LexSETH DURGAPRASAD ETC. versus H. R. GOMES
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' ) I A SETH DURGAPRASAD ETC. v. H. R. GOMES December 9, 1965 991 B (P. B. GAJENDRAGADKAR, C.J., K. N. WANCHOO, D E F G H M. HrDAYATULLAH, V. R.AMASWAMl AND P. SATYANARAYANA RAJU, JJ.J Defence of !~die' Rules. 1 %3-Rule 126(2)-Whether permits seiziire of documents. Indian Custo111s Act, 1962 s. 2(34)--'Proper officer' within the nieaning of section whether includes Collector of Customs-Section 105, power to search under. whether a power to search particular documents only- 'secreted', meaning of-Section l10(3), seizure of docunients under- Documents lVhether can be seized froni a person in legal and not physical possession. Searches were carried out in the appellants' premises by the Superin- tendent of Customs and Central Excise Nagpur. The authority to search was given by the Assistant Collector of Customs and Central Excise Nag- pur under Rule 126 L(2) of the Defence of India Rules, 1963 for the purpose of seizing gold held in contravention of the Rules and also con- nected documents. The documents. seized during the search were re- tained by the Superfntendent at Nagpur for 8 days and were then sent to Delhi temporarily for the purpose of translation by the Departmental Hindi Officer. While the documents were at Delhi the Collector of Customs Nagpur on September 6, 1963 made an order of seizure under s. 110(3) of the Customs Act purporting to seize the aforesaid documents from the possession of the Superintendent. On September 11; 1963, the Collector made another similar order purporting to seize the said docu- ments from the Assistant CollectO'r to v,;hom, he believed, they had been transferred by the Superintendent. The appellants challenged inter alia the legality of the seizure of the documents by the Superintendent and the orders of seizure made by the Collector, before the High Court. Their writ petitions having been dismissed they appealed to this Court by special leave. The questions that came up for consideration were : ( l) Whether the officer authorised under Rule 126L(2) could seize documents by exer- cising his additional powers under Rule 156. (2) Whether the Collector of Customs was a 'proper officer' for the purpose of ordering seizure of documents under s. 110(3) of the Customs Act. (3) Whether the order under s. 110(3) was legally effective in view of the fact that the docu- ments in question were not in the physical possession of the Superinten- dent or the Assistant Collector of Central Excise. ( 4) Whether the power under s. 105 of the Customs Act was a general power or a po\\-·er to seize only specified documents. (5) Whether the documents in ques- tion could be snid to have been 'secreted' within the meaning of s. 105. HELD : (i) The poVl'er granted under Rule 156 is an ancillary or inciden.tal power for rnaking effective seizure of suspected gold. Jn other \vords the power granted under Rule 156 is the po\ver to take sueh action as may be necessaty for seizing p:·ohibited gold, and does not include the power of seizure of documents \\/~1ich is not an ancillary or incidental ,ower. This view is borne out bv the Seventh Amensment of the De- fence of India Rules on Jtme 2-\, 1963. By this araend!l'lent power. te 992 SUPREME COURT REPORTS [1966] 2 S.C.R. seize documents has been expressly conferred under Rule 126L(l) and (3) without conferring similar power under Rule 126L(2). The Super· intendent of Central Excise, could not therefore seize the documents by authority given under the said Rule. [997 G] (ii) However the appellants were not entitled to the grant of a writ because there was a valid order for seizure of the documents on SeptemM ber JI, 1963 by the Collector of Customs under s. 110(3) of the Cus· toms Act. Under the said Sub-section documents relevant to the pro· ceedings under the Act can be seized by the 'proper officer'. (999 C] (iii) A Collector of Central Excise is 9 'proper officer' within the meaning of s. 2(34) of the Customs Act. [1000 E] (iv) The fact that on September 6 and 11., 1963, when the two orders under s. 110(3) were passed the goods were in Delhi and not in A B the physical possession of the officers from whose possession they were purported to be seized did not affect the validity of the orders. Though C the documents had been sent to Delhi, the Superintendent of Excise was still in legal possession of them for he had the right to rontrol the use o
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