has no bearing on the issue now under consideration. The single Bench decision of the Lahore High Court in the case of Mahingal Singh v. Golam Mohammad (supra) holding that the provisions regarding recording of reason as in section 165 of the Code are directory and not mandatory is contrary to the Bench decision of that court in the case of (9) Emperor v. Md. Shah A. I. R. 1946 Lah. 456 and the two decisions of the Patna High Court in the case of Thakur Tanti v. The State (supra) and the Chandra Prasad v. The Emperor (supra ). That apart on the decision of the Supreme Court in the case of State of Rajasthan v. Rehaman (supra) and Board of Revenue Madras v. R. S. Jhavar (supra ). This decision can no longer be considered to be good law. In the case of Feeder Lloyd Corporation v. B. A. L. Swami A. I. R. 1969 Del. 26 the search was found to have been made in substantial compliance with section 165 (1) of the Code; on facts it was then held that there can be no general rule that articles seized in a search held in contravention of sub-sections 1 and 5 of section 165 need necessarily be returned in every case to the person from whom they were seized. This decision does not militate against the view taken by me that contravention of sub-section (1) of section 165 renders the search illegal and that section 165 (5) merits a mandate for its compliance and cannot simply be overlooked or ignored. This decision again is no authority for the proposition that articles seized in course of such search can in no case be directed to be returned. On the other hand, the Supreme Court in the case of (34) Wazir Chand v. The State of Himachal Pradesh A. I. R. 1954 S. C. 415 held that illegal seizure of goods would amount to infringement of fundamental rights and the High Court under Article 226 of the Constitution would be entitled to direct return of such goods. Mr. Deb wanted to distinguish this decision by submitting that in that case there was no investigation pending and there was no information lodged with the police when the police seized the goods. I am, however, not much impressed by such submission of Mr. Deb. From the facts it would appear that the complainant in that case had lodged an information with the police at Jammu alleging an offence under section 406 of the Indian Penal Code against one Triloknath. It is in course of investigation of such a case that the Jammu police came to Champa in Himachal Pradesh and with the assistance of the Champa police seized the goods. The Supreme Court held that such seizure not being on the authority of law and in accordance with the procedure prescribed, the seizure must be held to be an infringement of fundamental rights of the person from whom the goods were so seized. It should also be noted that in the Madras case of Javar (A. I. R. 1968 S. C. 59) the Supreme Court even in allowing the appeal, upheld the order of the Madras High Court directing return of documents seized. Supreme Court did so on the ground that seizure was the result of a search in contravention of law. It should also be noted that in the Madras case of Javar (A. I. R. 1968 S. C. 59) the Supreme Court even in allowing the appeal, upheld the order of the Madras High Court directing return of documents seized. Supreme Court did so on the ground that seizure was the result of a search in contravention of law. Materially I find little difference between the case under consideration by the Supreme Court and the one by me and therefore on the authority of this decision it must be held that the seizure made in course of a search effected in contravention of section 165 (1) of the Code is illegal and the person from whom the articles have been seized is entitled to claim return of the articles. This was also the view taken by the Gujrat High Court in the case of New Swadeshi Mills of Ahmedabad v. S. K. Rattan (supra) a case of seizure on the same authorization as in the case now before me. This question was gone into elaborately by the Appeal Court in the case of Hindusthan Motors v. T. N. Kaul and this Court in the said case overruled a similar plea as now raised by Mr. Deb. Moreover on my findings made hereinbefore the seizure was the result of a search which was held not only in contravention of law but really without jurisdiction. ( 33 ) LASTLY I now proceed to consider the contention of Mr. Dutt that the search and seizure were not bonafide and were not made on due application of mind. On facts it appears that the petitioner's case is strongest in this respect. The authorization itself would show that respondent No. 1 never applied his mind and was not conscious of the limits within which he could held a search or direct the same. Further the search as held and the seizure as made would also establish that it was not a bonafide search as contemplated by section 165 of the Code. On the other hand what was effected was a roving search of a general nature. ( 34 ) I shall first refer to the authorization. It has already been pointed out that the respondent No. 1 was not proceeding on the basis of any reasonable grounds for belief as is required by section 165 (1 ). On the other hand what was effected was a roving search of a general nature. ( 34 ) I shall first refer to the authorization. It has already been pointed out that the respondent No. 1 was not proceeding on the basis of any reasonable grounds for belief as is required by section 165 (1 ). That he was proceeding arbitrarily and mechanically would further be established if we consider the authorization in the light of the documents incorporated in the list attached thereto. The authorization shows that respondent No. 1 decided to hold the search without any warrant from a Magistrate because he had reasonable grounds to suspect that the management may not produce the documents/articles otherwise than upon a search and any delay in the matter of making the search may result in disappearance/destruction of the documents and the articles. Now let us consider what are these documents and articles which the management may not produce or the management may destroy or cause them to disappear. The first item is documents relating to the Constitution of the Company and its shareholders. It is difficult to appreciate the relevance of such documents with reference to the alleged offence of fraudulent evasion of excise duty and submission of false returns. In any event these are statutory documents maintained under the provisions of the Companies Act and are available with the Registrar of Companies in whose office they are either lodged or registered. It is difficult to imagine that the constitution of the company or the list of its shareholders could be destroyed or caused to be disappeared in case of delay in conducting a search therefor. Similar is the position with item No. 4 the Profit and Loss Account and the Balance Sheet of the Company which under section 220 of the Companies Act are regularly filed with the Registrar of Companies. Item No. 2 are the records of plant and machinery installed at the mill during the period 1963 to date. There can be no dispute that particulars of plant and machinery so installed are incorporated in appropriate statutory returns submitted with the Textile Commissioner. Item No. 5 is files containing correspondence with the Textile Commissioner, one copy whereof must necessarily be available with the said Commissioner. There can be no dispute that particulars of plant and machinery so installed are incorporated in appropriate statutory returns submitted with the Textile Commissioner. Item No. 5 is files containing correspondence with the Textile Commissioner, one copy whereof must necessarily be available with the said Commissioner. Item No. 6 is records of raw material the particulars whereof are again to be found in appropriate statutory returns submitted with the Textile Commissioner. Item No. 8 is stock books of finished goods and item No. 9 is the records maintained at various manufacturing units regarding production of finished goods particulars whereof are to be found from the returns submitted with the Superintendent Central Excise. Item No. 13 are copies of returns and statements filed with the Central Excise Authorities the original whereof would necessarily be with the said authority. Item No. 12 is copies of returns and statements filed with the Textile authorities. These are all statutory returns originals whereof would necessarily be with the Textile authorities. Item No. 14 is again copies of returns and statements filed with the banker's relevance whereof for the purpose of investigation is difficult to find. In any event the originals are to be found with the bankers. These are the major parts of documents for the recovery whereof the search under section 165 of the Code was directed on the plea that unless they are immediately seized they are likely to be destroyed or made to disappear. To say the least the suggestion is insensible and certainly not bonafide. ( 35 ) NOW when I reported to consider how actually the search was conducted and the seizure made it is quite evident that as intended by the authorization the search was a roving one and the seizure was bulk and indiscriminate. The petitioner in paragraph 6 of the Writ petition has stated that on June 15, 1967 respondents 2 and 3 went to the petitioner's mill with a large number men, they demanded not to search for any particular document or article but they demanded to search all goods, papers and documents of the petitioner. The respondent No. 2 is can did enough to admit this position in paragraph 2 of his affidavit-in-opposition. Thus it is evident that the search that was conducted was not one as contemplated by section 165 of the Code. The respondent No. 2 is can did enough to admit this position in paragraph 2 of his affidavit-in-opposition. Thus it is evident that the search that was conducted was not one as contemplated by section 165 of the Code. I have pointed out hereinbefore that the seizure list runs from pages 47 to 136 of the Court's brief i. e. nearly 100 pages and total serial number is 1253. The number, however, is somewhat illusory because some of the individual items contain innumerable numbers of papers or documents. When we go through the seizure list we find little indication of the relevancy of the documents seized to the propose of investigation of particular alleged offences as in the First Information Report. It is but too clear that respondents 2 and 3 as intended seized all documents indiscriminatory. In my opinion such a seizure is not bonafide at all. I just refer to the views expressed by the Supreme Court in the case of (2) Barium Chemicals v. A. J. Rana and Others A. I. R. 1972 S. C. 591 in declaring such a search and seizure to be illegal and not bonafide and direct return of all documents and articles so seized. For reasons aforesaid this application succeeds. ( 36 ) THE Rule is made absolute, the impugned search and seizure being declared illegal and without jurisdiction I direct return of all documents and articles seized to the petitioner. I further direct that in proceeding further with the investigation the respondents must comply with section 157 and provisions subsequent thereto of the Code. ( 37 ) LET a writ in the nature of Mandamus do issue directing and commanding the Respondents and each of them forthwith to return to the petitioner all documents and article seized in course of the impugned search. ( 38 ) THERE will be a further mandate directing the respondents to comply with section 157 and provisions subsequent thereto of the Code in proceeding with this investigation. The operation of this order is stayed till one month after the Puja vacation. Appeal Allowed.