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Search under GST, sans the procedures under ii he should record in writing the grounds of his
Cr.P.C. are being followed shall be illegal: As belief and specify in such writing as far as
mentioned herein above, the provisions of the possible the things for which the search is to be
Code of Criminal Procedure, 1973, relating to made;
search and seizure, shall, so far as may be, apply to iii he must conduct the search, if practicable, in
search and seizure under GST also. The Supreme person; and
Court, in State of Rajasthan v. Rehman, 1978 (2)
E.L.T. 294 (S.C.); (1960) 1 SCR 991 while examining iv if it is not practicable to make the search
the search under Central Excise, wherein also himself, he must record in writing the reasons
for not himself making the search and shall
provision of Cr.P.C. has been made applicable to
authorise a subordinate officer to make the
the search carried out under the Central Excise,
the Supreme Court held that “9…the search made search after specifying in writing the place to
by the Deputy Superintendent in the present case be searched, and, so far as possible, the thing
for which search is to be made. Thus, search
in contravention of the provisions of Section 165
under GST also, sans the procedures under
of the Code was illegal” The Supreme Court in this
held that “8. There are no merits in the second Cr.P.C. are being followed shall be illegal.
Similarly, in the case of State of U.P. v Lavkush
contention either. The recording of reasons does
Kumar and Others 1986 (26) E.L.T. 922 (All.), it
not confer on the officer jurisdiction to make a
is held that “16.
search, though it is a necessary condition for
making a search. The jurisdiction of the power to Moreover, S. 165, Cr. P.C. which section would be
make a search is conferred by the statute and not applicable to the search and seizure made by the
derived from the record of reasons. Inspector of Central Excise, provides that if delay
in effecting the search is to be avoided, then the
That apart, Section 18 of the Act in express terms
officer undertaking the search has to pre-
states that searches shall be carried out in
accordance with the provisions of the Code of record in writing the grounds of his belief that
Criminal Procedure. Section 165 of the Code lays the thing required to be obtained through
search would not be obtainable without
down various steps to be followed in making a
undue delay and has to specify in such writing t
search. The recording of reasons is an important
step in the matter of search and to ignore it is to he thing for which search is to be made. The
ignore the material part of the provisions governing provisions of S. 165, Cr. P.C. are mandatory.
searches. If that can be ignored, if cannot be said Their non-compliance renders his action of
that the search is carried out in accordance with the carrying out search illegal.” The Supreme Court
provisions of the Code of Criminal Procedure; it while dealing with matter relating to search
would be a search made in contravention of the under Sales Tax, in Commissioner of Commercial
provisions of the Code.” It is important to note the Taxes ... vs Ramkishan Shrikishan Jhaver And
while elaborating on the provisions of search under reported in AIR 1968 SC 59, about the
section 165 of the Cr.P.C., noted the conditions applicability of provisions of search under Cr.P.C.
imposed for carrying out the search. to search under sales tax has observed that “17..
The proviso clearly lays down that all searches
Under Section 165, four conditions are imposed :
made under this sub-section, so far as may be,
i the police officer must have reasonable ground
shall be made in accordance with the provisions
for believing that anything necessary for the
of the Code of Criminal Procedure. Thus all
purpose of an investigation of an offence
cannot, in his opinion, be obtained otherwise provisions contained in the Code of Criminal
Procedure relating to searches would be
than by making search, without undue delay;
applicable to searches under sub-section (2), so
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