LexCOMMISSIONER OF INCOME TAX, HARYANA, HIMACHAL PRADESH & DELHI & ORS. versus TARSEM KUMAR & ANR.
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A COMMISSIONER OF INCOME TAX, HARYANA, r· HIMACHAL PRADESH & DELHI & ORS. v. B TARSEM KUMAR & ANR. JULY 17, 1986 [R.S. PATHAK AND SABYASACHI MUKHARJI, JJ.] ~ ! c Search and Seizure-Seizure amount in custody of customs i authorities-Court directing the customs authoriti£s to return the amount to the respondent-Whether the said amount could be seized by the Income-tax authoriti£s under section 132 of the Income tax Act, 1961 read with Rule 112(11) of the Income Tax Act, 1962 from the customs authorities-Whether it militates the provisions of section llO(II) of the ) D Customs Act, 1962-Words and phrases-Meaning of"Search'', "Sei- zure'' and ''Possession'', explained. On 23rd Augnst, 1970, when the respondent was travelling by car, alleged to be belonging to his brother, from Ambala to Batala, the Customs Officer intercepted him near the Beas river and forcibly taken E along with the driver, Gurunam Singh to the Customs House at Am- ritsar. The respondent along with the driver was searched and the + cnstoms authorities t.ook into possession Rs.93,500 in Indian currency, JO gold sovereigns and the car in which he travelled. The Customs authorities, thereupon initiated departmental proceedings under sec- tion 1 JO(II) of the Cnstoms Act, 1962 and extended the period of aing of F the show-cause notice under section 124 of the Customs Act, 1962. These proceedings were quashed by an order of the Learned Single Judge of the High Court of Punjab on 24th April, 1972 following an earlier decision of that Court. After the said judgment, the respondent ~ approached the customs authorities for the return of the money and the car on 11.5.1972. The gold sovereigns were not demanded because ac- G cording to the respondent thes" did not belong to him. He had been directed to come on the following day to get back the currency notes and the car. On the next day, however the Income Tax Officer served the warrant of authorisation dated 10th May, 1972 issued under section 132 of the Income Tax Act, read with Role 1 U(Il) of the Rules on the 'r respondent as well as on the customs department with the result the H cash was taken possession of by the Income Tax authorities. Thereafter 294 C.l.T. v. TARSEM KUMAR 295 the respondent filed another writ petition under Article 226 and 227 of A the Constitution. The customs authorities also filed an appeal against the decision of the Single Judge dated 24th April, 1972. The writ peti- tion and the appeal were heard together by a Division Bench of the Punjab High Court. Dismissing the appeal and allowing the writ peti- tion the High Court held that where the amount was seized by the B customs authorities and the seizure was held illegal by the Court, customs authorities were bound to return the money to the person entitled to it under the relevant provisions of section 110 of the Customs Act, 1962; that the Income Tax authorities could not seize such an amount from the customs authorities under section 132 of the Income Tax Act arid authorisation of search and seizure was illegal if issued in the name of the persm who did mt have possession of the Article in respect C of which it was issued. Hence this appeal by the revenue by special leave. Dismissing the appeal, the Court, HELD: 1.1 On a coustruction of section 132 of Income Tax Act, D 1961 and the context, in which the words "search", "possession", and "seizure" have been used in the said section and the rules indicate that there cannot be any order in respect of goods or moneys or papers which are in .the custody of another department under legal authority where the location of the property was known to the Government, one government department could not search another department and seize them. [301E-F] 1.2 Sub-Section (3) of section 132 of the Act uses the expression ''who is in innnediate possession or control there0f''. ''Possession'' is a word of ambiguous meaning and its legal senses do not always coincide with the popular sense. Possession again may not always he synonymous with manual detention or physical retention of the goods or moneys. When the physical custody of the moneys and goods were with the customs authorities, and that too by a· legal sanction and authority to have that custody, it cannot be said that possession as used in section 132 of the Act was still with the respondent Tarsem Kumar. [30 lF-H] 1.3 Reading the expressions "retention" and "cus
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