In re : Brij Mohan Gupta v. State of West Bengal — 1982 DIGILAW 309 (CAL)

ORDER The undisputed facts, material to this proceeding are as follows : Brij Mohan Gupta, the petitioner is an authorised Ration Dealer appointed by the Government of West Bengal under the West Bengal Rationing Order, 1964 (hereinafter referred to as the said Order) and is the proprietor of authorised Ration Shop no. 3437 at 166/4, Prince Anwar Sbah Road, Calcutta (hereinafter referred to as the said shop). 2. On the 19th December 1981, officers of the Food Department of the Government of West Bengal seized certain records of the said shop being registers, books of accounts and cash memos and removed the same. The petitioner immediately thereafter, and on the same day, filed a complaint before the Officer-in-Charge. Lake Police Station as also to the Director of Rationing, West Bengal, the respondent No. 2 herein in respect of the aforesaid seizure and asked for return of the records seized. 3. This application was moved on the 21st December 1981 against the State of West Bengal; the Director of Rationing, West Bengal; the Deputy Controller of Rationing, Food & Supplies Department, Government of West Bengal; the Rationing Officer. Ballygunge Rationing area Calcutta and the Joint Secretary, Special Cell, Government of West Bengal respectively, the respondents Nos. 1, 2, 3, 4 and 5, praying inter alia, for issue of appropriate writs directing the respondents to act in accordance with law; not to suspend the authorised ration shop of the petitioner or delink the ration cards therefrom or tag such ration cards to any other ration shop; to release the seized documents to the petitioner; to cancel or rescind the purported order of suspension of the said shop. 4. This application was listed on the 22nd December 1981. When called on, learned Advocate for the respondents submitted that till then no order of suspension had been passed against the petitioner. The application was thereafter adjourned. Later, on the same day, learned Advocate for the petitioner informed the court that an order of suspension had in fact been passed against the petitioner on which liberty was given to the petitioner to file a supplementary affidavit. 5. On the 24th December 1981 the application was heard further and a learned Advocate was appointed Special Officer in the matter. The Special Officer was directed to take charge of the said shop and run the same with his own personnel till further orders. 5. On the 24th December 1981 the application was heard further and a learned Advocate was appointed Special Officer in the matter. The Special Officer was directed to take charge of the said shop and run the same with his own personnel till further orders. Liberty was given to continue the departmental proceedings against the petitioner if initiated. 6. By an order passed on the 28th April 1982 the petition was allowed to be amended. 7. It is contended in this application that the records of the said shop have been seized by the respondents without any reason, without any seizure list being made with a copy to the petitioner. In is further contended that the petitioner has been suspended pursuant to the said illegal and arbitrary seizure without assigning any reason, without a speaking order and without any opportunity to the petitioner of being heard contrary to the principles of natural justice. 8. It is alleged that the aforesaid actions of the respondents were motivated and meant to deprive the petitioner of his business for collateral purposes. 9. It is contended that the petitioner has a fundamental right under the Constitutional to carryon his business guaranteed by Article 19(1)(g) and the same cannot be taken away or interfered with except under due process of law and incompliance with statutory provisions. 10. It is contended that under clause (c) of paragraph 21(1) of the said Order, which empowers such searches and seizure confers a wide and unregulated power to the authorities and is ultra vires Articles 14 and 19(1)(g) of the Constitution as also the provisions of the Essential Commodities Act. There is no check or balance nor any safeguard in the said Order against arbitrary use of such powers. Safeguards provided in the Code of Criminal Procedure in respect of search and seizure it is contended have been incorporated in the Essential Commodities Act. 11. It is contended that the power to suspend a ration shop and to delink and relink ration cards consequent thereto amounts to cancellation of appointment of an authorised ration dealer without giving him any opportunity of being heard and without any time limit for which such suspension might be continued. 11. It is contended that the power to suspend a ration shop and to delink and relink ration cards consequent thereto amounts to cancellation of appointment of an authorised ration dealer without giving him any opportunity of being heard and without any time limit for which such suspension might be continued. Such power conferred by paragraph 3(5) and the proviso thereunder of the said Order imposed an unreasonable restriction on the fundamental right of the petitioner and conferred upon the authorities uncontrolled and uncanalised power to suspend without any opportunity being afforded to the person concerned even without coming to a provisional conclusion of any specific violation of the provisions of the said order. Even if the person initially suspended ultimately succeeded he would be without any remedy during the interim period. 12. It is contended further that the impugned action of the authorities were malicious in fact, had been invoked with malice in law and were without jurisdiction. 13. In a supplementary affidavit filed on behalf of the petitioner on the 23rd December 1981, it is alleged that three orders all dated the 22nd December 1981 were affixed to the door of the said shop at about 5-35 p.m. on the 22nd December 1981. By one of the said orders passed by the Rationing Officer, Ballygunge the petitioner was directed not to open new registers or records in respect of the said shop. By another order of the Director of Rationing, West Bengal the petitioner was informed that departmental proceedings had been drawn up against the petitioner and that in view of the charges preferred it was considered necessary in the interest of the general public to suspend the appointment of the said shop and that of the petitioner during the pendency of the enquiry which was made with immediate effect. 14. By the third order the Rationing Officer, Ballygunge, delinked all valid ration cards registered in the said shop and relinked the same with two other shops. 15. Subodh Kumar Sarkar, the Rationing Officer, Ballygunge, the respondent No. 4 has affirmed an affidavit on the 7th January 1982 which has been filed in opposition to the petition. It is, inter alia, alleged in this affidavit that the authorities received secret information that the petitioner had been indulging in clandestine trade in rationed and non-rationed articles. 15. Subodh Kumar Sarkar, the Rationing Officer, Ballygunge, the respondent No. 4 has affirmed an affidavit on the 7th January 1982 which has been filed in opposition to the petition. It is, inter alia, alleged in this affidavit that the authorities received secret information that the petitioner had been indulging in clandestine trade in rationed and non-rationed articles. A surprise check by the inspecting staff of the Rationing Department and its Special Cell was thereupon made on the 19th December 1981 at about 4-15 p.m. The stock in the said shop was weighed, a chart was prepared and a copy of the same was handed over to the petitioner who refused to sign any receipt therefor. It was found that the stock board showing the opening balance of stock on the 19th December 1981 materially differed from the entries in the stock register. This irregularity was pointed out to the petitioner and was duly recorded. The actual stock and the opening balances found in different registers were recorded in the inspection book in the said shop. It is admitted that the current daily sales register, stock registers of commodities, rationed and non-rationed cash memo registers and four duplicate cash memo books were taken in custody. This was also recorded in the inspection book. The petitioner was directed to appear at the headquarters of the Rationing Department on the 21st December 1981 at 12 noon for preparation of a stock verification report from different stock registers and the daily sales register, postings wherein were not Found up to date. 16. Thereafter, the said inspection squad inspected another ration shop in the area and as they were about to leave at about 7-15 p.m. some persons led by the petitioner attacked the squad with weapons and snatched away all the documents and registers seized except four duplicate cash memo books. Immediately thereafter a first information report of the incident was lodged by the squad with the local police station. A police case being no. 558 dated the 19th December 1981 has since been initiated against the petitioner. l7. It is alleged that a complete list of the articles seized was recorded in the inspection book of the said shop. Immediately thereafter a first information report of the incident was lodged by the squad with the local police station. A police case being no. 558 dated the 19th December 1981 has since been initiated against the petitioner. l7. It is alleged that a complete list of the articles seized was recorded in the inspection book of the said shop. It is contended that under paragraph 21 of the said Order the inspecting staff of the Directorate of Rationing are persons authorised by the State to enter into authorised ration shops for inspection and to call upon persons connected therewith to make statements, furnish information, produce documents and articles and render accounts. They are also authorised to test the correctness of weights and to search and seize documents. 18. It is alleged that after careful consideration of the reports of the squad and the First Information Report lodged, the Director of Rationing being satisfied drew up departmental proceedings against the petitioner. In view of the seriousness of the charges framed alleging gross irregularities in stocks, unlawful assault by the petitioner on the inspecting staff and illegal snatching of documents and records seized the said shop was suspended pending enquiry in the interest of the general public. It is admitted that the said show cause notice the order of suspension and the order of delinking and relinking were hung up on the said shop on the 22nd December 1981 in the presence of Police Officers and the Assistant Controller of Rationing as the shop was found closed. 19. It is alleged that the petitioner has committed other irregularities in the past in respect of which three other departmental proceedings initiated respectively on the 25th October 1978, the 19th July 1980 and the 21st August 1980 are pending. Two other police cases were also pending against the petitioner. During the pendency of such proceedings, the petitioner it is alleged, has from time to time removed registers from his shop and had opened successive new registers with the object of destroying material evidence. 20. The other allegations in the petition have been denied and the contention therein are disputed in the said affidavit. It is alleged that the petitioner had deliberately suppressed material facts in his application. 21. The petitioner has affirmed an affidavit on the 13th January 1982 which has been filed in reply to the aforesaid affidavit of Subodh Kumar Sarkar. 20. The other allegations in the petition have been denied and the contention therein are disputed in the said affidavit. It is alleged that the petitioner had deliberately suppressed material facts in his application. 21. The petitioner has affirmed an affidavit on the 13th January 1982 which has been filed in reply to the aforesaid affidavit of Subodh Kumar Sarkar. In this affidavit allegations made against the petitioner have been denied. 22. At the instance of the learned Advocate for the parties, this application was heard on merits without any Rule nisi being issued. Learned Advocate for the petitioner submitted at the out set that the petitioner did not propose to rely on any fact disputed by the respondents and that his submissions would be confined to undisputed facts and the questions of law. 23. Learned Advocate drew the attention of the Court to the following clauses of the West Bengal Rationing Order, 1964:- Clause 3(5):--"Whenever in the opinion of the State Government it is necessary or expedient so to do in the interest of the general public, the State Government may amend, vary, suspend or revoke any appointment made under this paragraph (after making an enquiry in which an opportunity shall be given to the holder of the appointment) of being heard either in person or by an agent and for reasons to be recorded in writing, and in every such case the holder of the appointment shall be bound to surrender, on demand, to the State Government the order of appointment for endorsement or cancellation, as the case may be, Provided that pending an enquiry into a charge against the holder of an appointment the State Government may suspend his appointment, if in the opinion of the State Government immediate suspension is necessary in the interests of the general public. (b) The enquiry referred to in sub-s. (5) shall be held by such officer or officers as the State Government may, by a general or special order, appoint in this behalf". (b) The enquiry referred to in sub-s. (5) shall be held by such officer or officers as the State Government may, by a general or special order, appoint in this behalf". Clause 21(1):-Any person authorised by the State Government in this behalf may, (a) enter any premises used or believed to be used for the sale, distribution or storage for sale or distribution of any rationed article, non-rationed article of the premises of any establishment and inspect any such premises and any rationed article or non-rationed article therein or thereon; (g) search and seize any rationed article or non-rationed article or any ration document or any other document relating to the purchase, sale distribution or storage of any rationed article in respect of which he has reason to suspect that a contravention of this order or of any regulations made thereunder or any direction issued under such regulation, has been, is being or is about to be committed. Provided that in exercising the powers under this paragraph the person so authorised shall have due regard to the social and religious customs of the persons occupying the premises. Clause 22(1):- The State Government may, by general or special order delegate any of the powers conferred on it by paragraph 3, to any Officer subordinate to it or to any other person. (2) The State Government may of its own motion or on the application of an aggrieved party review or revise any order passed by itself or by any officer or other person to, whom powers have been delegated under sub-paragraph (1). Provided that an application for a review or revision of an order shall be made within thirty days from the dale of the order. 24. Learned Advocate in reiteration of the contentions in the of the petitioner submitted that paragraph 21(g) of the said Order power to be exercised by any person aurhorised by the State. This was unconstitutional as being arbitrary and unguided. 25. He next submitted that under the substantive clause of paragraph 3(5) of the Order, the State Government could suspend or revoke any appointment made under the Order only after making an enquiry where an opportunity had to be given to the appointee. This was unconstitutional as being arbitrary and unguided. 25. He next submitted that under the substantive clause of paragraph 3(5) of the Order, the State Government could suspend or revoke any appointment made under the Order only after making an enquiry where an opportunity had to be given to the appointee. In the proviso to the said paragraph, however, blanket power has been conferred so that an interim order of suspension could be passed during an enquiry into a charge against the appointee, virtually amounting to a closure of the business of the appointee for an indefinite period. Such power it was contended was wholly arbitrary. Such interim suspension could not be equated with the suspension of a Government servant during the pendency or in contemplation of disciplinary proceedings where the Government servant could be entitled to a subsistence allowance and, if ultimately exonerated, would receive his full pay and emoluments on reinstatement. An appointee under the said Order, on the other hand would have to close his business for the entire period and if he was ultimately exonerated of the charge, would not receive any compensation in the absence of any provision for the same. 26. Learned Advocate next contended that the power to make interim suspension was very wide under Clause 3(5) an interim suspension could be made and continued for an indefinite period during an enquiry even where there was no proposal to cancel the licence of the appointee or suspend him. In the instant case, a charge-sheet had been issued long ago with liberty from the Court to continue the disciplinary proceedings without anything further being done. 27. Learned Advocate next contended that the substantive clause of paragraph 3(5) of the said Order did not provide for issuance of a charge in writing but the expression appeared in the proviso. The proviso did not specify the person or the authority who would be empowered to prefer charges. The power of delegation was thus excessive, wide, unfettered and uncanalised. 28. Learned Advocate next submitted that under the substantive clause an opinion had to be formed as to whether an enquiry should be held or not. Under the proviso, an opinion also had to be formed as to whether immediate suspension of the shop or the appointee was necessary pending the enquiry. 28. Learned Advocate next submitted that under the substantive clause an opinion had to be formed as to whether an enquiry should be held or not. Under the proviso, an opinion also had to be formed as to whether immediate suspension of the shop or the appointee was necessary pending the enquiry. The two opinions, must necessarily be separate and different as otherwise, an enquiry would automatically lead to a suspension in every case. The materials forming the basis of such opinions would also necessarily be different. 29. For the proviso to be attracted, the materials must be such as would entitle a reasonable man to come to the conclusion that immediate suspension was imperative and the same could not wait till the conclusion of the enquiry. In the instant case, except repeating the words of the clause, no material had been discussed to show the basis on which the authority decided to suspend the petitioner and as such the formation of the opinion was vitiated. The interim suspension on the basis of the aforesaid was wholly arbitrary and unreasonable. 30. On clause 21 of the said Order Learned Advocate for the petitioner submitted that the same empowered the Government to authorise any person whether an officer of the Government or not to conduct a search and seizure. This power of delegation was extremely wide and left an unfettered and uncanalised power to the State. 31. It was submitted that the provisions of the said clause inserted before the 44th amendment of the Constitution were ultra vires Articles 14, 19(1)(f) and 19(1)(g) thereof and could therefore be declared raid under Article 13(2) as a post-constitutional provision. 32. Learned Advocate further submitted that unlike other statutes where the power of search and seizure was expressly directed to be exercised in terms of S. 165 of the Code of Criminal Procedure, there was no procedural safeguard whatsoever in clause 21 of the Order. The said clause empowering search and seizure it was contended was ultra vires the Constitution and illegal and anything seized on such illegal search, must be returned. In support of his contentions, learned Advocate for the petitioner cited the following decisions :- (a) M/s. Dwarka Prasad Laxmi Narain v. State of Uttar Pradesh & Ors. reported in AIR 1954 SC 224 . In support of his contentions, learned Advocate for the petitioner cited the following decisions :- (a) M/s. Dwarka Prasad Laxmi Narain v. State of Uttar Pradesh & Ors. reported in AIR 1954 SC 224 . Clause 4 of the Uttar Pradesh Coal Control Order promulgated on the 10th July 1953 provided, inter alia, as follows :- "The Licensing Authority may grant, refuse to grant, renew or refuse to renew a licence and may suspend, cancel, revoke or modify any licence or any teams thereof granted by him under the Order for reasons to be recorded. Provided that every power which is under this Order exercisable by the State Coal Controller or any person authorised by him in this behalf." A declaration was issued by the Authority under the said order on the 16th July 1953 fixing the retail rate for sale of coke, coal etc. substantially below the existing rate. The petitioners who were already recorded as list ‘B’ licence holders applied for a licence under the Order. The area officer accused the petitioners of a number of irregularities in running of their coal depot. The petitioners application was not considered to be satisfactory and by an order dated the 13 October 1953 the District Supply Officer, Kanpur cancelled the petitioner's licence. The petitioner challenged the vires of the said Control Order as being violative of Articles 14 and 19 of the Constitution. The declaration of the prices made thereunder and the order cancelling the petitioner's licence. Construing the said clause the Supreme Court held as follows :- "The licensing authority has been given absolute power to grant or refuse to renew, suspend, revoke, cancel or modify any licence under this Order and the only thing he has to do is to record reasons for the action he takes. Not only so, the power could be exercised by any person to whom the State Coal Controller may choose to delegate the same, and the choice can be made in favour of any and every person. It seems to us that such provision cannot be held to be reasonable. No rules have been framed and no directions given on these matters to regulate or guide the discretion of the Licensing Officer. Mr. It seems to us that such provision cannot be held to be reasonable. No rules have been framed and no directions given on these matters to regulate or guide the discretion of the Licensing Officer. Mr. Umrigar contends that a sufficient safeguard has been provided against any abuse of power by reason of the fact that the licensing authority has got to record reasons for what he does. This safeguard, in our opinion, is hardly effective; for there is no higher authority prescribed in the, Order who could examine the propriety of these reasons and revise or review the decision of the subordinate officer. The reasons, therefore which are required to be recorded are only for the personal or subjective satisfaction of the licensing authority and not for furnishing any remedy to the aggrieved person." (b) M/s Mehta Barikho v. The Commissioner of Income-tax, Bombay, reported in AIR 1956 SC 554 . This decision was cited for the following observation of the Supreme Court : "The court would be entitled to intervene if it appears that the facts finding authority has acted without any evidence or upon a view of the facts found are such that no person acting judicially and properly instructed as to the relevant law would have come to the determination in question". (c) Virendra v. The State of Punjab reported in AIR 1957 CS 896. In this case the validity of the Punjab Special Powers (Press) Act, 1956 was challenged before the Supreme Court under Article 32 of the Constitution. The impugned sections of the Act read as follows :- Section 2. (c) Virendra v. The State of Punjab reported in AIR 1957 CS 896. In this case the validity of the Punjab Special Powers (Press) Act, 1956 was challenged before the Supreme Court under Article 32 of the Constitution. The impugned sections of the Act read as follows :- Section 2. "(1) The State Government or any authority so authorised in this behalf if satisfied that such action is necessary for the purpose of combating any activity prejudicial to the maintenance of communal harmony affecting or likely to affect public order, may, by under in writing addressed to a printer, publisher or editor- (a) prohibit the printing or publication in any document or in any class of documents of any matter relating to a particular subject or class of subjects for a specified period or in a particular issue or issues of a newspaper or periodical ; Provided that no such order shall remain in force for more than two months from making thereof; Provided further that the person against whom the order has been made may within ten days of the passing of his order make a representation to the State Government which may on consideration thereof modify, confirm or rescind the order." Section 3. The State Government or any authority authorised by it in this behalf, if satisfied that such action is necessary for the purpose of preventing or combating any activity prejudicial to the maintenance of communal harmony affecting or likely to affect public order, may, by notification, prohibit the bringing into Punjab of any newspaper, periodical, leaflet or other publication" It was contended that the said sections gave unfettered and uncontrolled discretion to the State Government or to the officers authorised by it for the exercise of the wide powers conferred thereby. The Supreme Court held that the discretion was given to the State Government itself in the first instance and that the power of delegation was to be exercised thereafter by the State which provided some safeguard against the abuse of the powers of delegation. The Supreme Court also noted that under the first proviso of S. 2(1)(a) the orders made would remain in force only for two months from the making thereof and the further proviso permitted the aggrieved person to make a representation to the State Government which could thereafter modify, confirm or rescind the order. The Supreme Court also noted that under the first proviso of S. 2(1)(a) the orders made would remain in force only for two months from the making thereof and the further proviso permitted the aggrieved person to make a representation to the State Government which could thereafter modify, confirm or rescind the order. The Supreme Court held as follows: - "A power the exercise of which is conditioned by the positive requirement of the existence of the satisfaction of the authority as to the necessity for making the order for the specific purposes mentioned in the section and the effect of the exercise of which is to remain in operation for a limited period only and is liable to be modified or rescinded upon a representation being made cannot, in our opinion, in view of the attending circumstances be characterised as unreasonable and outside the protection given by Art. 19(2) or Art, 19(6)". The Supreme Court however held that for the orders passed in exercise of powers under S 3 there was no time limit of their operation nor there was any provision for any further representation to any authority. The Supreme Court held that in the absence of such safeguards the provisions of S. 3 were unreasonable and held that the said section was invalid, (d) Hamdard Dawakhana & anr. v. The Union of India reported in AIR 1960 SC 554 . Here the constitutionality of the Drugs & Magic Remedies (Objectionable Advertisements) Act, 1954 was challenged before the Supreme Court in an application under Article 32 of the Constitution. v. The Union of India reported in AIR 1960 SC 554 . Here the constitutionality of the Drugs & Magic Remedies (Objectionable Advertisements) Act, 1954 was challenged before the Supreme Court in an application under Article 32 of the Constitution. Section 8 of the Act provided as follows :- "Any person authorised by the State Government in this behalf may, at any time seize and detain any document, article or thing which such person has reason to believe contains any advertisement which contravenes any of the provisions of this Act and the court trying such contravention may direct that such document (including all copies thereof) article or thing shall be forfeited to the Government", Construing this section, the Supreme Court held and observed as follows : "In our opinion this portion of the section goes far beyond the purpose for which the Act was enacted and, the absence of the safeguards which the legislature has thought it necessary and expedient in other statutes e.g. the Indian Drugs Act, is an unreasonable restriction on the fundamental rights of the petitioners and therefore the first portion of the section i.e. "any person authorised by any of the provisions of this Act" is unconstitutional. What then is the consequence of this unconstitutionality? If this portion is not even intelligible and cannot be upheld. The whole of the section must therefore be struck down". "the whole of S. 8 being declared unconstitutional the Act is not thereby affected as they are severable from the rest of the Act. As a consequence of excision of that portion and of S 8 from the Act the operation of the remaining portion of the Act unimpaired, As a result of S. 8 being declared invalid, all the goods seized form the petitioners having been without the authority of law must be returned to the respective petitioners. It will be for tile Government to take such action in regard to the proceedings taken or prosecutions commenced as is in accordance with the law laid down in this judgment", (e) Surajmal Nagarmull & Ors. v. The Commissioner of Income Tax reported in AIR 1961 Cal. 578 . In this case a Full Bench of this Court considered the constitutional validity of S. 37(2) of the Indian Income-tax Act, 1922. v. The Commissioner of Income Tax reported in AIR 1961 Cal. 578 . In this case a Full Bench of this Court considered the constitutional validity of S. 37(2) of the Indian Income-tax Act, 1922. The said section read materially as follows:- "Subject to any rules made in this behalf, any Income-tax Officer specially authorised by the Commissioner in this behalf, may,- (i) enter and search any building or place where he bas reason to believe that any book, of account or other documents which in his opinion will be useful for, or relevant to, any proceeding under this Act may be found and examine them, if found. (ii) seize any such books of account or other documents or place marks of identification thereon or make extracts or copies therefrom; and the provisions of the Code of Criminal Procedure, 1898 (V of 1898) relating to searches shall apply so far as may be to searches under this section. It was held that the said section was valid and was neither unconstitutional nor unreasonable nor arbitrary. P.B. Mukharji, J. as his Lordship then was, observed in his judgment as follows :- “The statutory provision for search and seizure is circumscribed and regulated by a number of express conditions each one of which is important. The first condition is that this power is subject to Rules that may be made under this section. Secondly, this power can only be exercised upon special authorisation by the Commissioner himself, who is the highest executive officer of the Income-tax Department. Thirdly, the Income tax Officer has to state his opinion that the documents are useful for or relevant to any proceeding under the Act, Fourthly, the provision of the Code of Criminal Procedure relating to searches shall apply so for as it may to searches under S 37(L) of the Income-tax Act. Therefore, the broad allegation that the statutory provision for search and seizure under S. 37(2) of the Income-tax Act is absolute, naked, arbitrary and unregulated power cannot succeed.” "Section 37(2) of the Income-tax Act again makes it expressly clear that "the provision of the Code of Criminal Procedure, 1898 relating to searches shall apply as far it may be to searches under this section." This at once brings us to the consideration of Ss. 96 to 103 of the Criminal Procedure Code and particularly to the "general provisions relating to searches" contained in Ss. 101, 102 and 103 of the Criminal Procedure Code. Section 103 makes it obligatory that such respectable inhabitants of the locality in which the place to be searched is situated and that such search shall be made in their presence and list of all things seized in the course of such search shall be prepared by the officer and signed by such witnesses. That means that the order of seizure must always be evidenced by a search list signed by witnesses and will be an "order" in "a proceeding under the Income-tax Act". Such publicity and attestation by independent witnesses are also in my view a safeguard against arbitrary conduct of the officer concerned." (f) Commissioner of Commercial Taxes & Ors. v. Ramkrishan Shrikishan Jhaver & Ors. reported in 20 Sales Tax Cases 453. This case arose out of a raid and search conducted by the Commercial Tax Department of the State of Madras on the 19th August 1964 when some papers were seized. The said action was challenged under Article 226 of the Constitution inter alia on the ground that S. 4l of the Madras General Sales Tax Act 1959 which empowered the search and seizure was violative of Article 19(1)(f) and 19(1)(g) of the Constitution. The said action was challenged under Article 226 of the Constitution inter alia on the ground that S. 4l of the Madras General Sales Tax Act 1959 which empowered the search and seizure was violative of Article 19(1)(f) and 19(1)(g) of the Constitution. The said section provided, inter alia, as follows:- "(1) Any officer empowered by the Government in this behalf may, for the purposes of this Act require any dealer to produce before him the accounts, registers records and other documents and to furnish any other information relating to his business (2) All accounts, registers records and other documents maintained by a dealer in the course of his business, the goods in his possession and his offices, shops, godowns, vessels for vehicles shall be open to inspection at all reasonable times by such officer; Provided that no residential accommodation (not being a place of business-cum-residence) shall be entered into and searched by such officer except on the authority of a search warrant issued by a Magistrate having jurisdiction over the area and all searches under this sub-section shall, so far as may be, be made in accordance with the provisions of the Code of Criminal Procedure, 1898 (Central Act 5 of 1898) (3) If any such officer has reason to suspect that any dealer is attempting to evade the payment of any tax, fee or other amount due from him under this Act he may, for reasons to be recorded in writing, seize such accounts, registers, records or other documents of the dealer as he may consider necessary, and shall give the dealer a receipt for the same. The accounts, registers, records and documents so seized shall be retained by such officer only for so long as may be necessary for their examination and for any inquiry or proceeding under this Act. Provided that such accounts, registers, records and documents shall not be retained for more than thirty days at a time except with the permission of the next higher authority. Provided that such accounts, registers, records and documents shall not be retained for more than thirty days at a time except with the permission of the next higher authority. Explanation.-It shall be open to the Government to empower different classes of officers for the purpose of taking action under sub-ss (1) (2) and (3)," On an appeal, the Supreme Court held that there was no reason to think that the Government will not empower officer of proper status to conduct searches and that as under sub-s. (2) the provisions of the Code of Criminal Procedure would apply to all searches there was no reason why should not apply mutatis mutandis to all searches and all the safeguards provided in S. 165 would apply to searches made under S. 41 (2). It was further held that sub-s. (3) provided an additional safeguard inasmuch as that officer seizing any accounts had to record his reasons in writing, the dealer would have to be given receipts of accounts seized and the seized account could by retained only as long as it was necessary for the purpose of enquiry. The Supreme Court noted that the proviso to sub-s, (3) had fixed the period, namely, 30 days for which the seized account could be kept at a time. If retained beyond such period permission of the next higher officer had to be taken. This was an additional safeguard. The section was held to be valid. (g) Income Tax Officer, Special Investigation Circle, Meerut v. M/s Seth Brothers & Ors., reported in AIR 1970 SC 292 . In this case the Supreme Court considered the scope and effect of S. 132 of the Income Tax Act, 1961 empowering search and seizure. The relevant part of the section is as follows:- "132. Search and seizure - (1) Where the Director of Inspection or the Commissioner, in consequence of information in his possession; has reason to believe that- (a) any person to whom a summons under sub-s. (1) of S. 37 of the Indian Income Tax Act, 1922 (XI of 1222), or under sub-s. (1) of S. 131 of this Act, or a notice under sub-s. (4) of S. 22 or under sub-s. (1) of S. 142 of this Act was issued to produce or cause to be produced any books of account or other documents has omitted or filed to produce, or cause to he produced. such books of account or other documents as required by such summons or notice, or (b) any person to whom a summons or notice as aforesaid has been or might be issued will not, or would not, produce or cause to be produced, any books of account or other documents which will be useful for, or relevant to, any proceeding under the Indian Income Tax Act, 1922 (XI of 1922), or under this Act, or (c) any person is in possession of any money, bullion, jewellery or other valuable article or thing and such money, bullion, jewellery or other valuable article or thing represents either wholly or partly income or property which has not been disclosed for the purposes of the Indian Income-tax Act, 1922 (XI of 1922), or this Act (hereinafter in this section referred to as the undisclosed income or property), he may, authorise any Deputy Director of Inspection, Inspecting Assistant Commissioner, Assistant Director of Inspection or income-tax Officer (hereinafter referred to as the authorised officer) to- (i) enter and search any building or place where he has reason to suspect that such books of account other documents, money, bullion, jewellery or other valuable article or thing are kept : (ii) seize any such books of account, other documents money, bullion, jewellery or other valuable article or thing found as a result of such search ; (8) The books of account or other documents seized under sub-s. (1) shall not be retained by the authorised officer for a period exceeding one hundred and eighty days from the date of the seizure unless the reasons for retaining the same are recorded by him in writing and the approval of the Commissioner for such retention is obtained : Provided (13) The provisions of the Code of Criminal Procedure 1898 (V of 1898), relating to searches and seizure shall apply, so far as may be, to searches and seizure under sub-s (1)". The Supreme Court also observed as follows:- "By the express terms of the Act and the Rules the Income-tax Officer may obtain the assistance of a police officer. By sub-s. (13) of S. 132 the provisions of the Code of Criminal Procedure, 1898, relating to searches apply, So far as may be, to searches under S. 132. The Supreme Court also observed as follows:- "By the express terms of the Act and the Rules the Income-tax Officer may obtain the assistance of a police officer. By sub-s. (13) of S. 132 the provisions of the Code of Criminal Procedure, 1898, relating to searches apply, So far as may be, to searches under S. 132. Thereby it is only intended that the officer concerned shall issue the necessary warrant, keep present respectable persons of the locality to witness the searches and generally carry out the search in the manner provided by the Code of Criminal Procedure. But sub-s. (2) of S. 132 does not imply that the limitations prescribed by S. 165 of the Code of Criminal Procedure are also incorporated therein" In this case, however, the vires of the said section was not challenged. (h) Puranmal v. Director of Inspection (Investigation) of Income-tax, New Delhi & ors. reported in AIR 1974 SC 348 . In this case the Supreme Court considered the constitutional validity of S. 132 of the Income-tax Act, 1961 and Rule 112A of the Income Tax Rules and held that the same were not violative of Articles 19(1)(f) and 19(1)(g). The Supreme Court observed as follows :- "We are, therefore, to see what are the inbuilt safeguards in S 132 of the Income-tax Act. In the first place, it must be noted that the power to order search and seizure is vested in the highest officers of the department. Secondly the exercise of this power can only follow a reasonable belief entertained by such officer that any of the three conditions mentioned in S 132(1)(a), (b) and (c) exist. In this connection it may be further pointed out that under sub-rule (2) of Rule 112, the Director of Inspection or the Commissioner, as the case may be, has to record his reasons before the authorisation is issued to the officers mentioned in sub-s. (1). Thirdly, the authorisation for the search cannot be in favour of any officer below the rank of an Income-tax Officer. Fourthly, the authorisation is for specific purposes enumerated in (i) to (v) in sub-s. (1) all of which are strictly limited to the object of the search. Fifthly when money, bullion etc. Thirdly, the authorisation for the search cannot be in favour of any officer below the rank of an Income-tax Officer. Fourthly, the authorisation is for specific purposes enumerated in (i) to (v) in sub-s. (1) all of which are strictly limited to the object of the search. Fifthly when money, bullion etc. is seized the Income-tax Officer is to make a summary enquiry with a view to determine how much of what is seized will be retained by him to cover the estimated tax liability and how much will have to be returned forthwith. The object of the enquiry under sub-s. (5) is to reduce the inconvenience to the assessee as much as possible so that within a reasonable time what is estimated due to the Government may be retained and what should be returned to the assessee may be immediately returned to him. Even with regard to the books of account and documents seized, their return is guaranteed after a reasonable time. In the meantime the person from whose custody they are seized is permitted to make copies and take extracts. Sixthly, where money, bullion etc. is seized it can also be immediately returned to the person concerned after he makes appropriate provision for the payment of the estimated tax dues under sub-s. (5) and lastly, and this is most important the provisions of the Criminal Procedure Code relating to search and seizure apply as far as they may be, to all searches and seizures under S 132. Rule 112 provides for the actual search and seizure being made after observing normal decencies of behaviour. The person in charge of the premises searched is immediately given a copy of the list of articles seized. One copy is forwarded to the authorising officer. Provision for safe custody of the articles after seizure is also made in rule 112. In our opinion, the safeguards are adequate to render the provisions of search and seizure as less onerous and restrictive as is possible under the circumstances. The provisions, therefore, relating to search and seizure in S. 12 and R. 112 cannot be regarded as violative of Articles 19(1)(f) and (g)." (i) Swadeshi Cotton Mills v. Union of India reported in AIR 1981 SC 818 . In this case the Supreme Court considered S. 18AA(1)A of the Industries (Development and Regulation) Act 1951. The provisions, therefore, relating to search and seizure in S. 12 and R. 112 cannot be regarded as violative of Articles 19(1)(f) and (g)." (i) Swadeshi Cotton Mills v. Union of India reported in AIR 1981 SC 818 . In this case the Supreme Court considered S. 18AA(1)A of the Industries (Development and Regulation) Act 1951. The material part of which is as follows :- “Without prejudice to any other provision of this Act, if, from the documentary or other evidence in its possession, the Central Government is satisfied, in relation to an undertaking that- (a) the persons incharge of such industrial undertaking have, by reckless investments or creation of encumbrances on the assets of the industrial undertaking, or by diversion of funds brought about a situation which is likely to affect the production of articles manufactured or produced in the industrial undertaking, and that immediate action is necessary to prevent such a situation..................” ........ it may, by a notified order authorize any person (hereinafter referred to as the 'authorised person', to take over the management of whole or any part of the industrial undertaking or to exercise in respect of the whole or any part of the undertaking such functions of control as may be specified in the order" The Supreme Court observed as follows : "The mere use of the word "immediate" in the phrase "immediate action is necessary", does not necessarily exclude the prior application of the audi alteram partem rule, is that immediacy or urgency requiring swift action is a situational fact having a direct nexus with the likelihood of adverse effect on fall in production. And, such likelihood and the urgency of action to prevent it, may vary greatly in decree. ........Cases of extreme urgency where action under S. 18AA(1)(a) to prevent fall in production and consequent injury to public interest, brooks absolutely no delay, would be rare, In most cases, where the urgency is not so extreme, it is practicable to adjust and strike a balance between the competing claims of hurry and hearing, ........Thus, in the ultimate analysis. the question, (as to what extent and in what measure) this rule of fair hearing will apply at the pre-decisional stage will depend upon he degree of urgency, if any, evident from the facts and circumstances of the particular case. the question, (as to what extent and in what measure) this rule of fair hearing will apply at the pre-decisional stage will depend upon he degree of urgency, if any, evident from the facts and circumstances of the particular case. "The third reason for our forbearance to imply the exclusion of the audi alteram partem rule from the language of S. 18AA(1)(a) is, that although the power thereunder is of a drastic nature and the consequences of a take over are far-reaching and its effect on the rights and interests of the owner of the undertaking is grave and deprivatory, yet the Act does not make any provision giving a full right of a remedial hearing equitable to a full right of appeal, at the post-decisional stage........ ........In sum, for all the reasons aforesaid, we are of the view that it is not reasonably possible to construe S. 18-AA(1) as universally excluding, either expressly or by inevitable intendment, the application of the audi alteram partem rule of natural justice at the pre-takeover stage, regardless of the facts and circumstances of the particular case. In the circumstances of the instant case, in order to ensure fair play in action it was imperative for the Government to comply substantially with this fundamental rule of prior hearing before passing the impugned order." (j) M/s. Sukhwindar Pal Bipan Kumar & Ors. v. State of Punjab & Ors. reported in AIR 1982 SC 65 . In this case the constitutional validity of the second proviso to sub-clause (1) of the clause 11 of the Punjab Food-grains Dealers Licensing and Price Control Order, 1978 introduced by an amendment was challenged on, inter alia, the ground that the same was violative of Articles 14 and 19(1)(g) of the Constitution Licences held by petitioners who were food-grains dealers in Punjab had been suspended by several orders passed by the District Food and Supply Controller of Faridkot and Bhatinda on the allegation that the licensees had committed breaches of certain conditions of licences. The petitioners were also served with notices under the first proviso to sub-clause (1) of clause 11 of the said Order to show cause why their licences should not be cancelled. Some of the petitioners came before the Supreme Court with petitions under Article 32 of the Constitution. The petitioners were also served with notices under the first proviso to sub-clause (1) of clause 11 of the said Order to show cause why their licences should not be cancelled. Some of the petitioners came before the Supreme Court with petitions under Article 32 of the Constitution. Others first moved the High Court of Punjab under Article 226 and being unsuccessful came up on appeal to the Supreme Court. The impugned clause read inter alia as follows :- "Cancellation or suspension of licence : (1) If a licensee or his agent or any person acting on his behalf contravenes any of the terms and conditions of his licence or any provision of this Order then, without prejudice to any action that may be taken against him, the licensing authority may by an order in writing, cancel and suspend licence in so far as it relates to the food-grains in respect of which contravention has been made : Provided that no order shall be made under this clause unless the licensee has been given a reasonable opportunity of stating his case; Provided further that the licensing authority may suspend a licence without giving a reasonable opportunity to the licensee of stating his case for a period not exceeding ninety days during the pendency or in contemplation of the proceedings for cancellation of his licence." Construing the impugned proviso the Supreme Court observed as follows :- ''It cannot be said that the second proviso to sub-cl. (1) of Cl. 11 of the Order does not satisfy the test of reasonableness. It seeks to strike a proper balance between the freedom of trade or business guaranteed under Art. 19(1)(g) and the social control permitted by cl. (6) of Art. 19 of the Constitution, It is, therefore, difficult to hold that the second proviso to sub-cl. (1) of cl. 11 of the Order is of, an excessive nature beyond what is required in the interests of the general public" "The second proviso expressly states that the licensing authority may suspend a licence for a period not exceeding ninety days. It, therefore, fixes the period of suspension. From its very terms, it is obvious that there cannot be repeated order of suspension of a licence under the second proviso in respect of the same breach. Normally, the order of suspension under the second proviso to sub-cl. It, therefore, fixes the period of suspension. From its very terms, it is obvious that there cannot be repeated order of suspension of a licence under the second proviso in respect of the same breach. Normally, the order of suspension under the second proviso to sub-cl. 11 of the Order after the expiry of the period of 90 days, would automatically lapse. On a fair reading of the second proviso to sub cl. (1) of cl. 11 of the Order, it cannot be said that it commits to the unrestrained will of the District Food and Supplies Controller, who is the licensing authority, the power of suspension of a licence. It does not confer arbitrary and uncontrolled power because the suspension can only be for specified reasons and the second proviso lays down the circumstances or grounds on which the power may be exercised. Such guidelines are expressly and specifically stated. In the first place, the power of suspension is not exercisable unless there is a breach and the breach if of such a nature that it must entail cancellation of a licence. The substantive provision contained in sub-cl. (1) of clause 11 of the Order provides for the power of cancellation or suspension, if any dealer commits any contravention of the "terms and conditions of his licence or any provisions of this Order’. The first proviso is in the nature of limitation on the power contained in sub-cl. (1), and there can be no cancellation or suspension of a licence unless the licensee is afforded a reasonable opportunity of stating his case. The proper function of the second proviso is to curve out an exception to the first proviso. It dispenses with, the requirement of affording a reasonable opportunity to the licensee in case of suspension of the licence during the pendency or in contemplation of the proceedings for cancellation. It must, however, be read along with the main enacting proviso in sub-cl. (1), and, if so construed, the power of suspension during the pendency of an inquiry cannot be exercised unless there is contravention of any of the terms and conditions of the licence or any of the provisions of the Order. Secondly, it provides for a reasonable safeguard, in that it limits the period of suspension. (1), and, if so construed, the power of suspension during the pendency of an inquiry cannot be exercised unless there is contravention of any of the terms and conditions of the licence or any of the provisions of the Order. Secondly, it provides for a reasonable safeguard, in that it limits the period of suspension. The period of suspension would necessarily depend upon the nature of the breach and in no case, can it exceed ninety days. During this period, the licensing authority is expected to complete the inquiry and take a decision as to the cancellation or otherwise of the licence. Thirdly, as a check upon possible injustice that might result from an improper exercise of the power of suspension of a licence by the licensing authority under the second proviso, there is an additional safeguard to a dealer by way of an appeal to the Director, Food and Supplies, under Cl. 13 of the Order." "........the second proviso to sub-cl. (1) of Cl. 11 of the order furnishes sufficient guidelines for the exercise of the power of suspension of a licence during the pendency of or in contemplation of the proceedings for cancellation thereof, and it does not suffer from the vice of arbitrariness and is, therefore, not violative of Art. 14 of the Constitution. On the contrary, as already indicated, it affords reasonable safeguards." 33. Learned Senior Standing Counsel appearing for the respondents mainly sought to distinguish the cases cited on behalf of the petitioners from the facts of the instant case and the particular statute involved. He submitted that in Sukh Winder Pal Bipan Kumar (supra), the Supreme Court had held that the second proviso of Clause 11(1) of the Punjab Food-grain Dealers Licensing & Price Control (1st Amendment) Order of 1980 which was in pari materia with the impugned proviso of the West Bengal Rationing Order to be intra vires. The only difference between the two provisos was that in the Punjab Statute it was provided that the Licensing Authority could suspend the licence for a period not exceeding 90 days which was absent in the West Bengal Order. He submitted that had the said limitation of time not been provided in the Punjab Statute, it did not follow that the Supreme Court would have necessarily declared the same to be ultra vires. He submitted that had the said limitation of time not been provided in the Punjab Statute, it did not follow that the Supreme Court would have necessarily declared the same to be ultra vires. The impugned proviso in the West Bengal Statute necessarily implied that the suspension will subsist only during the period of enquiry. 34. He next; submitted that the impugned proviso has been declared to be intra vires by this Court in several earlier judgments as follows :- (a) Srinath Singh v. S.R. Bhattacharjee & Ors reported in AIR 1973 Cal. 28 . In this case also Clause 3(5) of the West Bengal Rationing Order, 1964 was sought to be impugned on the ground that it conferred unguided, uncanalised and arbitrary power on the authorities and as such were void. It was contended that the said proviso made the substantial provisions of the said clause nugatory. It was also contended that the said proviso if literary applied offended against the principles of natural justice inasmuch as the persons who would be affected by the interim order did not have any opportunity to mike representation against the same. This application was not successful before a learned Judge of this Court who held, inter alia, as follows : "In the present case, it would appear that the power under the order has been given to a high and responsible officer like the Director of Rationing who is expected to discharge his duties in responsible manner and any order passed by such officer has been made subject to the control of the State Government. Such pro visions ensure against the commission of any mischief as noticed in the Dwarka Prosad's case, AIR 1954 SC 224 . In Chinta Lingam v. Govt., of India, AIR 1971 SC 474 , the Court observed that when power to grant or refuse permits is conferred on fairly high officers, abuse of powers by such officers cannot be easily assumed. For these reasons the contention of Mr. Dutta is not acceptable." (b) Jagadish Lal Gupta The Director of Rationing & Ors reported in AIR 1975 Cal 570. Hence on application under Article 226 of Constitution impugning an Order of suspension under the West Bengal Rationing Order 1964 was unsuccessful before S.C. Ghose J. as His Lordsbip then was sitting singly. For these reasons the contention of Mr. Dutta is not acceptable." (b) Jagadish Lal Gupta The Director of Rationing & Ors reported in AIR 1975 Cal 570. Hence on application under Article 226 of Constitution impugning an Order of suspension under the West Bengal Rationing Order 1964 was unsuccessful before S.C. Ghose J. as His Lordsbip then was sitting singly. It was inter alia, contended that clause 3(5) of the said order conferred unaonalised and unbridled discretion in the officers of the State without any guidance and control for exercising the discretion vested in them. The said delegation was excessive. It was also contended that no enquiry had been made and that the petitioner had not been given an opportunity of being heard before he was suspended. It was held as follows :- "The power in the said Order has been conferred upon the Director of Rationing a high and responsible officer who is expected co discharge his duties in a responsible manner. Moreover any order passed by such officer is subject to the control of the State Government. In the premises abuse of powers by such high ranking and responsible officers should not and cannot be assumed and moreover, if such power is abused, it is liable to be corrected by the State Government in review or revision." “………it is clear that the intention of the Legislative Authority in inserting the proviso was that the power of suspension could be exercised under the circumstances mentioned in the proviso without hearing the party concerned." “………The statute in the instant case, to my mind, seems to have made it clear that in the interest of general public and in the contingencies mentioned in the proviso to sub-paragraph (5) of paragraph 3 of the said order, the suspension temporarily pending the enquiry into the alleged misconduct or misdemeanour of the appointee can be made even without hearing the appointee. The final order, however, cannot be passed without giving an opportunity to the appointee to show cause against the proposed order." (c) State of West Bengal & Ors. v. Kisori Mohan Saha & Ors. reported in 1978(2) CLJ 285. In this case two retailers appointed under the West Bengal Rationing Order, 1964 challenged the suspension of their retailer-ship. While issuing a Civil Rule, interim orders were passed directing the authorities not to give further effect to the impugned orders of suspension. v. Kisori Mohan Saha & Ors. reported in 1978(2) CLJ 285. In this case two retailers appointed under the West Bengal Rationing Order, 1964 challenged the suspension of their retailer-ship. While issuing a Civil Rule, interim orders were passed directing the authorities not to give further effect to the impugned orders of suspension. On an appeal a Division Bench of this Court set aside the interim order passed by the First Court. It was held that, prima facie, the State Government could exercise its power to suspend as an interim measure if it formed the opinion that it was necessary in the interest of general public to do so. It was further held that the interim suspension was not penal in nature. 35. Learned Senior Standing Counsel submitted that, the aforesaid decisions were conclusive so far as this Court was concerned. 36. On the powers of search and seizure as provided for in the impugned Order, he submitted that, even if the provisions of the Code of Criminal Procedure were not expressly made applicable in the Order, the principles laid down in the Code being principles of equity, it was expected that the Officers conducting such search and seizure, would follow the same and not act contrary thereto. The following decisions were also cited on behalf of the respondents. (a) S.S. Pratap Singh v. State of Punjab reported in AIR 1964 SC 72 . One of the points raised in this case was whether a Government servant could be suspended without being afforded an opportunity to explain. In the minority judgment it was held that such order was partly an administrative order and can be passed on a complaint of misconduct where the authority considered the allegations of the charge not to be groundless find that it required enquiry and that it was necessary to suspend the Government servant concerned. (b) Chintalingam & Ors. v. The Government of India & Ors. reported in AIR 1971 SC 474 . (b) Chintalingam & Ors. v. The Government of India & Ors. reported in AIR 1971 SC 474 . In this case the constitutional validity of the provisions of three control Orders, namely, the Rice (Southern Zone) Movement Control Order, 1957; The Southern States (Regulation of Exports of Rice) Order 1964 and the Andhra Pradesh Rice & Paddy (Restriction of Movement) Order, 1965 were challenged under Article 226 of the Constitution, inter alia, on the grounds that the Control Orders imposed unreasonable restriction on the right of the petitioners to carryon trade as arbitrary powers had been conferred in the matter of issuing or withholding permits and there were no provision for appeal or revision against the refusal to grant a permit. The Supreme Court noted that the officers authorised by the State Government in this behalf were the District Controller and the Deputy Commissioner of Civil Supplies who were considered to be the officers of fairly high rank and expected to discharge their duties in a responsible and reasonable manner. On the absence of any provision for appeal the Supreme Court held that there was no bar to on aggrieved party to approach the State Government by means of a representation for a final decision and the absence of provision for appeal or revision was thus of no consequence. The Supreme Court observed that when power is to be exercised by a high officer, the fact that no appeal has been provided for, was of no moment and in the exercise of a discretionary power abuse would not be easily assumed. There was a presumption that pubic officers would discharge their duties honesty and in accordance with law. (c) Collector of Customs, Madras & Ors. v. D. Bhawarmull reported in AIR 1974 SC 859 . This decision does not appear to have much relevance to the matters in issue in the instant case. 37. Provisions for search and seizure in a number of statutes have been subjected to judicial scrutiny as will appear from some of the decisions cited and noted earlier. A search and seizure implies invasion of a citizen's privacy, disruption of his normal avocation and interference with his property. Therefore, the Courts have been diligent in ascertaining and ensuring adequate safeguards so that a citizen's rights are not unreasonably affected. 38. A search and seizure implies invasion of a citizen's privacy, disruption of his normal avocation and interference with his property. Therefore, the Courts have been diligent in ascertaining and ensuring adequate safeguards so that a citizen's rights are not unreasonably affected. 38. Safeguard, which have been laid down and approved are the following :- (a) The status of the person conducting the search and seizure. Where the operation is directed to be conducted by a responsible officer of the Government it has been held that this constitutes a safeguard. (b) Prior specific authorisation of a search and seizure by a higher authority has also been held to constitute a safeguard. (c) provision for recording of the opinion or reasons by the Authority initiating the operation and similar provisions for recording by the person or authority of opinion or reasons for the seizure are considered to be in the category of a safeguard. (d) Rules of search and seizure ensuring that the operation will be conducted fairly in the presence of independent witnesses, that a proper list of the articles seized should be prepared and signed by such witnesses and a copy there of should be made over to the person affected as laid down generally in the Code of Criminal Procedure if embodied or incorporated in the statute have been held to be essential safeguards. (e) provision for availability of the items seized to the person affected for inspection and copying and their return within a specified period also fall in the category of safeguards. 39. Where such safeguards have been found to be expressly or by necessary implication incorporated in the statute, the provisions for search and seizure have been held by the Courts to be reasonable and constitutionally valid. 40. In the instant case none of the aforesaid safeguards appear to be present in clause 21 of the Order. Under the said clause a person generally authorised by the State Government can enter any premises or any shop or establishment of a dealer without any further specific authorization whenever he chooses to do so. No particular authorisation is necessary for search of any particular premises. The person authorised may be an officer of the Government or may be any private person. The person authorised or any higher authority are not required to record any belief or opinion that it is necessary to search any particular premises. No particular authorisation is necessary for search of any particular premises. The person authorised may be an officer of the Government or may be any private person. The person authorised or any higher authority are not required to record any belief or opinion that it is necessary to search any particular premises. No rules arc provided or have been framed under the said order as to how a search and seizure should be conducted. There is no provision for any independent witness to be present during the operation. There is no provision for making a list of the articles seized or attestation thereof by any witness. There is no provision enabling the person affected to have inspection of the records or documents seized. The seizure can continue indefinitely. There is no provision for return of the seized articles. 41. It has been submitted on behalf of the State that in fact any of the officers of the Government have been authorised to conduct searches and seizures and it is the practice to make a list of articles seized in the books maintained in the establishment which is always available to the dealer concerned. The submission of the learned Senior Standing Counsel that it should be expected that the authorities will observe and maintain all necessary safeguards following the principles of enquiry introduces a novel proposition which however is not supported by any authority. The fact remains that the authorities have been conducting searches and seizures under the said order on the basis of an ad hoc or impromptu procedure which cannot cure the lacunae in the clause. 42. Following the principles laid down by the Supreme Court and this Court in Hamdard Dawakhana, Ramkrishan Shrikishan Jhaver, Seth Brothers, Puranmal, and Surajmull Nagarmull (supra) which have been noted above, I have no hesitation in holding that the provisions of clause 21 of the said order are unreasonable, confer wide, uncontrolled and uncanalised power to the authorities affecting the fundamental rights of the dealers and are violative of the Article, 14 and 19 of the Constitution. The said clause, therefore, has to be struck down. 43. I now take up for consideration the provisions of clause 3(5) of the Order which permits the State Government to suspend the appointment of a dealer pending an enquiry into the charge against the holder of an appointment. 44. The said clause, therefore, has to be struck down. 43. I now take up for consideration the provisions of clause 3(5) of the Order which permits the State Government to suspend the appointment of a dealer pending an enquiry into the charge against the holder of an appointment. 44. The manner of enquiry has been laid down in the substantive part of the said clause. In making the enquiry, an opportunity has to be given to the holder of the appointment, namely, the dealer of being heard and reasons have to be recorded in writing if any amendment, variation, suspension or revocation of any appointment is made. 45. But, before passing an order of interim suspension pending an enquiry, no opportunity is required to be given to the holder of the appointment of being heard. There is no express provision for any appeal to any authority. There is no time limit for such interim suspension and the same must continue for an indefinite period because there is also no time limit within which the substantive enquiry under the clause should be concluded. 46. Under clause 22 of the Order, the power to be exercised under clause 3 can be conferred by the State Government to any officer or to any other person. 47. Similar provisions in the Punjab Food-grains Dealers Licensing & Price Control Order, 1978 was held by the Supreme Court to be constitutionally valid in the case of Sukh Winder Pal Bipan Kumar (supra). The Supreme Court held that the proviso permitting interim suspension of a licence without a hearing did not confer arbitrary and uncontrolled power to the authority became the proviso, inter alia, specifically limited the period of suspension. The Supreme Court also found that there was an additional safeguard by way of an appeal. 48. The proviso to clause 3(5) of the Order in the instant case provides no such safeguards. By an interim suspension a business can be paralysed indefinitely. There is no specific provision for an appeal to any higher authority. The only remedy would be by way of a revision or a review to the State Government for which again no specific rules or procedure have been laid down. 49. By an interim suspension a business can be paralysed indefinitely. There is no specific provision for an appeal to any higher authority. The only remedy would be by way of a revision or a review to the State Government for which again no specific rules or procedure have been laid down. 49. The proviso impugned herein has been considered and construed by two learned Judges of this Court separately in Srinath Singh & Jagadish Lal Gupta (supra), It was held that the power under the impugned clause had been given to a high and responsible officer like the Director of Rationing, who is expected to discharge his duties in a responsible manner and further that any order passed by such an officer, was necessarily subject to the control of the State Government it should not be contended that such power would be abused. It was also held that such suspension was temporary and would continue only during the pendency of the enquiry. 50. The points urged here were not urged before the learned Judges in the aforesaid cases, viz., that the clause permitted the State Government to confer the power not only to its officers but to any other person and that the interim suspension though temporary would be indefinite. The learned Judges also did not have the benefit of the judgment of the Supreme Court in Sukh Winder Pal Bipan Kumar (supra) 51. In my view the said earlier decisions of this Court may no longer be good law in view of the subsequent pronouncement of the Supreme Court. It is however not necessary for me to dissent from the same expressly as I am disposing of this application other grounds. 52. It is the case of the State Government that an order of interim suspension is also subject to revision or review by the State Government under clause 22(2) on the application of the person aggrieved. If that be the position, then the impugned order of interim suspension is bad and cannot be sustained because it is not a speaking order. It will be impossible for the person affected to apply for revision or review of the impugned order where only the language of the proviso has been quoted and no reasons have been given as to why it is necessary in the interest of the general public to suspend the petitioner's dealership immediately. It will be impossible for the person affected to apply for revision or review of the impugned order where only the language of the proviso has been quoted and no reasons have been given as to why it is necessary in the interest of the general public to suspend the petitioner's dealership immediately. (1) See Express News Papers v. Union of India reported in AIR 1958 SC 578 ; Bhagat Raja v. Union of India reported in AIR 1967 SC 1606 ; (3) State of Madhya Pradesh v. Seth Narsinghdas Jankidas Mehta reported in 1969 (1) SCA 601; (4) State of Gujarat v. Patil Raghav Natha reported in AIR 1969 SC 1297 ; (5) Travancore Rayon Ltd, v. Union of India reported in 1970(3) SCR 40 and Mahabir Prasad v. State of M.P. & Ors reported in AIR 1970 SC 1302 . I note that the expression "interest of general public" has a wide connotation. A particular ration shop, caters only to the persons whose cards are registered in the shop and not to the general public. The authorities have to come to a conclusion before passing an order of interim suspension that the charges against a dealer are such that the same may not only adversely affect the persons whose cards are registered in the shop but may further affect the interest of the public as such. I may cite the example of sale of adulterated or contaminated foodstuff from a shop which may affect persons other than the ration card holders. 5. It is a matter of record that the enquiry has been initiated against the petitioner under clause 3(5) following the search and seizure, on materials obtained from such search and seizure. I have held that the provisions for search and seizure as laid down in clause 21 of the Order are bad and unconstitutional. Therefore, further proceedings following the same must also be held to be vitiated. 54. For the reasons above, the petitioner succeeds in this application. The impugned proceedings against the petitioner including the order of interim suspension are quashed. The respondents are further directed to return to the petitioner all articles seized. Let appropriate directions be issued. I make it clear that the authorities concerned will be at liberty to proceed against the petitioner in accordance with law. 55. The impugned proceedings against the petitioner including the order of interim suspension are quashed. The respondents are further directed to return to the petitioner all articles seized. Let appropriate directions be issued. I make it clear that the authorities concerned will be at liberty to proceed against the petitioner in accordance with law. 55. Let similar Order be passed in other application, that is, In Re :-Amal Das v. State of West Bengal & Ors. and let both the applications be disposed of on the above term. 56. On the undertaking to apply for certified copy of the order, let a plain copy of the operative portion of the order counter-signed by an officer of this Court be given to the Learned Advocates for the parties. Application allowed, impugned orders quashed.