MANU/MH/0123/1990

Equivalent Citation: 1991(1)BomCR513, 1990CriLJ2635

IN THE HIGH COURT OF BOMBAY AT NAGPUR
Criminal Appeal No. 195 of 1987 and Criminal Revn. Appln. No. 153 of 1987
Decided On: 03.08.1990
Appellants:State of Maharashtra
Vs.
Respondent:Narayan Champalal Bajaj
Hon'ble Judges/Coram:
A.A. Desai and B.U. Wahane, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: A.S. Jaiswal, Adv.
For Respondents/Defendant: P.G. Palshikar and S.V. Akolkar, Advs.
For State: S.G. Charde, Addl. Public Prosecutor
Subject: Criminal
Acts/Rules/Orders:
Code of Criminal Procedure, 1973 (CrPC) - Section 313; INCOME TAX ACT, 1961 - Section 132,
INCOME TAX ACT, 1961 - Section 275A, INCOME TAX ACT, 1961 - Section 276A, INCOME TAX
ACT, 1961 - Section 279; Indian Penal Code (45 Of 1860) (IPC) - Section 401, Indian Penal
Code (45 Of 1860) (IPC) - Section 406, Indian Penal Code (45 Of 1860) (IPC) - Section 461,
Indian Penal Code (45 Of 1860) (IPC) - Section 496
Case Note:
Criminal - raid - Sections 132 (1) and 132 (3) of Income Tax Act and Sections 461 and
401 of Indian Penal Code - raiding party searched respondents premises pursuant to
authorization under Section 132 (1) - pawned jewellery found kept in almirah and
prohibitory Order issued under Section 132 (3) - articles in almirah removed while
same were under custody and domain of respondent - respondent convicted for
offence punishable under Section 276A and Sections 461 and 401.

JUDGMENT
A.A. Desai, J.
1. By this appeal at the instance of State and revision application on behalf of the Commissioner
of Income Tax, the appellant and revisionist have questioned the validity and correctness of the
finding of acquittal for the offence punishable under S. 275A of the Income Tax Act (hereinafter
referred to as "the Act"), Section 406 and S. 461 of the Penal Code.
2. Pursuant to authorisation under sub-section (1) of S. 132 of the Act, P.W. 3 Prasad on 2910-1985 undertook search of the premises of respondent accused Narayan Bajaj. The search
continued till 9.30 p.m. However, it was incomplete. During the course, P.W. 3 Prasad and the
raiding party separated the pawned jewellery and kept it in the almirah. The almirah has
sealed. P.W. 3 Prasad then issued prohibitory order purported to be under sub-section (3) of S.

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132 of the Act. Seizure Panchanama (Exh. 21) was drawn.

3. P.W. 3 Prasad and his party next day, i.e. on 30-10-1985 resumed and continued their
search. They opened the almirah and found that some articles were missing. On verification,
they noticed that steel plates of rear side of the almirah have been cut at two places. P.W. 2
Krishnamachari, the local Income Tax Officer thereafter lodged a report vide Exh. 16 to the
Police Station, Yavatmal. P.W. 6 Tiwari seized the almirah in question vide Panchanama (Exh.
23). The almirah was then handed over to the accused on supratnama.
4. After completing the investigation, the accused was charged and tried for the offences
enumerated hereinabove. The defence of the accused was of denial. The trial Court observed
that (a) prior sanction of the Commissioner as envisaged under S. 279 of the Act to prosecute
the accused for the offence punishable under S. 275A of the Act was not obtained, (b) the
authorised officer, namely P.W. 3 Prasad had not reached the conclusion that the pawned
articles kept in the almirah were the property undisclosed for the purpose of the act. Moreover,
it was not totally impracticable for the raiding party to continue and complete he search. As
such, P.W. 3 Prasad could not take resort to Sub-Section (3) of S. 132 of the Act for issuing the
prohibitory order : (c) the almirah in question and the Supratnama were not produced in the
Court for verification. Adopting these reasoning, the learned trial Court has recorded the
impugned finding of acquittal.
Heard Shri Charde, the learned Additional Public Prosecutor for the State, Shri Jaiswal, the
learned Counsel for the applicant-revisionist and S/Shri Palshikar and Akolkar, the learned
Counsel for the accused.
5. Contravention of the prohibitory order purported to be under sub-section (3) of S. 132 is
made punishable under S. 275A of the Act. Section 279 of the Act, as then stood, provided that
a person shall not be proceeded against for as offence under S. 275A ........ except at the
instance of the Chief Commissioner or Commissioner. As per mandate of the provisions, it
follows that the Department of Income Tax cannot proceed or prosecute the offender who has
committed a breach of the prohibitory order except at the instant or with the authority of the
Commissioner of the Department. In the instant case, it is true that the report to the Police
Station has been made by P.W. 2 Krishnamachari vide Exhibit 16. However, P.W. 2
Krishnamachari, the local Income Tax Officer in the report after narrating the incident had
merely prayed for registration and investigation of the offences. After completion of the
investigation, the State has launched the prosecution. In the case before us, the prosecution of
the accused-respondent is neither on the complaint nor by the complainant. The prosecution
being at the instance and on behalf of the State. Section 279 of the Act has no application. The
reason as adopted by the learned trial Judge are patently erroneous.
6. Relying on the decisions reported in H. L. Sibal v. Commr. of Income Tax, Patiala 1976 Tax
LR 311; Om Prakash Jindal v. Union of India 1976 Tax LR 712 and Jain and Jain v. Union of
India 1981 Tax LR 1508, it is urged before us that besides the Commissioner, the authorised
Officer before effecting seizure has to reach the conclusion that the property in question was
undisclosed for the purposes of the Act. It is submitted that P.W. 3 Prasad, the authorised
officer, has not reached such conclusion or formulated the opinion that the pawned articles kept
in the almirah in question were such property. Besides this, due to late hours, it cannot be said
that for the raiding party, it was not practicable to complete the search. In absence of the
requisite ingredients and conditions, it is urged that sub-section (3) of S. 132 of the Act for
issuing the prohibitory order could not be resorted to. Consequently, the order (Exh. 18)
prohibiting the accused was without any legal foundation and void ab initio. Breach or violation
of such order in the submission of the learned Counsel for the accused does not constitute any
offence punishable under S. 275A of the Act.
7. Authorisation under sub-section (1) of S. 132 of the Act empowers the concerned officer
firstly to make entry in the premises of a particular person, then to search and hold enquiry,
thereafter to seize and lastly to prepare an inventory of such articles, valuables or jewellery.
This is a single, continuous and homogeneous process with various stages and described.
Search, enquiry and formulating opinion are the stages prior to effecting of the seizure. There

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could not be a valid seizure unless the earlier stages are complete. Incompletion of search
creates impediment in formulating the opinion and causing ultimate seizure of the concerned
property.
P.W. 3 Prasad has specifically stated that they reached Yavatmal at about 8.30 a.m. and then
started their operation. It continued up to 9.30 p.m. According to the witnesses, it was not
possible to complete the search on that day. Shri Palshikar, the learned Counsel appearing for
the accused, made a submission that this could not be as a ground within the import of the
term "reason" as envisaged in sub-section (3) of S. 132 of the Act. According to the learned
Counsel, may be due to late hours, it might be inconvenient for the concerned officers to
complete the search, still it was not difficult may impossible.
Proviso to sub-section (1) of S. 132 of the Act deals with various contingencies when it becomes
impracticable to seize the particular property or articles. The first proviso refers to building,
place, vessal, vehicle, aircraft, etc., whereas the second proviso to sub-section (1) refers to the
impossibility or impracticability to take physical possession of any valuable article. Sub-section
(3) of S. 132 of the Act with which we are concerned, deals with the contingencies which are
not covered by the second proviso to sub-sec. (1). Section 132(3) of the Act lays down that
"the authorised officer may, where it is not practicable to seize any such books of account,
other documents, money, etc. .... for the reasons other than those mentioned in the second
proviso to sub-sec. (1) serve an order on the owner ......." In view of this legal provision, it is
explicit that the contingency contemplated by sub-section (1) of S. 132 of the Act. Such
contingency in the given case could be impracticability due to physical or mental incapability of
the concerned officer owing to over-strain. In view of our discussion, we hold that the reasons
as contemplated under sub-section (3) of S. 132 of the Act pertain to impracticability rather
than impossibility.
P.W. 2 Krishnamachari and P.W. 3 Prasad have specifically stated that it was not feasible for
them to complete the search even after continuing it for the whole night. As the completion of
the search was not feasible, it has certainly created impediment in the way of the officer to
formulate the opinion and effect seizure of the objectionable materials such, in view of our
finding that it being a continuous and homogeneous process, incompletion of the search has
certainly affected the ultimate act of effecting seizure of the property undisclosed for the
purpose of the Income Tax Act. In the situation, P.W. 3 Prasad was competent to take resort to
sub-section (3) of S. 132 of the Act for issuing the prohibitory order, marked as Exh. 16. The
order has a legal foundation and is within the parameters of the relevant provision. The same
was, therefore, binding on the accused.
8. Now coming to the merit of the prosecution case, we find the testimony of P.W. 2
Krishnamachari, P.W. 3 Prasad and P.W. 6 P.S.I. Tiwari compiled with Exh. 16 complaint, Exh.
21 search panchanama and Exh. B5 seizure panchanama, P.W. 3 Prasad in examination-in-chief
has deposed that, "the bundles of the pawned articles along with some case that was found,
were then kept in that almirah which became full. Before actually keeping ornaments in that
almirah, I and Mani checked and verified that almirah was quite safe and intact on all the sides.
"The evidence of P.W. 2 Krishnamachari on this aspect is on the similar lines and corroborating
P.W. 3. The defence has not questioned this statement of the witnesses nor it has suggested
that the almirah in question was already having cut marks even at the time of handing over the
same to the officer on 29-10-1985. Shri Palshikar, the learned Counsel for the accused, tried to
urge before us that there is no reference in this behalf in the search panchanama (Exh. 21)
there is no such reference that the almirah was intact. However, considering the substantive
testimony of the two witnesses which is consistent and cogent, omission in this regard in the
panchanama (Exh. 21) does not bring any discredit to the version of these two witnesses.
Besides this the version of these witnesses that the articles kept to the full capacity of the
almirah is further supported by complaint (Exh. 16).
9. As regards the incident on the next day, i.e. 30-10-1985, P.W. 3 Prasad has stated that "I
then opened the almirah. On opening the almirah, I thought (1) that the level of the bags in the
almirah had gone down which was suggestive of the fact that some bags might have been
removed, (2) I felt the smell of new paint, and (3) that there was a cut to the almirah in the

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rear side. That cuts was about 5 and half x 6 and half inches. : However, while cross-examining
this witness in para (10) of Exh. 20, the omission in the police statement has been brought on
record.
10. Another witness on this aspect is P.W. 2 Krishnamachari. He stated that "accordingly I went
there immediately by 11.15 a.m. I found that the almirah which was already opened by the
search party, was cut at two places at the back side and bags of ornaments were lesser in level
than they were actually there". While cross-examining this witness, the defence made a
suggestion to which he has answered that, "it is true that apart from the level (height) of the
heaps of the cloth bags, there is no material to say that articles were removed from the second
almirah by the accused. It is not true that the height (level) of cloth bags may automatically be
lessened or reduced by lapse of time." this positive suggestion on behalf of the defence is
indicative of the aspect that they are not disputing as regards going down the level of the bags
as witnessed by the officers on 30-10-1985.
P.W. 6 P.S.I. Tiwari who seized the almirah vide Exh. 23, has stated that he also noticed two
cuts in the rear side and small particles of the Steel plates inside the almirah. This version of
the witness has also not been challenged. In the cross-examination, this witness has stated
that, "I did not seize the very small tiny particles of the iron plate of the almirah as I did not
think it necessary as their quantity was very small. These particles were visible to the eye.
There were colour patches on the almirah back side but I did not take any photograph of the
two cuts that were to the almirah back side. The sizes of the cuts as given in panchanama are 3
inches by 6 and half inches and 6 and half inches by 5 and half inches." Considering the
assertion of this witness read with others, the aspect of cutting the iron plate from the rear side
at the places of almirah is established beyond doubt. This substantive testimony of the
witnesses is further supported by complaint (Exh. 16) and seizure panchanama (Exh. 23)
wherein the condition of the almirah has been elaborated in detail. As discussed, it is not the
defence of clarification made under S. 313 of the Code of Criminal Procedure that the cut marks
as referred to in the seizure panchanama and as described by the witnesses were already there.
In view of this voluminous evidence oral as well as documentary, non production of the almirah
in question or even the supratnama did not create any infirmity, legal or otherwise, in the
prosecution case. The learned trial Judge has lost sight of this pertinent aspect and recorded
the erroneous conclusion that the prosecution could not substantiate the charge in the absence
of either the almirah in question or supratnama thereof. The approach of the learned trial Judge
in this regard since patently incorrect, the impugned finding has resulted in miscarriage of
justice.
11. The act of the accused-respondent in opening the almirah in question by effecting cut a two
places between the night of 29-10-1985 and 30-10-1985 is derogatory to the direction as
contained in the prohibitory order dated 29-10-1985. This act certainly constitutes
contravention of the order. The accused-respondent by this act rendered himself liable for the
offence punishable under S. 276A of the Act.
The accused-respondent further by the same act, certainly with a definite intention to commit
mischief, has effected the cut marks on the almirah and, therefore, he is liable for the offence
punishable under S. 461 of the Penal Code.
12. It is evident from the testimony of P.W. 2 Krishnamachari and P.W. 3 Prasad that the
almirah in question containing pawned jewellery was kept in the care and custody of the
accused-respondent. The prohibitory order (Exh. 18), therefore, came to be issued. Under this
order, P.W. 3 has specifically directed, "I hereby order you not to remove, part with or
otherwise deal with the articles mentioned below without any previous permission." This
circumstances has also fortified that the almirah in question was in care and custody of the
accused and he was capable to deal with it which has been prohibited by order (Exh. 18).
Besides this, the accused had completed domain over the almirah since it was kept in the bed
room of the premises of the accused which was not sealed or locked by the Department. The
care and custody of the accused besides the substantive testimony is also supported by the text
of the complaint marked as Exh. 16. The complainant (P.W. 2) has specifically stated that, "the
entire almirah along with gold and silver ornaments was entrusted to the accused by the

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complainant from 10.30 p.m. of 19-10-1985."

13. The articles in the almirah were removed while the same were under the custody and
domain of the accused. It is true that the officers did not prepare an inventory of the jewellery
which was kept in that almirah. However it is undisputed from the testimony, as discussed
earlier, that on the next day on opening of the almirah, it was noticed that the level of the bags
of jewellery as dumped on the earlier day had gone down. It is true that the prosecution could
not exactly quantify or estimate the material or the articles missing from the almirah, but the
aspect as discussed, is definitely suggestive of the removal of the jewellery when the almirah
was in the trust of the accused-respondent. The accused-respondent is, therefore, liable to be
punished for the offence under S. 496 of the Penal Code.
14. We heard Shri Palshikar on the question of sentence. According to Shri Palshikar, the
incident is of 1985. Besides this, accused Narayan Bajaj as an old man of 65 years. In view of
these circumstances, leniency be show. Shri Charde and Shri Jaiswal, however, resisted the
submission. According to him, the constituting, the offence is very serious and it is also
interference in the discharge of the official duties by the Government servants. The manner in
which the offence has been committed in the submission of the learned Counsel, does not
deserve any sympathetic or lenient view. Considering the rival submissions, we pass the
following order.
15. Criminal Appeal No. 196/87 and Criminal Revision Application No. 163/87 are allowed. The
finding of acquittal vide impugned judgment dated 6-4-1987 is hereby set aside. The accusedrespondent Narayan s/o Champalal Bajaj is convicted for the offence punishable under Section
276A of the Income Tax Act and directed to suffer rigorous imprisonment for a period of six
months. He is further directed to pay a fine of Rs. 9,000/-. In case of default, he shall suffer
further rigorous imprisonment for period of three months.
He is further convicted for the offence punishable under S. 461 of Indian Penal Code was
directed to suffer rigorous imprisonment for a period of six months and further directed to pay
fine of Rs. 5,000/-. In case of default, he shall suffer further rigorous imprisonment for a period
of three months.
He is also convicted for the offence punishable under Section 401 of Indian Penal Code and
directed to suffer rigorous imprisonment for a period of six months and pay fine of Rs. 5,000/-.
In case of default, he shall suffer further rigorous imprisonment for a period of three months.
We direct the substantive sentences only to run concurrently. However, the sentences as
imposed in case of default for payment of fine shall not run concurrently.
16. Order accordingly.

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