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1998 DIGILAW 75 (CAL)

AJIT KUMAR AGARWALLA v. UNION OF INDIA

1998-02-20

VINOD KUMAR GUPTA

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VINOD KUMAR GUPTA, J. ( 1 ) THE two petitioners claimed to be associated with Terai Tea Company Ltd. , Terai Overseas Ltd. , and East Indian Produce Limited and several other companies. The petitioners have their residence at No. 5, Lower Loudon Street, Calcutta. They also reside at 2nd Mile, Sevoke Road, Siliguri. The registered office of Terai Tea Company Limited is situated at 11, Government place, (East), Calcutta. ( 2 ) ON 15th May, 1996 at about 7. 10 A. M. , a team of Customs officers conducted search and seizure operations at the residential premises of the petitioners at 2nd Mile, Sevoke Road, Siliguri. The search and seizure operations were conducted purportedly on the basis of the search warrant issued in terms of Section 105 of the Customs Act. During the course of search and seizure operations certain documents were seized and taken away by the officers of the team which was responsible for conducting the search and seizure operations. ( 3 ) THE only relief which the petitioners seek in this petition is that this Court declare the aforesaid search of the petitioner's premises and the seizure of documents therefrom as illegal and being violative of Section 105 of the Customs Act, 1962. Section 105 of the Customs Act read as under :-"power to search premises. (1) If the Assistant Collector of Customs, or in any area adjoining the land frontier or the coast of India an officer of Customs specially empowered by name in this behalf by the Board, has reason to believe that any goods liable to confiscation, or any documents or things which in his opinion will be useful for or relevant to any proceeding under this Act, are secreted in any place, he may authorise any officer of Customs to search or may himself search for such goods, documents or things. (2) The provisions of the Code of Criminal Procedure, 1898 (5 of 1898), relating to searches shall, so far as may be, apply to searches under this Section subject to the modification that Sub-section (5) of Section 165 of the said Code shall have effect as if for the word "magistrate", wherever it occurs, the words "collector of Customs" were substituted. " ( 4 ) THE main ground of attack with regard to the aforesaid search and seizure is that the person responsible to order the search and seizure did not record any reasons in furtherance of his belief that any goods liable to confiscation or any documents or things which he considers might be useful for or relevant to any proceedings under the Customs Act are secreted in any place. Shri S. K. Kapoor, learned Senior Advocate appearing for the petitioners very vehemently argued and contended that it was incumbent and obligatory upon the prescribed authority in terms of Section 105 of the Customs Act not only to record the reasons in the order authorising the search operation but also to reflect such reasons in the records maintained by him for this purpose. According to Mr. Kapoor the search and seizure as conducted by the respondents, was without any authority of law since the prescribed officer failed to record any reasons for his belief in terms of Section 105 of the Act that any documents were secreted away in the premises in question and that this might have been useful or relevant for any proceedings under the Customs Act. ( 5 ) I have seen the supplementary affidavit filed by one Madan Kumar Sil who is the Assistant Director in the office of the Directorate of Revenue Intelligence, Calcutta. According to this officer the authority prescribed to conduct search and seizure operations in terms of [section] 105 of the Customs Act had reasons to believe that searches were required to be conducted. The affidavit of Shri Madan Kumar Sil contains the following relevant information, which was made the basis of passing the order under Section 105 of the Customs Act. "m/s. Terai Overseas Ltd. , Calcutta have exported rags declared to be ladies blouses and valued at over Rs. 3 crores to Russia under claim for Drawback of Rs. 31 lacs. The Shipping Bill Nos. are 030773 to 030775 filed at JNPT. The CHA at Bombay is Bharat Communicators. The Export has been organised by one Raju Taneja of Kup Cargo. The Export is meant to mis-avail drawback and launder money. The Terai group is owned by Amit Aggarwal. Evidence of the Hawala Transaction will be evident from the Bank Records (Central Bank of India/canara Bank ). The CHA at Bombay is Bharat Communicators. The Export has been organised by one Raju Taneja of Kup Cargo. The Export is meant to mis-avail drawback and launder money. The Terai group is owned by Amit Aggarwal. Evidence of the Hawala Transaction will be evident from the Bank Records (Central Bank of India/canara Bank ). The L/c has been encashed by presenting forged B/ls as the export is of March, 1996 and the L/c was opened in April, 1996. The AEPC stamp on the S/b is also forged. The Russian Consignee is fictitious and the goods are intended to be abandoned in Moscow. I may be suitably rewarded. " ( 6 ) ALONG with the affidavit of Shri Madan Kumar Sil various documents have also been annexed which clearly suggest that there were enough reasons for the respondents to order the search of the premises of the petitioners to look for documents which could have been secreted in those premises and which might have been useful for or relevant to any proceedings under the Act. I do not wish to make any further comments with regard to the merits of the reasons or the merits of the information received since the proceedings before the Customs Officers under the Customs Act might still be pending and might not have been concluded. Any comments that I make one way or the other with regard to the sufficiency of the reasons or the fact whether the reasons were wholly relevant or not, might prejudice the outcome of the pending proceedings or may tend to influence one way or the other the decision making process in such proceedings. Any such comment may also adversely effect the interests of the parties or either of them. ( 7 ) I am however convinced that the requirements as contained in and prescribed under Section 105 of the Customs Act having been fully satisfied, this Court cannot issue the declaration that the search and seizure was illegal or contrary to Section 105 of the Customs Act. No other relief was claimed during the course of hearing of the petition nor was any other point urged, except with regard to the legality of the search and seizure in relation to the applicability of Section 105 of the Customs Act. For the foregoing reasons therefore the writ petition is dismissed but without any order as to costs.