Sinha, C.J. - (1.) The facts in this case are briefly as follows: Mamchand Agarwalla and Murarilal Agarwalla are two brothers. Krishna Kumar Agarwalla is the son of Mamchand Agarwalla. These three persons carry on a partnership firm under the name and style of Messrs. Mamchand and Company at No. 21-A, Canning Street, Calcutta. It is said that the partnership firm commenced from the year 1937 and its constitution was changed from time to time. The firm of Mamchand and Company is assessed in 'C' Ward District V (I). Mamchand Agarwalla and Murarilal Agarwalla in their individual capacities are assessed in 'D' Ward District V (I). Krishna Kumar Agarwalla has filed his return in his individual capacity in additional Survey, District V (I), Calcutta. Prior to 31st January, 1967 the assessment of the firm of Mamchand and Co. had been completed upto the assessment year 1963-64 and returns had been filed for the assessment years 1964-65 and 1965-66. The assessment in respect of the same has not yet been completed. On the 30th of January, 1967 respondent No. 1 the Commissioner of Income-tax, West Bengal, issued two warrants of authorisation under Section 132 of the Income-tax Act, 1961 read with Rule 112 (1) of the Income-tax Rules, 1962 authorising search at No. 21-A, Canning Street, Calcutta and 22 Mandaville Gardens, where the Agrawallas reside. A third warrant of authorisation was issued, authorising search at No. 22-A Canning Street in respect of 'Ramswarup Mamchand', which is partnership firm between the two brothers Mamchand and Murarilal.
(2.) We are concerned in this case with Section 132 of the Income-tax Act, 1961 (hereinafter referred to as the "said Act"), together with the Rules framed under the said Act, (hereinafter referred to as the "said Rules"), I set out here the relevant part of Section 132. "132. Search and seizure.-- (1) Where the Director of Inspection or the Commissioner, in consequence of information in ids possession, has reason to believe that- (a) any person to whom a summons under Sub-section (1) of Section 37 of the Indian Income-tax Act 1922 (11 of 1922) or under Sub-section (1) of Section 131 of this Act, or a notice under Sub-section (4) of Section 22 of the Indian Income-tax Act, 1922, or under Sub-section (1) of Section 142 of this Act was issued to produce, or cause to be produced, any books of account or other documents has omitted or failed to produce, or cause to be produced, such books of account, or other documents as required by such summons or notice, or (b) any person to whom a summons or notice as aforesaid has been or might be issued will not, or would not, produce or cause to be produced, any books of account or other documents which will be useful for, or relevant to, any proceeding under the Indian Income-tax Act, 1922 (11 of 1922), or under this Act, or (c) any person is in possession of any money, bullion, jewellery or other valuable article or thing and such money, bullion, jewellery or other valuable article or thing represents either wholly or partly income or property which has not been disclosed for the purposes of the Indian Income-tax Act, 1922 (11 of 1922), or this Act (hereinafter in the section referred to as the undisclosed income or property), he may authorise any Deputy Director of Inspection, Inspecting Assistant Commissioner, Assistant Director of Inspection or Income-tax Officer (hereinafter referred to as the authorised officer) to-- (i) enter and search any building OP place where he has reason to suspect that such books of account, or other documents, money, bullion, jewellery or other valuable article or thing are kept; (ii) Break open the lock of any door, box, locker, safe, almirah or other receptacle for exercising the powers conferred by Clause (i) where the keys thereof are not available; (iii) seize any such books of account, other documents, money, bullion, jewellery, or other valuable article or thing found as a result of such search; (iv) place marks of identification on any books of account or other documents or make or cause to be made extracts or copies therefrom; (v) make a note or an inventory of any such money, bullion, jewellery or other valuable article or thing." I shall now set out the brief summary of the three warrants:-- 1. This warrant dated 30-1-1967 was issued by the respondent No. 1, Commissioner of Income-tax, West Bengal, addressed to Shri Bibek Banerjee. I. T. O. 'E' Ward District Howrah, (respondent No. 2), S. Das. I. T. O. 'H' Ward District I (2) (respondent No. 3) B. R. Biswas, I. T. O. I Ward District I (2) (respondent No. 4) and Nagendra Nath Sarkar I. T. O. 'K' Ward District I (2) (respondent No. 5) stating (i) that he had reason to believe that if a summons under Sub-section (1) of Section 37 of the Income-tax Act, 1922 or under Sub-section (1) of Section 131 of the Income-tax Act, 1961 or a notice under subsection (4) of Section 22 of the Income-tax Act, 1922 or under Sub-section (1) of Section 142 of the Income-tax Act, 1961 was issued to Messrs. Mamchand and Co. of 22-A, Canning Street, Calcutta to produce or cause to be produced, books of account or other documents which would be useful for, or relevant to, any proceeding under the Indian Income-tax Act, 1922 or under the Income-tax Act, 1961, he would not produce or cause to be produced such books of account or other documents as required by such summons or notice, (ii) That Mamchand and Co. were in possession of money, bullion, jewellery or other valuable articles or things which represented either wholly or partly income or property which had not been disclosed for the purposes of the Income-tax Act, 1922 or the said Act and, (iii) That he had reason to suspect that such books of account, such documents, money, bullion, jewellery or other valuable article or thing had been kept and were to be found at 22-A Canning Street, Calcutta. The warrant of authority authorised the persons aforesaid to do the following acts; (a) to enter and search the said premises; (b) to place identification marks on such books of account and documents as may be found in the course of the search and as you may consider relevant to or useful for the proceedings aforesaid and to make a list thereof together with particulars of the identification marks; (c) to examine such books of account and documents and make, or cause to be made, copies or extracts from such books of account and documents; (d) to seize any such books of account, documents, money, bullion, jewellery or other valuable article or thing found as a result of such search and take possession thereof, (e) to make a note or an inventory of any such money, bullion, jewellery, or other valuable article or thing; (f) to convey such books of account, documents, money, bullion, jewellery or other valuable article or thing to the office of the Inspecting Assistant Commissioner of Income-tax or any other authority not below the rank of the Income-tax Officer employed in the execution of the Income-tax Act, 1961 and (g) to exercise all other powers and perform all other functions under Section 132 of the Income-tax Act, 1961 and the rules relating thereto. A copy of this warrant is set out at pages 40-42 of the paper book. 2. A similar warrant was issued In favour of Smt. P. Mahajan, L T. O. 'E' Ward, Comp 1 (respondent No. 6) S.K. Roy, I. T. O, 'B' Ward Comp (IV) (respondent No. 7) A, S. Singal, L T. O. 'D' Ward Comp IV (respondent No. 8) and C. P. Roy, I. T. O. 'J' Ward Comp IV (respondent No. 9) on similar grounds as the first mentioned warrant, but in respect of the residence of Mamchand and Murarilal at 22 Mandaville Gardens, Calcutta. Similar authority was given to them as In the first mentioned warrant. A copy of the said warrant is set out at pages 43-45 of the paper book.
(3.) A similar warrant was Issued to Bibek Banerjee, I. T. O. 'E' Ward District Howrah, S. Das, I. T. O. 'H' Ward, District I (2) B. R. Biswas, L T. O. 'I' Ward District 1 (2) and Nagendranath Sana, I. T. O. 'E' Ward District 1 (2) in respect of Ramswarup Mamchand, for search at 21-A, Canning Street, Calcutta. The authority given was similar to that contained in the first mentioned warrant On the strength of the warrants Issued as mentioned above, the authorised officers conducted searches and took custody of books of account, documents etc. 3. On the 31st January. 1967 the respondents Nos. 2 and 5 assisted by some Inspectors and clerks entered the office premises of the said firm at No. 21-A, Canning Street and conducted a search. The search report or 'panchnama' as it has been called, is set out at pages 49 to 69 of the paper book. This panchanama shows that books of account and documents shown in schedule 'A' to the same were found and upon which marks of Identification were placed. Articles or things (including money) which were found are set out in schedule 'B' to the same, and the books of account and documents set out in schedule 'C' were taken possession of. The search took place between 10 A. M. and 7. P. M. During the search, one Shri Benarasilal Gupta described as "officer-incharge" of Ramswarup Mamchand was examined. A copy of his examination is set out at pages 70-71 off the paper book.;