TaxTMI 
TaxTMI 
1954 (3) TMI 1
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....ised attempt was made from the inception of the Company to misappropriate and embezzle the funds of the company and declare it to be substantial loss, and to conceal from the shareholders the true state of affairs by submitting false accounts and balance-sheets. Various dishonest and fraudulent transactions were also disclosed which show that false accounts with fictitious entries and false records were being maintained and that dishonest transfers of moneys had been made. It was accordingly alleged that offences under Sections 406, 408, 409, 418, 420, 465, 467, 468, 471 and 477(a), Indian Penal Code had been committed. 3. It was also stated that Seth R.K. Dalmia who was the Director and Chairman of Dalmia Jain Airways Ltd. has been controlling certain other concerns viz., (1) Dalmia Cement and Paper Marketing Co. Ltd., (2) Dalmia Jain Aviation Ltd., now known as Asia Udyog Ltd., and (3) Allen Berry & Co., Ltd., through his nominees and that all these concerns were utilised in order to commit the frauds. It was further stated therein by the Registrar of Joint Stock Companies that to determine the extent of the fraud, it was necessary to get hold of books not only of Dalmia ....
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....involve any constitutional violation are matters which may be more appropriately canvassed before the High Court on applications under Article 226 of the Constitution and we have declined to go into them. The petitioners have, therefore, confined themselves before us to two grounds which they challenge the constitutional validity of the searches. The contentions raised are that the fundamental rights of the petitioners under Article 20(3) and Article 19(1)(f) have been violated by the searches in question. 8. So far as the contention based on Article 19(1)(f) is concerned, we are unable to see the petitioners have any arguable case. Article 19(1)(f) declares 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 interests of general public. It is urged that the searches and seizures as affected in this case were unreasonable and constitute a serious restriction the right of the various petitioners, in as such as their buildings were invalid, their documents taken away and their business and reputat....
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....ever character compelled out of a person who is or is likely to become incriminated thereby as an accused. It, therefore, extends not only to compelled production of documents by an accused from his possession, but also to such compelled production of oral or documentary evidence from any other person who may become incriminated thereby as an accused in future proceedings. 13. In this view of the content of Article 20(3) is accepted, the next step in the argument presented is that a forcible search and seizure of documents is, for purposes of constitutional protection of this guarantee, on the same footing as a compelled production of the said documents by the person from whom they are seized. This chain of reasoning if accepted in its entirety would render searches and seizures of documents and any statutory provisions in that behalf illegal and void, as being in violation of the fundamental right under Article 20(3). The question thus raised is of far-reaching importance and requires careful consideration. *      *       *       *      * 27. A....
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....itness" is nothing more than "to furnish evidence", and such evidence can be furnished through the lips or by production of a thing or of a document or in other modes. 30. So far as production of documents is concerned, no doubt Section 139, Evidence Act, says that a person producing a document on summons is not a witness. But that section is meant to regulate the right of cross-examination. It is not a guide to the connotation of the word "witness", which must be understood in its natural sense, i.e., as referring to a person who furnishes evidence. Indeed, every positive volitional act which furnishes evidence is testimony, and testimonial compulsion connotes coercion which procures the positive volitional evidentiary acts of the person, as opposed to the negative attitude of silence or submission on his part. Nor is there any reason to think that the protection in respect of the evidence so procured is confined to what transpires at the trial in the Court room. 31. The phrase used in Article 20(3) is "to be a witness" and not to "appear as a witness". It follows that the protection afforded to an accused in so far as it is related to the phrase "to be a witness" ....
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....ihood of non-compliance that a search warrant is to be issued. It is, therefore, urged that these provisions themselves show that in law search and seizure is a substitute for compelled production on summons. There has been some debate before us whether Section 94 applies to an accused person and whether there is any element of compulsion in it. For the purpose of this case it is unnecessary to decide these points. 45. We may assume without deciding that the section is applicable to the accused as held by a Full Bench of the Calcutta High Court in a recent case in Satya Kinkar Roy v. Nikhil Chandra, AIR 1951 Cal. 101(F). We may also assume that there is an element of compulsion implicit in the process contemplated by Section 94 because, in any case, non-compliance results in the unpleasant consequence of invasion of one's premises and rummaging of one's private papers by the minions of law under a search warrant. Notwithstanding these assumptions we are unable to read Sections 94 and 96(1), Criminal P.C., as importing any statutory recognition of a theory that search and seizure of documents is compelled production thereof. 46. It is to be noticed that Secti....
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.... by a Court for the production of a document required for investigation. This was followed by Section 368 relating to the issue of search warrants which was in the following terms : *       *      *      *      * 51. It may be mentioned in passing that the provision for the issue of general search warrants appears for the first time in the Criminal P.C. of 1882 and even there the issue of such general warrants is not based on non-compliance with a previous summons for production. It is, therefore, clear that there is no basis in the Indian law for the assumption that a search or seizure of a thing or document is in itself to be treated as compelled production of the same. Indeed a little consideration will show that the two are essentially different matters for the purpose relevant to the present discussion. A notice to produce is addressed to the party concerned and his production in compliance therewith constitutes a testimonial act by him within the meaning of Article 20(3) as above explained. But a search warrant is addressed to an officer of the Go....