{"id":21568,"date":"2020-02-08T13:35:40","date_gmt":"2020-02-08T08:05:40","guid":{"rendered":"http:\/\/itatonline.org\/archives\/?p=21568"},"modified":"2020-02-08T13:35:40","modified_gmt":"2020-02-08T08:05:40","slug":"paresh-nathalal-chauhan-vs-state-of-gujarat-gujarat-high-court","status":"publish","type":"post","link":"https:\/\/itatonline.org\/archives\/paresh-nathalal-chauhan-vs-state-of-gujarat-gujarat-high-court\/","title":{"rendered":"Paresh Nathalal Chauhan vs. State Of Gujarat (Gujarat High Court)"},"content":{"rendered":"


\n(Image Credit: TOI<\/a>)<\/p>\n

C\/SCA\/18463\/2019 ORDER
\nIN THE HIGH COURT OF GUJARAT AT AHMEDABAD
\nR\/SPECIAL CIVIL APPLICATION NO. 18463 of 2019
\n================================<\/p>\n

PARESH NATHALAL CHAUHAN
\nVersus
\nSTATE OF GUJARAT
\n=====================================
\nAppearance:
\nMR CHETAN K PANDYA(1973) for the Petitioner(s) No. 1
\nMR MIHIR THAKORE, SR. ADVOCATE WITH MS MAITHILI MEHTA,
\nASST. GOVERNMENT PLEADER(1) for the Respondent(s) No. 1,2
\n=====================================
\nCORAM: HONOURABLE MS.JUSTICE HARSHA DEVANI
\nand
\nHONOURABLE MS. JUSTICE SANGEETA K. VISHEN
\nDate : 24\/12\/2019
\nORAL ORDER
\n(PER : HONOURABLE MS.JUSTICE HARSHA DEVANI)
\n1. In this case, pursuant to an authorisation
\nissued under subsection
\n(2) of section 67 of the
\nCentral Goods and Services Tax Act, 2017\/Gujarat
\nGoods and Services Tax Act, 2017 (hereinafter
\nreferred to as \u201cthe GST Acts\u201d), a search came to
\nbe conducted at the residential premises of the
\npetitioner herein, which went on from 11.10.2019
\nto 18.10.2019. The manner in which the search has
\ntaken place, whereby a search for any goods
\nliable to confiscation or any documents or books
\nor things, has literally been converted to a
\nsearch for the taxable person and the search
\nparty has camped in the residential premises of
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\nthe petitioner for in all eight days, during
\nwhich period the family members of the petitioner
\nwere at the mercy of the authorised officer and
\nwere confined to the searched premises and kept
\nunder surveillance and were not permitted to
\nleave the premises without the permission of the
\nauthorised officer, has shocked the conscience of
\nthis court. This court is, therefore, of the view
\nthat it would be failing in its duty as a
\nsentinel on the qui vive if it were to turn a
\nblind eye to the violation of the legal and
\nfundamental rights of citizens by
\nauthoritarianism and remain a mute spectator. It
\nis, in these circumstances, that the court has
\nthought it fit to comment upon the validity and
\nnature of the search proceedings.
\n2. On 25.10.2019 this court passed an order in
\nthe following terms:
\n\u201c1. Mr. Chetan Pandya, learned advocate for
\nthe petitioner has tendered an affidavit of
\nNathalal Maganlal Chauhan, the father of the
\npetitioner. The same is taken on record.
\n2. The learned Assistant Government Pleader
\nhas submitted a confidential report of the
\nproceedings carried out by the respondents
\nat the premises of the petitioner pursuant
\nto the authorization issued in favour of the
\nsecond respondent under subsection
\n(2) of
\nsection 67 of the Central Goods and Services
\nTax Act, 2017 (hereinafter referred to as
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\nC\/SCA\/18463\/2019 ORDER
\n\u201cthe CGST Act\u201d).
\n3. This court has perused the report in its
\nentirety. A perusal of the report reveals
\nthat the concerned officers authorised to
\ncarry out the search at the residential
\npremises of the petitioner had stayed there
\nfrom 11.10.2019 to 18.10.2019. A perusal of
\nthe record of the proceedings of the case
\nreveals that on 11.10.2019 at 2:15, it has
\nbeen recorded that after searching the rooms
\nin the premises, the records of the accounts
\nwere brought to the main room and gathered
\nthere, which included the bank passbooks of
\nthe family members as well as cheque books
\nand that verification thereof is continuing.
\nThe proceedings thereafter do not reveal any
\nfurther search carried out at the premises
\nbut reveal that the officers had stayed at
\nthe premises and had examined the phone
\ncalls that were received by the family
\nmembers and had recorded their phone calls.
\nThey had also recorded statements of the
\nfamily members of the petitioner on
\n11.10.2019. The record further reveals that
\nthe officers who had arrived on the previous
\nday as well as the panchas were relieved by
\nnew set of officers and panchas and this
\ncycle continued till 18.10.2019. It appears
\nthat thereafter they have been questioning
\nthe family members of the petitioner on a
\nday to day basis till 18.10.2019.
\n4. Section 67 of the CGST Act, reads thus:\u201c
\n67. Power of Inspection, search and
\nseizure.
\n(1) Where the proper officer, not below
\nthe rank of Joint Commissioner, has
\nreasons to believe that\u2013
\n(a) a taxable person has suppressed any
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\ntransaction relating to supply of goods
\nor services or both or the stock of
\ngoods in hand, or has claimed input tax
\ncredit in excess of his entitlement
\nunder this Act or has indulged in
\ncontravention of any of the provisions
\nof this Act or the rules made thereunder
\nto evade tax under this Act; or
\n(b) any person engaged in the business
\nof transporting goods or an owner or
\noperator of a warehouse or a godown or
\nany other place is keeping goods which
\nhave escaped payment of tax or has kept
\nhis accounts or goods in such a manner
\nas is likely to cause evasion of tax
\npayable under this Act, he may authorise
\nin writing any other officer of central
\ntax to inspect any places of business of
\nthe taxable person or the persons
\nengaged in the business of transporting
\ngoods or the owner or the operator of
\nwarehouse or godown or any other place.
\n(2) Where the proper officer, not below
\nthe rank of Joint Commissioner, either
\npursuant to an inspection carried out
\nunder subsection
\n(1) or otherwise, has
\nreasons to believe that any goods liable
\nto confiscation or any documents or
\nbooks or things, which in his opinion
\nshall be useful for or relevant to any
\nproceedings under this Act, are secreted
\nin any place, he may authorise in
\nwriting any other officer of central tax
\nto search and seize or may himself
\nsearch and seize such goods, documents
\nor books or things: Provided that where
\nit is not practicable to seize any such
\ngoods, the proper officer, or any
\nofficer authorised by him, may serve on
\nthe owner or the custodian of the goods
\nan order that he shall not remove, part
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\nwith, or otherwise deal with the goods
\nexcept with the previous permission of
\nsuch officer:
\nProvided further that the documents or
\nbooks or things so seized shall be
\nretained by such officer only for so
\nlong as may be necessary for their
\nexamination and for any inquiry or
\nproceedings under this Act.
\n(3) The documents, books or things
\nreferred to in subsection (2) or any
\nother documents, books or things
\nproduced by a taxable person or any
\nother person, which have not been relied
\nupon for the issue of notice under this
\nAct or the rules made thereunder, shall
\nbe returned to such person within a
\nperiod not exceeding thirty days of the
\nissue of the said notice.
\n(4) The officer authorised under subsection
\n(2) shall have the power to seal
\nor break open the door of any premises
\nor to break open any almirah, electronic
\ndevices, box, receptacle in which any
\ngoods, accounts, registers or documents
\nof the person are suspected to be
\nconcealed, where access to such
\npremises, almirah, electronic devices,
\nbox or receptacle is denied.
\n(5) The person from whose custody any
\ndocuments are seized under subsection
\n(2) shall be entitled to make copies
\nthereof or take extracts therefrom in
\nthe presence of an authorised officer at
\nsuch place and time as such officer may
\nindicate in this behalf except where
\nmaking such copies or taking such
\nextracts may, in the opinion of the
\nproper officer, prejudicially affect the
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\ninvestigation.
\n(6) The goods so seized under subsection
\n(2) shall be released, on a
\nprovisional basis, upon execution of a
\nbond and furnishing of a security, in
\nsuch manner and of such quantum,
\nrespectively, as may be prescribed or on
\npayment of applicable tax, interest and
\npenalty payable, as the case may be.
\n(7) Where any goods are seized under
\nsubsection
\n(2) and no notice in respect
\nthereof is given within six months of
\nthe seizure of the goods, the goods
\nshall be returned to the person from
\nwhose possession they were seized:
\nProvided that the period of six months
\nmay, on sufficient cause being shown, be
\nextended by the proper officer for a
\nfurther period not exceeding six months.
\n(8) The Government may, having regard to
\nthe perishable or hazardous nature of
\nany goods, depreciation in the value of
\nthe goods with the passage of time,
\nconstraints of storage space for the
\ngoods or any other relevant
\nconsiderations, by notification, specify
\nthe goods or class of goods which shall,
\nas soon as may be after its seizure
\nunder subsection
\n(2), be disposed of by
\nthe proper officer in such manner as may
\nbe prescribed.
\n(9) Where any goods, being goods
\nspecified under subsection (8), have
\nbeen seized by a proper officer, or any
\nofficer authorised by him under subsection
\n(2), he shall prepare an
\ninventory of such goods in such manner
\nas may be prescribed.
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\n(10) The provisions of the Code of
\nCriminal Procedure, 1973, relating to
\nsearch and seizure, shall, so far as may
\nbe, apply to search and seizure under
\nthis section subject to the modification
\nthat subsection
\n(5) of section 165 of
\nthe said Code shall have effect as if
\nfor the word \u201cMagistrate\u201d, wherever it
\noccurs, the word \u201cCommissioner\u201d were
\nsubstituted.
\n(11) Where the proper officer has
\nreasons to believe that any person has
\nevaded or is attempting to evade the
\npayment of any tax, he may, for reasons
\nto be recorded in writing, seize the
\naccounts, registers or documents of such
\nperson produced before him and shall
\ngrant a receipt for the same, and shall
\nretain the same for so long as may be
\nnecessary in connection with any
\nproceedings under this Act or the rules
\nmade thereunder for prosecution.
\n(12) The Commissioner or an officer
\nauthorised by him may cause purchase of
\nany goods or services or both by any
\nperson authorised by him from the
\nbusiness premises of any taxable person,
\nto check the issue of tax invoices or
\nbills of supply by such taxable person,
\nand on return of goods so purchased by
\nsuch officer, such taxable person or any
\nperson in charge of the business
\npremises shall refund the amount so paid
\ntowards the goods after cancelling any
\ntax invoice or bill of supply issued
\nearlier.\u201d
\n5. Thus, subsection
\n(2) of section 67 of
\nthe CGST Act empowers the authorised officer
\nto search and seize goods, documents or
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\nbooks or things. Subsection
\n(4) of section
\n67 empowers the officer authorised under
\nsubsection
\n(2) to seal or break open door
\nof any premises or to break open any
\nalmirah, electronic devices, box, receptacle
\nin which any goods, accounts, registers or
\ndocuments of the person are suspected to be
\nconcealed, where access to such premises,
\nalmirah, electronic devices, box or
\nreceptacle is denied. Thus, the officers
\nconcerned were authorised to seize such
\nbooks, goods, documents, or things which
\nwere found at the premises. Subsection
\n(2)
\nof section 67 does not empower the officer
\nconcerned to record statements of family
\nmembers through force or coercion or to
\nrecord their conversations in their mobile
\nphones. In exercise of powers under subsection
\n(2) of section 67 of the CGST Act,
\nit is not permissible for the authorised
\nofficer to use coercive measures against
\nfamily members to find out the whereabouts
\nof the taxable person. It is shocking to see
\nthat in a premises where there are three
\nladies, namely, the petitioner\u2019s mother,
\nwife and young daughter, male officers
\ntogether with a CRPF Officer have stayed
\nthroughout day and night despite the fact
\nthat the goods, articles and things were
\nalready seized on 11.10.2019. The entire
\nexercise carried out by the concerned
\nofficers from 12.10.2019 to 18.10.2019 was
\ntotally without any authority of law and in
\nflagrant disregard of the provisions of the
\nAct and the rules and in total abuse of the
\npowers vested in them under the Act. The
\nmanner in which the officers have conducted
\nthemselves by overreaching the process of
\nlaw and acting beyond the powers vested in
\nthem under subsection
\n(2) of section 67 of
\nthe CGST Act needs to be deprecated in the
\nstrictest terms. Therefore, a proper inquiry
\nneeds to be made in respect of the action of
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\nthe respondent officers of staying day and
\nnight at the premises of the petitioner
\nwithout any authority of law.
\n6. In the aforesaid premises, the first
\nrespondent Commissioner of State Tax,
\nAhmedabad shall carry out a proper inquiry
\nin the matter and submit a report before
\nthis court on or before 13th November, 2019.
\n7. Stand over to 13th November, 2019.
\n8. Registry to forthwith forward a copy of
\nthis order to the Commissioner of State Tax
\nas well as Chief Secretary of the State to
\nlook into the matter and do the needful to
\nensure that such incidents are not
\nrepeated.\u201d
\n3. Thereafter, on request made by the learned
\nGovernment Pleader, time was granted to place the
\nreport in compliance with the above order and the
\nmatter was adjourned to 20.11.2019.
\n4. On 20.11.2019, this court passed the
\nfollowing order:
\n\u201c1. Ms. Manisha L. Shah, learned Government
\nPleader has tendered a report of inquiry
\nmade by the Chief Commissioner of State Tax,
\nGujarat State, Ahmedabad in compliance with
\nthe directions issued by this court vide
\norder dated 25.10.2019.
\n2. Upon perusal of the report, it emerges
\nthat it is no better than the earlier report
\ndated 20.10.2019 submitted by the Assistant
\nCommissioner of State Tax, and does not meet
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\nwith the directions issued by this court in
\nletter and spirit. It appears that the Chief
\nCommissioner of G.S.T. has taken a very
\nlenient view in the matter and instead of
\nexamining the action of the concerned
\nofficers in the context of the relevant
\nprovisions of the Goods & Services Tax Act,
\nhas tried to justify the action of the
\nconcerned officers, which is required to be
\ndeprecated in the strictest terms.
\n3. The learned Government Pleader prays for
\ntime to submit another report. At her
\nrequest, the matter is adjourned to 11th
\nDecember 2019.\u201d
\n5. Thereafter, Mr. Mihir Thakore, Senior
\nAdvocate, learned counsel appeared on behalf of
\nthe respondents and submitted proposed
\nDepartmental Instructions in the nature of
\nguidelines for conducting search under subsection
\n(2) of section 67 of the GST Acts. The
\nsaid guidelines did not address the concerns of
\nthis court in the context of situations like the
\none involved in the present case. Moreover, the
\nreport, in compliance with the order dated
\n25.10.2019, was not yet submitted. Subsequently,
\na report dated 19.12.2019 made by the Chief
\nCommissioner of State Tax, Gujarat State came to
\nbe submitted, reference to which shall be made at
\nan appropriate stage.
\n6. Considering the action of the respondents of
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\nstaying in the residential premises of the
\npetitioner, wherein five members, including three
\nfemale members, out of whom one was a young
\nunmarried girl, for a period of eight days,
\ndespite the fact that the search was concluded on
\nthe first day itself, the court was deeply
\nconcerned about the matter, and more particularly
\nthat such incidents should not be repeated.
\nTherefore, Mr. Tushar Hemani, Senior Advocate,
\nwas requested to assist the court as an amicus
\ncuriae.
\n7. Mr. Mihir Thakore, learned counsel for the
\nrespondent State authorities, submitted that subsection
\n(2) of section 67 of the GST Acts
\nempowers the proper officer to search and seize
\ngoods, documents, books or things secreted at a
\nplace. Thus, an authorization is issued qua a
\nplace and not a person. Referring to subsection
\n(10) of section 67 of the GST Acts, it was
\npointed out that the same provides that the
\nprovisions of the Code of Criminal Procedure,
\n1973 (hereinafter referred to as \u201cthe Code\u201d)
\nrelating to search and seizure apply to search
\nand seizure under that section. Reference was
\nmade to the provisions relating to search and
\nseizure as provided in the Code, to submit that
\nthe officers concerned had resorted to the powers
\nof search and seizure as contained therein.
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\nInsofar as the statements of the members residing
\nin the searched premises are concerned, reference
\nwas made to section 161 of the Code.
\n7.1 However, the learned counsel, despite his
\nbest efforts, could not justify the continued
\nstay of the search party in the searched premises
\nafter the search was over on 11.10.2019. It was,
\nhowever, submitted that such action of the
\nofficers, though not backed by any statutory
\nprovision, was bona fide, and the reason why this
\nhas happened is because of past precedents
\ninasmuch as such action was being taken earlier
\nunder the Gujarat Value Added Tax Act, 2003
\n(hereinafter referred to as \u201cthe GVAT Act\u201d). It
\nwas urged that the respondents have already
\nframed guidelines laying down the procedure to be
\nfollowed while conducting search under subsection
\n(2) of section 67 of the GST Acts and
\nthat the respondents are ready and willing to
\nincorporate such suggestions as may be made by
\nthis court.
\n8. Mr. Tushar Hemani, learned amicus curiae,
\ninvited the attention of this court to the
\ndecision of the Supreme Court in District
\nRegistrar and Collector, Hyderabad and Another v.
\nCanara Bank, (2005) 1 SCC 496, wherein the
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\nprovisions for search and seizure under section
\n132(5) of the Income Tax Act, 1961 were construed
\nstrictly on the ground that they were a \u201cserious
\nintrusion into the privacy of a citizen\u201d. The
\ncourt further held thus:
\n\u201c35. The earliest case in India to deal with
\n\u201cprivacy” and \u201csearch and seizure”
\nwas M.P. Sharma v. Satish Chandra in the
\ncontext of Article 19(1)(f) and Article
\n20(3) of the Constitution. The contention
\nthat search and seizure violated Article
\n19(1)(f) was rejected, the Court holding
\nthat a mere search by itself did not affect
\nany right to property, and though seizure
\naffected it, such effect was only temporary
\nand was a reasonable restriction on the
\nright. The question whether search warrants
\nfor the seizure of documents from the
\naccused were unconstitutional was not gone
\ninto. The Court, after referring to the
\nAmerican authorities, observed that in the
\nUS, because of the language in the Fourth
\nAmendment, there was a distinction between
\nlegal and illegal searches and seizures and
\nthat such a distinction need not be imported
\ninto our Constitution. The Court opined that
\na search warrant was addressed to an officer
\nand not to the accused and did not violate
\nArticle 20(3). In the present discussion the
\ncase is of limited help. In fact, the law as
\nto privacy was developed in later cases by
\nspelling it out from the right to freedom of
\nspeech and expression in Article 19(1)(a)
\nand the right to \u201clife\u201d in Article 21.
\n36. Two later cases decided by the Supreme
\nCourt of India where the foundations for the
\nright were laid, concerned the intrusion
\ninto the home by the police under State
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\nregulations, by way of \u201cdomiciliary visits\u201d.
\nSuch visits could be conducted any time,
\nnight or day, to keep a tab on persons for
\nfinding out suspicious criminal activity, if
\nany, on their part. The validity of these
\nregulations came under challenge. In the
\nfirst one, Kharak Singh v. State of UP, the
\nU.P. Regulations regarding domiciliary
\nvisits were in question and the majority
\nreferred to Munn v. Illinois and held that
\nthough our Constitution did not refer to the
\nright to privacy expressly, still it can be
\ntraced from the right to \u201clife\u201d in Article
\n21. According to the majority, clause 236 of
\nthe relevant Regulations in U.P., was bad in
\nlaw; it offended Article 21 inasmuch as
\nthere was no law permitting interference by
\nsuch visits. The majority did not go into
\nthe question whether these visits violated
\nthe \u201cright to privacy\u201d. But, Subba Rao, J.
\nwhile concurring that the fundamental right
\nto privacy was part of the right to liberty
\nin Article 21, part of the right to freedom
\nof speech and expression in Article 19(1)
\n(a), and also of the right to movement in
\nArticle 19(1)(d), held that the Regulations
\npermitting surveillance violated the
\nfundamental right of privacy. In the
\ndiscussion the learned Judge referred to
\nWolf v. Colorado. In effect, all the seven
\nlearned Judges held that the \u201cright to
\nprivacy\u201d was part of the right to \u201clife\u201d in
\nArticle 21.
\n37. We now come to the second case, Gobind
\nv. State of M.P. in which Mathew, J.
\ndeveloped the law as to privacy from where
\nit was left in Kharak Singh. The learned
\nJudge referred to Griswold v. Connecticut
\nwhere Douglas, J. referred to the theory of
\npenumbras and peripheral rights and had
\nstated that the right to privacy was implied
\nin the right to free speech and could be
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\ngathered from the entirety of fundamental
\nrights in the constitutional scheme, for,
\nwithout it, these rights could not be
\nenjoyed meaningfully. Mathew, J. also
\nreferred to Jane Roe v. Henry Wade where it
\nwas pointed out (SCC p. 155, para 18) that
\nthough the right to privacy was not
\nspecifically referred to in the US
\nConstitution, the right did exist and
\n\u201croots of that right may be found in the
\nFirst, Fourth and Fifth Amendments, in
\nthe penumbras of the Bill of Rights, in
\nthe Ninth Amendment, and in the concept
\nof liberty guaranteed by the first
\nsection of the Fourteenth Amendment\u201d.
\nMathew, J. stated that, however, the \u201cright
\nto privacy was not absolute\u201d and that the
\nmakers of our Constitution wanted to ensure
\nconditions favourable to the pursuit of
\nhappiness as explained in Olmstead v. United
\nStates, US at p. 471; the privacy right can
\nbe denied only when an \u201cimportant
\ncountervailing interest is shown to be
\nsuperior”, or where a compelling State
\ninterest was shown. (Mathew, J. left open
\nthe issue whether moral interests could be
\nrelied upon by the State as compelling
\ninterests). Any right to privacy, the
\nlearned Judge said (see para 24), must
\nencompass and protect the personal
\nintimacies of the home, the family,
\nmarriage, motherhood, procreation and childbearing.
\nThis list was however not
\nexhaustive. He explained (see para 25) that,
\nif there was State intrusion there must be
\n\u201ca reasonable basis for intrusion\u201d. The
\nright to privacy, in any event (see para
\n28), would necessarily have to go through a
\nprocess of casebycase
\ndevelopment.
\n38. Coming to the particular U.P.
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\nRegulations 855 and 856, in question in
\nGobind, Mathew, J. examined their validity
\n(see para 30). These, according to him, gave
\nlarge powers to the police and needed,
\ntherefore, to be read down, so as to be in
\nharmony with the Constitution, if they had
\nto be saved at all. \u201cOur Founding Fathers
\nwere thoroughly opposed to a Police Raj\u201d he
\nsaid. Therefore, the Court must draw
\nboundaries upon these police powers so as to
\navoid breach of constitutional freedoms.
\nWhile it could not be said that all
\ndomiciliary visits were unreasonable (see
\npara 31), still while interpreting them, one
\nhad to keep the character and antecedents of
\nthe person who was under watch as also the
\nobjects and limitations under which the
\nsurveillance could be made. The right to
\nprivacy could be restricted on the basis of
\ncompelling public interest. The learned
\nJudge noticed that unlike nonstatutory
\nregulations in Kharak Singh, here Regulation
\n856 was \u201claw\u201d (being a piece of subordinate
\nlegislation) and hence it could not be said
\nin this case that Article 21 was violated
\nfor lack of legislative sanction. The law
\nwas very much there in the form of these
\nRegulations. Regulations 853(1) and 857
\nprescribed a procedure that was
\n\u201creasonable\u201d. So far as Regulation 856 was
\nconcerned, it only imposed reasonable
\nrestrictions within Article 19(5) and there
\nwas, even otherwise, a compelling State
\ninterest. Regulations 853(1) and 857
\nreferred to a class of persons who were
\nsuspected as being habitual criminals, while
\nRegulation 857 classified persons who could
\nreasonably be held to have criminal
\ntendencies. Further Regulation 855 empowered
\nsurveillance only of persons against whom
\nreasonable materials existed for the purpose
\nof inducing an opinion that they show a
\ndetermination to lead a life of crime. The
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\nCourt thus read down the Regulations and
\nupheld them for the above reasons.
\n39. We have referred in detail to the
\nreasons given by Mathew, J. in Gobind to
\nshow that, the right to privacy has been
\nimplied in Articles 19(1)(a) and (d) and
\nArticle 21; that, the right is not absolute
\nand that any State intrusion can be a
\nreasonable restriction only if it has
\nreasonable basis or reasonable materials to
\nsupport it.
\n40. A twoJudge
\nBench in R. Rajagopal v.
\nState of T.N. held the right of privacy to
\nbe implicit in the right to life and liberty
\nguaranteed to the citizens of India by
\nArticle 21. \u201cIt is the right to be let
\nalone.\u201d Every citizen has a right to
\nsafeguard the privacy of his own. However,
\nin the case of a matter being part of public
\nrecords, including court records, the right
\nof privacy cannot be claimed. The right to
\nprivacy has since been widely accepted as
\nimplied in our Constitution, in other cases,
\nnamely, People\u2019s Union for Civil Liberties
\nv. Union of India, \u2018X\u2019 v. Hospital \u2018Z\u2019,
\nPeople\u2019s Union for Civil Liberties v. Union
\nof India and Sharda v. Dharmpal.
\n49. While we are on (B), it is necessary to
\nmake a brief reference to Section 93(1) of
\nthe Code of Criminal Procedure, 1973 which
\ndeals with power of the court to issue
\n\u201csearch warrants\u201d (a) where the court has
\n\u201creason to believe\u201d that a person to whom a
\nsummons or order under Section 91 or a
\nrequisition under Section 92(1) has been, or
\nmight be, addressed, will not or would not
\nproduce the document or thing as required by
\nsummons or requisition, or (b) where such
\ndocument or thing is not known to the court
\nto be in the possession of any person, or
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\n(c) where the court considers that the
\npurposes of any inquiry, trial or other
\nproceeding under the Code, will be served by
\na general search or inspection, it may issue
\na search warrant; and the person to whom
\nsuch warrant is directed, may search or
\ninspect in accordance therewith and the
\nprovisions contained in the Code. Under
\nSection 93(2), the court may, if it thinks
\nfit, specify in the warrant, the place or
\npart thereof to which only the search or
\ninspection shall extend; and the person
\ncharged with the execution of such warrant
\nshall then search or inspect only the place
\nor part so specified. Under Section 93(2), a
\nwarrant to search for a document, parcel or
\nother thing in the custody of the postal or
\ntelegraph authority, has to be issued by the
\nDistrict Magistrate or the Chief Judicial
\nMagistrate.
\n50. Section 165 of the Code deals with the
\npower of a police officer to search. Under
\nSection 165(1) he must have reasonable
\ngrounds for believing that anything
\nnecessary for the purpose of an
\ninvestigation into any offence, which he is
\nauthorised to investigate, may be found in
\nany place within the limits of the police
\nstation and that such thing cannot, in his
\nopinion, be otherwise obtained without undue
\ndelay. He has to record the grounds of his
\nbelief in writing and specify, so far as
\npossible, the thing for which search is
\nmade. Section 166 refers to the question as
\nto when an officer in charge of a police
\nstation may require another to issue search
\nwarrant.
\n51. In the Income Tax Act, 1961 elaborate
\nprovisions are made in regard to \u201csearch and
\nseizure\u201d in Section 132; power to
\nrequisition books of account, etc. in
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\nSection 132A;
\npower to call for information
\nas stated in Section 133. Section 133(6)
\ndeals with power of officers to require any
\nbank to furnish any information as specified
\nthere. There are safeguards. Section 132
\nuses the words \u201cin consequence of
\ninformation in his possession, has reason to
\nbelieve\u201d. (emphasis supplied) Section 132(1A)
\nuses the words \u201cin consequence of
\ninformation in his possession, has reason to
\nsuspect\u201d. Section 132(13) says that the
\nprovisions of the Code of Criminal
\nProcedure, relating to searches and seizure
\nshall apply, so far as may be, to searches
\nand seizures under Sections 132(1) and
\n132(1A).
\nThere are also Rules made under
\nSection 132(14). Likewise Section 132A(
\n1)
\nuses the words \u201cin consequence of
\ninformation in his possession, has reason to
\nbelieve\u201d. (emphasis supplied) Section 133
\nwhich deals with the power to call for
\ninformation from banks and others uses the
\nwords \u201cfor the purposes of this Act\u201d and
\nSection 133(6) permits a requisition to be
\nsent to a bank or its officer. There are
\nother Central and State statutes dealing
\nwith procedure for \u201csearch and seizure\u201d for
\nthe purposes of the respective statutes.\u201d
\n8.1 It was submitted that \u201cprivacy\u201d is a right
\nand that prolonged stay at the premises of the
\npetitioner was an invasion of the right to
\nprivacy of the residents of such premises.
\n8.2 Reference was made to the decision of the
\nSupreme Court in the case of Income Tax Officer
\nv. Seth Brothers, (1969) 74 ITR 836 (SC), wherein
\nthe court, in the context of section 132 of the
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\nIncome Tax Act, 1961, has held that since by the
\nexercise of such power, a serious invasion is
\nmade upon the rights, privacy and freedom of the
\ntax payer, the power must be exercised strictly
\nin accordance with law and only for the purposes
\nfor which the law authorises it to be exercised.
\n8.3 Reliance was placed upon the decision of the
\nAllahabad High Court in the case of Dr. Nand Lal
\nTahiliani v. Commissioner of Incometax,
\n(1988)
\n170 ITR 592 (Allahabad), wherein the court has
\nheld that the dwelling house of a person is a
\nhigh fortress. Every householder, the good and
\nthe bad, the guilty and the innocent, is entitled
\nto the protection designed to secure the common
\ninterest against unlawful invasion of the house.
\nRansacking of the house and the act of taking
\naway the property is an inroad on citizens\u2019 right
\nof privacy, one of the values of civilization.
\nAny unwarranted intrusion of it cannot be
\ncountenanced. Reasonable belief exists if the
\ninformation is not only trustworthy, but
\nreasonable and sufficient in itself to warrant
\nthe conclusion that the provisions of section 132
\nwere being violated. Because if the exercise of
\npower is bad or unlawful from its inception, then
\nit is not validated or changes character from its
\nsuccess. It would not, therefore, be asking too
\nmuch from the authorities to comply with the
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\nbasic requirements of the section before they are
\npermitted to invade the secrecy of one\u2019s home.
\n8.4 The attention of the court was invited to the
\nprovisions of section 132 of the Income Tax Act,
\n1961, to point out that clause (iia) of subsection
\n(1) thereof specifically permits search
\nof any person who has got out of, or is about to
\nget into, or is in the building or place, if the
\nauthorised person has reason to suspect that such
\nperson has secreted about his person any such
\nbooks of account, documents, money, bullion,
\njewellery or other valuable article or thing, to
\nsubmit that there are no similar provisions in
\nthe GST Acts, which permit search of a person.
\nReference was made to clause (iib) of subsection
\n(1) of section 132 of the Income Tax Act, 1961,
\nwhich provides that the authorised officer may
\nrequire any person who is found to be in
\npossession or control of any books of account or
\nother documents maintained in the form of
\nelectronic record, as defined in clause (f) of
\nsubsection
\n(1) of section 2 of the Information
\nTechnology Act, 2000, to afford the authorised
\nofficer the necessary facility to inspect such
\nbooks of accounts or other documents, to submit
\nthat there are no similar provisions under the
\nGST Acts.
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\n8.5 The learned amicus curiae submitted that
\nsection 67 of the GST Acts, per se, does not
\nempower the authorised officer to record the
\nstatement of any person, including the person in
\nwhose name the authorisation has been issued. It
\nwas submitted that rule 139 of the Central Goods
\nand Services Tax Rules, 2017 (hereinafter
\nreferred to as \u201cthe CGST Rules\u201d) and the
\nauthorisation for inspection or search in FORM
\nGST INS1,
\ndo not confer any such power on the
\nauthorised officer under subsection
\n(2) of
\nsection 67 of the GST Acts.
\n8.6 Next, it was submitted that the family
\nmembers of the dealer or person, whose premises
\nare searched, cannot be touched during the course
\nof search. It was contended that the provisions
\nof subsection
\n(2) of section 67 of the GST Acts
\ndeal only with goods, documents, books or things
\nand do not confer any power on the authorised
\nofficer to touch any other person present at the
\nsearched premises, leave alone, take his phone
\nand copy it or use it.
\n8.7 Emphasis was laid on subsection
\n(4) of
\nsection 132 of the Income Tax Act, 1961, to
\nsubmit that the same empowers the authorised
\nofficer to examine on oath any person who is
\nfound to be in possession or control of any books
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\nof accounts; whereas no such power is conferred
\non the authorised officer under section 67 of the
\nGST Acts. It was submitted that under subsection
\n(2) of section 67 of the GST Acts, the authorised
\nofficer does not have any power to record
\nstatement\/s of the person\/s residing in the
\npremises inasmuch as this is not an inquiry or
\ninvestigation, but a search. Therefore, the
\nfamily members cannot be questioned about
\nanything.
\n8.8 It was further submitted that subsection
\n(2)
\nof section 67 of the GST Acts speaks of goods
\nliable to confiscation and documents or books or
\nthings. The expression \u201cbooks\u201d is not defined in
\nthe GST Acts, but finds place in subsection
\n(12A) of section 2 of the Income Tax Act, 1961
\nwhich says that \u201cbooks or books of account\u201d
\nincludes ledgers, daybooks,
\ncash books, accountbooks
\nand other books, whether kept in the
\nwritten form or as printouts
\nof data stored in a
\nfloppy, disc, tape or any other form of electromagnetic
\ndata storage device. It was submitted
\nthat, therefore, the expression \u201cgoods, documents
\nor things\u201d, does not contemplate live things or
\nhuman beings and hence, the power of search is
\nrestricted to four things, viz. goods liable to
\nconfiscation, documents, books or things and that
\nnone of the fiscal statutes even remotely
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\ncontemplate search for a human being.
\n8.9 It was submitted that unless
\nspecifically so authorised by the statute and the
\nauthorisation, no power is conferred on the
\nsearch party to search a person. It was submitted
\nthat section 70 of the GST Acts empowers the
\nproper officer to summon any person whose
\nattendance he considers necessary either to give
\nevidence or to produce a document or thing in any
\ninquiry in the same manner, as provided in the
\ncase of a civil court under the provisions of the
\nCode of Civil Procedure, 1908. For issuing
\nsummons, proper procedure must be followed by the
\nDepartment. Thus, in the absence of any summons
\nbeing issued under section 70 of the GST Acts, no
\nstatement can be recorded under section 67 of the
\nGST Acts.
\n8.10 The attention of the court was invited
\nto the provisions of Order V of the Code of Civil
\nProcedure, which provides for issue and service
\nof summons as well as to the provisions of Order
\nXVI of the Code of Civil Procedure, which
\nprovides for summoning and attendance of
\nwitnesses, to submit that the same contemplate
\nreasonable time being provided to a person to
\nwhom a summons is issued and hence, section 70 of
\nthe GST Acts cannot be read with subsection
\n(2)
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\nof section 67 thereof and that both the powers
\ncannot be exercised concurrently.
\n8.11 It was pointed out that section 144 of
\nthe GST Acts, which makes provision for
\npresumption as to documents in certain cases, is
\nin pari materia with subsection
\n(4A) of section
\n132 of the Income Tax Act, 1961. It was submitted
\nthat accordingly, in the absence of any specific
\nprovision empowering the authorized officer to
\nrecord statements and carry out investigation, no
\npowers can be conferred on a presumptive basis.
\nIt was submitted that the family members of the
\nsupplier \/ dealer are out of the purview of subsection
\n(2) of section 67 of the GST Acts, which
\nincludes their mobile phones also.
\n8.12 Reference was made to subrule
\n(4) of
\nrule 112 of the Income Tax Rules, 1962, which
\nprovides that if ingress into such building or
\nplace cannot be so obtained, it shall be lawful
\nfor the authorized officer executing the
\nauthority, with such assistance of police
\nofficers or of officers of the Central Government
\nor of both, as may be required, to enter such
\nbuilding or place. It was submitted that,
\ntherefore, assistance of police can be taken only
\nfor the limited purpose of entry into the
\npremises.
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\n8.13 Lastly, it was submitted that a search
\naction is an invasion of the privacy of an
\nindividual, and hence, search must be carried out
\nin a continuous manner and the Department cannot
\ncarry out search action in bits and pieces as per
\ntheir convenience.
\n9. Mr. Mihir Thakore, learned counsel for the
\nrespondent State authorities, submitted that the
\nright to privacy exists and is recognized under
\narticle 21 of the Constitution of India and any
\ninfringement of such right has to be supported by
\na statutory provision. It was submitted that in
\nthis case the overstay at the search premises was
\nbecause the search party was scrutinising the
\nphone calls recorded in the mobile phone of the
\nmother of the petitioner, as material relevant to
\nthe search was contained therein. It was
\nsubmitted that under subsection
\n(2) of section
\n67 of the GST Acts, the authorized officer if he
\nhas \u201creason to believe\u201d that any goods,
\ndocuments, books or things are secreted in any
\nplace, he can authorise any officer of central
\ntax\/state tax, as the case may be, to search and
\nseize such goods, documents, books or things.
\nAccordingly, if the officer so authorised is of
\nthe opinion that any information useful or
\nrelevant to any proceedings under that Act is
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\ncontained in a mobile phone, it is permissible
\nfor him to look into its contents. It was
\nsubmitted that documents, books or things would
\nalso include a mobile phone and that while a
\nperson cannot be searched, anything that he has,
\ncan certainly be seized and hence, there is no
\ninfirmity in the action of the respondents in
\nseizing the mobile phone of the petitioner\u2019s
\nmother and making a copy thereof.
\n9.1 Reference was made to the provisions of
\nsection 144 of the GST Acts which reads thus:
\n144. Presumption as to documents in certain
\ncases.\u2014 Where any document\u2014
\n(1) is produced by any person under this Act
\nor any other law for the time being in
\nforce; or
\n(ii) has been seized from the custody or
\ncontrol of any person under this Act or any
\nother law for the time being in force; or
\n(iii) has been received from any place
\noutside India in the course of any
\nproceedings under this Act or any other law
\nfor the time being in force, and such
\ndocument is tendered by the prosecution in
\nevidence against him or any other person who
\nis tried jointly with him, the court shall\u2014
\n(a) unless the contrary is proved by
\nsuch person, presume\u2014
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\n(i) the truth of the contents of
\nsuch document;
\n(ii) that the signature and every
\nother part of such document which
\npurports to be in the handwriting of
\nany particular person or which the
\ncourt may reasonably assume to have
\nbeen signed by, or to be in the
\nhandwriting of, any particular
\nperson, is in that person\u2019s
\nhandwriting, and in the case of a
\ndocument executed or attested, that
\nit was executed or attested by the
\nperson by whom it purports to have
\nbeen so executed or attested;
\n(b) admit the document in evidence
\nnotwithstanding that it is not duly
\nstamped, if such document is otherwise
\nadmissible in evidence.
\nIt was submitted that subsection
\n(2) of
\nsection of the GST Acts has to be read with
\nsection 144(ii) thereof, and hence, a mobile
\nphone can certainly be seized from the custody or
\ncontrol of any person present at the searched
\npremises. Accordingly, the authorised officer has
\nthe power to seize a mobile phone, which would
\nnot violate the right of privacy of the concerned
\nperson.
\n9.2 It was further submitted that if during the
\ncourse of search, the authorised officer finds it
\nnecessary to record the statement of any person
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\npresent at the premises, it is permissible for
\nhim to issue a summons under section 70 of the
\nGST Acts to such person in the searched premises
\nand record his\/her statement accordingly. He,
\nhowever, admitted that once the search is over,
\nthe search party has to leave the premises and
\nthey cannot prolong their stay to find out a
\nperson. It was urged that the action of the
\nconcerned officers carrying out the search was
\nbona fide and the prolonged stay at the searched
\npremises was in the light of the previous
\nprecedents. Moreover, the efforts of the
\nconcerned officers during the course of their
\ncontinuous stay to find out where goods,
\ndocuments, books or things were secreted were
\nsuccessful inasmuch as on the last day of the
\nsearch, they could obtain information from the
\nmobile phone regarding where the other documents,
\nbooks or things were secreted. Therefore, such
\noverstay has yielded results. It was,
\naccordingly, urged that a lenient view be taken
\nas regards the prolonged stay of the search party
\nat the premises of the petitioner.
\n10. Before adverting to the submissions made by
\nthe learned counsel for the respondent
\nauthorities and the learned amicus curiae as
\nreferred to hereinabove, reference may be made to
\ncertain facts, as averred in the affidavit dated
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\n24.10.2019 made by Shri Nathalal Maganlal
\nChauhan, the father of the petitioner, who has
\ninter alia stated that the officers who had come
\nto their flat for search were inquiring about the
\npetitioner\u2019s presence till late in the evening
\nand thereafter, the officers were replaced by
\nothers. It is further stated that out of five
\nfamily members, three members were female,
\nwhereas all the three officers, including the
\nGunman, were male, who had stayed back forcibly
\nat their residential premise and such episode
\ncontinued till 18.10.2019. It is inter alia
\nstated that during the course of the day,
\nstatements of the family members were recorded
\nand their mobile phones were checked from time to
\ntime. It is further stated that during the course
\nof the eight days of search, the family members
\nwere more or less confined to the house and were
\nnot allowed to go anywhere without their
\npermission. Various other submissions have been
\nmade, but it is not necessary to refer to the
\nsame at this stage.
\n11. In the aforesaid backdrop, reference may be
\nmade to the relevant statutory provisions. Subsection
\n(2) of section 67 of the GST Acts makes
\nprovision for search of such place where the
\nproper officer, not below the rank of Joint
\nCommissioner, has reason to believe that any
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\ngoods liable to confiscation or any documents or
\nbooks or things, which, in his opinion, shall be
\nuseful for or relevant to any proceedings under
\nthe Act, are secreted. On forming such belief,
\nthe proper officer may authorise in writing any
\nother officer of central tax\/state tax to search
\nand seize or may himself search and seize such
\ngoods, documents or books or things. Under subsection
\n(2) of section 67, the proper officer
\nauthorises an officer of central tax\/state tax to
\nsearch the premises and seize goods, documents,
\nbooks or things. Subsection
\n(4) of section 67
\nempowers the officer so authorised to seal or
\nbreak open the door of any premises or to break
\nopen any almirah, electronic devices, box,
\nreceptacle in which any goods, accounts,
\nregisters or documents of the person are
\nsuspected to be concealed. Subsection
\n(10) of
\nsection 67 makes the provisions of the Code of
\nCriminal Procedure, 1973, relating to search and
\nseizure, so far as may be, applicable to search
\nand seizure under that section subject to the
\nmodification that subsection
\n(5) of section 165
\nof the Code shall have effect as if for the word
\n\u201cMagistrate\u201d, wherever it occurs, the word
\n\u201cCommissioner\u201d were substituted.
\n12. The provisions relating to search and seizure
\ninsofar as the same are relevant for the purposes
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\nof section 67 of the GST Acts are contained in
\nsections 93, 94, 99, 100, 102, 103 and 165 of the
\nCode, which read as under:
\n\u201c93. When search warrant may be issued.\u2014
\n(1)(a) Where any Court has reason to believe
\nthat a person to whom a summons or order
\nunder section 91 or a requisition under subsection
\n(1) of section 92 has been, or might
\nbe, addressed, will not or would not produce
\nthe document or thing as required by such
\nsummons or requisition, or
\n(b) where such document or thing is not
\nknown to the Court to be in the possession
\nof any person, or
\n(c) where the Court considers that the
\npurposes of any inquiry, trial or other
\nproceeding under this Code will be served by
\na general search or inspection, it may issue
\na search warrant; and the person to whom
\nsuch warrant is directed, may search or
\ninspect in accordance therewith and the
\nprovisions hereinafter contained.
\n(2) The Court may, if it thinks fit, specify
\nin the warrant the particular place or part
\nthereof to which only the search or
\ninspection shall extend; and the person
\ncharged with the execution of such warrant
\nshall then search or inspect only the place
\nor part so specified.
\n(3) Nothing contained in this section shall
\nauthorise any Magistrate other than a
\nDistrict Magistrate or Chief Judicial
\nMagistrate to grant a warrant to search for
\na document, parcel or other thing in the
\ncustody of the postal or telegraph
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\nauthority.\u201d
\n\u201c94. Search of place suspected to contain
\nstolen property, forged documents, etc.\u2014
\n(1) If a District Magistrate, SubDivisional
\nMagistrate or Magistrate of the first class,
\nupon information and after such inquiry as
\nhe thinks necessary, has reason to believe
\nthat any place is used for the deposit or
\nsale of stolen property, or for the deposit,
\nsale or production of any objectionable
\narticle to which this section applies, or
\nthat any such objectionable article is
\ndeposited in any place, he may by warrant
\nauthorise any police officer above the rank
\nof a constable\u2014
\n(a) to enter, with such assistance as may be
\nrequired, such place,
\n(b) to search the same in the manner
\nspecified in the warrant,
\n(c) to take possession of any property or
\narticle therein found which he reasonably
\nsuspects to be stolen property or
\nobjectionable article to which this section
\napplies,
\n(d) to convey such property or article
\nbefore a Magistrate, or to guard the same on
\nthe spot until the offender is taken before
\na Magistrate, or otherwise to dispose of it
\nin some place of safety,
\n(e) to take into custody and carry before a
\nMagistrate every person found in such place
\nwho appears to have been privy to the
\ndeposit, sale or production of any such
\nproperty or article knowing or having
\nreasonable cause to suspect it to be stolen
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\nproperty or, as the case may be,
\nobjectionable article to which this section
\napplies.
\n(2) The objectionable articles to which this
\nsection applies are\u2014
\n(a) counterfeit coin;
\n(b) pieces of metal made in contravention of
\nthe Metal Tokens Act, 1889 (1 of 1889), or
\nbrought into India in contravention of any
\nnotification for the time being in force
\nunder Section 11 of the Customs Act, 1962
\n(52 of 1962);
\n(c) counterfeit currency note; counterfeit
\nstamps;
\n(d) forged documents;
\n(e) false seals;
\n(f) obscene objects referred to in Section
\n292 of the Indian Penal Code (45 of 1860);
\n(g) instruments or materials used for the
\nproduction of any of the articles mentioned
\nin clauses (a) to (f).\u201d
\n\u201c99. Direction, etc., of search warrants.\u2014
\nThe provisions of Sections 38, 70, 72, 74,
\n77, 78 and 79 shall, so far as may be, apply
\nto all search warrants issued under Section
\n93, Section 94, Section 95 or Section 97.\u201d
\n\u201c100. Persons in charge of closed place to
\nallow search.\u2014
\n(1) Whenever any place liable to search or
\ninspection under this Chapter is closed, any
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\nperson residing in, or being in charge of,
\nsuch place, shall, on demand of the officer
\nor other person executing the warrant, and
\non production of the warrant, allow him free
\ningress thereto, and afford all reasonable
\nfacilities for a search therein.
\n(2) If ingress into such place cannot be so
\nobtained, the officer or other person
\nexecuting the warrant may proceed in the
\nmanner provided by subsection
\n(2) of
\nSection 47.
\n(3) Where any person in or about such place
\nis reasonably suspected of concealing about
\nhis person any article for which search
\nshould be made, such person may be searched
\nand if such person is a woman, the search
\nshall be made by another woman with strict
\nregard to decency.
\n(4) Before making a search under this
\nChapter, the officer or other person about
\nto make it shall call upon two or more
\nindependent and respectable inhabitants of
\nthe locality in which the place to be
\nsearched is situate or of any other locality
\nif no such inhabitant of the said locality
\nis available or is willing to be a witness
\nto the search, to attend and witness the
\nsearch and may issue an order in writing to
\nthem or any of them so to do.
\n(5) The search shall be made in their
\npresence, and a list of all things seized in
\nthe course of such search and of the places
\nin which they are respectively found shall
\nbe prepared by such officer or other person
\nand signed by such witnesses; but no person
\nwitnessing a search under this section shall
\nbe required to attend the Court as a witness
\nof the search unless specially summoned by
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\nit.
\n(6) The occupant of the place searched, or
\nsome person in his behalf, shall, in every
\ninstance, be permitted to attend during the
\nsearch, and a copy of the list prepared
\nunder this section, signed by the said
\nwitnesses, shall be delivered to such
\noccupant or person.
\n(7) When any person is searched under subsection
\n(3), a list of all things taken
\npossession of shall be prepared, and a copy
\nthereof shall be delivered to such person.
\n(8) Any person who, without reasonable
\ncause, refuses or neglects to attend and
\nwitness a search under this section, when
\ncalled upon to do so by an order in writing
\ndelivered or tendered to him, shall be
\ndeemed to have committed an offence under
\nSection 187 of the Indian Penal Code (45 of
\n1860).\u201d
\n\u201c102. Power of police officer to seize
\ncertain property.\u2014
\n(1) Any police officer may seize any
\nproperty which may be alleged or suspected
\nto have been stolen, or which may be found
\nunder circumstances which create suspicion
\nof the commission of any offence.
\n(2) Such police officer, if subordinate to
\nthe officer in charge of a police station,
\nshall forthwith report the seizure to that
\nofficer.
\n(3) Every police officer acting under subsection
\n(1) shall forthwith report the
\nseizure to the Magistrate having
\njurisdiction and where the property seized
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\nis such that it cannot be conveniently
\ntransported to the Court or where there is
\ndifficulty in securing proper accommodation
\nfor the custody of such property, or where
\nthe continued retention of the property in
\npolice custody may not be considered
\nnecessary for the purpose of investigation,
\nhe may give custody thereof to any person on
\nhis executing a bond undertaking to produce
\nthe property before the Court as and when
\nrequired and to give effect to the further
\norders of the Court as to the disposal of
\nthe same:
\nProvided that where the property seized
\nunder subsection
\n(1) is subject to speedy
\nand natural decay and if the person entitled
\nto the possession of such property is
\nunknown or absent and the value of such
\nproperty is less than five hundred rupees,
\nit may forthwith be sold by auction under
\nthe orders of the Superintendent of Police
\nand the provisions of Sections 457 and 458
\nshall, as nearly as may be practicable,
\napply to the net proceeds of such sale.\u201d
\n\u201c103. Magistrate may direct search in his
\npresence.\u2014
\nAny Magistrate may direct a search to be
\nmade in his presence of any place for the
\nsearch of which he is competent to issue a
\nsearch warrant.\u201d
\n\u201c165. Search by police officer.\u2014
\n(1) Whenever an officer in charge of a
\npolice station or a police officer making an
\ninvestigation has reasonable grounds for
\nbelieving that anything necessary for the
\npurposes of an investigation into any
\noffence which he is authorised to
\ninvestigate may be found in any place within
\nthe limits of the police station of which he
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\nis in charge, or to which he is attached,
\nand that such thing cannot in his opinion be
\notherwise obtained without undue delay, such
\nofficer may, after recording in writing the
\ngrounds of his belief and specifying in such
\nwriting, so far as possible, the thing for
\nwhich search is to be made, search, or cause
\nsearch to be made, for such thing in any
\nplace within the limits of such station.
\n(2) A police officer proceeding under subsection
\n(1), shall, if practicable, conduct
\nthe search in person.
\n(3) If he is unable to conduct the search in
\nperson, and there is no other person
\ncompetent to make the search present at the
\ntime, he may, after recording in writing his
\nreasons for so doing, require any officer
\nsubordinate to him to make the search, and
\nhe shall deliver to such subordinate officer
\nan order in writing, specifying the place to
\nbe searched, and so far as possible, the
\nthing for which search is to be made; and
\nsuch subordinate officer may thereupon
\nsearch for such thing in such place.
\n(4) The provisions of this Code as to search
\nwarrants and the general provisions as to
\nsearches contained in section 100 shall, so
\nfar as may be, apply to a search made under
\nthis section.
\n(5) Copies of any record made under subsection
\n(1) or subsection
\n(3) shall
\nforthwith be sent to the nearest Magistrate
\nempowered to take cognizance of the offence,
\nand the owner or occupier of the place
\nsearched shall, on application, be
\nfurnished, free of cost, with a copy of the
\nsame by the Magistrate.\u201d
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\n13. Sections 93 and 94 of the Code are more or
\nless similar to subsection
\n(2) of section 67 of
\nthe GST Acts and provide for the contingencies
\nwhen a search warrant can be issued and the scope
\nof powers of search and seizure. Section 95
\nrelates to powers of search in case of the
\nspecific instances set out therein. Section 100
\nof the Code casts an obligation upon the persons
\nin charge of a closed space to allow search. Subsection
\n(3) of section 100 provides that where
\nany person in or about such place is reasonably
\nsuspected of concealing about his person any
\narticle for which search should be made, such
\nperson may be searched and if such person is a
\nwoman, the search shall be made by another woman
\nwith strict regard to decency. Thus, for this
\nlimited purpose, search of a person is permitted
\nunder subsection
\n(3) of section 100 of the Code.
\n14. Chapter XVII of the GST Rules bears the
\nheading \u2013 \u201cInspection, Search and Seizure\u201d and is
\ncomprised of rules 139 to 141, which read as
\nunder:
\n\u201c139. Inspection, search and seizure.33.
\nWhere the proper officer not below the
\nrank of a Joint Commissioner has reasons to
\nbelieve that a place of business or any
\nother place is to be visited for the
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\npurposes of inspection or search or, as the
\ncase may be, seizure in accordance with the
\nprovisions of section 67, he shall issue an
\nauthorisation in FORM GST INS01
\nauthorising
\nany other officer subordinate to him to
\nconduct the inspection or search or, as the
\ncase may be, seizure of goods, documents,
\nbooks or things liable to confiscation.
\n(2) Where any goods, documents, books or
\nthings are liable for seizure under subsection
\n(2) of section 67, the proper
\nofficer or an authorised officer shall make
\nan order of seizure in FORM GST INS02.
\n(3) The proper officer or an authorised
\nofficer may entrust upon the owner or the
\ncustodian of goods, from whose custody such
\ngoods or things are seized, the custody of
\nsuch goods or things for safe upkeep and the
\nsaid person shall not remove, part with, or
\notherwise deal with the goods or things
\nexcept with the previous permission of such
\nofficer.
\n(4) Where it is not practicable to seize any
\nsuch goods, the proper officer or the
\nauthorised officer may serve on the owner or
\nthe custodian of the goods, an order of
\nprohibition in FORM GST INS03
\nthat he shall
\nnot remove, part with, or otherwise deal
\nwith the goods except with the previous
\npermission of such officer.
\n(5) The officer seizing the goods,
\ndocuments, books or things shall prepare an
\ninventory of such goods or documents or
\nbooks or things containing, inter alia,
\ndescription, quantity or unit, make, mark or
\nmodel, where applicable, and get it signed
\nby the person from whom such goods or
\ndocuments or books or things are seized.
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\n140. Bond and security for release of seized
\ngoods.(
\n1) The seized goods may be released on a
\nprovisional basis upon execution of a bond
\nfor the value of the goods in FORM GST INS04
\nand furnishing of a security in the form
\nof a bank guarantee equivalent to the amount
\nof applicable tax, interest and penalty
\npayable.
\nExplanation.For
\nthe purposes of the rules
\nunder the provisions of this Chapter, the
\napplicable tax shall \u2015 \u2016 include central tax
\nand State tax or central tax and the Union
\nterritory tax, as the case may be and the
\ncess, if any, payable under the Goods and
\nServices Tax (Compensation to States) Act,
\n2017 (15 of 2017).
\n(2) In case the person to whom the goods
\nwere released provisionally fails to produce
\nthe goods at the appointed date and place
\nindicated by the proper officer, the
\nsecurity shall be encashed and adjusted
\nagainst the tax, interest and penalty and
\nfine, if any, payable in respect of such
\ngoods.
\n141. Procedure in respect of seized goods.(
\n1) Where the goods or things seized are of
\nperishable or hazardous nature, and if the
\ntaxable person pays an amount equivalent to
\nthe market price of such goods or things or
\nthe amount of tax, interest and penalty that
\nis or may become payable by the taxable
\nperson, whichever is lower, such goods or,
\nas the case may be, things shall be released
\nforthwith, by an order in FORM GST INS05,
\non proof of payment.
\n(2) Where the taxable person fails to pay
\nthe amount referred to in subrule
\n(1) in
\nrespect of the said goods or things, the
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\nCommissioner may dispose of such goods or
\nthings and the amount realized thereby shall
\nbe adjusted against the tax, interest,
\npenalty, or any other amount payable in
\nrespect of such goods or things.\u201d
\n15. Considering the provisions referred to
\nhereinabove, it is apparent that the officer who
\nis armed with a search warrant is authorised to
\nsearch the premises referred to in the warrant of
\nauthorisation and to seize goods, documents,
\narticles or things, which are useful for or
\nrelevant to any proceedings under the GST Acts.
\nThe provisions nowhere arm the officer, in whose
\nfavour the authorisation is issued, to search for
\nany person or to remain in the premises after the
\nsearch is over, or to monitor what the persons
\nresiding in the premises are doing and to reside
\nin the premises. In fact, no provision under the
\nCode permits even the Investigating Officer to
\ncontinuously stay inside the residential premises
\nto apprehend an accused as and when he returns
\nhome. The powers vested in the officer armed with
\na search warrant are limited to searching the
\nentire premises. Once the premises are searched,
\nthe search party would have to leave the premises
\nand cannot wait there indefinitely for days on
\nend under the expectation that the person whom
\nthey are searching for may return home or may
\ncontact his family members.
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\n16. In the facts of the present case, the
\nauthorised officer was authorised to search only
\nthe premises. The nature of the search conducted
\nby him is discernible from the panchnama of the
\nsearch proceedings drawn by the authorised
\nofficer in the presence of panchas, a copy
\nwhereof has been produced for the perusal of this
\ncourt. In terms of the panchnama, on 11.10.2019,
\nin the afternoon, the officers searched the
\nresidential premises of the petitioner; and the
\nbooks of accounts and other documents which they
\nfound were brought to the main room, which
\nincluded the bank passbooks
\nand cheque books,
\netc. of the family members. At about 4:02 pm, the
\nofficers asked the parents of the petitioner to
\npresent the petitioner; whereupon they had made a
\nphone call to him and stated that he was not
\npicking up the phone. Thereafter, they recorded
\nstatements of the parents of the petitioner in
\nquestionanswer
\nform. It is recorded in the
\npanchnama that at 4:45 pm, upon asking the mother
\nof the dealer (petitioner) to keep the dealer
\npresent and upon making her to listen the
\nrecording of her phone call, she behaved in an
\ninappropriate way and said that every mother lies
\nto protect her son and that even if she lies,
\nwhat is wrong with it. It is further recorded
\nthat the dealer\u2019s mother, in his presence as well
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\nas in the presence of panchas and officers, said
\nthat every person sitting there must have done
\nsomething wrong. Thus, the dealer\u2019s mother
\nconduct was uncooperative. At 5:14 pm it is
\nrecorded that Alpesh Wadher of Hollywood Shoes
\nhaving remained present, a team with one officer
\nand panchas set off to the dealer\u2019s shop for
\ninvestigation. At 6:10 pm, it is recorded that
\nthe officer along with the panchas returned and
\nthey had brought along with them passbooks
\nrelated to the bank and Shri H.T. Barad an
\nofficer of the office was informed about the
\ndocuments which were found there. It is further
\nrecorded that an expert was called to obtain a
\nmirror image of the calls made from the phone of
\nthe petitioner\u2019s mother, which was found at the
\nsaid premises and a master copy thereof was
\nprepared in a Sandisk Pen Drive 16 GB, which was
\nsealed in the presence of panchas and a working
\ncopy was made in a pen drive. At 7:10 pm it is
\nrecorded that the petitioner\u2019s father and mother
\ninformed that they wanted to visit a friend of
\ntheir son in case they can get any information
\nfrom there and hence, they had asked permission
\nto go there and hence, they had taken the
\npetitioner\u2019s daughter and panchas with them and
\ngone near Jivraj Park where her maternal uncle
\n(maternal aunt\u2019s husband) Hareshbhai Vandhra was
\nresiding and he informed that on that day in the
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\nmorning at 9:00 am, Pareshbhai Chauhan had come
\nto him to take a bag which he had given.
\nThereafter, he did not have any contact with him
\nand if he is able to contact him in any manner,
\nhe would try to bring him home. At 8:05 pm, it is
\nrecorded that during the course of search for the
\ndealer, the dealer\u2019s mother was not feeling well
\nand had stated that on account of tension her
\nentire body was aching and hence, they had
\ninformed an officer there to take her to the
\nhospital along with panchas, whereupon she had
\nrefused to go and had said that she was worried
\nthat her son may take a wrong step. At 8:45 pm it
\nis recorded that at the dealer\u2019s place the
\nstatement of his mother in question \u2013 answer
\nform and the statement in question \u2013 answer form
\nof Alpesh Wadher who was running Hollywood shoes
\nwas recorded. [Thus, despite the fact that the
\npetitioner\u2019s mother, an elderly lady, was
\nsuffering from ill health at 8:05 pm, her
\nstatement came to be recorded by 8:45 pm.] At
\n9:35 pm it is recorded that another officer came
\nto relieve the officer who was present at the
\npremises and he was acquainted with the
\nproceedings conducted throughout the day and was
\ntold that in case the dealer comes at night, his
\nstatement should be recorded.
\n16.1 At 9:15 on the next morning, it is recorded
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\nthat at night, the family members again tried to
\ncontact the dealer on his mobile phone, but his
\nphone was found to be switched off. Thereafter,
\nthe family members were again interrogated for
\nsome time and later, they were allowed to go to
\nsleep. It is further recorded that on the next
\nday, at 7:00 am, the son had gone to school.
\n[Thus, it appears that even after 9:35 at night
\nthe family members of the petitioner were
\ninterrogated.]
\n16.2 At 10:05, it is recorded that the
\nInvestigating Officer of the earlier day having
\nreturned and having relieved the panchas and
\nofficer R.B Dodiya, the new officer and panchas
\nhave arrived at the spot. At 01:55 pm, it is
\nrecorded that during the course of search, they
\nrecorded the statements of the dealer\u2019s wife
\nShrimati Mamtaben and her daughter Honey in
\nquestionanswer
\nform and asked them as to where
\nthe dealer was and as to whether they had any
\nnews about him. However, they had informed that
\ntill then, they had no news about the dealer. At
\n8:05 pm, it is recorded that after resting his
\n(the petitioner\u2019s) father\u2019s statement was
\nrecorded in question \u2013 answer form. Moreover
\nduring the said search different officers has
\nrecorded statements of Pareshbhai\u2019s father
\nNathalal Chauhan in question \u2013 answer form and
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\nhad questioned him as to where the Pareshbhai
\nwas; and different officers had recorded
\nstatements of the Pareshbhai\u2019s wife, his
\nmother\/father and inquired as to whether or not
\nthey had any talk with the Pareshbhai and upon
\nOfficer Shri B.H. Modi arriving to relieve them,
\nthe officers of that morning as well as the
\npanchas were being relieved and the charge of the
\nsearch was handed over to the new officer. It is
\nfurther recorded that at night, the family
\nmembers of the dealer again tried to contact the
\ndealer via mobile phone, but the dealer\u2019s phone
\nappeared to be switchedoff.
\nThereafter, after
\nsome interrogation, as they needed to rest at
\nnight they had gone to sleep. [Thus, the family
\nmembers were interrogated even at night time.]
\n16.3 On 13.10.2019, at 12:55 pm, it is
\nrecorded that the officers who were present at
\nnight were relieved and the daytime
\nofficer took
\ncharge. It is further recorded that they had
\noffered personal search of those officers to
\nPareshbhai\u2019s mother and father, but they had not
\naccepted such offer and upon asking them as to
\nwhether they had received any news about
\nPareshbhai at night, they had informed that they
\ndid not have any news. At 2:10 pm, it is recorded
\nthat the family was permitted to rest postlunch.
\nAt 3:25 pm, it is recorded that the Pareshbhai\u2019s
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\nfather\u2019s medicines were finished and hence an
\ninspector was sent with him to purchase the
\nmedicines. At 6:10 pm, it is recorded that
\nPareshbhai\u2019s wife and daughter Honey had gone to
\nthe market in the presence of panchas to fetch
\nvegetables and clothes given for ironing and had
\nreturned in half an hour along with those things.
\nAt 6:30 pm, it is recorded that upon asking the
\nPareshbhai\u2019s family members as to whether there
\nwas any news about him, but they had said that no
\ninformation was received. Thereafter, without
\nrecording the time, it is recorded that another
\nofficer A.B. Parmar had arrived to relieve the
\nofficer who was at the spot during daytime and
\nthe charge was handed over to him. At 10:30 pm,
\nit is recorded that the dealer\u2019s mother sought
\npermission to go downstairs,
\nand she was
\npermitted to go and she returned after 15 minutes
\nwith vegetables (potatoes). It is further
\nrecorded that she had become emotional about her
\nson and hence, they consoled her and explained to
\nher that this is part of a Government inquiry and
\nafter pacifying her, advised her to rest
\npeacefully.
\n16.4 On 14.10.2019, it is recorded that the
\ndealer\u2019s father sought permission to go downstairs
\nto fetch milk and such permission was
\ngranted. At 8:45 am, the dealer\u2019s mother sought
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\npermission to go to the temple and such
\npermission was granted. At 10:45 am, the dealer\u2019s
\nmother sought permission to go to some place for
\nreturning the clothes brought for Navratri
\ncelebrations, which was granted and she returned
\nafter 15 minutes. It is recorded that on
\n14.10.2019, the Investigating Officer Shri Rabari
\nhad presented himself and had taken charge of the
\nproceedings.
\n16.5 The proceedings of the other days are
\nsimilar in nature and do not reflect search of
\nany kind having been carried out, but show that
\nthe officers have remained in the house and have
\nkept surveillance over the members of the house.
\nAll that is recorded is when, where, why, at what
\ntime and for how long any family member went out
\nof the premises and that time and again the
\nfamily members were asked as to whether they had
\nany information about the petitioner. It also
\nappears that every time when a family member left
\nthe premises, he\/ she was required to inform the
\nconcerned officer the reason why he\/she wanted to
\ngo out and such member was required to take the
\npermission of the officer concerned. Several
\ntimes, it has been recorded that liquor bottles
\nwere found at the premises during the course of
\nsearch and that the family members were
\ninterrogated in respect of the same and as to
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\nwhether they had a permit to keep such liquor
\nbottles and the fact regarding Anandnagar Police
\nStation being informed about the same and
\nrecording of an offence by the Police Station and
\nthe action taken by it etc.
\n16.6 On 17.10.2019 at 11:10 am it is recorded
\nthat the officers who were present at the
\npremises at night are relieved and the daytime
\nofficer has taken charge. It is further recorded
\nthat upon asking the family members of Pareshbhai
\nas to whether they had any news about him, they
\nhad said that they did not have any news about
\nhim and upon the request of Pareshbhai\u2019s family
\nmembers, his mother was permitted to go to the
\ntemple and his daughter was permitted to go for
\nher job. At 12:30 pm (presumably in the afternoon
\nof 18.10.2019) it is recorded that night time
\nofficer of 17.10.2019 has been relieved and the
\nday time officer has taken charge.
\n16.7 On a perusal of the contents of the
\npanchnama, it is evident that during the time the
\nofficers were present in the premises, the
\nmovements of the family members were restricted
\nand they were required to take permission of the
\nofficers concerned if they had to go out of the
\nhouse. The family members, including female
\nmembers, have been interrogated even during night
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\nhours, and there is nothing in the panchnamas, to
\nshow the presence of any female officer during
\nthe night time. Moreover, on each day, in the
\nmorning shift and night shift, there were two
\ndifferent panchas from different localities
\nresiding in the premises and it also appears that
\nan SRP constable was also present throughout.
\nThus, the family members of the petitioner were
\nconstrained to put up with different sets of
\nstrangers in their residential premises
\nthroughout the day and night for eight days.
\n16.8 While it is an admitted position that
\nthe officers along with the panchas and the SRP
\nconstable were inside the residential premises
\nduring the course of the entire search, in the
\nentire panchnama, there is no mention as to what
\nthe officers and panchas and SRP constable did
\ninside the residential premises of the petitioner
\nthroughout the day, except for having recorded
\nthe statements of the family members of the
\npetitioner at different times of the day. Nothing
\nis stated as regards where the members of the
\nsearch party stayed during the course of the day
\nand where they slept at night.
\n16.9 It may be noted that on 18.10.2019, this
\ncourt passed an order in the following terms:
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\n\u201cMr. Chetan Pandya, learned advocate for the
\npetitioner has vehemently assailed the action
\nof the respondents by submitting that the
\nofficers of the respondents have camped
\ninside the house of the petitioner since
\n11.10.2019 wherein his family members are
\nresiding and that the family members of the
\npetitioner are virtually under house arrest.
\nIssue notice returnable on 21st October, 2019.
\nDirect service is permitted today.\u201d
\n16.10 Thereafter, on 18.10.2019, at 4:30 pm,
\nit is recorded that at the site upon hearing the
\nrecording from the mobile phone of Pareshbhai\u2019s
\nmother, in her recording (7.10.2010, 6:52 pm) of
\n4 minutes 13 seconds it could be heard that the
\noffice record was kept at Harishbhai\u2019s house,
\nafter which it was transferred to the house next
\ndoor where a single person was residing which was
\nbeing said by his wife, and his mother was saying
\nthat the record which was inside the house was
\nkept at Munni\u2019s house (Pinkyben Gohil). Hence,
\nofficer A. L. Rabari obtained summons and went to
\nthe said place to record statement.At 5:20, it is
\nrecorded that at the search place, as
\nPareshbhai\u2019s wife was required to go to fetch
\nvegetables and get the grains ground at the flour
\nmill, with the consent of the officer she was
\ngiven permission to fetch such things and she had
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\ngone and returned in 0:45 minutes (time 5:20
\npm.). Lastly, at 7:40 it is recorded that upon
\nthe officer of the search premises Shri A. L.
\nRabari returning from the said place along with
\none panch whom he had taken, he had informed that
\nhe had gone with a summons to the address \u2013 102,
\nMira Madhav Apartment, First Floor, in the lane
\nof Ashapura Mataji Temple, Vejalpur, Ahmedabad to
\nHareshbhai Vandra\u2019s place and after serving
\nsummons on him it was explained to him and his
\nstatement was recorded and he was made to hear
\nthe recording found at the searched place in the
\ncontext of which he had stated that the books of
\naccount were kept in the house next door to the
\noffice, which was informed to the higher officer
\nand after obtaining a warrant from the head
\noffice they had come to that place and after
\nshowing them the said documents they had returned
\n(time 7:40 pm).
\n16.11 It is further recorded that after coming
\nto the searched place, upon asking the family
\nmembers of Pareshbhai Chauhan as to whether they
\nhad received any news about Pareshbhai, they had
\nstated that till then they had not received any
\nnews about him. Since the books of accounts of
\nPareshbhai Chauhan\u2019s office were found from some
\nother place, the higher officer was informed
\nabout it. The intention behind staying at that
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\nplace and searching the place was that Pareshbhai
\nremains present and produces the books of
\naccounts. Out of which, a part of his accounting
\nrecord having been found from some other place,
\nthe higher officer was informed and after
\nrecording the last statement of Pareshbhai
\nChauhan\u2019s father Nathabhai Chauhan, the search of
\nthe residential premises was completed at 9:15
\nhours at night.
\n17. This, in sum and substance is the nature of
\nthe proceedings conducted by the respondents from
\n11.10.2019 to 18.10.2019 at the residential
\npremises of the petitioner.
\n18. The entire action of the search party after
\nthe first day, i.e. from 12.10.2019 to
\n18.10.2019, was, therefore, illegal, invalid and
\nnot backed by any provision of the GST Acts.
\nMoreover, it is only after this court issued
\nnotice on 18.10.2019, that the search was brought
\nto an end on the ground that from the recording
\nof the petitioner\u2019s mother of 7.10.2019, they
\ncould find out the place where certain accounting
\nrecord was secreted. In this regard, it may be
\nnoted that from the contents of panchnama of the
\nsearch proceedings as recorded hereinabove, it is
\napparent that the authorised officer on day one
\nof the search itself, that is on 11.10.2019, had
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\ngot a mirror copy of the data contained in the
\nmobile phone of the petitioner\u2019s mother copied in
\na pen drive which was sealed in the presence of
\npanchas and a working copy thereof was also made
\nin a pen drive. Therefore, the details contained
\nin the mobile phone of the petitioner\u2019s mother
\nwere already available with the respondents. For
\nthe purpose of hearing what was recorded therein,
\nthere was no necessity of staying at the searched
\npremises. Moreover, from the contents of the
\npanchnama, there is nothing whatsoever to
\nindicate that at any point of time any member of
\nthe search party or the authorised officer was
\nhearing the recording. The only reason why the
\nsearch party remained back appears to be to
\nintimidate the family members of the petitioner
\nto extract information about the petitioner or
\nrecords of his business, and to either coerce the
\npetitioner to return home or to apprehend him if
\nhe returns home.
\n19. From the facts recorded in the panchnama, it
\nis abundantly clear that while the authorisation
\nissued to the officer concerned was to search the
\npremises mentioned in the authorisation, the
\nentire search was converted to a search for the
\ndealer, namely the petitioner herein. One
\nrelevant fact which is to be kept in mind in this
\ncontext is that, admittedly, no summons was
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\nissued to the petitioner under section 70 of the
\nGST Acts nor is it the case of the respondents
\nthat he was summoned, but had not remained
\npresent. While the petitioner was not present at
\nthe premises when searched, there could be a
\nreasonable explanation for his absence. Moreover,
\neven if the petitioner may have been
\nintentionally avoiding the authorities, the same
\nis not a valid ground for converting the search
\nproceedings to a search for the petitioner, more
\nso, when no such power is vested in the
\nauthorities.
\n20. Moreover, as is evident from the contents of
\nthe panchnama, the members of the petitioner\u2019s
\nfamily were literally under house arrest and were
\nnot permitted to leave the premises without the
\npermission of the authorised officer and at times
\nwithout being escorted by a member of the search
\nparty. It may be noted that there is no provision
\nunder the GST Acts which empowers the authorised
\nofficer to confine family members of a dealer in
\nthis manner and to interrogate them at all times
\nof the day and even late at night as has been
\ndone in this case. Even the elderly lady was not
\nspared and despite not being well was
\ninterrogated at night, that too, without any such
\npowers being vested in the authorised officer. As
\nrightly pointed out by the learned amicus curiae,
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\nthe only power to record statements is traceable
\nto section 70 of the GST Acts which requires the
\nconcerned officer to issue summons to the person
\nwhose statement is sought to be recorded by
\nfollowing due procedure in accordance with law,
\nand thereafter record his statement. But in this
\ncase all statutory requirements are thrown to the
\nwinds and in flagrant violation of the powers
\nvested in them, the concerned officers have
\nresided in the residential premises of the
\npetitioner for eight days and confined and
\nintimidated his family members. Thus, apart from
\nthe illegality of the continuation of the search
\nproceedings, the conduct of the search officers
\nin confining the family members of the petitioner
\nto the house and of interrogating them time and
\nagain is nothing but a blatant abuse of powers.
\nSince, the continued stay at the premises of the
\npetitioner after 11th October, 2019 was not for
\nsearch of the premises but to search for the
\npetitioner and to obtain further information
\nabout where else he could have secreted
\ndocuments, books or things relevant for any
\nproceedings under the GST Acts, such continued
\nstay was totally unauthorised as it was not
\nbacked by any statutory provision. As discussed
\nhereinabove, the powers conferred by subsection
\n(2) of section 67 of the GST Acts is to search
\nfor goods liable to confiscation, documents,
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\nbooks or things which in the opinion of the
\nproper officer shall be useful for or relevant to
\nany proceedings under that Act.
\n21. From the contents of the panchnama as
\nreferred to hereinabove, it is evident that the
\nconcerned officers remained at the residential
\npremises of the petitioner with a view to extort
\nconfessions from the family members of the
\npetitioner regarding the presence of the
\npetitioner and the place where the petitioner
\nmight have secreted the documents regarding his
\nbusiness dealings. Section 348 of the Indian
\nPenal Code provides that whoever wrongfully
\nconfines any person for the purpose of extorting
\nfrom the person confined or any person interested
\nin the person confined, any confession or any
\ninformation which may lead to the detection of an
\noffence or misconduct or for the purpose of
\nconstraining the person confined or any person
\ninterested in the person confined to restore or
\nto cause the restoration of any property or
\nvaluable security or to satisfy any claim or
\ndemand or to give information which may lead to
\nthe restoration of any property or valuable
\nsecurity, shall be punished with imprisonment of
\neither description for a term which may extend to
\nthree years and shall also be liable to fine. In
\nthe present case, it appears that the respondent
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\nauthorities had wrongfully confined the family
\nmembers of the petitioner in the residential
\npremises with a view to extort information from
\nthem about the whereabouts of the petitioners or
\nthe place where he might have secreted documents
\nrelevant for any proceedings under the GST Acts.
\nThus, the unauthorised action of the concerned
\nofficers may tantamount to an offence under the
\nIndian Penal Code. In the opinion of this court
\nwhat is not permissible in law cannot be done
\nunder the guise of discharge of statutory
\nfunctions. The plea that the concerned officers
\nwere acting on the basis of past precedent also
\nappears to be a specious plea, inasmuch as, even
\nunder the previous enactments such action was not
\npermissible. Besides, no instance has been
\npointed out to show that at any point of time, a
\nsearch case was converted to a search for a
\nperson and the officers concerned resided in
\nresidential premises of a dealer in the manner
\nthat has been done in this case. The action of
\nthe respondents, therefore, cannot be
\ncountenanced.
\n22. Besides, the GST Acts are new enactments.
\nOfficers acting under the relevant provisions are
\nrequired to study the scope of their powers under
\nthe statutory provisions under which they are
\nacting and cannot act on the basis of
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\npresumptions or past precedents under a previous
\nenactment. If the common man is supposed to know
\nthe law and face penalty for any infraction
\nthereof, the officers enforcing such provisions
\nare required to be well versed with the statutory
\nprovisions and the scope and limits of their
\npower and cannot take shelter behind ignorance of
\nlaw to justify their illegal actions.
\n23. As noticed earlier, it has come on record
\nthat throughout the search, an SRP constable was
\npresent in the residential premises of the
\npetitioner. As pointed out by learned amicus
\ncuriae, the assistance of the police can be taken
\nfor the purpose of entry into the premises if
\nthere is some reason to believe that there may be
\nany kind of obstruction in conducting the search.
\nIn the present case, there is nothing on record
\nto indicate that there was any resistance by the
\nfamily members during the course of search
\nwarranting the presence of an SRP constable
\nduring the entire search proceedings. Therefore,
\nit appears that the idea behind taking assistance
\nof the SRP constable appears to be to intimidate
\nand shame the family members, more so, in view of
\nthe prolonged presence of the search party at the
\nresidential premises of the petitioner. On behalf
\nof the respondents, it has been stated that the
\nofficers concerned had asked the SRP constable to
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\nstand outside the premises, but it was the
\npetitioner\u2019s father who requested that he may
\nremain inside the premises. In the report dated
\n19.11.2019 submitted by the Chief Commissioner of
\nState Tax, it has been stated that \u201cFrom the
\nstatement of SRP Constable Shri Savansinh Dabhi
\nit is seen that on very first day SRP Jawan was
\nrequested by Nathalal Chauhan, father of the
\npetitioner to stay within the residence as his
\nstaying outside the residence gate will give
\nimpression to their neighbours and will tarnish
\ntheir image.\u201d It cannot be gainsaid that
\npresence of a person in uniform outside the house
\nthroughout the day, more so, when the family
\nmembers of the petitioner were literally under
\nhouse arrest, would cause a loss of reputation
\nand raise many questions in the neighbourhood. It
\nwould be with a view to salvage their prestige
\nand reputation that the petitioner\u2019s father would
\nhave made a request that such person remain
\ninside the house rather than outside. It may be
\nnoted that even the police, during the course of
\ninvestigation, do not have the powers to reside
\nat any residential premise and the officer
\nconcerned is required to carry out investigation
\nand thereafter, leave the premises. The action of
\nthe respondents in continuing to reside at the
\nresidential premises of the petitioner without
\nany valid reason despite the fact that search was
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\nconcluded is unwarranted and uncalled for. It may
\nbe that ultimately, the respondents might have
\nbeen able to extract some material from the
\nconversation recorded in the mobile phone
\nregarding where some books of account and other
\ndocuments were secreted, but the end does not
\njustify the means and does not validate the
\nunauthorised and illegal action of the concerned
\nofficers. The Allahabad High Court in Dr. Nand
\nLal Tahiliani v. Commissioner of Incometax
\n(supra) has held that the dwelling house of a
\nperson is a high fortress. Every householder, the
\ngood and the bad, the guilty and the innocent, is
\nentitled to the protection designed to secure the
\ncommon interest against unlawful invasion of the
\nhouse. Ransacking of the house and the act of
\ntaking away the property is an inroad on
\ncitizens\u2019 right of privacy, one of the values of
\ncivilization. Any unwarranted intrusion of it
\ncannot be countenanced. Reasonable belief exists
\nif the information is not only trustworthy, but
\nreasonable and sufficient in itself to warrant
\nthe conclusion that the provisions of section 132
\nwere being violated. Because if the exercise of
\npower is bad or unlawful from its inception, then
\nit is not validated or changes character from its
\nsuccess. It would not, therefore, be asking too
\nmuch from the authorities to comply with the
\nbasic requirements of the section before they are
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\npermitted to invade the secrecy of one\u2019s home.
\n24. At this juncture, reference may be made to
\nthe report dated 19.12.2019, that came to
\nultimately be submitted by the Chief Commissioner
\nof State Tax pursuant to the directions issued by
\nthis court vide order dated 25.10.2019. The
\nrelevant extracts whereof are reproduced
\nhereunder:
\n\u201cPrior to 01\/07\/2017, the search and seizure
\nproceedings were carried out under the
\nprovisions of Section 67 of the Gujarat
\nValue Added Tax Act, 2003. As per the
\nprovisions of section 67(7), the provisions
\nof the Code of Criminal Procedure, 1973
\nrelating to search are applicable to the
\nsearch proceedings under the Gujarat Value
\nAdded Tax Act, 2003. As per section 88 of
\nthe said Act, the Commissioner is empowered
\nto authorise any officer or person
\nsubordinate to him to investigate offences
\nand can exercise the power conferred by the
\nCode of Criminal Procedure, 1973. The
\nprovision of section 88 of the said Act is
\nreproduced below.
\n\u201c(1) Subject to such conditions as may
\nbe prescribed, the Commissioner may
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\nauthorise either generally or in respect
\nof a particular case or class of cases
\nany officer or person subordinate to him
\nto investigate all or any of the
\noffences punishable under this Act.
\n(2) Every officer or person so
\nauthorised shall in the conduct of such
\ninvestigation, exercise the powers
\nconferred by the Code of Criminal
\nProcedure, 1973 upon an officer incharge
\nof a police station for the
\ninvestigation of a cognizable offence.\u201d
\nIn view of the above, search, seizure
\nand investigation proceedings were carried
\nout under the provisions of Section 67(4)(5)
\n(7) and Section 88 of the said Act read with
\nthe relevant provisions relating to search
\nand investigation of Code of Criminal
\nProcedure, 1973. Hence, accordingly under
\nthe VAT regime, the investigation was
\ncarried out and statement of witnesses were
\nrecorded during the search proceedings. The
\ndepartmental authorities continued in that
\nbelief after implementation of the Gujarat
\nGoods and Services Tax Act \u2013 2007 and have
\nbeen recording statements of concerned
\nperson during the course of search and
\nseizure proceedings. The reasons for such
\ncontinuation of that belief is also that
\nunder the Gujarat Value Added Tax Act, 2003,
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\nsearch, seizure and investigation can be
\ninitiated even today in respect of certain
\ncommodities still covered under the Gujarat
\nValue Added Tax Act, 2003 as well as for pre
\n01\/07\/2017 transactions.
\nAfter introduction of the Gujarat Goods
\nand Services Tax Act 2017,
\nthe department
\nhad carried out search and seizure
\nproceedings in number of cases under the
\nGujarat Goods and Services Tax Act \u2013 2017 in
\nexercise of the power conferred under
\nsection 67 of the said Act till date. As per
\nthe provisions of section 67(1) of the
\nGujarat Goods and Services Tax Act \u2013 2017,
\nthe provisions of the Code of Criminal
\nProcedure, 1973, relating to search and
\nseizure, apply to search and seizure under
\nthe said Section. For the sake of
\nconvenience section 67(10) of the Gujarat
\nGoods and Services Tax Act \u2013 2017 is
\nreproduced here in below.
\n\u201cThe provisions of the Code of Criminal
\nProcedure, 1973, (2 of 1974) relating to
\nsearch and seizure, shall, so far as may
\nbe, apply to search and seizure under
\nthis section subject to the modification
\nthat subsection
\n(5) of section 165 of
\nthe said Code shall have effect as if
\nfor the word \u201cMagistrate\u201d, wherever it
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\noccurs, the word \u201cCommissioner\u201d were
\nsubstituted.\u201d
\nThe said provision coupled with the last
\npara of form GST INS1
\nspecified in rule
\n139(1) which is reproduced as below, has
\nbeen relied upon to record statements of
\npersons present in the premises where search
\nis conducted.
\n\u201cAny attempt on the part of the person
\nto mislead, tamper with the evidence,
\nrefusal to answer the questions relevant
\nto inspection\/ search operations, making
\nfalse statement or providing false
\nevidence is punishable with imprisonment
\nand \/or fine under the Act read with
\nsection 179, 181, 191 and 418 of the
\nIndian Penal Code.\u201d
\nTaking into consideration the above
\nprovisions, the departmental authorities
\nhave been recording statements during
\nsearch. Further, for the purpose of
\nascertaining truth and real facts of the
\ncase, investigation is carried out as was
\ndone under the Gujarat Value Added Tax Act,
\n2003. In this case also the authorised
\nofficers have followed the past precedents
\nconsidering that they have the power or
\ninvestigation and acted accordingly in good
\nfaith.
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\nSo far as the issue of prolonged search
\nin the instant case is concerned, I say that
\nI have narrated all the reasons for such
\nprolonged search in my report of inquiry
\ndated 19\/11\/2019. I reiterate that the
\nlonger stay at the residential premise of
\nthe tax paper is not desirable and requires
\nto be avoided as far as possible. I say that
\nthe time to complete search proceedings of
\nthe case depends on the facts and
\ncircumstances of the case which vary from
\ncase to case. It is noteworthy that
\ncollection, interpretation, corelation
\nand
\nconfrontation of the materials found during
\nthe search are required to be done prior to
\nseizure, in order to have complete idea
\nabout the nature of transactions and its
\nimplication. This process itself requires
\nconsiderable time depending upon the volume
\nand nature of incriminating data found. In
\nthe present case, in the effort to recover
\nincriminating documents which were secreted
\nby the petitioner as per the information and
\nin order to get a complete idea of the
\nimplication of digital data found in the
\nform of prerecorded
\ncall recordings, the
\nauthorized officers decided to stay for a
\nlonger period acting in good faith and in
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\nthe interest of the Government revenue.
\nLooking to the longer stay during search
\nand seizure proceedings in the instant case
\nand considering the provisions of law, it
\nhas been decided that henceforth all search
\nand seizure proceedings at residential
\npremise should be completed as soon as
\npossible and in case of noncompletion
\nwithin twentyfour
\nhours, stringent watch on
\nsuch proceedings will be kept by higher
\nauthorities and a permission if higher
\nauthorities shall be obtained. Departmental
\ninstructions shall be followed during the
\nsearch and seizure proceedings at the
\nresidential premises which have been issued
\nvide letter outward no 2336 dated 09\/12\/2019
\nto the field formation. The department is
\nopen to issue such further instruction for
\nsearch and seizure proceedings at
\nresidential premises as may be required.\u201d
\n25. Thus, the stand of the Chief Commissioner in
\nthe above report is that in view of past
\nprecedent under the Gujarat Value Added Tax Act,
\n2003, the officers under the GST Acts have
\nrecorded statements of the family members of the
\npetitioner. On a perusal of the contents of the
\nreport it appears that according to the Chief
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\nCommissioner under the GVAT Act, statements of
\npersons present at the search premises were being
\nrecorded. The Chief Commissioner has placed
\nreliance upon the provisions of section 88 of the
\nGujarat Value Added Tax Act, 2003 which relates
\nto authorisation to investigate; overlooking the
\nfact that in the present case the authorisation
\nwas for search and seizure and not investigation
\ninasmuch as recording of statements under section
\n161 of the Code finds place in Chapter XII
\nthereof which pertains to \u201cInformation to the
\npolice and their powers to investigate\u201d and not
\nunder the provisions of the Code relating to
\nsearch and seizure. Be that as it may. At best,
\ngiving benefit of doubt to the concerned
\nofficers, such defence may be accepted, namely
\nthat they were under the impression that
\nstatements of family members could be recorded
\nduring the course of search. That however, does
\nnot justify the stay at the residential premises
\nof the petitioner for eight days, despite the
\nfact that the search for documents, books and
\nthings was over on the very first day. Moreover,
\neven after the search was over, it was always
\nopen for the concerned officers to summon any of
\nthe family members of the petitioner under
\nsection 70 of the GST Acts if they wanted to
\nrecord their statements or confront them with any
\nmaterial found during the course of search. In
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\nC\/SCA\/18463\/2019 ORDER
\nthe opinion of this court, the last part of the
\nreport flies in the face of the panchnama of the
\nsearch proceedings, wherein there is not even a
\nwhisper regarding any collection, interpretation,
\ncorelation
\nand confrontation of the materials
\nfound during the search. All that is stated is
\nthat the statements of the family members
\nregarding the whereabouts of the petitioner were
\nrecorded at different times of the day in
\nquestion answer
\nform and time and again they
\nwere asked as to whether they had any information
\nabout the petitioner. The statement in the report
\nto the effect that in the effort to recover
\nincriminating documents which were secreted by
\nthe petitioner as per the information and in
\norder to get a complete idea of the implication
\nof digital data found in the form of prerecorded
\ncall recordings, the authorized officers decided
\nto stay for a longer period acting in good faith
\nand in the interest of the Government revenue,
\nalso does not inspire confidence, inasmuch as
\nthere is nothing recorded in the panchnama to
\nshow that the concerned officers were examining
\nthe prerecorded
\ncall recordings. Also statements
\nof the family members appear to have been
\nrecorded either in the morning or afternoon or at
\nnight and at times only once in a day. At all
\nother times, the only query put to them is as to
\nwhether they had any news about the petitioner.
\nPage 70 of 75
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\nC\/SCA\/18463\/2019 ORDER
\nOne fails to understand as to what the officers
\nconcerned were doing at the residential premises
\nof the petitioner for a whole week, along with
\ntwo panchas and an SRP Constable when the search
\nwas concluded on day one. Such action on the part
\nof the respondents is abhorrent and cannot be
\ncountenanced. No provision of the Code of
\nCriminal Procedure, for investigation, search or
\nseizure, empowers a police officer to remain a
\nmoment longer at any premises once the search is
\nover. At this juncture, it may be apposite to
\nnote that the Supreme Court in Incometax
\nOfficer
\nv. Seth Brothers (supra) has held that since by
\nthe exercise of powers of search and seizure a
\nserious invasion is made upon the rights, privacy
\nand freedom of the taxpayer, the power must be
\nexercised strictly in accordance with the law and
\nonly for the purposes for which the law
\nauthorises it to be exercised. In the facts of
\nthe present case, the power under subsection
\n(2)
\nof section 67 of the GST Acts has not only not
\nbeen exercised strictly in accordance with law,
\nbut has also not been exercised for the purposes
\nfor which the law authorises it to be exercised,
\nnamely that though the power was to be exercised
\nfor carrying out search and seizure of goods
\nliable to confiscation, documents, books or
\nthings at the place in respect of which the
\nauthorisation of search was given, the search was
\nPage 71 of 75
\nDownloaded on : Sat Feb 08 12:29:53 IST 2020
\nC\/SCA\/18463\/2019 ORDER
\nconverted to a search for the dealer and into an
\ninvestigation to find out other places where
\ndocuments, books or things could have been
\nsecreted, which was beyond the scope of the
\npowers vested in the authorised officer.
\n26. Article 21 of the Constitution of India reads
\nthus:
\n\u201c21. Protection of life and personal liberty\u2013
\nNo person shall be deprived of his life or
\npersonal liberty except according to
\nprocedure established by law.\u201d
\nIn the facts of the present case, the family
\nmembers of the petitioner have been deprived of
\ntheir personal liberty not only by being confined
\nin the residential premises and being permitted
\nto leave only with the consent of the authorised
\nofficer, and that too, at times with an escort;
\nbut also by an intrusion on their right to
\nprivacy by several strangers residing in their
\nresidential premises for eight days, that too,
\nwithout any authority of law. One shudders to
\nthink of the plight of one\u2019s own grown up
\nunmarried daughter if she were in the place of
\nthe petitioner\u2019s daughter. But unfortunately, the
\nrespondents have no regrets! All that is stated
\nis that longer stay at the residential premise of
\nPage 72 of 75
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\nC\/SCA\/18463\/2019 ORDER
\nthe tax payer is not desirable and requires to be
\navoided as far as possible.
\n27. It is a matter of deep regret that the Chief
\nCommissioner of State Tax has attempted to
\njustify such wrongful action on the part of the
\nofficers of the department by placing reliance
\nupon the provisions relating to power of
\ninvestigation under an earlier enactment to
\njustify the actions of the concerned officers who
\nwere exercising powers of search and seizure
\nunder section 67(2) of the GST Acts. One would
\nexpect the higher officer to reprimand the
\nsubordinate officers for their unauthorised
\nactions. But in this case, the higher ups, for
\nreasons best known to them are trying to shield
\nthe actions of the subordinate officers though
\nthey are not in a position to show the relevant
\nprovisions of law under which such officers were
\nempowered to act in this manner. All that the
\ncourt can say at this stage is that the reports
\nsubmitted of the Chief Commissioner in response
\nto the orders dated 25.10.2019 and 20.11.2019, do
\nnot meet with the standards expected from an
\nauthority of his stature.
\n28. Lastly the court may sound a word of caution
\nto the authorities exercising powers under the
\nGST Acts. Subsection
\n(2) of section 157 of the
\nPage 73 of 75
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\nC\/SCA\/18463\/2019 ORDER
\nGST Acts says that no suit, prosecution or other
\nlegal proceedings shall lie against any officer
\nappointed or authorised under the Act for
\nanything which is done or intended to be done in
\ngood faith under the Act or the rules made
\nthereunder. An action like the present one which
\nis not contemplated under any statutory provision
\nand which infringes the fundamental rights of
\ncitizens under article 21 of the Constitution of
\nIndia may not be protected under this section. An
\naction taken may be said to be in good faith if
\nthe officer is otherwise so empowered and he
\nexceeds the scope of his authority. However, in a
\ncase like the present one where the authorisation
\nwas for search and seizure of goods liable to
\nconfiscation, documents, books or things and the
\nconcerned officer converted it into a search for
\na person and an investigation, which is not
\notherwise backed by any statutory provision, it
\nmay be difficult to accept that such action was
\nin good faith. Protection of such action under
\nsection 157 of the GST Acts may unleash a regime
\nof terror insofar as the taxable persons are
\nconcerned.
\n29. It is clarified that this court does not
\ncondone any alleged illegal acts on the part of
\nthe petitioner and in case he has indulged in any
\nillegalities, the law should take its own course.
\nPage 74 of 75
\nDownloaded on : Sat Feb 08 12:29:53 IST 2020
\nC\/SCA\/18463\/2019 ORDER
\nHowever, the court found it necessary to pass the
\npresent order to curb any further abuse of powers
\nin this manner by the authorities under the GST
\nActs.
\n30. Before parting, this court would like to
\nrecord its deep appreciation for the extremely
\nvaluable assistance provided by Mr. Tushar
\nHemani, the learned amicus curiae.
\n31. Let the matter be listed for hearing on
\nmerits on 23.01.2020.
\n(HARSHA DEVANI, J)
\n(SANGEETA K. VISHEN, J)<\/p>\n","protected":false},"excerpt":{"rendered":"

It is a matter of deep regret that the Chief Commissioner of State Tax has attempted to justify such wrongful action on the part of the officers of the department by placing reliance upon the provisions relating to power of investigation under an earlier enactment to justify the actions of the concerned officers who were exercising powers of search and seizure under section 67(2) of the GST Acts. One would expect the higher officer to reprimand the subordinate officers for their unauthorised actions. But in this case, the higher ups, for reasons best known to them are trying to shield the actions of the subordinate officers though they are not in a position to show the relevant provisions of law under which such officers were empowered to act in this manner. All that the court can say at this stage is that the reports submitted of the Chief Commissioner in response to the orders dated 25.10.2019 and 20.11.2019, do not meet with the standards expected from an authority of his stature<\/p>\n

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