R. S. SETH GOPIKRISHAN AGARWAL versus R. N. SEN, ASSISTANT COLLECTOR OF CUSTOMS & ORS.

Citation: [1967] 2 S.C.R. 340 · Decided: 05-01-1967 · Supreme Court of India · Bench: K. SUBBA RAO · Disposal: Dismissed
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Judgment (excerpt)

R. S. SETH GOPIKRISHAN AGARWAL 
R. N. SEN, ASSISTA~T COLLECTOR OF CUSTOMS & ORS. 
January 5, 1967 
[K. SUBBA RAO, C. J., J. C. SHAH, S. M. SIKR!, V. RAMASWAMI 
AND C. A. VAIDlit.LINGA~, JJ.] 
Defence of India (Amendmem) Rules 1963 (Gold Control Rules) 
r. 126(L)(2) and the Customs Act, 1962 (52 of 1962), ss. 2(34), 105 
and I 10-0rder of Assistant Collector authorising search of premises, 
requirements of-Procedure of search, s. 165(1) of the Code of Criminal 
Procedure how far applicable--Ofjicer authorised by Collector whether 
'proper o[Jicer'-Va/idtty of s. 105. 
Constitution of India, Art. 14--Section 105 of Sea Customs Act, 1962 
·~..,hether gives unguided and arbitrary power-Whetlrer ultra vires. 
The Assistant Collector of Central Excise issued an authorization 
under s. 126(L) (2) of the Defence of India (Amendment) Rules, 1963 
(Gold Control Rules) for searching the premises of the appellant. 
As a 
result of the search undeclared gold and certain other articles as well as 
doc11111ents were seized. The appellant's writ petition under Art. 226 
challenging the search on various grounds was dismissed. 
In appeal by 
certificate 1 
HELD : (i) Mala {ides had not been 
proved against the 
officer 
authorized to make the search [342 CJ 
(ii) The authorization order could not be said 10 be defective merely 
because it did not expressly employ the phrase 'reason to believe' occur-
ring in s. 105 of the Customs Act. The phraseology used in the order 
meant, in effoct and substance, the same thjo.g. [342 E-F] 
(iii) While it may be advisable and indeed proper for the Assntant 
Collector to $ive in the authorization order the reasons for his belief 
that a search IS necessary, the non-mention of reasons would not by itself 
vitiate the order. Nor can all the particulars of the nature of the goods 
and of the documents be mentioned in the order as they will be known 
only after the search is made. The specifications given in the present 
case were sufficient to enable the officer authorized to make the search 
[343 C-DJ 
(iv) The word 'by' ins. 2(34) refers both to the Board and the Collec-
tor and therefore both the Board and the Collector of Customs can assign 
functions to an officer of Customs. (343 H] 
(v) It cannot be said that the Assistant Collector of Customs must 
in authorizing search also record his reasons for doing so on the ground 
that•· 165(1) of the Code of Criminal Procedure which makes such a 
prowion is made applicable to searches under s. 105 of the Cwtoms 
Act. While under s. 105 of the Act the Assistant Collector of Customs 
either makes the search personally or authorizes any officer of Customs 
to do so, if he has reasons to believe tha facts mentioned therein, under 
s. ! 65 ( 1) of the Code of Criminal Procedure the recording of the 1 easons 
for believing the facts is only to enable him to make a. search ur~ently 
in a case wh.erc search warrants in the ordinary course cannot be obtain-
ed. 
It is. therefore, not possible to invoke the condition and apply it to 
a situation arising under s. 105 of the Act [345 B-OJ 
A 
B 
c 
D 
£ 
F 
G 
H 
A 
B 
c 
GOP!KR!SHAN V. COLLECTOR (Subba Rao, C.J.) 
341 
(vi) Section 105 of the Customs Act does not confer an unguided and 
arbitrary power on the Assistant Collector of Customs to make a search. 
A deeper scrutiny of the provisions indicates not only a policy but abo 
effective checks on the exercise of the power of search by the Assistant 
Collector. The section 
dots 
not therefore 
oO'end 
Art. 14 
of the 
Constitution. [346 DJ 
(vii) The High Court on the materials placed before it, held that the 
Assistant Collector had acted with reasonable belief in the facts mention-
ed in s. 105. 
Ther~ was no justification for interfering with the findings 
of the High Court. [346 E-F] 
Durga Prasad v. H. R. Goines, Superintendent 
(Prevention) Central 
Excise, Nagpur, A.I.R. 1966 S.C. 1209, referred to. 
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 998of1965. 
Appeal from the judgment and order dated February 24, 25, 
1964 of the Bombay High Court, Nagpur Bench in Special Civil 
Application 459 of 1963. 
B. K. Sanghi, G. L. Sanghi and 0. C. Mathur, for the appellant. 
D 
Niren De, Addi. Solicitor-General, N. S. Bindra and R. H. 
E 
F 
G 
H 
Dhebar, for the respondents. 
The Judgment of the Court was delivered by 
Subba Rao, C. J. This appeal by certificate raises the question 
whether the search of the preinises of the appellant and the seizure 
of the
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