CHAPTER-1

POWERS OF SEARCH AND SEIZURE- HISTORICAL

PERSPECTIVES 1-60

1. Introduction

2. Importance of Search and Seizure

3. Meaning, Concept and Scope of Search, Seizure and Confiscation

4. Powers of Search and Seizure in Pre-Constitutional Era

5. Powers of Search and Seizure in Post-Constitutional Era

6. Review
7. Research Problem
8. Research Questions
9. Hypothesis
10. Research Methodology
11. Data Analysis and Presentation
 CHAPTER -1

POWERS OF SEARCH AND SEIZURE - HISTORICAL

PERSPECTIVES

Introduction, Meaning, Scope and Importance of Search and

Seizure

In England, there was a time, in the early days of its history

when the judges attached so much sanctity to the privacy of a man’s
home that they refused to recognise the power of search and seizure in
the State. Even at that time the privacy of the citizens was more
important than the administration and application of law and order.
The Entick v. Carrington1 enunciates the common law prevailing in
seventeenth and eighteenth century as to general search of premises.
Lord Carden C.J. in that case condemned the practice of the Secretary
of State issuing a general warrant to search a man’s property and his
premises in the following words :

“The great end for which men entered into '

society was to secure their property. That
right is preserved and uncommunicable in
all instances where it has not been taken
away or abridged by some public law for the
good of the whole.”

i
19 St. Tr. 1029
 2

He added further in this judgement:

“By the laws of England every invasion of

private property be it ever so minute is a
trespass. No man can get his foot upon my
ground without my licence, but he is liable
to an action through the damages be it
nothing, which is proved by every
declaration in the trespass, where the
defendant is called upon to answer for
bruising the grass and even treading upon
the soil. If he admits the facts he is bound to
show by way of justification that some
positive law has empowered or excused
him.”2

Although, there was awareness that conflict with the interest of

the state did arise in England in relation to search and seizure but Lord
Camden C.J. was not of the view. He rejected this argument that it
was a necessity of State and held fast to his opinion that the common
law did not understand that kind of reasoning. After the judgement of
the Entick v. Carrington3 it was thought it was very unjustified to
fishing warrants. So to speak, for seizure of papers in the hope of
finding traces of guilt. But after the above judgement a long spell of
period in the year of the new judgement came and it was somewhat

2 Ibid,
3 Ibid.
 3

different. In the Elias v. Pasmore4, Harridge J. however, held that

interests of the State must excuse the seizure of the documents which
were evidence of a crime committed by any one. It was observed in
Indian context.3

“Gradually the power of search in the

functionaries of the State came to be
recognised in the interest of the community
and social security. With the growth of
economic crimes in the modern complex
industrial society, the old concept of every
man’s home as his castle has evaporated in
this air, particularly this has been in India.
Now the officers of the State must act and
enter the man’s premises whether home or
business, for various purposes. The power
of the State at present extends from the
simple power to inspect and check the
equipment supplied and installed by the
State at the premises of the individual life
gas, electricity and telephone, to the more
drastic power of inspection of documents
and search of the premises of the individual
and seizure of documents and things to find

4 (1934) 2 K.B. 164.

Jain, S.N. ‘Search and Seizure under Income Tax Law' Taxation 1975. 39 P.
64.
 4

out if the individual has not violated the law.

Such a power is conferred on the executive
under various enactments e.g. the Customs
Act 1962, the Central Excise and Salt Act
1944, Sales Tax Statutes, the Income tax Act
1961 etc.”6 7

As regards the prevailing, it is still doubtful what will be the priority

of the State whether to watch the interest of the State or Fundamental
Rights of the citizens. When they clash, to what extent the
Fundamental Right should yield to State necessity or public interest or
to what extent the law should prevail over it is a question of difficulty.

The Madras High Court in the Jhaver case elucidates the

point:

“All that is necessary therefore, is that there

should be a balance struck, just and
equitable, in all the circumstances between
the sanctity of the property or individual
rights and the interest of the community in
law enforcement either in regard to tax
collection or suppression of crimes or any
other by the insistence upon proper

6 Id at 65.
7 R.S. Jhaver v. Commissioner of Commercial Taxes (1965) 57 1TR 664
(Mad.)
 5

safeguard against oppression or violation of

guaranteed basic rights under the
Constitution.”73

As regards to English approach in previous days. Sanctity of the

home and privacy is reflected in the common law maxim that “Every
man’s house is his castle” and Lord Coke observed in the same
context8:

“The house of everyone is to him as his

fortress as well for his defence against injury
and violence as for his repose.”9

William Pitt’ quoted with approval by United States Supreme Court in

the Miller v. United States10

“The poorest man may in his cottage bid

defiance to all the force of the Crown. It
may be frail, its roof may shake, the wind
may blow through it, the storms may enter,
the rain may enter but the king of England
cannot enter. All his forces dare not cross
the threshold of the ruined tenement.”

7a Ibid...
8 (1604) 5 Coke’s Report 91.
9 Ibid.
10 Malik, B. Search and Seizure 1976 Law Publishers, p.21.
 6

That was the outlook of the Seventeenth and Eighteenth century

in England. It was in that background and the events in that country
touching a general or unrestricted search warrant, which was regarded
as unlawful, the American Fourth Amendment was made. It says :

“The rights of the people to be secure in

their persons, houses, papers and effects,
against unreasonable searches and seizures
shall not be violated and no warrants shall
issue, but upon probable cause, supported by
oath or affirmation and particularly
describing the place to be searched, and the
persons or things to be seized.”11

10
In the Stanford v. Texas “ while tracing the history of the Fourth
Amendment, the U.S. Supreme Court commented :

“Vivid in the memory of the newly formed

independent Americans were those general
warrants known as writs of assistance under
which officers of the Crown had to believe
the colonists. The hated writs of assistance
had given customs officials blanket
authority to search, where they pleased for
goods imported in violation of British Tax

n Supra n.10.
12
379 U.S. 478 85 S.Ct 506 (1965).
 7

Laws. They were denounced by James Otis

as “The worst instrument of arbitrary power,
the most destructive of English liberty and
the Fundamental principle of law that ever
was found in an English law books because
they placed “The Liberty of every man in
the hands of every petty officer.” The
historic occasion of that denunciation in
1761 at Boston has been characterized as
perhaps the most prominent event which
inaugurated the resistance of the Colonel to
the oppression of their mother country.
“:Thai and Their” said John Adams Thanard
was the first scene of the first act of
opposition to the arbitrary claims of Great
Britain123.

The Court further observed13 :

But while the fourth Amendment was most

immediate the product of contemporary
revulsion against a regime of writs of
assistance, its roots go far deeper. Its
adoption in the Constitution of this new
National reflected the culmination of

12a
Ibid.
13
Id at 507.
 8

England a few years earlier of a struggle

against oppression which had endured for
centuries. The story of that struggle has
been fully chronicled in the pages of this
Court reports, and it would be a needless
exercise in pedantry to review again the
detailed history of the use of general
warrants as instruments of oppression from
the time of the Tudors through the State
Chamber, the long parliament, the
restoration and beyond.”14

The Fourth Amendment was only to protect the interests of the

people and was directed against unreasonable searches and was
intended to provide safeguards for issuing warrants, namely, that they
may be issued only on probable cause which must be shown by oath
or affirmation and the warrants must be shown by oath or affirmation
and the warrants must particularly describe the place to be searched
and the person or things to be seized. But it was observed by the
general public that judges could not protect their rights. Lord
Denning in his work13 states that in many cases judges issue the
search warrants to police so as to enable the police to enter and see if
a house is being used for any unlawful purposes. Lord Denning
further stated that the granting of these powers of entry is a complete
departure from the principles hitherto in force in England. The

14
Ibid.
15 "Freedom under the Law" (1949 ed.) p. 107.
 9

powers conferred on these officers are greater than those conferred on

these officers are greater than those conferred on the police. It is not
necessary for these officers, as it is for the police to go to a Magistrate
and satisfy him that a search should be allowed. It is not necessary for
them to show reasonable grounds for thinking than an offence has
been committed. It is not necessary for them to hold a specific
authority in respect of specified premises. All that necessary is that
the inspector should produce, if required, a duly authenticated
authority which means a general authority issued by an official is a
Government department authorising the inspector to enter premises of
the kind in question. Davis pointed out that effective enforcement of
the law in a democracy is based on an equitable balance between the
rights of the individual and the welfare of society. The individual
relinquishes a portion of his personal prerogatives through the
legislative process in order that he and his fellow citizens may be free
from criminal activities. Through this process, the officer is
authorised, under appropriate circumstance, to invade personal
privacy to restrict individual liberty and to require disclosure of
information... Thus, law enforcements depends on legally sanctioned
interference with individual rights. Every citizen has a vital interest in
preserving a reasonable relationship between individual liberties and
law enforcement in view of the intolerable alternatives which are
possible. If the officer has unrestrained authority to ignore personal
liberties, the product is police State; if he is barred from any
interference with private rights, the result is criminal anarchy..... In
order to avert these alternatives perils and their intermediate
gradations, it is the responsibility of the judge and law maker to
 10

establish rules for law enforcement which will give society maximum
protection from the criminal with a minimum of interference with
individual liberties.16

Gradually, it came to be recognized that the power of search

and seizure was a necessary power in the interest of the community
and without it, the process of law enforcement might suffer to the
detriment of public interest and therefore, subsequent legislation in
England started conferring such power on the police and various other
officers from time to time.

In India too, the power of search and seizure for prevention and
investigation of offences was for the first time conferred under the
Code of Criminal Procedure and since search and seizure is a process
exceedingly arbitrary in character, stringent statutory conditions were
imposed on the exercise of the power.

The concept of anti-social acts and economic offence has

become familiar to those acquainted with the progress of the Criminal
Law and its relationship to the achievement of social objectives.
These are stated briefly as under17:

16 Id at 108.
17 See 47th Report of Law Commission of India on The Trial and Punishment
of Social and Economic Offences at p.2.
 11

(1) Motive of the Criminal Law is avarice or rapaciousness (not

lust or hate).18

(2) Background of the crime is non-emotional unlike murder, rape,

defamation, etc.). There is no emotional reaction as between
the victim and offender19.

(3) The victim is usually the State or a section of the public,

particularly the consuming public (i.e. that portion of which
consumes goods or services, buys shares or securities or other
tangible). Even where there is an individual victim, the more
important element of the offence is harm to society.20

(4) Mode of operation of the offender is fraud, not force.21

(5) Usually, the act is deliberate and wilful.

(6) Interest protected is two fold" -

(a) Social interest in the presentation of -

(i) The property or wealth or wealth of its individual

members, and national resources, and

18
Ibid.
19
Ibid.
20
Ibid.
21
Ibid.
22
Ibid.
23
Ibid
 12

(ii) The general economic system as a whole from

(A) exploitation or

(B) Waste by individuals or groups

(b) Social interest in the augmentation of the wealth of the

country by enforcing the laws relating to taxes and duties,
foreign exchange, foreign commerce, industries and the like.24

The most important feature of these offences is the fact that

ordinarily they do not involve an individual direct victim but are
punished because they harm the whole society. This constitutes the
primary reason why special efforts have to be made to enforce them.
If a man or woman is robbed, assaulted to or cheated, there is some
person who is interested in getting the offender prosecuted, and
because the act is a physical one, having an immediate and direct
impact, both individual and social vengeance are likely to be aroused.
This element is, however, absent when for example essential
commodities are hoarded or foreign exchange is illegally taken out of
the country or prohibited goods are imported.23

In American law the term “search” as applied to searches and

seizures is an examination of a man’s house or other buildings or
premises, or of his person, with a view to the discovery of contraband
or illicit or stolen property, or some evidence of guilt to be used in the

24
Ibid.
 13

prosecution of a criminal action for some crime or offence with which

he is charged26.

As used in this connection the term implies some exploratory

investigation or an invasion and quest, a looking for or seeking out.
The quest may be secret intrusive, or accomplished by force, and it
has been held that a search implies some sort of force, either actual or
constructive, much or little. A search implies a prying into hidden
places for that which is concealed and that the object searched or has
been hidden or intentionally put out of the way. While it has been
said that ordinarily searching is a function of sight’s, it is generally
held that the mere looking at that which is open to view is not a
search27.

Seizure contemplates a forcible dispossession of the owner and

it is not a voluntary surrender.

The abuse of search warrants in England and in the American

colonies led to the adoption of the Constitutional provisions
prohibiting unreasonable searches and seizures and limiting the
conditions under which warrant may issue.

The search warrant at one time was very generally abused both
in England, and in the American colonies, particularly though the use
of general warrants or writs of assistance, and these abuses led to the

26 Supra n. 10.
27 Id at p. 21.
 14

adoption of the Constitutional provisions prohibiting unreasonable

searches and seizure and limiting the conditions under which search
warrants may issue. The search warrant was not known to the early
common law, but it later crept into the law by unperceptible practice,
•>8
and its use being confined at first to searches for stolen goods" .

The right to the writ was at first seriously doubted and even
denied. However, in recognition of its great efficiency, it gradually
became engrafted into the law and its legality has long been
considered to be established on the grounds of public necessity.

Constitution barriers have been very generally erected against

unreasonable searches and seizures and the abuse of search warrants.
These provisions have a dual purpose : (1) The forbidding of
unreasonable searches and seizures. (2) the specifying of certain
particulars to be observed before issuing warrants.

The purposes of the constitutional guaranty against

unreasonable-searches and seizures are to protect the right of privacy,
to protect personal liberty and private property to protect sanctity of
his house and person and the privacy of his books, papers and
property to secure the citizen against unlawful invasion of the sanctity
of his home by officers of the law acting under legislative or judicial
sanction to secure the individual in his person, home and property
from invasion through unbridled and unrestrained executive or

28
Ibid.
 15

administrative will, to protect the individual against unlawful trespass

on his home and property rights, and to secure one’s right to
unmolested privacy in his occupied premises and freedom from
disturbance of the possession of articles and things forbidden by such
provisions to be searched for without a warrant.29

Constitutional guarantees against unreasonable searches and

seizures are to be construed in favour of the individual in order to
prevent stealthy encroachment on, or gradual depreciation of, the
rights secured by them. Furthermore, they are to be construed in
conformity with the principles of the common law, and in the light of
what was deemed an unreasonable search and seizure when the
amendment was adopted, but they give a protection wider than the
specific abuses which led to their adoption, and they are to be
construed in a manner which will conserve public interests as well as
the interest of individual citizens.30

These guarantees protect all persons, regardless of their status

or condition, the suspected, accused and guilty are protected as well as
the innocent. The criminal law must be enforced without transgressing
the right to be free from unreasonable searches and seizures and the
guarantees will be enforced even where enforcement pursuits persons
guilty of crimes to escape punishment. The protection afforded the
individual by the Constitutional provision is not to be impaired by a
construction thought necessary to meet the changing demands of law,

29
id at 23.
30
Id at 24.
 16

enforcement but the constitutional guarantees should not be so

construed as to defeat reasonable and proper efforts to enforce the
criminal law.

That ransacking of a house, apartment or vehicle is generally a

“search” and that the act of physically taking and removing tangible
personal property is generally a “seizure” as both terms are used in the
Fourth Amendment. Generally, it has been held that the capacity to
claim the protection of the Fourth Amendment against unreasonable
searches and seizures depends not upon a property right in the invaded
place but upon whether the areas as one in which there was a
reasonable expectation of freedom from governmental intrusion.
Thus, what a person knowingly exposes to the public, even in his own
home or office, is not a subject of Fourth Amendment protection, but
what he seems to preserve as private, even in an area accessible to the
public, may be constitutionally protected.

Fifth Amendment31 is related to self incrimination involved in

such a procedure, it is clear that no search or seizure occurs from the
voluntary disclosures by a tax payer of information affecting his tax
liability under a “voluntary disclosure policy” of the treasury
department, by which delinquent tax payers could escape possible
criminal prosecution by disclosing their derelictions to the taxing
authorities before any investigation of them had commenced.

31
Id at 29.
 17

As regards to the interpretation of Statutes authorizing or

regulating searches and seizures, it is to be construed strictly against
the State and liberally in favour of the individual. Since the right of
search and seizure is in derogation of the Constitutional guarantees, it
is the general rule that statutes authorising or regulating searches and
seizures or search warrants must be strictly construed against the State
and liberally construed in favour of the individual and should be
construed to preserve, and not to encroach on, the right to be immune
from unreasonable searches and seizures. However, it has been said
that construction of such statutes should not be unduly restricted, nor
should they be given a technical construction which would defeat the
ends of justice and permit guilty persons to escape through
technicalities nor should they be construed so strictly as to thwart
reasonable and proper efforts to detect and prevent crime. ’2

The Constitutional guarantees do not forbid reasonable

searching and seizures but forbid only unreasonable searches and
seizure. The term “unreasonable” search and seizure is not defined in
the Federal Constitution and indeed it has been said to have no fixed,
absolute or unchanging meaning.33

What constitutes a reasonable or unreasonable search and

seizure in any particular case is purely a judicial question
determinable from a consideration of the circumstances involved,
including the purpose of the search, the presence or absence of

32 Id at 31.
33 Ibid.
 18

probable cause, the manner in which search and seizure was made, the
place or thing searched. The character of the articles procured, the
nature and importance of the crime suspected.

In India, the best example of the statutory power of search and

seizure and the regulation thereof by the statute is the. power under
certain sections of the Code of Criminal Procedure.34 Apart from the
power of search and seizure in relation to particular matters or in
special circumstances, the general provisions we have is the one made
in Section 93, of the Code of Criminal Procedure. Under the said
Section where any Court has reason to believe that person to whom a
summons or order or a requisition has been or might be addressed,
will not or would not produce the document or things as required by
such summons or requisitions, or where such document or thing is not
known to the court to be in the possession of any person, or where the
court considers that the purposes of any enquiry, trial or other
proceeding under the Code will be served by a general search of
inspection, it may issue a search warrant. Section 93(2) empowers
the court which issued a search warrant to restrict the same in such
manner as it may think fit. Section 100 (4) to (8) of the code contains
detailed provisions regarding the manner in which a search could be
conducted. All such searches and searches conducted pursuant to and
in accordance with the terms of a warrant issued by a Magistrate. The
documents or things searched are also produced before the Magistrate
whereafter they will be used as evidence in connection with some

34
Act 2 of 1974.
 19

proceeding in accordance with some proceeding in accordance with

the provisions general or special of the Evidence Act. With reference
to investigations into offences, the provisions of the Code of Criminal
Procedure authorises a search by an investigating police office even
without obtaining a search warrant from a Magistrate in cases of
emergency subject to certain strict conditions such as the previous
recording of the reasons by the investigating officer and subsequent
submission by him of a report of the result of the search to the judicial
Magistrate. Such searches are also governed by the general
provisions contained in Section 100 of the Code.

The Code of Criminal Procedure is a pre-Constitutional law.

After the promulgation of the Constitution, questions were raised as to
whether the provisions relating to search contained in the Code of
Criminal Procedure were, and if so, to what extent, violative of any of
the Fundamental Rights guaranteed under the Constitution.

The Supreme Court33 pointed out that the whole idea conveyed
or all, the ideas conveyed by the American Fourth Amendment has
not or have not been incorporated in our Constitution and that
therefore, there is no justification to import into it a totally different
Fundamental Right by some process of strained construction. It may,
however, be noted that the first part of the Fourth Amendment
providing against what are described as unreasonable searches and
seizures may be regarded as sufficiently dealt with or accepted by the

35
M.P. Sharma v. Satish Chandra AIR 1954 SC 300.
 20

formulation and statement of Fundamental Rights under Article 14, 21

and 31(1) and also certain attributes of personal liberty enumerated in
Article 19 as Fundamental Rights. The specific decision in that case
was that searches under or pursuant to a warrant under Section 93 of
the Code of Criminal Procedure did not involve any violation of the
protection against testimonial compulsion guarantee by the
Fundamental Rights under Article 20(3) or of the Fundamental Rights
acquiring, holding or disposing of property guaranteed under Article
19( 1 )(f) of the Constitution.

Their Lordships observed :

“So far as the contention based on Article

19(l)(f) is concerned we are unable to see
that the petitioners have any arguable case.
Article 19( 1 )(f) declares that the right of all
citizens to acquire, hold and dispose of
property subject to the operation of any
existing or future law in so far as it imposes
reasonable restrictions, on the exercise of
any of the rights conferred thereby, in the
interest of the general public. It is argued
that the searches and seizures as affected in
this case were unreasonable and constitute a
serious restriction on the right of the various
petitioners, is as much as their buildings
were invaded, their documents taken away
 21

and their business and reputation affected by

these large scale and allegedly arbitrary
searches and that a law, which authorises
such searches violates the constitutional
guarantee and is invalid.”36

In the Kharak Singh case37 while examining the constitutionality or

otherwise of certain of the provisions of regulation 236 of the U.P.
Police Regulations providing for surveillance of persons subjected of
subversive activities, their Lordships made certain observations about
the applicability of the principle underlying the American Fourth
Amendment while observing that our Constitution does not in terms
confer any like Constitutional guarantee, their Lordships state that the
principle could nevertheless be regarded as constituting the ultimate
essential of ordered liberty and that the American Fourth Amendment
embodies an abiding principle which transcends mere protection of
property rights and expounds the concept of personal liberty. Their
Lordship, of course, did not depart from the statement of law as to the
content of the Fundamental Rights under our Constitution.

Pre Constitutional Era

Before promulgation of the Constitution of India various laws

were passed by the British Government. Sea Customs Act 1878, Land
Customs Act, 1924 and Central Excise and Salt Act, 1944 are

36 Id at 302.
37 Kharak Singh v. State of Uttar Pradesh AIR 1963 SC 1295.
 22

important Acts in this regard. In these both Acts various provisions

were embodied relating to search and seizure. All these Acts
remained in force even after the Constitution promulgation. During
this period various amendments made to achieve the objective for
which the law was enacted. While enacting the Customs Act 1962
objects and reasons were given as under :

“The Sea Customs Act which lays down the basic law relating
to customs was enacted more than 80 years ago. It has been amended
from time to time and some important amendments were made by the
Sea Customs (Amendment Act 1955). General and Comprehensive
revision of the Act has not so far been undertaken. Several
provisions of the Act have become obsolete. Difficulties have been
experienced in the implementation of certain other provisions. The
trade has been pressing for certain changes and facilities. Smuggling
consequent to controlled economy, has presented new problems. To
meet these requirements it has become necessary to raise the Act.

The Land Customs Act passed in 1924. It is not a self-

contained and applies by reference provisions of the Sea Customs Act
to Land Customs with certain modifications. There is no separate law
relating to air customs, and the administration of air customs is
governed by certain rules made under the Indian Air Craft Act 1911.
While revising the Sea Customs Act, 1878 it is proposed to
consolidate the provisions relating to Sea Customs Act, Land Customs

■JO

See. Statement of objects and reasons of the Central Excise and Salt Act 1944.
AIR Manual, Vol. 3, p. 461.
 23

and Air Customs into one comprehensive measure.”39 In the same

manner when the Central Excise and Salt Act 1944 was passed the
reasons and objects to pass the Bill was almost of the same nature. It
was said :

The Administration of internal commodity taxation in British

India has grown up piecemeal over many years and has been
considerably expanded during the last decade. Hitherto, the
introduction of a new central duty of excise has required the
enactment of self contained law and the preparation of a separate set
of statutory rules. There are no less than 10 Separate Excise Acts
(the excise on kerosene being covered by a part of the Indian Finance
Act, 1922) and 11 sets of statutory rules; and there are also 5 Acts
relating to salt, the duty of oldest of our taxes on indigeneous
commodities. The taxes being closely akin to one another, the method
of collection follow the same general pattern and many of the
provisions of the various Acts are identical or closely similar; and this
is case also with many of the statutory rules. The agglomeration of
statutes and regulations dealing with similar matters is neither
convenient for the public nor conducive to well organised
administration. Moreover, under this disjunctive arrangement, we
have not, and cannot readily construct a comprehensive code of
standing instruction for the governance of the excise staff and each set
of statutory rules is burdened with departmental instructions in which
the public has no concern or interest and which even taken together,

39
Id at 412.
 24

do not form an adequate administrative code. It is accordingly

proposed to consolidate in a single enactment all the laws relating to
central excise and to the tax on salt and to embody therein a schedule,
similar to that in the Indian Tariff Act 1934, setting forth the rates of
duty leviable on each classes of goods. At the same time the
statutory rules will be similarly amalgamated and disembarrassed of
their unnecessary detail. The Act and the consolidated statutory rules,
together with as many manuals of departmental instructions as may be
necessary will then form a complete Central Excise Code, which will
simplify the administration of this branch of the revenue system and
aid such further development as may be necessary; and any proposal
for a new excise which may hereafter be laid before the legislature
may then take the simpler and more convenient form of a clause in the
Annual Finance Bill.40

In the old Act i.e. Sea Customs Act 1878, any officer of
customs duly employed in the prevention of smuggling may search
any person on board of any vessel in any port in India or within the
Indian customs waters, or any person who has landed from any vessel,
provided that such officer has reason to believe that such person has
dutiable or prohibited goods secreted about his person.

When any officer of customs is about to search any person

under the provisions of Section 169, such person may require the said
officer to take him, previous to search before the nearest Magistrate or

40
Ibid.
 25

Customs-Collector. If such requisition be made, the officer of

customs may detain the person making it until he can bring him before
the nearest Magistrate or Customs Collector. The Magistrate or
Customs-Collector before whom any person is so brought shall, if he
sees no reasonable ground for search, forthwith discharge such
person; but if otherwise, shall direct that the search be made. A
female shall not be searched by any but a female.41

Where any officer of customs duly employed in the prevention

of smuggling has reason to believe that any person on board of any
vessel in any port in India or within the Indian customs waters or any
person who has landed from any vessel has any dutiable, or prohibited
goods secreted inside his body. Such officer of customs may detain
such person and produce him without unnecessary delay before the
nearest Magistrate. A Magistrate before whom any person is brought
under Sub-Section (1) of Section 170 shall, if he sees no reasonable
ground for believing that such person has any such goods secreted
inside his body, forthwith discharge such person. Where any such
Magistrate has reasonable ground for believing that such person has
any such goods secreted inside his body and the Magistrate is such
goods it is necessary to have the body of such person screened or X-
rayed, he may make an order to that effect. Where a Magistrate has
made any order under Sub-Section (3) in relation to any person, any
officer of customs duly employed in the prevention of smuggling,
shall, as soon as practicable, take such person before a radiologist

41 See Statement of objects and reasons of the Customs Act 1962. AIR Manual.
Vol. 19, p. 712.
 26

possessing qualifications, recognised by the Central Government for

the purpose of Section 170, and such person shall allow the radiologist
to screen or X-ray his body. A radiologist before whom any person is
brought, after screening or X-raying the body of such person
forwarding his report, together with any X-ray pictures taken by him,
to the Magistrate without any unnecessary delay. Where on receipt
of a report from a radiologist the Magistrate to satisfied that any
person has any dutiable or prohibited goods secreted inside his body,
he may direct that suitable action for bringing out such goods be taken
on the advice and under the supervision of a registered medical
practitioner and such person shall be bound to comply with such
direction, provided that in the case of a female no action shall be taken
except on the advice and under the supervision of a female registered
medical practitioner.42

Where any person is brought before a Magistrate under this

Section such Magistrate may for the purpose of enforcing the
provisions of this section order such person to be kept in such custody
and for such time as he may direct. Any expenditure incurred for the
purpose of enforcing the provisions of this Section (including any fees
payable to a radiologist or a registered medical practitioner) shall be
defrayed out of moneys provided by Parliament. But this provision
shall not apply to any person who admits that dutiable or prohibited

42
Id at 714.
 27

goods are secreted inside his body, and who voluntarily submits
himself for suitable action being taken for bringing out such goods.43

As regards to the powers of searching vessel, any duly

empowered officer of customs or other person duly employed for the
prevention of smuggling may, for the purpose of ascertaining whether
any breach of this Act or any other law relating to customs has been is
being or is likely to be committed (a) stop and board any vessel in-
India or within the Indian customs waters and examine and search
such vessel and every part thereof and every trunk, package or cargo
on board and may inspect and examine the manifest and other
documents and papers (b) stop and search any cart or other means of
conveyance at any place in India. Where its exercise of the powers, it
becomes necessary to stop any vessel, it shall be lawful for any ship in
the service of the Central Government while flying her proper ensign,
to summon such vessel, under the direction of any such officer or
person as is referred to in that sub-section, by means of an
international single code or other recognised means, and thereupon
such vessel shall forthwith bring to, and if it fails to do so, case may
be given to the vessel by any such ship as aforesaid and if after a gun
is fired, the vessel still fails to bring to, the vessel may be fired upon
by such ship.44

As regards to the powers of summons and give evidence, any

officer of customs duly employed in the prevention of smuggling shall

43
Kuba, Ram Krishan Sea and Land Customs Act, p. 107.
44
Ibid.
 28

have power to summon any person whose attendance he considers

necessary either to give evidence or to produce a document or any
other thing in any inquiry which such officer is making in connection
with the smuggling of any goods. A summons to produce documents
or other things may be for the production of certain specified
documents or things or for the production of all documents or things
of a certain description in the possession or under the control of the
person summoned.45

All persons so summoned shall be bound to attend either in

person or by an authorised agent, as such officer may direct, and all
persons so summoned shall be bound state the truth upon any subject
respecting which they are examined or make statements and to
produce such documents and other things as may be required,
provided that the exemption under the provisions of Civil Procedure
Code, shall be applicable to any requisition for attendance under the
provision. The provision made in this regard is that every inquiry as
aforesaid shall be deemed to be a judicial proceeding under Section
193 and 228 of the Indian Penal Code. The provisions confers
powers on the customs officials on preventive duties to summon
persons whose attendance they consider necessary either or give
evidence or to produce a document or any other thing in any inquiry
into the smuggling of any goods they may be making. No female can
be summoned by such officials. They cannot administer oaths to the
witnesses summoned who are, however, enjoined to speak the truth

45
Id at 108.
 29

and produce the required documents and things. And yet the
enquiries in which such witness are, summoned shall be deemed to be
judicial proceeding within the meaning of Section 193 and 228 of the
Indian Penal Code.46

Any Magistrate may, on application by customs collector,

stating his belief that dutiable or prohibited goods or any documents
relating to such goods are secreted in any place within the local limits
of the jurisdiction of such Magistrate, issue a warrant to search for
such goods or documents. Such warrant shall be executed in the same
way, and shall have the same effect, as a search warrant issued under
the law relating to Criminal Procedure.47

The stage may be there where departmental authorities cannot

take action, and not within the competence of the customs authorities
(i.e. search for contraband goods or any documents relating thereto)
becomes necessary and therefore, authorises them to approach a
competent Magistrate for the grant of a search warrant. Supreme
Court observed48:

“In my opinion a search warrant issued for the search of

offending goods and documents implies the power of seizure thereof.
In future Magistrates issuing warrants might well insert therein this
direction as to seizure by the customs authorities. However, the

46 Id at 109.
47 Id at 110.
8 Calcutta Motor and Cycle Co. v. Collector of Customs and Others AIR
1956 Cal. 253.
 30

absence of such a specific direction has not made the seizure by the
customs authorities illegal. To search for offending goods or
documents would be meaningless if there was no power to inspect the
same or seize any goods which upon inspection were found to be
prohibited gods or goods which had avoided payment of duty, as also
documents in relation to them. In a search warrant, it would not be
necessary to produce seized goods in court, because at that stage,
4Q

proceedings would not be pending therein.”

In the Srivastava case50, the Calcutta High Court held that the
scope of a search warrant under Section 172, Sea Customs Act, is
similar to that of a search warrant issued under Section 98, Criminal
Procedure Code, but is independent of that Section and there is no
need also to try to bring the scope of the search warrant within the
terms of the third sub clause of Section 96 (1) of the Code. The court,
however, disagreed with the observations made in Calcutta Motor and
Cycle’s case, with regard to the production of the seized things in
court on the ground that proceeding at that stage would not be
pending.51

In a well considered judgement, the learned judge has thrashed

out the scope, meaning and purpose of the provisions related to
power to issue warrants, in Sea Customs Act in the following manner:

49
Ibid.
50
S.K. Srivastva v. Gajanand AIR 43 1956 Cal. 609.
51
Ibid.
(1) The effect of the words “may issue” occurring in the Section is
that the Magistrate has a wide discretion in the matter, which he
may exercise by (i) holding any enquiry, if he thinks fit, before
deciding to issue the search warrant and may issue the same
where there is no reason to suspect mala fides or by (ii) refusing
to issue the search warrant unless he is satisfied as to the
“bonafide” on enquiry.32

(2) The Magistrate issuing the search warrant acts judicially and
cannot be deemed to be acting like a rubber stamp. Therefore,
he must retain his responsibility for his control over the search
warrant issued by him and must see that the same is executed
normally by the police, with the help if necessary of the
customs officials, in the same manner as if it were a search
warrant issued under the Criminal Procedure Code and that the
property (i.e. goods and documents) if any seized in execution
thereof is produced before the Magistrate and is disposed of by
his orders, whether temporarily or finally.33

(3) The non-existence of a pending proceeding in court does not

bar production before the Magistrate of the thing seized in
execution of the search warrant issued by him.34
 32

(4) Goods and documents of the accused seized in execution of a

search warrant issued at the instance of the prosecution must be
scrutinized and examined by the prosecution without being first
produced before the Magistrate, but that will not effect the
Magistrate’s power to pass orders for return thereof to the party
from whom they were seized or to insist on completion of the
examination of the seized things within a reasonable time or on
prompt return to the owner of the papers and books seized but
not required for the purpose of the case contemplated or on the
contemplated case, if any, being proceeded with
expeditiously.55

(5) Between the two extremes viz. (i) the frustration of the
prosecution because of the return of all books and papers to the
accused subject to a bond executed by him to produce the
required documents whenever called upon to do so and the
accused’s refusal to produce any document called for him on
the plea that he is protected by Article 20(3) of the constitution
against compulsion to produce the same, inspite of such a bond,
due to the nature of that document being such that if it may be
used as evidence against him in a proceeding under item 81 of
Section 167 of the Sea Customs Act, or any other penal
provision and (ii) the dilatory methods resorted to by the
customs officials in instituting the contemplated case against
the accused or in coming to any decision as to what books and

55 Id. at 611.
 33

papers they require and for what kind of case, inspite of

sufficient opportunity being given, and even further extended,
to them for the scrutiny and examination of the books and
papers seized for the purpose, the Magistrate ought to keep
interests of justice to the fore and order detention or return of
such papers and books as may be reasonably required or not
required by the customs authorities for the case contemplated
by them.36

As regards to suspected persons, any person against whom a

reasonable suspicion exists that he has been guilty of an offence under
this Act may be arrested in any place in India either upon land or
water, or within the Indian customs waters by any officer of customs
or other person duly employed for the prevention of smuggling. This
provision empowers the preventive organisation of the customs
department to arrest any person, reasonably suspected by them of
being guilty of a customs offence, wheresoever found. Every person
arrested on the ground that he has been guilty of an offence under this
Act shall forthwith be taken before the nearest Magistrate or customs
collector. It is precaution against an arrested person being tutored or
tortured requiring that he shall at once be produced before a
Magistrate or customs-collector, whosoever is available the earlier.37

When any such person is taken before a Magistrate, such

Magistrate may, if he thinks fit, either commit him to goal or under

Ibid.
''7 Supra n. 41.
 34

him to be kept in the custody of the police for such time as is

necessary to enable such Magistrate to communicate with the proper
officers of customs. Provided that any person so arrested, committed
or kept shall be released on giving security to the satisfaction of the
Magistrate to appear at such time and place as such Magistrate
appoints in this behalf. According to it, a person produced before a
Magistrate, after being arrested for suspected commission of a
customs crime, shall be treated as if he had been accused of a bailable
offence under the Code of Criminal Procedure.38

Even if any person liable to be arrested under this Act is not

arrested at the time of committing the offence for which he is so
liable, or after arrest make his escape, he may at any time after words
be arrested and taken before a Magistrate, to be dealt with as if he had
been arrested at the time of committing such offence. As regards to
confiscation, any things liable to confiscation under this Act may be
seized n any place, in India either upon land or water, or within the
Indian customs waters, by any officer of customs or other person duly
empowered for the prevention of smuggling. This authorises
preventive staff of customs organisation of any contraband goods or
things, wheresoever found.

As regards to burden of proof, where any goods to which the

provisions applies are seized under this Act in the reasonable belief
that they are smuggled goods, the burden of proving that they are not

58
Ibid.
 35

smuggled goods shall be on the person from whose possession the

goods were seized. It applies to gold, gold manufacturer, diamonds
and other precious stones, cigarettes and cosmetic and any other
goods which the Central Government may, by notification in the
official gazette, specify, in this behalf.39

This provision shifts the burden of proof to the person charged

with the customs offence of being in possession of contraband articles
of the nature specified, it has upset the established canons of the law
of evidence. This provision’s insertion at first created a flutter in the
legal dove-cots in the country, but when it was realised that it was
necessary for the purpose of smashing the smuggling racket, which
had become too rampant to be suppressed by enforcement of the
provisions of the ordinary law, the legislature felt justified for the
introduction of such a measure. The hands of the customs authorities
have been very much strengthened by this provision, which authorises
them to seize the precious articles coming within the purview of this
provision, boldly and with confidence.

The Calcutta High Court commenting on this held60 that where

contraband gold ingots, contained in postal parcels declared to
contained “handloom cloth” were detected and seized by the customs
preventive squad “assuming that customs authorities are
administrative body having quasi-judicial functions, it cannot be said
that they are strictly bound by the provisions of the Indian Evidence

Supra n. 112.
60 Shermal Jain v. Collector of Land Customs 1956 AIR Cal 521.
 36

Act. If the authorities had to prove that particular goods, suspected to

be contraband were in fact so, they could not succeed in most cases
and the task of controlling the smuggling of contraband goods would
become impossible. That, of course, does not mean that they can act
arbitrarily or upon no evidence at all except mere suspicion.61

All things seized on the ground that they are liable to

confiscation under this Act shall as soon as conveniently may be, be
delivered into the care of any customs officer authorised to receive the
same. If there be no such officer at hand, all such things shall be
carried to and deposited at the custom house nearest to the place of
seizure. If there be no custom house within a convenient distance,
such things shall be deposited at the nearest place appointed by the
chief customs officer for the deposit of things so seized. When any
things liable to confiscation under the Sea Customs Act are seized by
any police officer on suspicion that they have been stolen, he may
carry them to any police station or court at which a complaint
connected with the stealing or receiving of such things has been made,
or an enquiry connected with such stealing or receiving is in progress,
and there detain such things until the dismissal of such complaint or
the conclusion of such enquiry or of any trial thence resulting.

In every such case the police officer seizing the things shall
send written notice of their seizure and detention to the nearest
custom-house; and immediately after the dismissal of the complaint or

61
Ibid.
 37

the conclusion of the enquiry of trial, he shall cause such things to be

conveyed to, and deposited at, the nearest customs house, to be there
proceeded against according to law. As per this provision, police
officer is empowered to retain a contraband article, which he has
seized on suspicion of its being stolen property, at the police station or
the appropriate court until conclusion of the enquiry or trial, if any, in
respect thereof and then to forward the same to custom house, to
which he must have already given intimation of such seizure. The
idea beyond is that the enquiry or trial in a criminal court may not be
impeded by the customs department, who may not produce the seized
article whenever required, if the same remains with them during the
pendency of such inquiry or trial.62

~ When anything is seized, or any person is arrested under the

Sea Customs Act, the officer or other person making such seizure or
arrest shall, on demand of the person in charge of the things so seized,
or of the person so arrested give him a statement in writing of the
reason for such seizure or arrest. This is the mandatory requirement.

As regards to packages containing certain publication, the Chief

Customs Officer or other officer authorised by the State Government
in this behalf may detain any package, brought whether by land or sea
into India which he suspects to contain any newspaper or book as
defined in the Press and Registration of Books Act 1867 and any
document containing any seditions matters. That is to say, any matter

62
Supra n. 43 at 113.
 38

the publication of which is punishable under Section 124A of the

Indian Penal Code and shall forward such package to such officer as
the State Government may appoint in this behalf. Any officer
detaining a package, where practicable, forthwith send by post to the
addressee or consignee of such package notice of the fact of such
detention. The State Government shall cause the contents of such
package to be examined, and if it appears to the State Government
that the package contains any such news paper, book or other
document, containing any such seditious matter, may pass such orders
as to the disposal of the package and its contents as it may deem
proper, and if it does not so appear, shall release the package and its
contents unless the same be otherwise liable to seizure under any law
for the time being in force, provided that any person interested in any
package detained under the provision of this section may, within two
months from the date of such detention, apply tot he State
Government for release of the same, and the State Government shall
consider such application and pass such orders thereon as it may deem
to be proper, provided, further, that if such application is rejected, the
applicant may within two months from the date of the order rejecting
the application, apply to the High Court for release of the package or
its contents on the ground that the package did not contain any such
newspaper, book or other document containing any such seditious
matter.63

63
Id at 116.
 39

As regards to adjudication of confiscation and penalties, the

pecuniary jurisdiction of Collector or Deputy Collector is without
limit. Upto confiscation of goods not exceeding two hundred and fifty
rupees in value, and imposition of penalty or increased duty not
exceeding one hundred rupees by an Assistant Commissioner. Upto
confiscation of goods not exceeding fifty rupees in value, and
imposition of penalty or increased duty not exceeding ten rupees, by
such other subordinate officers of customs as the Chief Customs
authority may, from time to time empower in that behalf in virtue of
their office.

There was a provision that such powers and authority may be

varied, by curtailment or enhancement, withdrawn or re-invested by
the Central Board of Revenue from time to time.

As far as the option to pay fine in lieu of confiscation,

whenever confiscation is authorised by this Act, the officer adjudging
it shall give the owner of the goods an option to pay in lieu of
confiscation such fine as the officer thinks fit. The word “shall”
contained in the body of this Section makes it incumbent on the
customs officers adjudging confiscation of goods to give the owner of
the goods an option to pay in lieu of the confiscation such fine as they
think fit.64

64
Id at 118.
 40

Where the Collector did give the option to the petitioners to

redeem the contraband Chinese silver dollars confiscated by him, but
subject to the condition of production of a “no objection” certificate
from the Reserve Bank. The Patna High Court held that the combined
effect of the provisions of Foreign Exchange Regulation Act 1947 and
the Sea Customs Act 1878 that condition imposed by Collector for
Land Customs is quite legal.63 In this case the High Court also
observed that where there was a violation of the principles of natural
justice occasioned by the collector’s failure to give a fair opportunity
to the petitioners to correct or contradict a statement contained in the
report of a subordinate officer of his, which was highly prejudicial to
the petitioners and was the sold ground for the rejection of their
explanation. The High Court can interfere under 227 of the
Constitution and setting aside the Collector’s order.

In case of Land Customs Act 1924, all the provisions of the Sea
Customs Act 1878 will be applicable. The provisions of the Sea
Customs Act 1878 which are specified in the Schedule, together with
all notifications, orders, rules or forms issued, made or prescribed
thereunder, shall, so far as they are applicable, apply for the purpose
of the levy of duties of Land Customs under this Act in the manner as
they apply for the purpose.633

Gaia Nand v. Collector of Land Customs 1957 AIR Pat. 508.

6?a Section 9 of the Land Customs Act reads : The provisions of the Sea Customs Act
1878 (VIII of 1878) which are specified in the schedule, together with ail
notifications, orders, rules or forms issued, made or prescribed thereunder, shall so
far as they are applicable, apply for the purpose of the levy of duties of Land
Customs under this Act in like manners as they apply for the purpose of the levy of
duties of customs on goods imported or exported by Sea.
 41

Post Constitutional Era

In fact, the search and seizure embodied in previous

Constitutional era laws are the foundation in post Constitutional era
except few provisions. Various judicial judgement shows that the
after promulgation of the Constitution, the courts tried to make check
and balance between necessity of the State and Fundamental Rights.
Courts tried to stress on the safeguards. Constitutional protection
against unreasonable search and seizure is one of the most important
rights of a citizen of India. Exigent and emergent circumstances are
one of the exceptions to the general principle that warrantless searches
taint the evidence obtained. The inadmissibility of illegality obtained
evidence provides a powerful deterrent to abusive warrantless
searches. Courts are of the view that search and seizures are,
therefore, required to be made with considerable circumspection and
forethought and if it is malafide is imputed these may lead to trouble
to departmental authorities of Customs and Central Excise.

Punishment is provided for in law for vexatious search and

seizure. Article 19 of the Constitution of India says that all citizens
shall have the right to move freely throughout the territory of India
and also to practice any profession, or to carry on any occupation
trade or business.

In so far as customs law of searches and seizures is concerned,

it gives powers to a custom officer to search suspected persons
entering or leaving India or about to do so and in person in a customs
 42

area i.e. area of customs station or an area in which imported goods or

export goods are ordinarily kept before clearance by the customs
authorities, provided he has reason to believe that the person has
secreted about his person any goods liable to confiscation or any
documents relating thereto. The power to search outgoing and
incoming persons before their customs clearance to prevent smuggling
of goods, gold, jewellery, currency and other kinds of wealth,
narcotics drugs antiquities etc. Persons in the dock area are known to
receive smuggled goods and then pass them out and necessarily
suspected persons require to be searched. This power to search
extends to a person suspected to have secreted about his person any
documents relating to goods liable to be seized and confiscated.
Documents through light and furnish clues about smuggling and they
can be tendered as evidence if a prosecution for smuggling is
launched. Persons to be searched may require to be produced before
a gazetted officer of customs or a Magistrate.66 For detecting secreted
goods the body of suspected persons can be x-rayed under the
provisions of the Customs Act.67

Seizure follows search. For a legal seizure there should be

reasonable belief in mind of the seizing officer about the liability of
the goods for confiscation. If it is not practicable to seize any goods
physically the customs officer may serve on the owner of the goods an
order that he shall not remove, part with, or otherwise deal with the
goods except with the previous permission of the officer. At the time

66 See Appendix D.
67 See Appendix D.
 43

of seizure an inventory of the goods seized with details relating to

their description, quality, quantity marks, numbers, country of origin
and other particulars as could be considered relevant to the identity of
the goods in any proceedings under the Customs Act, should be
prepared. An application to a Magistrate is then required to be made
for the purpose of (a) certifying the correctness of the inventory
prepared; (b) taking in the presence of the Magistrate, photographs
of such goods and certifying such photograph as true; or (c) allowing
to draw representative samples of such goods in the presence of the
Magistrate and certifying the correctness of any list of samples so
drawn. The proper customs officer may seize any documents or
things which, in his opinion, will be useful for, or relevant to, any
proceeding under the Customs Act. The person from whose custody
any documents are seized, shall be entitled to make copies thereof or
take extracts therefrom in the presence of an officer of customs.

Apart from search of persons there could be search of premises

and stopping and search of conveyances. If the Assistant
Commissioner or in any area adjoining the land frontier or the coast of
India an officer of customs specially empowered has reason to believe
that any goods liable to confiscation or any documents or things
which in his opinion will be useful for, or relevant to, any proceeding
under the Customs Act, are secreted in any place, he may authorise
any customs officer to search or may himself search for such goods,
documents or things. The provisions of the Code of Criminal
Procedure relating to searches shall so far as may be, apply to such
searches under the Customs Act. When the proper officer has reason
 44

to believe that any aircraft, vehicle or animal in India or any vessel in

India or within the Indian Customs waters has been, is being, or is
about to be, used in the smuggling of any goods or in the carriage of
any goods which have been smuggled, he may at any time stop any
such vehicle, animal or vessel or in the case of an aircraft, compel it to
land and

(a) rummage and search any part of the aircraft, vehicle or vessel;

(b) examine and search any goods in the aircraft, vehicle or vessel
or on the animal;

(c) break open the lock of any door or package for exercising the
powers of search, if the keys are withheld;

(d) all lawful means may be adopted for stopping a vehicle or

/ o

animal and where such means fail, they may be fired upon.

As per the provisions of Central Excise Act 1944 and the

applicability of notification No. 68/63,69 provisions of the Customs
Act are applicable to search and seizure under Central Excise laws.
Accordingly the provisions of Sections 105 and 110 the Customs Act
relating to search of premises and seizures of goods, documents and
things are applied in Central Excise matter as well. Section 18 of the

68 This provision is analogous to. and in replacement of Section 171 of the

repealed Sea Customs Act. 1878.
69 See Appendix C.
 45

Central Excises Act 1944 says that search should be made in

accordance with the provisions of the Code of Criminal Procedure.
Rule 201 (old rules) of the Central Excise Rules, 1944 empowers the
authorised Central Excise Officer to enter and search any premises, or
other places and conveyances. It should be remembered that a search
can only be made when the empowered Central Excise Officer has
reason to believe70 that excisable goods are processed, sorted, stored,
manufactured or transported in contravention of the Act and Rules i.e.
search can be made for investigation of an offence. The adopted
Section 105 of the Customs Act empowers the authorised Central
Excise Officers to search for goods liable to confiscation or any
document or things which would be useful and relevant to the
proceedings under Central Excise law. Search under Central Excise
law can be made with or without a search warrant but it should be
conducted in accordance with the provisions of Criminal Procedure
Code, specially Section 165 thereof. For an urgent search when it
may be difficult to get a search warrant, certain conditions will have
to be observed. There must be reasonable grounds for believing that
anything necessary for the purpose of recovery of tax may be found in
any place within his jurisdiction and that such things cannot otherwise
be got without undue delay and there must be a recording of the
officer’s belief and specifying in writing as far as possible the things
for which search is made. Unless these things are done a search
without warrant and the goods seized during such search would be
without jurisdiction. V/hen a search warrant is issued the “reason to
believe” should relate ~.o articles of search, place in which or where

70
See Appendix D.
 46

they are secreted and the manner in which secreting is made, the
person who is in possession of the articles of search or the place
where they are secreted, and the dealings and conduct of such person.
The court cannot question the sufficiency of the reasons recorded by
the proper officer empowered to search and it is also not necessary to
give reasons of his belief in the search authorisation or warrant.
Section 105 of the Customs Act does not require recording of reasons
for belief in writing. In Section 165 of the Code of Criminal
Procedure which applies on the Central Excise side, however, there is
insistence on recording the reasons for belief, when goods are seized a
list of things seized is required to be prepared in three copies and
signed by witnesses attending the search and the grounds for seizure
are required to be communicated to the person from whom seizures
are made. The witnesses to search should at least be two independent
and respectable persons from the locality. Seizure involves taking
possession of the goods but the goods seized may or may not remove
depending upon physical condition of the goods. Seizure is, however,
something more than mere detention. There is no bar to seizure of
conveyances involved in violation of law. It is necessary that when
the goods are seized a show cause notice should be issued within six
months thereof; otherwise the goods will be released. The Customs
and Central Excise officers are not police officers held in the Barkat
Ram’s case.71

Search and seizure are important weapons in the hands of the

Customs and Central Excise officers and the powers should be

71
State of Punjab v. Barkat Ram AIR 1962 SC 276.
 47

exercised with considerable circumspection and discretion and it

should be seen that innocent persons and innocuous goods are not
proceeded against.72

Review

In England, the privacy of citizens was more important than the

application of law and order and enforcement of it. The judiciary
attached so much sanctity to privacy of general man. “Every Man’s
house is his castle” it was a maxim in common law. But, gradually
the judges felt that now, it has become the necessity of the State to
conduct the search and seizure. They stressed to keep check and
balance between these two i.e. privacy of general man, and search and
seizure.

In America, the Fourth Amendment was made only to protect

the interests of the people. It was intended to provide safeguards for
issuing warrants. These warrants may be issued only on probable
cause which must be shown by oath or affirmation. The warrants
must particularly describe the place to be searched and the person or
things to be seized.

In India too, the power of search and seizure for prevention and
investigation of offences is also conferred under the Code of Criminal
Procedure and other laws. Simultaneously, stringent statutory
conditions were imposed in exercise of the power. The abuse of

72
Ibid.
 48

search warrants in England and in the American colonies led to the

adoption of the Constitutional provisions prohibiting unreasonable
searches and seizures and limiting the conditions under which warrant
may issue. Constitutional guarantees against unreasonable searches
and seizures are to be construed in favour of the individual in order to
prevent stealthy encroachment on, or gradual depreciation of, the
rights secured by them. These Constitutional guarantees protect all
persons, regardless of their status or condition, the suspected, accused
and guilty as well as innocent. The protection afforded to the
individual by the Constitutional provisions is not to be impaired by a
construction thought necessary to meet the changing demands of law
and enforcement. Moreover, the Constitutional guarantees should not
be so construed as to defeat reasonable and proper efforts to enforce
thecriminal law.

It is settled principle that a statute authorizing or regulating

searches and seizures, is to be construed strictly against the State and
liberally in favour of the individual. It is also settled that the
construction of such statutes should not be unduly restricted, nor
should they be given a technical construction which would defeat the
ends of justice and permit guilty persons to escape through
technicalities nor should they be construed so strictly as to thwart
reasonable and proper efforts to detect and prevent crime.

The Constitutional guarantees do not forbid reasonable searches

and seizure but forbid only unreasonable searches and seizures. What
constitutes a reasonable search and seizure in any particular case is
 49

purely a judicial question determinable from a consideration of the

circumstances involved.

7
" ^

The Supreme Court of India held in the context of the powers

conferred under the Code of Criminal Procedure that the idea
conveyed by the American Fourth Amendment has not or have not
been incorporated in our Constitution and there is no justification to
import into it a totally different Fundamental Right by some process
of strained construction. But, the first part of the Fourth Amendment
is dealt with or accepted by the formulation and statement of
Fundamental Rights under Article 14, 21 and 31(1) and also certain
attributes of personal liberty enumerated in Article 19 as Fundamental
Rights.

Before promulgation of the Constitution of India various laws

relating to Central Excise and Customs were in force i.e. Sea Customs
Act 1878, Land Customs Act 1924 and Central Excise and Salt Act
1944. All these Acts remained in force even after the promulgation of
the Constitution. Various amendments were made in these Acts to
achieve the aforesaid objectives. Later on, the Sea Customs Act and
Land Customs Act were repealed and the Customs Act 1962 was
enacted. The only difference between the repealed Acts and the
Customs Act 1962 is that the powers to issue the warrants conferred
on the “Collector” instead of “Magistrate”. But, now both Acts have
become very technical and

7l Supra n. 35.
 50

complicated due to the reason that so many Acts, rules and regulations
have been passed relevant to both these Acts.

Research Problem

Officers of Indian Revenue Services (Customs) and Central

Excise are entrusted with the task of performing a multifaced
functions. Apart from the Basic Function of Collection of Revenue,
the officers perform the policing functions, preventive functions, anti­
evasion, auditing, discharging quasi-judicial functions like issue of
show cause notice, adjudication of cases by demand duty and
imposing fines and penalties. No doubt, very complex variety of
functions are being discharged by this cadre of officers. From the last
several decades the Central Excise and Customs Department has
become the principal source of revenue for the Government of India.
To prevent the clandestine activities the authorities have been given
the powers of search seizure and confiscation. Almost every law of
revenue makes the provision of search, seizure and confiscation.

There are several reasons which compelled me to choose this

topic : First and the most important reason demanded by the legal
professionals and Trade Associations is regarding the separate Custom
and Central Excise Judicial Wing. It is felt by the Trade Associations
and legal professionals that the officers of Central Excise and
Customs Department are not of legal mind. The officers acted in
utter disregard of the “law laid down” by the Tribunal and the courts.
So much is the strong contemptuous feeling against the adjudicating
 51

officers and sometimes it is suggested that the power of adjudication

to be withdrawn. There is a widespread tendency among these
officers to become more and more revenue biased which leads to
unnecessary litigation causing considerable harassment and undue
hardship to the business community. Sometimes Customs, Excise and
Gold (Control) Appellate Tribunal has passed the several stricture
against the Customs and Central Officers. Usually the departmental
officers while exercising the quasi-judicial powers, they do not follow
the settled principles of law, which they are supposed to follow.

Another reason for the choice of this topic is the non

application of the principles of natural justice by the Central Excise
and Customs authorities. Power of search and seizure given to the
various authorities dealing in economic offence is an extraordinary
power and is founded on a mere reasonable belief. The belief has to
be objectively formed by the said authorities. Power to seize is an
inroad into the civil liberties. Where the initial seizure is bad in law,
the retention of any part or stock of the goods seized is illegal. The
belief, officer is not liable to disclose but the adequate cause for
effecting search and seizure should be there. The officer authorised
to search and seizure should have a reason to believe and the
expression “Reasons to Believe” is in sense both subjective as well as
objective and does not contemplate any enquiry at the stage of seizure.
The only requirement being the satisfaction of the officer as to the
existence of reason to believe that the documents etc. are liable to
confiscation. The only requirement is that the information must be
such that leads him into belief that the article of search are secreted in
 52

a specific place so that his belief is crystallized. How far the principles
related to reasonable belief is being followed by the Departmental
Authorities?

As the provisions under the Customs Act 1962, is required that

the provisions of the Code of Criminal Procedure will be applied
while making search and seizure so far as may be while making
search and seizure. How far the provisions of the Code of Criminal
Procedure are being applied by the Departmental authorities. As
regards to the principle of natural justice, these are rooted in the twin
principles of nemo judex in sua causa and audi alteram partem. The
former deals with the bias aspect of the decision making authority
while the latter has a few facets which are (a) a notice of the case to be
met (b) an opportunity to explain it. To what extent these two
principle is being followed by the quasi-judicial authorities under the
both acts viz. Central Excise Act and Customs Act. Whether the
safeguards provided under the both Acts, Central Excise Act, 1944
and Customs Act 1962 are sufficient to protect the interests of the
business and industrial community in particular and general public at
large.

What should be the standard of proof required in case of search,

seizure and confiscation? Sometime the court has given the decision
that the cause should not be decided in mathematical precision and
sometimes that the strict proof of contravention should be there. The
Department represents its view that the preponderance of probability
should be the factor rather than mathematical precision. But the
 53

Tribunals and the courts of law more often that no demand such a
strict proof for such allegation and in the absence of the same decide
in favour of the party on the grounds of benefit of doubt, inadequate
documentary evidence, circumstantial evidence etc. This point is very
crucial and raises another type of controversy when the courts believe
in giving the relief on the ground of benefit of doubt to the traders but
department says that the case need not be required to prove with
mathematical precision but only be required for establishment of such
a degree of probability that a prudent man believe in the existence of
the facts in an issue. The Department further goes on to say that
proof beyond reasonable doubt which is essential in criminal
proceedings where preponderance of probabilities would be the
guiding factor and the benefit of any reasonable doubt need not
necessarily to go to the defendant. This was the another cause which
persuade me to choose this topic.

Relevance of the penalties with the offences is another reason

for the selection of this topic. Is there any relevancy between the
penalties imposed by the officers under both the Acts? If there is any
relevancy to what extent it is? Should there any relevancy between
the act and the penalties? Should the penalties be imposed without
any relevancy with the offence committed by the trader only just to
create the fear among the traders? Sometimes it is seen that separate
officers imposed the different penalties for the same type of offence
on the separate traders.
 54

In a New Item “Over Rs. 8060 crores locked up in Excise and

Adjudication Case.” It is certainly a matter of serious concern that
such a large amount of revenue is blocked at the adjudicating stage.
What are the reasons of such block of money at the adjudicating
stage? Are the officers of Central Excise and Customs Department
not following the principles of law or they are incompetent? What is
the reality behind such bulk quantity of cases pending at adjudication
stage?

There are several other reasons which attract my attention is

like corruption, inefficiency etc. Recently a news item was published
in News paper that the officer of Central Bureau of Investigation has
raided the house of customs officer and recovered a huge amount.
Officers of Central Bureau of Investigation spent 30 hours for
counting the currency notes. Now the question is that to what extent
the corruption effects the search, seizure confiscation and
adjudication. Is the corruption reason for inefficiency? What are the
checks to prevent the corruption? Is training provided to the Central
Excise and Customs Officers are inadequate? Should there be any
separate adjudicating authorities on the pattern of the Custom Excise
and Gold (Control) Appellate Tribunal?

After having read the law relating to search and seizure in pre­
constitutional era and post Constitutional era and problems which are
being faced by the public, this researcher tried to find out an
authenticated research work in this area so as to understand the
 55

ground level realities. And to surprise of this researcher the

contradictions of judgement was very common.

Law passed by the legislatures related to this Central Excise

and Customs laws was very voluminous. Several Rules and
Regulations were enacted in this regard creating confusion among the
public. Therefore, the researcher found the area of this topic
“Powers of Search, Seizure and Confiscation under Central
Excise and Custom Laws - Emerging Judicial Trends” as
relatively a raw filed for researcher. The teacher, when approached,
with this problem for research, also approved and encouraged this
researcher. He also advised to work hard on this topic and come out
with some concrete result.

Research Questions

1. Is there any necessity to create another wing “Central Excise

and Custom Judicial Wing” to adjudicate, the. matters relating
the Central Excise and Customs on the pattern of CEGAT
Customs Excise and (Gold Control) Appellate Tribunal?

2. Is the machinery to redress the grievance of the public in tier

system is sufficient?

3. Whether the clandestine activities should be strictly proved or

circumstantial evidence is sufficient?
 56

4. To what extent the fundamental principles of are being

followed while issuing show cause notice?

5. Whether the safeguards provided in the law while making

search and seizure are sufficient or not?

6. Whether it is necessary to provide adequate training to

adjudicating authorities because the majority of them neither
belong to legal background nor efficient?

7. Will the separate judicial wing help to reduce the litigation, as

presently the crores of rupees are in lock up due to delay in
adjudication?

8. Whether the corruption is responsible for the harassment of

litigants?

Hypothesis

Relying upon the knowledge available in the existing literature

on the topic “Powers of Search, Seizure and Confiscation under
Central Excise and Customs Laws - Emerging Judicial Trend” which
researcher would afford to have an access and the information
gathered from the pilot study undertaken by this researcher to prepare
the synopsis.

The following hypothesis has been adopted :

 57

(a) ■ The adjudicating authorities are not properly trained to

adjudicate the matters.

(b) There should be a separate “revenue judicial wing” to

adjudicate the matters as the authorities seem pro-revenue and
biased.

(c) The authorities should follow the judgements and law laid
down by the High Courts and CEGAT (Custom Excise and
Gold (Control) Appellate Tribunal).

Research Methodology

This research methodology is doctrinal. The research will be

based on various books, articles, newspapers, magazines, reports,
journals and law commission reports.

Data Analysis and Presentation

The material collected from the Libraries and the date collected
from other sources fias been arranged under the various heads and
sub-heads. The data has been analysed and tabulated so as to arrive
at the conclusion of this research work which have been presented
under the different chapters of the thesis as under :
 58

(1) Chapter I- Powers of Search and Seizure - Historical

Perspectives

This chapter is introductory. It deals with the importance of

this topic, its significance. This also deals with the meaning, concept
and scope of search, seizure and confiscation. What was the law in
the pre Constitutional era and what is the law after promulgation of
Constitution. And what is the scenario in United States of America
after fourth amendment related to search and seizures.

(2) Chapter II - Constitutional Validity of Powers of Search and

Seizure

This chapter deals with the validity of search and seizure in the
context of various Constitutional provisions. In its first part it deals
with the Right to Equality vis-a-vis powers of search and seizure. In
its second part it deals with the right to property and doctrine of
search and seizure. In its third part it deals with protection against
self incrimination and powers of search and seizure. In its fourth part
it deals with the Right :o Personal Liberty and Powers of Search and
Seizure.

(3) Chapter Ill-Search, Seizure and Confiscation under the

Central Excise Laws

This chapter deals with the various provisions related to Central

Excise Laws. In its firs: part, this chapter deals with the applicability
 59

of Customs Laws on Central Excise Laws while making search and

seizure. In the second part it deals with clandestine removal of
excisable goods. In third it deals with requirement to conduct search
and seizure, inspection of excisable goods. In fourth, it deals with
illegal search and seizures. In fifth it deals with confiscation of
excisable goods and role of judiciary in excise matter.

(4) Chapter IV-Search, Seizure and Confiscation under the

Customs Laws

This chapter deals with the various provisions of search and

seizure under Customs Laws. How the reasonable belief is formed?
What is necessity of that and other relevant aspects related to
reasonable belief? In the second part it deals with the application of
the provisions of the Code of Criminal Procedure and other
implications of it. How far the safeguards provided in the Criminal
Procedure Code are applicable in search and seizure under Customs
Laws. In the third part it deals with the seizure and its relevant
aspects. In the fourth part of this chapter it deals with the confiscation
of various things and goods, improperly imported, improperly
exported goods, their packages material, sale proceeds, etc.

(5) Chapter V - Appraisal, Suggestion and Future Trends

Basically this chapter is relating to conclusions and suggestions.

What is conclusion of this study and what are the answers of Research
Questions? What will be the future trend of Departmental Authorities
 60

in this context? In this chapter an attempt will be made to draw

conclusion from the study. Moreover, an attempt shall be made to
give reasonable answers of various research questions. More so, the
chapter will cover the probable future trends regarding law and
practice under both Central Excise and Custom Laws.