HANUMAN TRADERS v. C. T. O. (TNT. )B LORE — 1982 DIGILAW 8 (KAR)

M. P. CHANDRAKANTARAJ, J. ( 1 ) THIS writ petition under Art. 226 of of the Constitution is directed agains the search and seizure conducted by the respondent inter alia contending that the search is without jurisdiction contrary to the express provisions of law and therefore, illegal. In the result, the petitioner has prayed for quashing of tht seizure order which is at Ext-A to the petition and also for issue of a writ of mandamus to the respondent directing him to return all books of accounts and other documents seized under Exhibit-A above. ( 2 ) THE facts leading to the filing of the petition may be briefly stated as follows: ( 3 ) THE petitioner-Hanuman Traders, huliyar Road, Hiriyur, is a registered partnership firm and in these proceedings is represented by one of the partners M. H. Anjanappa,. The petitioner firm is a dealer under the karnataka Sales Tax Act (hereinafter referred to as the Act ). The firm is assessed by the Assistant Commissioner of Commercial Taxes, Assessments, bangalore Dn. Bangalore. The petitioner has asserted that he has filed all the returns due under the law. He has paid all the taxes payable under the Act. It is alleged that on the 16th January, 1981, the respondent-Commercial Tax Officer intelligence-II Bangalore along with a number of officials of his department made a surprise raid on the firm's oil mill, office premises and the residential premises. It is alleged that the respondent arrived at the premises of the firm at about 3 p. m. and left the premises at about 10 p. m. The respondent did not have a warrant of search. The respondent had no authority of law to search or size. It is also claimed that it has come to the knowledge of the firm that the respondent has not been authorised under sub-sec. (2) of Sec. 28 of the Act to exercise the powers thereunder. It is also alleged that the respondent had no basis, reason or information against the petitioner to conduct the search and seizure. It is further alleged that 'the, respondent is an authority subordinate to the Assistant Commissioner of Commercial Taxes, the assossing authority in the petitioner's case and therefore he could not effect tbe search and seizure without the presence of the assessing authority. It is further alleged that 'the, respondent is an authority subordinate to the Assistant Commissioner of Commercial Taxes, the assossing authority in the petitioner's case and therefore he could not effect tbe search and seizure without the presence of the assessing authority. It is further alleged that the action of the respondent is not in accordance with the provisions of sub-sec. (2) of Sec. 28 of the Act it is also alleged that there is total violation of the provisions of sub- sec. (3) of S. 28 of the Act. It is alleged that there is no proper application of mind in the matter of conducting the search and effecting the seizure. That at about 9 p. m. on that evening the respondent sent for the police and in their presence the partner of the firm who was present at the time of search and seizure M. H. Anjanappa under threats posed by the police and the respondent had no alternative except to the submit to the recording of whatever statements the respondent (C. T. O.) wanted. It is further alleged that the respondent ransacked all the belongings in the office premises, oil mill and also entered the residential premises and took away whatever was available. The respondent had not brought any independent witnesses to witness the search. The witnesses did not know english language. The witnesses were induced to sign the mahazar by stating that they were not in any way involved in the search and seizure proceedings. The contents of the mahazar were not translated for the benefit of the witnesses. The mahazar was prepared before the witnesses came and the names of the witnesses were insertod at the end after their arrival. It is also alleged that no receipt was given in respect of the seized documents and books of accounts contrary to the express provisions contained in sub-sec. C3) of Sec. 28 of the Act. It if also alleged that the witnesses to the search and seizure as recorded were not persons of the locality and therefore there was violation of Sec. 100 of the Crl. P. C. vitiating the entire search and rendering the seizure illegal and without the authority of law. It is also allegedi that the witnesses were brought by the police at about 9 p. m. on that day well after the search and seizure was over. P. C. vitiating the entire search and rendering the seizure illegal and without the authority of law. It is also allegedi that the witnesses were brought by the police at about 9 p. m. on that day well after the search and seizure was over. ( 4 ) IT is necessary to state that after the filing of the petition and after the hearing of the petition had commenced, affidavits of S. Lingareddy and B. Basavalinga, the attesting witnesses to the search and seizure have been filed. In the said affidavits the deponents have asserted that they had gone on 16. 1. 81 to the police station at hiriyur at about 8 p. m. and at that time certain officials of the Commercial Tax department came to the police, station and they were told to accompany them to the oil mill of Hanuman traders. They also stated that the two witnesses were asked to sign the, mahazar papers and they were asked to be the witnesses and therefore they went in the jeep of the Commercial Tax Department to the oil mill. They have asserted that they had not accompanied the Commercial Tax Officer at the time of the beginning of the search. They have also stated that they are not inhabitants of the locality in which the petitioner's oil mill is situated. ( 5 ) AS against these facts asserted by the affidavits of the partner of the firm and the attesting witnessess, the respondent who has entered appearance after notice has filed his statement of objections together with the affidavit of the sub-Inspector of Police of Hiriyur police station at the relevant time. In the statement of objections the respondent has asserted that the inspection and search commenced at about 3 p. m. on 16-1-81. It is also asserted that a partner of the firm Shri M. H, Anjanappa was present at the premises of the oil mill. It is denied that the respondent ever entered any residential premises. It is therefore contended that the need for a search warrant was totally unnecessary under the provisions of sub-sec. (2) of Sec. 28 of the Act. It is also stated in the objection statement that pursuant to the re-organisation of Enforcement and intelligence Wing of Southern Zone by government Order No. FD 145 CSE 70 dt. It is therefore contended that the need for a search warrant was totally unnecessary under the provisions of sub-sec. (2) of Sec. 28 of the Act. It is also stated in the objection statement that pursuant to the re-organisation of Enforcement and intelligence Wing of Southern Zone by government Order No. FD 145 CSE 70 dt. 5-1-77, the Commissioner of Commercial Taxes, Bangalore, in exercise of of his powers under Sec. 3-B of the Act had made an order inter alia directing the Commercial Tax Officer, (Int.-II), bangalore, with head quarters at Bangalore to exercise the powers under Sec. 28 of the A'ct in the Districts of Bangalore, kolar, Tumkur, Chitradurga,, Mysore, Mandya, Hassan, Chickmagalur and Shimoga within the jurisdiction of the Deputy Commissioner of Commercial Taxes (Int.), southern Zone, Bangalore. Therefore, it is asserted that the respondent was duly empowered in law to inspect the business premises of the petitioner. It is also asserted that the respondent acted on the information available and not on mere suspicion that the petitioner was evading sales tax; that there has been no violation of any of the provisions of the Act or other law. It is submitted that when the copy of the seizure order was served on the partner m. H. Anjanappa, the same was refused. In the result, the respondent was forced to leave the copy in the premises of the oil mill which fact is admittedly proved by production of the same by the petitioner along with the petition. It is stated that the inspection and search became necessary for the purpose of verifying the truth or otherwise of the information received against the ground. nut oil mills of Hiriyur to the effect that they were all indulging in large scale evasion of tax. The respondent has denied that the witnesses were fetched from the police station and hag also denied that the witnesses were not present from the beginning of the inspection and search. It is also asserted that the police help was sought in the light of the physical resistance offered by the officials of the petitioner-firm headqd by the firm's partner the said Anjanappa. It is also asserted that the police help was sought in the light of the physical resistance offered by the officials of the petitioner-firm headqd by the firm's partner the said Anjanappa. It is asserted that it was at about 4 p. m. on the arrival of the Deputy Commissioner of Commercial Taxes, Intell gence-II, Bangalore, who also cam to hiriyur that the police help was sought and the police fetched as there was grave threat to the person of the respondent who would have been otherwise severely man-handled. It is as-serted that on the arrival of the police, peace was restored and the inspection and search was proceeded, with resulting in the impuged seizure,. ( 6 ) THERE are certain facts relating to the seized documents and their relevance in the statement of objections. A mere reference to the same is adequate and! details are not necessary for the purpose of deciding the, matters in issue, ( 7 ) THE respondent has further denied that he ransacked the premises of the petitioner-firm as alleged by the petitioner. The allegation that the sister concern's books of accounts and documents have been indiscriminately seized is also denied. It is on the other hand asserted that the sister concern has the same partners and is situate in the same premises and that the business carried on by both are interlinked. The respondent has further asserted that all documents were seized, scrutinised and] examined and only those which were required for further investigation were seized. It is in these circumstances that the, respondent states that the petition is premature as further investigation pursuant to the seizure of documents and books of accounts is under way. It is therefore prayed, the writ petition be rejected. ( 8 ) IN furtherance of the contentions raised in the petition, Shri B. P. Gandhi. , learned; Counsel for the petitioner (has argued the following five propose tions ; (1) That the respondent-Commercial tax Officer, Intelligence, is not authorised under sub-sec. (1) of See. 28 of the Act in view of the notification of the Commissioner under Sec. 3b (4) (a) of the Act. (2) That the search and consequently the impugned seizure order is rendered illegal and void in as much as there is no compliance of the requirement of Sec. 165 of Crl. P. C. as enjoinedi by the proviso to sub-sec. 28 of the Act in view of the notification of the Commissioner under Sec. 3b (4) (a) of the Act. (2) That the search and consequently the impugned seizure order is rendered illegal and void in as much as there is no compliance of the requirement of Sec. 165 of Crl. P. C. as enjoinedi by the proviso to sub-sec. (2) of Sec. 28 of the Act. (3) That the search and seizure is vitiated, as the same was done contrary to the express provisions contained in sec. 100 Crl. P. C. as thq mahazar witnesses were got up witnesses and as they did not hail from the locality. (4) That the seizure of documents being indiscriminate and not directeid against any particular books of accounts or other documentary evidence evidencing evasion of sales tax by the petitioner, the search and seizure was illegal. (5) That the search is bad in law in as much as no receipt for the seized documents including the books of accounts was issued by the respondent, contrary to the express provision contained in sub-sec. (3) of Sec. 28 of the act ( 9 ) IN support of the first of the; propositions that the respondent had no jurisdiction nor authority under sub-sec. (1) of Sec. 28 of the"act to conduct search and effect seizure, the; learned counsel for the petitioner has relied upon sub-sec. (4) (a) of Sec. 3-B of the Act. The sub-section is as follows:"3-B. Jurisdiction of Officers. . . . . . . 4 (a) The Commissioner may, by general or special order in writing, direct that the powers conferred on the Commercial Tax Officer by or under this Act, shall in respect of any specified case or classes of cases or any specified dealers or classes of dealer be exercised by the Assistant Commissioner. . . . . . . . . . . . Explanation.-In this section, the word "case" in relation to any dealer: specified in any order or direction issued thereunder means all proceedings under this Act in respect of any year which may be pending on the date of such order or direction or which may have been completed on or before such date, and includes also all proceedings under this Act which may be commenced after the date of such order or direction in respect oi any year. "it is the argument of the learned Counsel that having regard to the express language of the above sub-section, the assistant Commissioner having been conferred the powers of the Commercial tax Officer, the Assistant Commissioner alone being the assessing authority in the case of the petitioner firm, he alone was competent to conduct the search and effect the seizure as even the search and seizure under Sec. 28 of the Act should be deemed to be proceedings within the meaning of that term occur- ing in the Explanation of subsection (4) (a) of Section 3-B of the Act. In other words, the thrust of the argument is that notwithstanding the powers to be exercised by the State government to empower any officer to enter, inspect, seize and; cause production of accounts, once the case is assigned under sub-sec. (4) (a) of Sec. 3-B of the act to the Assistant Commissioner of commercial Taxes to exercise all the powers of the ^commercial Tax officer in assessing the case the petitioner-firm, the search also should be conducted only by him and him alone. As against this argument, learned Advocate-General appearing for the respondent, has drawn the attention of the Court to sub-sec. (1) of S. 3 of the Act which is as follows: 3 (1) The State Government may appoint a Commissioner of Commeicial Taxes and as many Deputy commissioners of Commercial Taxes, assistant Commissioners of Commercial Taxes, Commercial Tax Officers, (State Representative and Assistant commercial Tax Officers) as they think tit for the. purpose of performing the functions respectively conferreg on them by or under this Act (or by or under any other law for the time being in force ). " as could be seen from the above subsection, it is argued for the respondent that the Stale. Government may appoint any of the officers as it thinks fit lor the purpose of performing the functions respectively conferred on them by or under this Act. In other words, the freedom of the Government to make appointments and assign functions in accordance with the provisions of the Act is emphasised. It is further argued thai the power exercised under sub-sec. In other words, the freedom of the Government to make appointments and assign functions in accordance with the provisions of the Act is emphasised. It is further argued thai the power exercised under sub-sec. (4) (a) of Sec. 3-B of the Act is the power exercised by the Commissioner who is subordinate to the State; Government and in that view of the matter the State, Government being the authority to empower under S. 28 (1) of the Act, i't should. be construed as overriding the powers of the Commissioner under sub-sec. (4) (a) of S. 3b of the Act. No doubt, the proceedings referred to in the Explanation to sub-sec. (4) (a) of S. 3-B of the Act includes the proceedings of inspection, search and seizure. But when specific provision is made in the Act for causing production of certain documents and books of accounts, to inspect the premises of the assessee, to search the premises of the assessee and if necessary effect seizure in terms provided for under S. 28 of the Act, the general power of assessment under sub-sec. (4) (a) of S. 3-B of the. Act should necessarily be held to stand excluded from the power required to be exercised by the State government under S. 28 of the Act. In other words, if the arguments advanced by the petitioner are accepted and sub- sec. (4) (a) of S. 3-B of the Act, is allowed to prevail over sub-sec. (1) of s. 28 of the Act, it will have the effect of reading down and; rendering otiose part of sub-sec. (1) of S. 28 of the Act in as much as by so reading, the State government is denied the power to authorise any officer to cause production of documents, search, inspect and seize the documents in given circumstances. Such a construction would hit the very purpose sought to be achieved by the scheme of the Act. One must not fail to notice that the power of search and seizure is not an ordinary power of the assessing authority. That power when exercisedi is likely to invade the funda,- mental rights of the citizens and viewed thus one should not hesitate to hold that s. 28 of the Act, in the scheme of the act. One must not fail to notice that the power of search and seizure is not an ordinary power of the assessing authority. That power when exercisedi is likely to invade the funda,- mental rights of the citizens and viewed thus one should not hesitate to hold that s. 28 of the Act, in the scheme of the act. is a special provision which should be given effect to over the general distribution of jurisdiction carried out by by the Commissioner under sub-sec. (4) (a) of S. 3-B of the Act. I, therefore, have no hesitation to reject the first proposition advanced by the petitioner, that the respondent had no jurisdiction to effect the search and seizure. In this connection, I should not fail to notice that it is not disputed by the petitioner that the respondent is authorised or empowered by a notificatiton to inspect the premises of the, petitioner-firm and exercise the powers of the assessing authority under S. 28 of the Act as per notification dated 1-2-1977, a true copy of which is produced at Annexure-R. 1 to the statement of objections filed for and on behalf of the respondent. ( 10 ) SHRI B. P. Gandhi has strenuously argued that having regard to the Supreme Court's ruling in Jhaver's case (1) the search and seizure, in the instant case, was wholly illegal in as much as there was total non-compliance with the provisions of Sec. 165 Crl. P. C. It is useful to extract the passage relied upon in the judgment of the Supreme court in the aforementioned case and it is as follows:"we are therefore of opinion that the safeguards provided in S. 165 also apply to searches made under sub- sec (2), These safeguards are - (i) the empowered officer must have reasonable grounds for believing that anything necessary for the purpose of recovery of tax may be found in any place within his jurisdiction, (ii) he must be of the opinion that such thing cannot be otherwise got without undue delay, (hi) he must record: in writing the grounds of his belief, and (iv) he must specify in such writing so far as possible the thing for widen search is to be made. After he has done these things, he can make the search. These safeguards, which in our opinion apply to searches under sub-sec. After he has done these things, he can make the search. These safeguards, which in our opinion apply to searches under sub-sec. (2) also clearly show that the power to search under sub-sec. (2) is not arbitrary. "mr. Gandhi has contended that in the instant case there has been nothing recorded by the respondent before the search was effected much less reasonable grounds having existed. He further states that no opinion as such has been formed by the respondent that evidence could not be got except by search and seizure. He also states that no grounds have been recorded for formulating such belief. Even the fourth safeguard, that he must specify in writing the things he is looking for in the search has also not been complied with. ( 11 ) IT is no doubt true that if these four pre-requisites are not to be found in the search under the Act, this Court would have no hesitation to strike down as illegal and contrary to law such a search and seizure. Apart from the assertions in the statement of objections that these have been complied with, the learned Advocate-General has made available the records of the case. It is seen from the records that the search was initiated not on mere suspicion but on definite information received by the deputy Commissioner of Commercial taxes, intelligence, South Zone, Bangalore. It is not in public interest to disclose the source of information. But on perusal, I am satisfied that the information furnished to the Intelligence Wing of the Department was sufficient to reasonably come to the conclusion that certain oil mills at Hiriyur which were listed were practising evasion of tax under the Act. Even the mode of evasion was indicated. This information had been received as far back as in September, 1980. It was only thereafter that the respondent after making preliminary investigtations, proceeded to record his reasons for forming the belief that some documentary evidence could be obtained if a surprise inspection and search was made of the factory and the. business premises of the petitioner. He has recorded that if enquiries were made at the Banks, the petitioner who was one of the oil mills referred to in the information received, would become alert and manufacture his accounts in anticipation. business premises of the petitioner. He has recorded that if enquiries were made at the Banks, the petitioner who was one of the oil mills referred to in the information received, would become alert and manufacture his accounts in anticipation. He has further recorded that if the assessment records were to be got, then also the dealer would receive the information and manipulate the records. It was in that circumstance that he recommended to the superior officer, surprise inspection, search and if necessary seizure in order to gather incriminating documents that may be found in the premises of the petitioner. After recording his reasons the same were submitted to the superior officer and the necessary permission obtained. He then proceeded to conduct the search with a strong team. ( 12 ) THE cumulative effect is that the four requirements set out by the Supreme Court in Jhaver's case supra are fulfilled and therefore it cannot be said that !he search has been arbitrary, without application of mind, without forming the reasonable belief and without recording his reasons for such belief. Therefore, even this contention should be rejected. ( 13 ) NO doubt, the learned Counsel for the petitioner, has cited numerous other cases, under the Income Tax Act and the Sales Tax Acts to demonstrate the illegality of the search impugned. In some of the cases the High Courts and the Supreme Court have indeed. struck down, the searches questioned before them in those cases. But one must not forget that every case should be decided on the facts relating to that case. In none of the cases cited, the learned Counsel was able to point out identical set of facts. I have already pointed out that the records of the case in the instant case do disclose due adherence by the respondent to the provisions of S. 165 of Cr. P. C. ( 14 ) HOWEVER, Mr. Gandhi in respect of this limb of his argument drew my attention to the ruling of this Court in neminath Bros. v. C. T. O. (Intelligence) iv, North Zone, Belgaum (2 ). Jagannatha Shetty, J. , construing the scope of sub-sec. (3) of Sec. 28 of the Act held as follows; -"when the sub-section requires the. officer to record reasons; it is obligatory that he should record such reasons as to the necessity to seize the documents, registers or accounts. v. C. T. O. (Intelligence) iv, North Zone, Belgaum (2 ). Jagannatha Shetty, J. , construing the scope of sub-sec. (3) of Sec. 28 of the Act held as follows; -"when the sub-section requires the. officer to record reasons; it is obligatory that he should record such reasons as to the necessity to seize the documents, registers or accounts. In other words, he may seize only such documents, registers or accounts, etc. , that may be relevant in any enquiry or proceeding pending or proposed to be taken against the dealer. He cannot seize whatever is found lying in the premises on a subjective satisfaction that such books of account, documents or registers might 'be useful to prove the evasion of payment of tax. It may be necessary for the searching officer to scrutinise the accounts, registers or documents which he intends to seize. I may, however, hasten to add that a close examination of each and every document, book or register is neither expedient nor necessary. Nor is it necessary for him to record separate reasons as against every account book, document or register which he intends to seize. The Officer may have a broad survey or a broad look over all the documents, registers and accounts, but the reason or reasons which he records must indicate that he has applied his mind and should prima facie disclose that such documents are relevant to prove the suspected evasion of tax, fee or other amount due from the dealer under the Act. "it is therefore Argued by Mr. Gandhi that in the instant case the search has been without any objective, that the seized documents including torn pieces of papers have no relevance whatsoever to the assessment proceedings of the petitioner and therefore the fourth ingredient formulated by the Supreme count as to the need for indicating what is required by the searching officer was totally lacking in the instant case. A perusal of the seizure, order which is at ext.-A to the petition indicates the reasons given by the officer for seizing th,e documents. Those reasons clearly demonstrate that the respondent as the seizing officer has recorded the reasons in respect of each set of documents. These reasons cannot be said to be arbitrary. For instance in respect of item no. 3, the respondent has recorded that the firm had purchased 'cotton seed oil worth Rs. Those reasons clearly demonstrate that the respondent as the seizing officer has recorded the reasons in respect of each set of documents. These reasons cannot be said to be arbitrary. For instance in respect of item no. 3, the respondent has recorded that the firm had purchased 'cotton seed oil worth Rs. 72,576 from M/s. Rama thunga Oil Industries, Dharwar, vide invoice "no. 133. The said purchase ha,d not been recorded in the regular books of accounts. Item No. 3 are loose account slips containing the correspondence, form No. 39 invoices purchase numbering 1 to 144. In other words, he has applied his mind to each and very document seized and formed objective assessment of the implications of the documents and thereafter only he has seized them for purpose of further investigation and verification. Thus, I cannot see how the decision of Jagannatha Shetty, J. , in Neminath Bros, case (2) is of any assistance to the petitioner. One should not overlook in the said decision, learned single Judge has taken the precaution to emphasise] the need for time and pragmatism in the matter of scrutiny of the documents, registers and books of accounts at the premises where the search and seizure is being effected. All that is required is that the reasons recorded must indicate that the officer had applied his mind which prima facie disclosed that such documents are relevant to prove the source of evasion of tax. I, therefore, see no merit in this argument of the learned counsel for the petitioner. ( 15 ) MR Gandhi has next urgedl that the search and the consequential seizure should be declared as invalid in as much as the witnesses were, not of the locality. It is not disputed that the witnesses do not belong to Hiriyur or any area in hiriyur within the vicinity of the premises where the petitioner carries on its industry and trade. This is proved by the affidavits filed by the attesting witnesses at the instance of the petitioner. This is not disputed by the learned advocate-General either. However, the learned Advocate-General relies upon a ; number of decisions of the High Courts and the Supreme Court to support the proposition that even if the witnesses were not of the locality, it would only make the search and seizure irregular but not illegal. It is unnecessary to go into the details of the decisions. However, the learned Advocate-General relies upon a ; number of decisions of the High Courts and the Supreme Court to support the proposition that even if the witnesses were not of the locality, it would only make the search and seizure irregular but not illegal. It is unnecessary to go into the details of the decisions. Even under the Criminal Procedure Code (sub-sec. (4) of Sec. 103 of 'the Cr. P. C.) now it is well settled that if search witnesses are not of the locality, the search becomes irregular and not illegal. The emphasis in the Criminal Procedure code is on the independent character of the witnesses and therefore presence at the time of search and not so much on the locality from which they hail. In this view of the matter, the best that the petitioner could claim is that the search was irregular an,d no more. It is useful to notice the decision of the Supreme Court in the case of Radha Kishan v. State of U. P. (3) , In the said case while construing the provisions of Ss. 103 and 165 of the Code of Criminal procedure, the Supreme Court observed as follows:"it may be that where the provisions of Ss. 103 and 165, Criminal procedure Code, are, contravened the search can be resisted by the person 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 furthter consequences ensue. "i am therefore of the view that in the instant case the search and seizure, cannot be held to be illegal merely because, the witnesses did not come from the locality. ( 16 ) WHILE on this question, it is useful to consider the arguments of the learned counsel for the petitioner on the question of the witnesses being absent ait the time of search. This question is required to be decided by me in the light of the affidavits filed by the witnesses and the Sub-Inspector of Police as well as the assertions made by the respondent in his statement of objections. This question is required to be decided by me in the light of the affidavits filed by the witnesses and the Sub-Inspector of Police as well as the assertions made by the respondent in his statement of objections. The petitioner claims that the witnesses were brought after the search was over at about 8 p. m. and that they signed at the behest of the, police and officers of the commercial Tax Department. The Sub- inspector of Police has filed his affidavit and produced the station house diary. He denies in his affidavit that the witnesses ever came to the police station. On the other hand, at 'the entry to be found with reference to 16-1-1981 at 4 p. m. it is recorded that the Commercial tax officials required police help. This lends credence to the assertion made by the respondent that at the search commenced there was resistance by the partner of the firm who was present at the premises and therefore 'be police help was sought for. Such search commenced at about 3 p. m. as asserted stands duly corroborated by the entry in the station house diary regarding the assistance of the police sought by the Commercial Tax Department. ( 17 ) THE fact that the witnesses did not know the language is not of much assistance to the petitioner. Neither of the witnesses have stated that any force was used1 or threat was used calling upon them to sign the mahazar or the seizure order. Nor is there any assertion that the contents were not read out and translated to them. To my mind it appears that the witnesses have been subsequently persuaded to file affidavits before this Court stating that they came at about 8 p. m. and not earlier. Anyway, in the station house diary of that day, there is no mention of a complaint received from either of the witnesses at 4 p. m. or 8 p. m. This inevitably leads to the conclusion that the witnesses have deposed in their affidavits something which is far from the truth. The, sub-Inspect or of Police who has filed his affidavit has no reason to be malicious towards the petitioner. His statement that he was absent from 4'o clock to 6'o clock from the station house on account of the search at the premises of the petitioner-firm should be believed. The, sub-Inspect or of Police who has filed his affidavit has no reason to be malicious towards the petitioner. His statement that he was absent from 4'o clock to 6'o clock from the station house on account of the search at the premises of the petitioner-firm should be believed. In that view of the matter, with regret i must hold that the petitioner has tried to improve his case on this court by filing the affidavits of witnesses who having signed the mahazar and the seizure order, have gone back on the same, long after the event. I, therefore. , hold that there has been no violation in the instant case, of sub-sec. (4) of Sec. 100 of the Code of Criminal Procedure except to the extent indicated. ( 18 ) I have already dealt with the question of indiscriminate search referring to the decision of Jagannatha shetty. J. , in Neminath Bros case (2 ). I may however add here that the Supreme Court in the case of Pooranmal v. Director of Inspection (Investigation) of I. T. , New Delhi (4) in a constitution bench had occasion to consider this question arising under the Income Tax act. It is very useful to extract 'the ruling which is as follows:"it was next alleged that a very large number of documents were seized which were really irrelevant. The authorised officer has to seize books of account and other documents which will be useful for and relevant to any proceeding under the Income tax Act. When in the course of a search voluminous documents and books of account are to be examined with a view to judge whether they would be relevant, a certain amoun. of latitute must be permitted to the authorities. It is true that when particular documents are asked to be seized unnecessary examination of other documents may conceivably make the search excessive. But when the documents, pieces of paper, exercise books, account books, small memos etc. , have all to be examined with a view to see how far they are relevant for the proceeding under the act, an error of judgment is not unlikely. At the most this would be an irregularity - not an illegality. But when the documents, pieces of paper, exercise books, account books, small memos etc. , have all to be examined with a view to see how far they are relevant for the proceeding under the act, an error of judgment is not unlikely. At the most this would be an irregularity - not an illegality. Nor can it be a valid, objection to the search that it continued for about 16 hours, By their very nature the search and seizure as shown above would consume a lot of time. "the position is clearly explained and this being a binding decision, the contention that the search was indiscriminate and therefore more in the nature of a fishing expedition is not well founded. ( 19 ) THE last contention urged by Mr. Gandhi is that no receipt as required by sub-sec. (3) of Sec. 28 of the Act was ever given to the sejzed document, and therefore the search and seizure should be held to be invalid. I do not think the assertion is well founded. It is stated by the respondent on oath that the seizure order was sought to be served on the partner who was present at the time of search of the oil mill after the search and seizure was over and the partner refused to receive the same and in that circumstance the respondent was compelled to leaye the copy of the order in the premises and go away. Along with the petition the copies of the seizure order as well as the mahazar are produced at Exts.-A. and B respectively. These copies are carbon copies. They are signed by the respondent as well as the witnesses. They bear the date 16-1-1981. At the end of Ext.-A there is an endorsement that Shri M. H. Anjanappa had refused to receive the copy of the order and the same is left in the business premises before the witnesses and; again that endorsement has been signed by Basavalingappa and lingareddy, the attesting witnesses. There is no prescripion of the form of the receipt for seized documents and the records, required to be issued under sub-sec. (3) of Sec. 28 of the Act. Therefore, any form of writing which evidences the seizure of documents and the details relating to them should be construed as sufficient receipt. There is no prescripion of the form of the receipt for seized documents and the records, required to be issued under sub-sec. (3) of Sec. 28 of the Act. Therefore, any form of writing which evidences the seizure of documents and the details relating to them should be construed as sufficient receipt. The seizure order in question, in detail sets out the documents and books of accounts and other records seized and the reasons for the seizure and the copy of the order is issued to the person who is in charge of the premises from which the documents are seized. In such a case the seizure order must itself be held ro be the leceipt for the, seized documents. The petitioner has produced the same which was left in its premises. The'inevitable conclusion is that there was substantial compliance with the requirements of sub-sec. (3) of Sec. 28 of the Act in the matter of issuing the receipt for the seized documents. ( 20 ) MR. Gandhi, learned Counsel for the petitioner was permittedi to raise the additional ground that the retention of documents seized beyond 60 days without the permission of the superior officer as required by the proviso to sub- sec. (3) of Sec. 2r of the Act, as that event occurred while the petition was pending in this Court, I have carefully perused the records in this behalf. Search and seizure took place on 16-1- 1981. Sixty days would have expired on 16-3-1981. Records disclose that permission was sought for retention beyond 60 days for another period of sixty days on 10-3-1981. On the same day permission has been granted by the higher authority. Periodically further permission thas been asked for and obtained by the respondent. I, therefore, do not see any merit in this contention either. ( 21 ) IN the light of the above discussion and for the reasons given by me on the facts of this case and on the material placed before me I am unable to hold that the search and seizure in the case of the petitioner made on 16-1-1981 was illegal. ( 22 ) THIS petition was heard at the stage of preliminary hearing in detail after notice. In the circumstances, it is unnecessary to issue rule and the petition is dismissed. There will be no order as to costs. --- *** --- .