- (1.) This appeal is directed against the judgment of the Allahabad High court dated 4/5/1983 whereby Civil Miscellaneous Writ Petition No. 99 of 1982 filed by the respondents was allowed and the authorisation made by the Commissioner of Income Tax (for short "the Commissioner") under Section 132-A of the Income Tax Act, 1961 (hereinafter referred to as "the Act") and the proceedings in consequence thereof were quashed. It was also directed that action of the appellants in seizing of books and documents as well as the sum of Rs. 17,353. 00 on 30/12/1981 was contrary to law and the same be returned to the respondents.
(2.) On 25/12/1981 one Vinod Kumar Jaiswal, while he was travelling from Mirzapur to Calcutta by the Kalka Mail, was detained at Mughalsarai Railway Station by the government Railway Police and an attache case containing a sum of Rs. 4,63,000. 00 was seized from him on the suspicion that the money was stolen property or had been obtained through some other offence. A case under Section 411 Indian Penal Code read with S. 41 and 102 Criminal Procedure Code was registered against him. An intimation about the seizure of money was sent to the Income Tax Authorities at Varanasi on 26/12/1981. On 29/12/19811 the Inspecting Assistant Commissioner, Varanasi sent an intimation about it to the Commissioner about the fact of possession of the aforesaid amount by Vinod Kumar Jaiswal and also that he did not have any papers and documents regarding ownership or possession of the amount and that no person in the name of Vinod Kumar Jaiswal was borne on the General Index Register of Income Tax Office at Mirzapur. The Commissioner issued a warrant of authorisation under Section 132-A (1 of the Act on the basis of which the Income Tax Officer sent a letter of requisition to the Station Officer-in-charge, government Railway Police, Mughalsarai requiring the Station Officer to hand over the seized sum of money to him (Income Tax Officer) who had been authorised by a warrant of authorisation to receive it. The Inspecting Assistant Commissioner, Varanasi, in exercise of his power under Section 132 of the Act, authorised search of the residential premises of Rajendra Kumar Pandey, Respondent 2, a partner of M/s Vindhya Metal Corporation, Imamganj, Mirzapur, Respondent 1. The Income Tax Inspector visited the premises of Respondent 1 on 29/12/1981 and found entered in the books of account that the aforesaid amount of Rs. 4,63,000. 00 had been handed over to Vinod Kumar Jaiswal, who was the nephew of Santosh Kumar Gupta (Jaiswal) , Respondent 3, for being carried to Calcutta in connection with the business of the said firm. On 30/12/1981 the search party which searched the premises of Respondent 1 carried away the sum of Rs. 17,353. 00 found as total balance and the books of account. After completing the investigationthe Railway Police submitted the final report on 21/1/1982 wherein it was stated that the money found in possession of Vinod Kumar Jaiswal did not represent stolen property or property acquired from any offence and the said sum belonged to Respondent 1. Prior to that, on 1/1/1982 Rajendra Kumar Pandey had filed an application before the Judicial Magistrate (Railways) , Varanasi praying that the amount which belonged to the respondents and was being carried by Vinod Kumar, who was serving as a Munim with Respondent 1, be released to the applicant or in favour of Vinod Kumar. On 4/1/1982 the Income Tax Officer requisitioned the said amount and on 13/1/19822 he filed an objection to the application submitted by Rajendra Kumar Pandey. The Judicial Magistrate, by his order dated 3/2/1982, rejected the said objection of the Income Tax Department and directed the return of money to Rajendra Kumar Pandey. The said order of the Magistrate was assailed by the Income Tax Department by filing a revision before the Allahabad High court which was allowed by the High court by order dated 19-4-1982 and the Income Tax Department was permitted to take possession of the sum of Rs. 4,63,000. 00.
(3.) In these circumstances, the writ petition, which has given rise to this appeal, was filed by the respondents before the Allahabad High court wherein they assailed the validity of the warrant of authorisation issued by the Commissioner under Section 132-A (1 of the Act on the ground that the condition precedent for the exercise of the powers under the said provision was not satisfied. Before the High court an affidavit was filed by Shri Hira Singh, Commissioner of Income Tax, who had issued the warrant of authorisation. After examining the file containing the order passed by the Commissioner, the High court has observed that the information on the basis of which the Commissioner had issued the warrant of authorisation was as follows: (A) a sum of Rs. 4,63,000. 00 had been seized by the government Railway Police from the possession of one Vinod Kumar Jaiswal, resident of Imamganj, Durga Devi, Mirzapur; (b) at the time of seizure by the Railway Police, no papers or documents in regard to the ownership or possession of the amount were in possession of Vinod Kumar Jaiswal, and (c) no person by the name of Vinod Kumar Jaiswal was borne on the General Index Register of income tax assessee of the income tax offices at Mirzapur.;