Catching fish is fun for people but not for the fish. The same is true of fiscal law. Catching fish by throwing a net in a river or pond, knowing there must be some fish in it, is an activity which has been likened in judicial parlance to the activity of officers searching premises or vehicles, or examining documents, in the general belief that there must be some offence after all.
In a fishing expedition, there is no specific information about the existence of a particular fish at a particular point. Therefore such activity of mounting a search or general audit has been described as a fishing expedition in judicial parlance. The question is whether it is legal or illegal. The answer is that it is legal in respect of audit and illegal in respect of searches.
In respect of audit there is legal provision that the Revenue is entitled to audit the firms’ accounts. There is no legal provision that there must be previous information that there is a violation of law committed. Therefore a routine audit is permitted in law, say, after every six months. There is no need to have specific information about the existence of a particular violation.
In respect of searches, however, in all fiscal laws such as laws of income tax, customs, excise, there has to be specific information leading to a reasonable belief that a specific type of violation has been committed. In the Customs Act, for example, there is provision in Sections 110 and 123 that the proper officer has reasonable belief before seizure of goods and the same is also true for search of premises as required under Sections 105 and 106 of the Act.
Any non-compliance of such requirement, namely the non-existence of reasonable belief before search and seizure, has been viewed very adversely by the Courts. The Supreme Court in several judgements, such as in the case of Mohammad Serajuddin vs RC Misra – 1983(13) ELT 1370(SC) — and in the case of Gopal Kishan vs RN Sen – 1983 (13) ELT 1434 (SC) — observed that the existence of reasonable belief is mandatory before the search can be held as valid.
In another judgement in the case of State of Gujarat vs Mohanlal Porwal – 1987 (29) ELT 483 (SC) — the Supreme Court held that reasonable belief should not be based on mere presumption and there must be a prima facie material. Without a properly formed reasonable belief it becomes a ‘fishing expedition’.
In several judgements the courts have come down heavily against search and seizure on the basis of mere fishing expeditions. In the case of PK Ghosh vs KM Mazodia – 2000 (117) ELT 14 (Cal) — the Calcutta High Court has held that Customs officers cannot search and seize goods in the hope of ultimately discovering some grounds to justify the search and seizure, nor they can go on fishing expeditions to find out whether irregularities are committed.
In the case of UWE Hoppe vs CCP – 1988 (37) ELT 561 (T) — the Tribunal held that instead of following the procedure prescribed under the Tourist Baggage Rules, Customs officers started indiscriminately rummaging the said van and went on a roving and fishing expedition.
The Tribunal therefore ruled that the seizure was invalid. In the case of Innovation, Secunderabad vs CBEC – 1984 (15) ELT 91(AP) — the High Court held that it is well settled that an officer cannot search any premises, or seize any goods, in the hope of ultimately discovering some basis or ground to justify the search or seizure, as the case may be; nor can they go on a fishing expedition to find out whether any irregularities are committed.
This legal tenet is a vaccine against indiscriminate search. The seniors in the Department of Revenue must keep a check on the number of what is known as infructuous searches.
The writer is former member, Central Board of Excise & Customs
Legality of `fishing`
INDIRECT TAXES/ LAW OF THE LAND
Sukumar Mukhopadhyay / New Delhi Aug 10, 2007, 20:44 IST
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