Implications of AAP's 'populist' demand of premises search

In the context of a very recent happening where some members of the Aam Aadmi Party (AAP) insisted that the police search certain premises on the suspicion of offence regarding drugs and related illegalities, the issue of searching premises or persons on populist demand assumes topical interest. I am writing strictly on the legal issue of populist searches in the context of tax.

Popular perception about whether somebody is a smuggler or an evader of tax can go hopelessly wrong. At the same time, such populist demand can be highly motivated and orchestrated by the so-called leaders for their own reasons either to take revenge or to humiliate their opponents.

In this connection, I may narrate a true story of how a very powerful political leader once rang me up when I was Collector of Customs and wanted me to search the premises where a smuggler was residing. When I verified the so-called intelligence report given by him, I found that it was bogus.

The place was a hotel, which was his benami property. The person concerned was an ordinary citizen and had not paid the bill for the hotel due to which the hotel owner wanted him to be searched and arrested just to teach him a lesson. So this is a case where I could not form any "reasonable belief", which is required before we undertake any search. Obviously, I did not search the place much to the chagrin of the political heavy weight. The lesson to be learnt from this incident is that it is necessary to verify an intelligence report and thereafter if there is a reasonable belief that there are smuggled goods in the premises, or illegal currency, which had avoided payment of income tax, or persons residing whose persons should be searched to get more documents about evasion of tax, etc, then only is a search justified.

If a search is made just on mere suspicion, then it becomes illegal and is known in the legal parlance as a "fishing expedition". It is a rhetorical expression for "lack of reasonable belief".

Catching fish by throwing a net in a river or in a pond knowing that there must be some fish after all, is an activity which has been frequently likened in the judicial parlance with the activity of officers searching premises or vehicles or examining documents in the general belief that they would ultimately tumble upon some offence after all.

Therefore, such activity of mounting a search has been described as fishing expedition in judicial parlance. It is not exactly known when it was first used. Calcutta High Court used it in the case of P K Ghosh vs K M Mazodia-2000(117)ELT14(Cal), to denote such a meaning. In this case, the Calcutta High Court held that the Customs officers cannot search and seize the goods in the hope of ultimately discovering some grounds to justify the search and seizure. Nor can they go on "fishing expedition" to find out whether any irregularities are committed.

In respect of searches, in all fiscal laws such as laws of income tax, customs, excise, etc, 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 has been viewed adversely by the Courts in several judgments such as Mohammad Serajuddin vs R C Misra-1983(13)ELT1370(SC), Gopal Kishan vs R N Sen- 1983(13)ELT1434(SC), and State of Gujarat vs Mohanlal Porwal - 1987(29)ELT483(SC).

In the case of Secunderabad vs. CBEC-1984(15)ELT91(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.

The conclusion is that fishing expedition is illegal. This legal tenet is a protection against indiscriminate search and harassment of innocent citizens or even tourists.

Email: smukher2000@yahoo.com