Pathak, J. - (1.) THE petitioners apply for relief under Article 226 of the Constitution against an order under Section 132(3), Income-tax Act, 1961.
(2.) THE petitioners, who are brothers, carry on business as brokers in silver under the name Messrs. Moti Lal Panna Lal. On June 5, 1969, the Preventive Intelligence Officer and other officers of the Customs and Central Excise Department searched the residential and business premises of the petitioners and carried away some silver bars, pieces of silver and currency notes. It appears that the customs officers also arrested the petitioners, but subsequently, upon a habeas corpus application, this court directed their release by its order dated June 25, 1969. On July 24, 1969, the petitioners applied to the customs authorities for return of the silver but despite repeated requests in that behalf the silver was not returned to them. On September 4, 1969, the petitioners filed a petition (Writ Petition No. 3073 of 1969) under Article 226 of the Constitution praying for a direction to the customs authorities to return their silver. Notice of the writ petition was served on the customs authorities on September 22, 1969. On September 27, 1969, a report was submitted by Shri S. S. Hitkari, Inspecting Assistant Commissioner of Income-tax, Agra, to the Commissioner of Income-tax, Kanpur, requesting that certain Income-tax Officers be authorised under Section 132(1), Income-tax Act, 1961, to search and seize account books, money, bullion, jewellery and other valuable Articles or things discovered during the search. On September 28, 1969, the Commissioner of Income-tax made an order according the requisite authorisation in respect of the residential and business premises of the petitioners and also of the Assistant Collector, Customs and Central Excise, Agra, and the Directorate of Revenue (Intelligence), New Delhi. On September 29, 1969, the Income-tax Officer, Agra, one of the Income-tax Officers authorised under Section 132(1), made an order, purporting to be under Section 132(3), directing the Assistant Collector, Customs and Central Excise Agra, not to remove, part with or otherwise deal with the silver seized by the customs authorities from the business and residential premises of the petitioners on June 5, 1969. Then, an application, supported by affidavit, was filed by the Preventive intelligence Officer, Customs and Central Excise, Agra, in the aforesaid writ petition pending in this court stating that the Income-tax Officer, Agra, had visited the office of the Assistant Collector, Customs and Central Excise, and wanted to search the premises in connection with the bullion belonging to the petitioners, that the Preventive Intelligence Officer disclosed details of the said bullion to the Income-tax Officer and informed him that the matter of the return of the silver to the petitioners was pending adjudication in the writ petition in this court, that the Income-tax Officer then made the aforesaid order under Section 132(3) and served it on the Assistant Collector, that the customs authorities were thus bond in law to place the silver in the custody of the Income-tax Officer and that, therefore, the writ petition pending in this court had become infructuous.
(3.) ON November 13, 1969, the present writ petition was filed challenging the validity of the order made under Section 132(3). Shri S. C. Khare, learned counsel for the petitioners, has raised two contentions before us. He urged that the impugned order did not fall within the scope of Section 132(3) inasmuch as the silver was already known to the income-tax department to be in the custody of the customs authorities and no question arose of invoking the jurisdiction under Section 132. The other submission is that the proceedings taken by the income-tax department constitute a colourable exercise of the powers conferred under Sub-sections (1) and (3) of Section 132 with a view to obstruct and defeat the writ petition pending in this court and prevent the return of the silver to the petitioners.;