Messrs ZIKERIA ENTERPRISES through Partner VS MUHAMMAD MUSHARAF
2005 P T D 1200
[Lahore High Court]
Before Maulvi Anwarul Haq, J
Messrs ZIKERIA ENTERPRISES through Partner
versus
MUHAMMAD MUSHARAF and 7 others
Writ Petitions Nos.6270, 4581, 6772 and 6773 of 2004, decided on /01/.
15th February, 2005. Sales Tax Act (VII of 1990)---
----Ss.40-A, 40 & 38---Constitution of Pakistan (1973), Art.199---Constitutional petition---Search without warrant---Officials of the department purporting to act under Ss.38/40, Sales Tax Act, 1990 conducted raid at the premises of the petitioners to search for some documents, which, were consequently seized and taken into possession---Validity---Documents purported to be a statement of belief did not at all contain the statement as required by S.40-A(1) of the Sales Tax Act, 1990 and search was conducted and documents were removed in clear violation of the said provision---Requirements to be fulfilled and procedure to be followed for such raid, search and seizure elaborated---High Court allowed Constitutional petition and declared that the proceedings of raid, search and seizure of record from the premises of the petitioners were illegal and without lawful authority and of no legal effect---Department was directed to immediately return the said record and other articles so seized to the petitioners in these cases---Documents or their copies shall not be used against the petitioners in any proceedings---High Court, however clarified that the department would be at liberty to act strictly in accordance with law upon fulfilment of the conditions laid down therein---Principles.
Officials did not obtain any search warrant in the manner prescribed in section 40 of the Sales tax Act, 1990 and purported to act under section 40-A of the Act.
None of these documents constituted even remotely compliance with the provisions of law.
Requirements of section 40-A of Sales Tax Act, 1990, are as follows:--
(i)Any Officer of Sales Tax not below the rank of an Assistant Collector of Sales Tax has reasons to believe.
(a)that any documents or things which, in his opinion, may be useful for, or relevant to, any proceeding under the said Act are concealed or kept in any place; and
(b)that there is a danger that they may be removed before a search can be effected under section 40;
(ii)he may, after preparing a statement in writing of the grounds of his belief for which search is to be made, search or cause search to be made for such documents or things in that place.
(iii)Any officer or person who makes a search or causes to be made shall leave a signed copy of the statement referred to in that section in or about the place searched and shall, at the time the search is made or as soon as is practicable thereafter, deliver a signed copy of such statement to the occupier of the place at his last known address.
Document being relied upon did not at all constitute a statement envisaged by subsection (1) of section 40-A(1) and further there was no prima facie evidence of the compliance of subsection (2) of section 40-A.
The said documents purported to be statement of belief did not at all contain the statement as required by section 40-A(1) of the Sales Tax Act, 1990. Â
Finding that the search was conducted and documents were removed in clear violation of said provisions of Sales Tax Act, 1990, High Court allowed writ petitions and declared that the proceedings of raid and search and seizure of record from the premises of the writ petitioners were illegal and without lawful authority and of no legal effect whatsoever. The department was directed to immediately return the said record and other articles so seized to the petitioners in these cases. The documents or their copies shall not be used against the petitioners in any proceedings. However, it was clarified that the department will be at liberty to act strictly in accordance with said law upon fulfilment of the conditions laid down therein.
Collector of Customs (Preventive) and 2 others v. Muhammad Mahfooz PLD 1991 SC 630 fol.
Federation of Pakistan through Ministry of Finance, Islamabad v. Master Enterprises (Pvt.) Ltd. and 4 others 2003 PTD (SC) 1034; Messrs Ahsan Yousaf Textile Mills (Pvt.) Ltd. Faisalabadv. Federation of Pakistan through Ministry of Finance, Islamabad and 4 others 2003 PTD 2037; Messrs Food Consults (Pvt.) Ltd. Lahore and others v. Collector (Central Excise and Sales Tax), Lahore and 2 others 2004 PTD 1731and N.P. Water Proof Textile Mills (Pvt.) Ltd. through Director, Karachi v. Federation of Pakistan through Secretary, Revenue Division/ Chairman, Central Board of Revenue, Islamabad and another 2004 PTD 2952 ref.
Mian Abdul Ghaffar for Petitioner.
Ch. Saghir Ahmad, Standing Counsel for Pakistan.
ORDER
This order shall dispose of Writ Petition No.6270 of 2004, Writ Petition No.4581 of 2004, Writ Petition No.6772 of 2004 and Writ Petition No.6773 of 2004 as a common question is involved. In all these cases the respondents/officials purporting to act under sections 38/40-A of the Sales Tax Act, 1990 conducted raids at the premises of the petitioners to search for some documents, which in fact were seized and taken into possession.
2.Learned counsel for the petitioner contends that the raids have been made illegally and in contravention of the provisions of law under which the respondents purported to act. Relies on the cases of Collector of Customs (Preventive) and 2 others v. Muhammad Mahfooz (PLD 1991 SC 630), Federation of Pakistan through Ministry of Finance, Islamabad v. Master Enterprises (Pvt.) Ltd. and 4 others (2003 PTD (SC) 1034), Messrs Ahsan Yousaf Textile Mills (Pvt.) Ltd. Faisalabadv. Federation of Pakistan through Ministry of Finance, Islamabad and 4 others (2003 PTD 2037) Messrs Food Consults (Pvt.) Ltd. Lahore and others v. Collector (Central Excise and Sales Tax), Lahore and 2 others (2004 PTD 1731) and N.P. Water Proof Textile Mills (Pvt.) Ltd.through Director, Karachi v. Federation of Pakistan through Secretary, Revenue Division/Chairman, Central Board of Revenue, Islamabad and another (2004 PTD 2952).
3.Learned Standing Counsel, on the other hand, contends with referencetothecommentsfiledinthiscasethattheconcernedofficer had recorded the grounds of his behalf within the meaning of section 40-A of the Sales TaxAct, 1990.
4.I have gone through the respective pleadings of the parties in these cases and also the documents being relied upon by them particularly by the respondents. It is an admitted position that the respondents did not obtain any search warrant in the manner prescribed in section 40 of the Sales Tax Act, 1990 and purported to act under section 40-A of the said Act. I have also examined the respective documents in these cases, filed by the respondents, which according to learned Standing Counsel constitute compliance of the provisions of the said section 40-A. Examining the said documents in the light of the judgment being relied upon by the learned counsel for petitioner, I find that none of these documents do constitute even remote compliance with the said provisions of law.
5.Upon a reading of section 40-A of Sales Tax Act, 1990, I find that the requirements of the said provisions of law are as follows:--
(i)Any Officer of Sales Tax not below the rank of an Assistant Collector of Sales Tax has reasons to believe:---
(a)that any documents or things which, in his opinion, may be useful for, or relevant to, any proceeding under the said Act;
(b)are concealed or kept in any place; and
(c)that there is a danger that they may be removed before a search can be effected under section 40;
(ii)he may, after preparing a statement in writing of the grounds of his belief for which search is to be made, search or cause search to be made for such documents or things in that place;
(iii)any officer or person who makes a search or causes to be made shall leave a signed copy of the statement referred to in that section in or about the place searched and shall, at the time the search is made or as soon as is practicable thereafter, deliver a signed copy of such statement to the occupier of the place at his last known address.
6.The said document being relied upon do at all constitute a statement envisaged by subsection (1) of section 40-A(1) and further there is no prima facie evidence of the compliance of subsection (2) of section 40-A.
7.In the said case of Collector of Customs (Preventive) and 2 others v. Muhammad Mahfooz (PLD 1991 SC 630), the Hon ble Supreme Court of Pakistan while interpreting sections 162 and 163 of the Customs Act, 1969, which are in pari materia with sections 40 and 40A of the Sales Tax Act, 1990 observed that ordinarily a place is to be searched only after search warrant is obtained from the Magistrate and only in extraordinary cases the said requirement can be dispensed with but the mandatory term is that the Customs Officer has to state the grounds for his belief and decision in not obtaining the search warrant. He must state the grounds which justified apprehension of dangerof removal of goods. Their Lordships also quoted an instance i.e. information was received from such and such person that the party concerned had taken steps or wasabout to take steps for removal of goods and if search warrant was obtained, the same would consume time or that the Magistrate was not available. It was then observed that in the case before their Lordships, reasonsare not stated as to why and what danger wasapprehended for removal of goods and it was not enough simply to say that it is not expedient to obtain search warrant .
8.As noted by me above, the said documents purported to be statement of belief do not at all contain the statement as required by section 40-A(1) of the Sales Tax Act, 1990.The other judgments being relied upon by the learned counsel follow the principles laid down by the august Supreme Court in the said judgment while interpreting sections 40 and 40A of the Sales Tax Act, 1990.
9.Finding that the search was conducted and documents were removed in clear violation of said provisions of Sales Tax Act, 1990, I allow all these writ petitions and declare that the proceedings of raid and search and seizure of record from the premises of the writ petitioners are illegal and without lawful authority and of no legal effect whatsoever. The respondents are directed to immediately return the said record and other articles so seized to the petitioners in these cases. The documents or their copies shall not be used against the petitioners in any proceedings. However, it is clarified that the respondents will be at liberty to act strictly in accordance with said law upon fulfilment of the conditions laid down therein.
No order as to costs.
M.B.A./Z-72/LPetitions allowed.