OM PRAKASH, J.

(1.) The petitioners Nos. 1 and 2, public limited companies, incorporated under the Indian Companies Act,, 1956, and petitioner No. 3, a partnership firm, are allied concerns of Q.S.T. Groups of Kanpur and petitioner No. 4 is the manager, accounts, of the said group. On January 15, 1987, a search was conducted by the Income-tax Department at different places of Q.S.T. Groups including the premises of the petitioners and various account books were seized for which seizure a memo was prepared and issued to the petitioners. Admittedly, the Department retained the books for a period exceeding 180 days without obtaining the approval of the Commissioner for such retention within the meaning of Sub-section (8) of Section 132 of the Income-tax Act, 1961 ("the Act" for short). Thereupon, the petitioners filed this writ petition praying that the retention of the books beyond 180 days is absolutely illegal and the respondents be directed to return the account books forthwith.

(2.) Thereafter, the petitioners made an application that the respondents started taking photostat copies from the account books illegally retained beyond 180 days. As no photostat copies or extracts were taken by the Department till the date of filing the writ petition, the petitioners stated that no prayer was made for issuing a direction to the respondents to return the photostat copies, extracts, etc., and hence an amendment is necessitated, since the mischief has been done subsequently, The petitioners, therefore, prayed that they be allowed to amend the writ petition and incorporate a new prayer No. 5 in the petition as follows :

"Prayer No. 5 : Issue a suitable writ, order or direction in the nature of mandamus directing the respondents to return the photostat copies, etc., which has been taken by them after 180 days."

(3.) In their counter-affidavit filed by the respondents, it is stated that the petitioners never approached the Department to release the account books. However, it is stated that the seized books of account contained information and details regarding concealment of income and tax evasion by the petitioners to the tune of several crores of rupees. In para. 12 of the counter-affidavit, the respondents contended :

"However, the material which has been seized during the course of the search, which shows huge concealment of income to the extent of several crores of rupees, can always be utilised against the petitioners under the Act for the purpose of making assessment and for other proceedings under the Income-tax Act..."

(4.) In para. 17 of the counter-affidavit, it is stated that even if the search and seizure is illegal, the documents found in search can always be used by the assessing authorities. Learned standing counsel, on behalf of the respondents, made an application dated January 5, 1987, during the course of hearing that the petitioners' representative be directed to attest the photostat copies taken by the Department from the seized books and documents and an advocate commissioner be appointed to attest the same before the seized books and documents are released to the petitioners.

(5.) It is expedient to dispose of the writ petition, the amendment application of the petitioners and the application of the respondents together by this order.

(6.) So far as the main prayer of the petitioners that the respondents be directed to return the books of account which have been retained for more than 180 days without obtaining the approval of the Commissioner is concerned, I entirely agree with the petitioners, inasmuch as the respondents have no objection to the books being returned, nor can they legally claim right of retention of the seized books of account for more than 180 days without taking approval from the Commissioner, as envisaged by Sub-section (8) of Section 132 of the Act. Already on December 21, 1987, we directed the respondents to return the books and papers seized on January 15, 1987, to the petitioners forthwith.

(7.) Now, I take up the amendment application of the petitioners. I see no serious objection to the amendment being sought by the petitioners. I, therefore, allow the amendment application and permit the petitioners to add one more prayer in the writ petition as prayer No. 5.

(8.) From the amended petition, the main question for consideration is whether a writ of mandamus can be issued against the respondents directing them to return the photostat copies, extracts, etc., which the respondents have taken from the seized books after the expiry of 180 days and a question arising from the application of the respondents is whether the petitioners' representative can be directed to attest the photostat, copies, extracts, etc. The short submission of Sri Sudhir Chandra, learned counsel for the petitioners, was that when the retention of the account books after the expiry of 180 days from the date of search is illegal, the retention of the photostat copies of the seized books is equally illegal and, therefore, a writ of mandamus can legally be issued against the respondents to return the photostat copies as well. The argument proceeds on the footing that when the respondents cannot retain the books of account, they cannot retain the copies/extracts of them as well. It was submitted that if no direction is given to the respondents to return the photostat copies, extracts, etc., of the seized books and if the respondents are permitted to retain them, then that would tantamount to legalising what is prohibited by the law. He went on to argue that if the account books retained for more than 180 days without the approval of the Commissioner are returned, then they cannot be read into evidence and the petitioners cannot be called upon to produce them before the assessing authority, but if the copies thereof are retained by the Department, then they could be utilised as evidence against the petitioners, whereas the original books of account returned to the petitioners could not be taken into evidence any more. I do not find any force in his submission. The right of retention of the copies made from the books seized should not be mixed up with the question, whether the copies retained by the Department might be utilised as evidence against the petitioners at the assessment stage. But the question of retaining the copies has to be considered purely in the perspective of the provisions of the Income-tax Act without touching upon the evidentiary value or the admissibility thereof under the Evidence Act which is not applicable to income-tax proceedings, An assessee can claim as much ownership over the account books as he can claim over other articles and except as provided by the law, the right of ownership over the account books cannot be interfered with by any one, Section 132 elaborates a scheme as to when, by whom and in which circumstances, the right of ownership over the account books can be interfered with. Sub-section (1) of Section 132 provides that where the Director of Inspection or the Commissioner or any other specified authority empowered in this behalf by the Board, in consequence of information in his possession, has reason to believe about the situations enumerated in Clause (a), (b) or (c), then he may authorise a specified authority to enter and search the business premises of a person and, inter alia, seize any such books of account, other documents, money, bullion, jewellery or other valuable articles as a result of such search and place marks of identification on any books of account or other documents or make or cause to be made extracts or copies therefrom. So, Sub-section (1) of Section 132 clearly empowers the Director of Inspection or the Commissioner to issue a search warrant against any person if, in consequence of information coming to his possession, he has reason to believe that such person has failed to comply with or acted in contravention of the circumstances enumerated in Clause (a), (b) or (c) and during the search, the account books or other articles found as a result of search may be seized and the search authority may make extracts or copies of the account books so seized. But Clause (iv) of Section 132(1) thus clearly empowers the search authority to make copies or extracts from the books seized at the time of search. Sub-section (8) limits the retention period to 180 days and if the books are to be retained for more than that period, then approval to retain the books for a longer period has to be obtained from the Commissioner. In view of the limitation as contained in Sub-section (8) of Section 132, the retention of the books has become illegal and, therefore, they have to be returned. Return of the books is not opposed by the respondents.

(9.) The question is whether Sub-section (8) of Section 132 or any other provision in the Act inheres a prohibition to make copies/extracts from the books seized, after the expiry of 180 days but before the books are returned either by the search and seizure authority on its own or on the direction of the court. The question whether mandamus can be issued against the petitioners to make the seized books available to the respondents after their return beyond 180 days to enable them to make copies will be entirely different and is not germane to the instant case. Sub-section (8) merely creates a limitation for retaining the account books. There is no statutory limitation either for making copies/extracts from the seized books or for retaining them. It, is wrong to say that making copies of the seized books beyond 180 days and retaining them thereafter tanta-mounts to removing the embargo put by Sub-section (8) of Section 132 against retaining the books beyond 180 days. When there is no limitation in the statute for making copies and for retaining them after 180 days, there is no warrant to interpret the statute in such a way so as to create a limitation.

(10.) In taking this view, I am fortified by Dr. Pratap Singh v. Director of Enforcement, Foreign Exchange Regulation Act [1985] 155 ITR 166. In this case the Assistant Director of Enforcement, Foreign Exchange Regulation Act, issued the impugned search warrant which led to the seizure. It was contended before the Supreme Court on behalf of the appellants that the authorisation to make the search was illegal inasmuch as the grounds which induced reasonable belief were not stated in the search warrant. The Supreme Court took the view that disclosure of the grounds inducing the reasonable belief need not be stated in the search warrant. Then the Supreme Court observed at. p. 174 that : "assuming that it is obligatory upon, the officer proceeding to make a search or directing a search to record in writing the grounds of his belief and also to specify in such writing, so far as possible, the thing for which the search is to be made, is mandatory and that non-recording of his reasons would result in the search being condemned as illegal, what consequence it would have on the seizure of the documents during such illegal search". A learned single judge of the Calcutta High Court in New Central Jute Mills Co. Ltd. v. T.N. Kaul [1976] AIR 1976 Cal 178, took the view that once the authorisation for carrying out the search is found to be illegal on account of the absence of recording of reasons in the formation of a reasonable belief, the officer who has seized documents during such search must return the documents seized as a result of the illegal search. Disapproving the view taken by the learned single judge of the Calcutta High Court, the Supreme Court held that "such a view is against the weight of judicial opinion on the subject and does not commend itself to us." The Supreme Court further said that "in fact this decision was virtually for all practical purposes overruled by the decision of the Constitution Bench in Pooran Mal v. Director of Inspection (Investigation) [1974] 93 ITR 505 (SC)". The Supreme Court ruled that "the courts in India and even in England have consistently refused to exclude relevant evidence merely on the ground that it is obtained by illegal search or seizure". Then again, touching upon the decision of the single judge of the Calcutta High Court in CIT v. New Central Jute Mills Co. Ltd. [1976] 105 ITR 262, the Supreme Court opined (p. 175) :

"If, therefore, the view of the learned single judge of the Calcutta High Court were to be accepted, meaning thereby that if the search is shown to be illegal, anything seized during such illegal search will have to be returned to the person from whose premises the same was seized. It would tantamount to saying that evidence collected during illegal search must be excluded on that ground alone. This was in terms negatived by the Constitution Bench."

(11.) The Supreme Court further observed (p. 175) :

"It has been often held that the illegality in the method, manner or initiation of a search does not necessarily mean that anything seized during the search has to be returned. After all, in the course of a search, things or documents are required to be seized and such things and documents when seized may furnish evidence. Illegality of the search docs not vitiate the evidence collected during such illegal search. The only requirement is that the court or the authority before which such material or evidence seized during the search shown to be illegal is placed has to be cautious and circumspect in dealing with such evidence or material."

(12.) From the dictum of the Supreme Court, it is clear that the things seized during search may furnish evidence and the evidence so collected even during an illegal search cannot be excluded from consideration at the assessment stage. It is averred in the counter affidavit that the books seized during search furnished valuable evidence of considerable concealment. The question is whether the Department can be deprived of taking advantage of copies/extracts, taken from the seized books at the assessment stage by directing the respondents to return them to the petitioners at this stage. When copies taken during an illegal search can be used as evidence, I fail to comprehend why copies made after 180 days from the seized books cannot be retained by the respondents for being used at the assessment stage. The retention of the seized books beyond 180 days may be illegal, but that ipso facto does not render the retention of the copies illegal unless it is established that the respondents withheld the books of account under an evil design or in violation of any direction of court with a view to collecting evidence against the assessee, which they were not otherwise entitled to procure, the respondents could have made copies from the seized books before they were returned.

(13.) It will be too technical a view of the matter that since the seized books cannot be retained beyond 180 days without approval of the Commissioner under Section 132(8), no copies also can be made or retained thereafter. A technical or narrow construction of a statute should be avoided, unless it becomes necessary in the context of the provisions or the scheme of the Act. The underlying idea of providing limitation of 180 days under Sub-section (8) of Section 132 is that the person from whose premises the books were seized should not be deprived of his domain over the books for an indefinite period and if the books relate to the year in which the search was conducted, then the owner of the books should not be inconvenienced by prolonged absence of the books. The purpose of the return of the books within a limited period is not aimed at the Department being deprived of having used the books in evidence. That being so, no mandate can be read into the use of language of Section 132(8) that the Department will have to return not only the seized books but also the copies and extracts made therefrom, so that they might not be used in evidence by the Department at the assessment stage.

(14.) The matter may be seen from another angle also. The petitioners seek relief under Article 226 conferring equitable and discretionary jurisdiction. When the seized books disclosed concealment of considerable amount according to the respondents; will it be equitable to say that no copies/ extracts can be made/retained. Simply because the limitation to retain the seized books expired, especially when there is no averment that their retention is mala fide or in violation of any direction of the court, should the law be read so as to frustrate the scheme of search or seizure and permit the petitioners to play a "hide and seek" with the Department or should the provisions be so construed that they achieve the purpose for which they were enacted ? Unless there is a clear provision in the Act, a justice-oriented or equitable approach will be the safer guideline for interpretation of even a fiscal statute, which otherwise requires a strict interpretation. In CST v. Auraiya Chamber of Commerce [1987] 167 ITR 458, the Supreme Court took the view that even in a fiscal statute, equity should prevail wherever the language permits. At page 470, the Supreme Court further observed :

"Where indubitably there is in the dealer legal title to get the money refunded and where the dealer is not guilty of any laches and where there is no specific prohibition against refund, one should not get entangled in the cobweb of procedures but do substantial justice."

(emphasis italicised in print).

(15.) There being neither equity in favour of the petitioners nor a specific or implied prohibition in the Act against making/retaining the copies from the seized books beyond 180 days, no mandamus can be issued against the respondents to return the copies, made beyond 180 days, to the petitioners.

(16.) Since the copies will be attested by the petitioners, I do not think it necessary to appoint an advocate commissioner to doubly attest the copies.

(17.) From [1987] 164 ITR (St.) 34, it appears that a SLP (Civil) No. 14989 of 1986 (Khandani Shafakhana v. Union of India) was filed in the Supreme Court against an order dated November 11, 1986, of the Delhi High Court in C.W. No. 1469 of 1986--[1989] 175 ITR 408, whereby the High Court issued the writ prayed for, viz., return of account books seized during search and seizure of the assessee's premises, but permitted the Department to retain certified photostat copies of the account books and the same was dismissed by their Lordships of the Supreme Court on December 18, 1986. It is implied in the dismissal of the SLP that the Department can retain photostat copies of the account books seized during search.

(18.) Sri Sudhir Chandra relied on a decision of the Delhi High Court in Survir Enterprises v. CIT [1986] 157 ITR 206. In this case, for and on behalf of the respondents, learned counsel for the State urged before the Delhi High Court, that even if the return of books is ordered by the court, a direction be given to the petitioner to keep them intact and produce them before the Department as and when required. The Delhi High Court, rejecting the submission of the Department, said (at p. 211) :

"We find ourselves unable to give such a direction. Once the bar set out in Section 132(8) operates, the Department has got to return the books of account and other seized documents to the person concerned."

(19.) From this authority, it clearly appears that the Delhi High Court did not consider the problem we are beset with. The question before the Delhi High Court was whether the petitioner can be directed to retain the books and produce them before the Department as and when required. No direction can be given to keep the books intact and produce them at the time of assessment, but if copies are made by the Department from the seized books, then they being valuable evidence according to the Supreme Court in Dr. Partap Singh [1985] 155 ITR 166, the petitioners in the instant case can surely be directed to attest them before their return.

(20.) For the above reasons, the writ petition is partly allowed and the petitioners are directed to attest the photostat copies taken by the respondents of the seized books of account within 15 days from the date of this order and thereafter the respondents shall return the seized books of account forthwith. No order as to costs.

(21.) R.M. sAHAI J.--Since the claim of the income-tax department to obtain photostat copies of account books after the expiry of 180 days from the date of seizure under Sub-section (1) of Section 132 of the Income-tax Act added with a request to direct the assessee to attest them before their return raises an issue of some importance, I consider it appropriate to record my own reasons, specially because I could not persuade myself to the view proposed by brother, Om Prakash J., that there is no inherent disability or illegality in the Department obtaining copies of account books after 180 days even though no order of extension had been obtained from the Commissioner.

(22.) Retention of account books seized under Section 132(1) of the Act after expiry of 180 days from the date of seizure is not permitted by Sub-section (8) of Section 132 unless the written approval of the Commissioner is obtained. In CIT v. Oriental Rubber Works [1984] 145 ITR 477 (SC), any retention in violation of the provisions has been held to be invalid and unlawful. Therefore, the concession made on behalf of the Department that it was willing to return the books was more to cover up its own defaults. Why such a serious lapse occurred is a matter of concern. Mere averment that inadvertently approval of the Commissioner was not obtained is hardly satisfactory. But, accountability is a matter to be looked into by the Department. The loss to the Revenue due to such mistakes must be thoroughly probed as, in the deteriorating norms, what may appear to be accidental or inadvertent may be deliberate. However, the issue is whether the justice-oriented approach requires the courts to permit the public authorities to act contrary to law. But before doing so, it appears imperative to clarify that using of evidence obtained in search and seizure which turns out to be illegal for one or the other reason cannot be equated or confused with procurement of evidence illegally. The two are entirely different. Relevancy of evidence or its admissibility is governed by the Evidence Act. It does not prohibit any evidence obtained illegally from being taken into consideration. That is why the Supreme Court in Magraj Pato-dia v. R.K. Birla, AIR 1971 SC 1295, while deciding a case under the Representation of the People Act held, that the fact that a document was procured by improper or even illegal means will not be a bar to its admissibility if it is relevant and its genuineness is proved. In Pooran Mal v. Director of Inspection [1974] 93 ITR 505 (SC), a writ of prohibition was sought restraining the Department from using, as evidence, any information gathered from the search which was illegal because, admission of such evidence was against the spirit of the Constitution. The argument was repelled and the Hon'ble Court observed (P. 526) : "So far as India is concerned, its law of evidence is modelled on the rules of evidence which prevailed in English law, and courts in India and England have consistently refused to exclude relevant evidence merely on the ground that it is obtained by illegal search or seizure."

(23.) The court did not approve of the American view that evidence obtained by the prosecution in a manner in which it should not have been obtained should not be taken advantage of, because that was not a rule of evidence but a rule of prudence and fair play. It would thus be seen that in India and England where the test of admissibility of evidence lies in relevancy, unless there is an express or implied prohibition in the Constitution or other law, evidence obtained as a result of illegal search or seizure is not liable to be shut out.

(24.) But no system of law recognises or permits an authority, public or private, to obtain evidence illegally, No provision in a statute, criminal or civil, can be visualised which may empower a person to take action against law as it might result in the obtaining of evidence which may assist in prosecution of a man or yield revenue to the State. Such a provision may be struck down as being contrary to public policy. The principle of evidence illegally obtained has been confined to those cases where it was procured in purported exercise of power which, although valid, was ultimately found to be defective or invalid. A distinction has to be made between an act which is legal in its inception but is found to be against law due to certain technical or legal flaw and acting in a manner contrary to law. In any case, the court cannot be a source or instrument from which a direction can be obtained by any party to permit it to obtain evidence in a manner contrary to law so as to enable it to claim that even though evidence is obtained illegally, it may be used by it. Such is not the ratio or the import of the decisions referred to earlier.

(25.) Reverting to the main issue, whether photostat copies can be obtained by the Department after expiry of 180 days from the date of seizure ? Section 132(1)(iii) permits seizure of books of account and other documents found as a result of search. Clause (iv) of the same sub-section empowers placing marks of identification on any books of account or other documents and making or causing to be made extracts or copies therefrom. There can thus be no doubt that the Legislature has taken care to arm the Department with necessary powers to frustrate any effort by an assessee for evading tax. But the power has to be exercised in accordance with law. What then is the law on obtaining extracts ? In the setting and context in which this clause has been placed, it appears that copies can be obtained or marks can be placed in the course of search. It is strengthened by Sub-section (3) of Section 132 which empowers an officer to pass a restraint order in respect of account books which cannot be immediately removed. But such a narrow construction on Clause (iv) may be avoided as the evil consequences of tax avoidance are manifold. It should, therefore, be extended to empower the Department to obtain extracts from the account books even after search, so long as the books are in its custody. The question is how long ? In other words, till when can the custody be said to be in accordance with law to enable the Department to exercise its power. That has been provided by Sub-section (8) itself, which puts an outer limit for retention of books except as provided therein. If the books cannot be retained after 180 days and their retention is illegal, then how can Clause (iv) of Sub-section (1) operate. The exercise of power depends on its existence. If the power itself becomes non-existent due to operation of law, then its exercise automatically ceases.

(26.) The argument of learned counsel for the Department that there being no prohibition restraining the Department from obtaining photostat copies after 180 days, it should be taken as permissible, appears to be misconceived. The law appears to be just the otherwise. It has been succinctly summarised in Halsbury's Laws of England (Edn. 2, Vol. VIII, p. 73) : "What the statute does not expressly or impliedly empower should be deemed to be prohibited."

(27.) In Ashbury Railway Carriage and Iron Co. v. Riche [1875] LR 7 HL 653, it was held ;

"Where there is an Act of Parliament creating a corporation for a particular purpose and giving it powers for that purpose, what it does not expressly or impliedly authorise is to be taken to be prohibited."

(28.) It was approved by Lord Blackburn in Attorney-General v. Great Eastern Railway [1880] 5 AC 473 (HL). The decision in Ashbury's case HL 653 was applied by the Patna High Court in Kamakhya Narain Singh v. Harkhu Singh, AIR 1948 Pat 438, and it was held : "No power can be inferred from omission in the statute."

(29.) It is thus not possible to hold that there being no bar in the Act, the Department should be deemed to be empowered to obtain the copies.

(30.) Even on the principle of implied power, the action of the Department cannot be upheld. The concept of implied powers was explained by a Full Bench of the Gujarat High Court in State of Gujarat v. Shah Lakhamshi Umarshi, AIR 1966 Guj 283, it was held that (p. 290) :

"In the first place, it is an elementary principle of construction that a power to do an act cannot be implied unless the doing of such act is essentially necessary for effectual exercise of a jurisdiction or power conferred by the statute so that if such implication is not made, it would not be possible to effectually exercise the jurisdiction or power and the conferment of the jurisdiction or power would be rendered futile" or purposeless. The principle on which the implication of power is permitted to be made is that where the Legislature enacts a provision conferring a jurisdiction or power, it must be deemed to have also given at the same time by necessary implication, power to do all such acts and employ all such means as are essentially necessary for its execution, for, otherwise the legislative will would be frustrated and the provision would be reduced to futility. Ubi aliquid con-ceditur, conceditur et id sine quo res ipsa esse non potest (Maxwell on the Interpretation of Statutes, eleventh edition, page 350, and Crates on Statute Law, sixth edition, page 258). The implication of power can, therefore, be made by judicial construction only where it is clear that without such power, a provision of the statute conferring jurisdiction or power would be rendered meaningless or ineffectual and not merely because it may appear to be more convenient or desirable that such power should exist to imply power in the latter case would be to legislate and not to interpret the statute."

(31.) The doctrine of implied power, therefore, can be invoked for effective discharge of a duty or power which, in the absence of such auxiliary or incidental power, may become frustrated but if the power itself becomes non-existent, then the doctrine of implied power cannot be invoked. As has been held earlier, once the period of 180 days expires, the power to retain books becomes non-existent. Therefore, the implied power of obtaining copies or extracts also cannot be invoked.

(32.) The powers conferred on the Department under this section can be summarised in brief as power to search and seize account books, money, bullion, jewellery, etc., to determine undisclosed income within 120 days after affording a reasonable opportunity of hearing to the person concerned, to deal with assets retained after assessment of the person concerned and to return the account books after expiry of 180 days unless the period is extended by the Commissioner. Is it possible to claim that any of these powers shall be rendered ineffectual if the Department is not permitted to obtain photostat copies of seized documents after 180 days ? As stated earlier, Clause (vi) of Sub-section (1) itself permits extracts to be obtained. To effectuate this power, the Department may be entitled to obtain photostat copies even though there is no provision. And the petitioner may be directed to authenticate them as well. It can be said to be an implied power. But once the period of 180 days expires, then Sub-section (8) operates. The power under this sub-section is to retain the books if approval of the Commissioner has been obtained in writing. For this purpose, namely, for obtaining approval of the Commissioner, the Department may have implied powers. But, obtaining of photostat copies of documents seized cannot, by any interpretation or construction, be held to be an implied power under this sub-section.

(33.) Since Section 132 interferes with the liberty of a citizen, the Legislature has taken care to lay down in detail the manner of exercise of power and the period within which it should not only estimate the undisclosed income but return the account books, etc. It is penal in nature. Such provisions have to be construed strictly. Therefore, no laxity should be permitted in the exercise of such powers. In Re Bernard Bottler [1915] 1 KB 21 (CA), it was observed by Scrutton J.

"In my view, looking at the enacting part of the statute only, the presumption against interference with the vital rights and liberties of the subject entitles, even compels, me to limit the words to that meaning which effects the least interference with those rights."

(34.) In Emperor v. Jaffur Mahomed [1912] ILR 37 Bom. 402, 408 it was observed : "We cannot add sections of our own to penal statutes with a view to improve them by some fancied completeness or consistency."

(35.) In Pooran Mal v. Director of Inspn. [1974] 93 ITR 505 (SC), one of the reasons for upholding the validity of Section 132 was, "even with regard to the books of account and documents seized, their return is guaranteed after a reasonable time". But this guarantee shall be rendered a farce if the obligation of the Department to return the books after 180 days is made subject to supplying of photostat copies or obtaining of copies by the Department after 180 days and getting them authenticated by the assessee. In a system governed by the rule of law, the power or right must flow from the Act or rule or some recognised principle. The Department cannot claim any inherent right or power. Now, like higher courts under the Constitution, it enjoys supervisory or preliminary powers. Provisions in fiscal enactments which have penal consequences have to be construed strictly. More so because of the constitutional constraint that no tax can be levied or collected except in accordance with law. It would be too literal a construction to hold that since books are being returned, the law is being complied with, and obtaining of copies after 180 days was not violating the law. What cannot be done directly cannot be done indirectly.

(36.) Reliance was placed on Khandani Shafakhana v. Union of India [1987] 164 ITR (St.) 34 and it was urged that the Supreme Court having upheld the decision of the Delhi High Court which directed that account books be returned after obtaining of photostat copies, it should be taken as settled that the Department is entitled to obtain photostat copies even after expiry of 180 days. A copy of the order passed by the Delhi High Court against which the special leave petition was decided is on record. From its perusal, it appears that the claim of the Department before the High Court was that the approval of the Commissioner had been obtained as provided in the Act. Yet it was willing to return the account books provided the photostat copies were attested by the petitioner. The High Court, in view of this concession, did not consider it appropriate to enter into the merits of the matter and directed the Department to return the documents after getting photostat copies attested. It cannot, therefore, be urged that the High Court held as a matter of law that photostat copies of the documents can be obtained after 180 days, and it could be returned only after the petitioner authenticated the documents. It was this order which was maintained by the hon'ble Supreme Court because it was not a fit case for interference with the discretion exercised by the High Court. Therefore, neither the hon'ble Supreme Court nor the High Court adjudicated upon and held that the Department was entitled as of right to obtain photostat copies or extracts of account books after expiry of 180 days in violation of Sub-section (8) of Section 132. On the other hand, in Survir Enterprises v. CIT [1986] 157 ITR 206 (Delhi), the claim of the Department for a direction to the petitioner in a case where account books were directed to be returned after expiry of the statutory period to keep them intact and produce them before the Department as and when required was repelled.

(37.) Even otherwise, the request of the Department cannot be accepted. In Chingleput Bottlers v. Majestic Bottling Co., AIR 1984 SC 1030, it was held : "that no mandamus could be issued to the authorities to act against law".

(38.) The higher judiciary has been entrusted with the responsibility of enforcing the Constitution and the law framed under it and not to shield illegal and arbitrary actions of public authorities. Jean Dabin remarked, "Morally, by its nature, justice implies the right to repeal unjust aggression." But the Department is seeking legal sanction to its acts which are not in accordance with law. Nor is there any merit in the claim that by return of documents without obtaining copies, the Department shall lose valuable evidence of huge concealment because the books must be initialled and its pages marked. Taxation laws, even with most liberal construction in favour of the Department, have never veered round interpretation of a provision which may permit authorities to act contrary to law. Otherwise, the entire legal concept of strict interpretation of the provisions of law of escaped assessment or proceedings being barred by time, etc., shall undergo change.

(39.) Much was attempted to be made of the ratio laid down by the hon'ble Supreme Court in McDowell and Co. Ltd. v. CTO [1985] 154 ITR 148 (SC), where while discussing the evil consequences of tax avoidance, it was urged that the court should avoid any construction of the law which may lead to loss of much needed public revenue, a must for a welfare State. Evil of tax avoidance by "artful dodgers" has to be fought politically, legislatively and judicially. But, as observed by the hon'ble court, "the transaction should be such that the judicial process may accord its approval to it". The action of the Department in taking photostat copies of account books after expiry of 180 days is a transaction which, being contrary to law, cannot be approved by the judicial process.

(40.) Coming to the facts, it appears from the affidavit of the Income-tax Officer, Circle II, Kanpur, that copies of five diaries mentioned at serial Nos. 1 to 5 of annexure of panchnama were made in June, 1987. Since extracts were made within 180 days, the diaries can be directed to be returned Only after the photostat copies obtained by the Department are authenticated by the petitioner. But so far as other documents are concerned, the copies admittedly were obtained after expiry of 180 days. It was contrary to law. Therefore, no direction can be issued to the petitioner to attest them.

(41.) For the reasons stated above, the opposite parties are directed to return the account books forthwith. The petitioner shall attest the photostat copies of the diaries, the extracts of which were obtained in June, 1987.

(42.) BY THE COURT : In view of the difference of opinion between us on the question as to whether the Department is entitled to make copies/extracts of the books seized after expiry of 180 days, that is, the time limit for obtaining approval of the Commissioner under Section 132(8) of the Income-tax Act, 1961, and whether the petitioners can be directed to attest such copies/extracts, the papers of this case may be laid before the hon'ble Chief Justice for passing appropriate orders in accordance with the rules of the court.

(43.) (5-4-1988).--On January 15, 1987, the premises mentioned in paragraph 3 of the petition were searched under the supervision of the Deputy Director of Inspection, Income-tax Department, Kanpur. A seizure memo/panchnama was issued to the petitioners on that very day in respect of the papers seized. The seized papers were retained by the respondents for more than one hundred and eighty days. Consequently, the petitioners filed the present writ for mandamus directing the Income-tax Department and its officers to return the books of account and other documents seized on January 1, 1987. A declaration was also sought that the retention of the documents and books of account after July 14, 1987, was illegal.

(44.) On December 3, 1987, an application for amendment of the writ petition was filed by the petitioners seeking permission to add the relief relating to the return of photostat copies, which had been taken by the income-tax authorities, after one hundred and eighty days. In the counter-affidavit filed on behalf of the Income-tax Department, Sri K. P. Pandey admitted that no approval of the Commissioner of Income-tax could be obtained within one hundred and eighty days, as required under Section 132(8) of the Income-tax Act. The fact that photostat copies of the books of account were made after one hundred and eighty days was also admitted in the counter-affidavit filed on behalf of the respondents. However, the retention of papers was justified on the ground that the books of account and other documents seized established evasion of income-tax by the petitioners on a large scale.

(45.) The writ petition was heard by a Bench consisting of hon'ble R.M. Sahai J. and hon'ble Om Prakash J. Both the learned judges agreed that the books of account and other documents seized on January 15, 1987, were liable to be returned under Sub-section (8) of Section 132 of the Income-tax Act. They, however, differed on two questions : (1) Whether the photostat copies of the books of account and other documents obtained were also to be returned to the petitioners or not ? and (2) Whether the asses-sees could be compelled to attest the photostat copies ? In fact, since, in the opinion of hon'ble R. M. Sahai J., the photostat copies had to be returned, there was no question of their attestation by the petitioners.

(46.) In view of the above, the following question was referred by the Division Bench to the hon'ble Acting Chief Justice, who has directed listing of the case for opinion before me :

"Whether the Department is entitled to make copies/extracts of the books seized after expiry of 180 days, that is, the time-limit for obtaining approval of the Commissioner under Section 132(8) of the Income-tax Act, 1961, and whether the petitioners can be directed to attest such copies/ extracts ?"

(47.) Sub-section (8) of Section 132 of the Income-tax Act, around which the argument of the petitioners' counsel centres, is quoted below :

"Section 132(8). The books of account or other documents seized under Sub-section (1) or Sub-section (1A) shall not be retained by the authorised officer for a period exceeding one hundred and eighty days from the date of the seizure unless the reasons for retaining the same are recorded by him in writing and the approval of the Commissioner for such retention is obtained : Provided that the Commissioner shall not authorise the retention of the books of account and other documents for a period exceeding thirty days after all the proceedings under the Indian Income-tax Act, 1922, or this Act in respect of the years for which the books of account or other documents are relevant are completed."

(48.) Learned counsel for the petitioners urged that Section 132(8) does not authorise taking of the photostat copies after one hundred and eighty days from the date of seizure and hence the Income-tax Officer could not either refuse to return them or insist upon their attestation by the petitioners.

(49.) Parliament, through Section 13 of the Finance Act, 1964, prescribed the time-limit of one hundred and eighty days for retention of books of account and other documents seized. Giving his reply to the debate, the then Finance Minister made the following statement in the Lok Sabha :

"I quite agree . . . that while six months appear to be very long and the books should not be retained so long, sometimes it may be necessary to have that much time for examining the books. In fact, it should not be six months in all cases. For if anybody takes away a business man's books for six months, his business will come to a standstill. I shall see that executive instructions are issued to the effect that unless the case is very serious, it should be expedited as quickly as possible."

(50.) Thus, it can be seen that when the Legislature prescribed the time-limit, it had two objects in mind, namely, expeditious conclusion of assessment or escapement proceedings and avoidance of undue loss to the trading community. In order to give effect to the aforesaid intention, it couched the provision in peremptory terms. It did so by using the phrases "shall not be retained" and "for a period exceeding".

(51.) Therefore, the provision is doubtlessly mandatory. On the expiry of one hundred and eighty days, the retention of books of account becomes illegal. The retention of books of account, if retained without the prior approval of the Commissioner, would entitle the assessee for return of the same.

(52.) In Survir Enterprises v. CIT [1986] 157 ITR 206, a Bench of the Delhi High Court held that where documents seized as a result of a search were retained beyond one hundred and eighty days, without the authorisation of the Commissioner, the retention was invalid and the Department had to return the books of account and other documents seized to the assessee concerned.

(53.) There is nothing in Sub-section (8) of Section 132 about photostat copies. Learned counsel for the petitioners urged that when the Department was not entitled to retain the books of account and other documents seized beyond one hundred and eighty days, photostat copies prepared therefrom had necessarily to be returned to the petitioners. The case of the other side is that since Section 132(8) docs not prescribe for the return of the documents seized from the possession of an assessee, this court has no power to issue a mandamus to the Income-tax Department for return of the same.

(54.) The rule of construction in determining the meaning of any word or phrase in a statute is what is the natural and ordinary meaning of the word in its context in the statute. It is only when that meaning leads to some result, which cannot reasonably be supposed to have been the intention of the Legislature, that it is proper to look for some other possible meaning of the word or phrase. It is not necessary for me to refer to the various decisions on this point, excepting pointing out to the statement of Alderson B. in A.G. v. Lockwood [1842] 9 M and W 378, at page 398, which is frequently cited now-a-days. From the language used in Sub-section (8) of Section 132, a direction for the return of photostat copies of the books of account and other documents seized does not follow. The rule has always been that if the words of an Act admit of two interpretations, then they are not clear, and if one interpretation leads to an absurdity and the other does not, the court will conclude that the Legislature did not intend to lead to an absurdity, and will adopt the other interpretation.

(55.) I have already indicated the intention behind Sub-section (8) of Section 132. It was that the retention of papers for an unduly long period, which was provided as one hundred and eighty days in this provision, would cause serious inconvenience to businessmen, and to achieve that end it was made incumbent upon the authorities to return the papers within that period unless the approval of the Commissioner of Income-tax had been obtained. The Direct Taxes Enquiry Committee (popularly known as the "Wanchoo Committee"), recommended an increasing use of power of search and seizure in appropriate cases to fight against the menace of tax evasion.

(56.) In Pooran Mal v. Director of Inspection [ 1974] 93 ITR 505, 517, the Supreme Court observed :

"It is now too late in the day to challenge the measure of search and seizure when it is entrusted to income-tax authorities with a view to prevent targe scale tax evasion."

(57.) The scope of Section 132 and the Rules was also examined by the Supreme Court in ITO v. Seth Brothers [1969] 74 ITR 836. It was held that it is now no longer necessary to seek in aid the general principles or rules of justice, equity and good conscience to test the validity of a search.

(58.) What I mean to say is that if original books of account and other documents seized are returned within the period mentioned in Sub-section (8) of Section 132, it should not be of much concern to the assessee that photostat copies had been retained and not returned. Honest people need not fear. It Will never be used against them. It can be used only in the case of tax evasion. These would be the persons who would show losses when they had, in fact, made gains. There is not only an attempt at tax avoidance, but also resort to fraud on a large scale.

(59.) Counsel for the petitioners contended that it was immaterial that photostat copies could be read into evidence against the assessee for the purpose of issuance of mandamus directing the income-tax authorities to return the photostat copies which had been illegally obtained. Learned counsel for the Revenue contested the submission of the petitioners and urged that even if photostat copies had been unlawfully obtained, there could be no valid objection to their admissibility if they are pertinent to the issue. The court will not take notice how they were obtained, whether lawfully or unlawfully, nor will it form an issue to determine that question. In our country as well as in England, reception of evidence procured Regally or by unlawful means is not tabooed. In Callis v. Gunn [1964] 1 QB 495, Lord Parker C. J. held that relevant evidence is admissible even though obtained illegally.

(60.) Likewise, in Jones v. Owens [1870] 34 J P 759, Mellor J. observed thus :

"It would be a dangerous obstacle to the administration of justice if we were to hold that because evidence was obtained by illegal means it could not be used against a party charged with an offence."

(61.) In Kuruma, v. Rex [1955] AC 197, 204 (PC), Lord Goddard stated :

"When it is a question of the admission of evidence strictly, it is not whether the method by which it is obtained is tortious but excusable, but whether what has been obtained is relevant to the issue being tried."

(62.) The same principle has been uniformly applied in our country as well. (See Pooran Mal [1974] 93 ITR 505 (SC), and Partap Singh's case [1985] 155 ITR 166 (SC) as cited in the judgment of Om Prakash J.)

(63.) It is true that what applies to judicial proceedings applies with greater force to quasi-judicial proceedings. Quasi-judicial tribunals or authorities required to act judicially are not bound by the technical rules of evidence. They enjoy greater latitude in this behalf.

(64.) Even otherwise, the only touchstone for reception qf evidence is relevance and not the source or mode of its procurement. It may be illegal or unlawful. So, there is a vast distinction between the legality of custody and the relevance of evidence. The courts scarcely concern themselves with the method or manner of obtaining the evidence, except in criminal cases. There, the courts have discretion to reject evidence, illegally procured, if it is "unfair" or "oppressive" to the accused. But then, it rests on the discretion of the court. It cannot be per se rejected by the court. Therefore, the question whether the evidence has been obtained under a purported ex

ercise or colour of authority or whether there is total lack of authority loses significance. (65.) There is yet another angle of the controversy. Does the Department cease to have any custody, judicial or otherwise, immediately on the expiry of 180 days ? The obvious answer is "no". When assets, articles or books of account are seized, a trust, constructive in nature, is brought about. The authority becomes the trustee/custodian of the goods or articles seized, So, a solemn duty is cast upon such authority to restore the goods to the person concerned on the fulfilment of the conditions. Thus, so long as the goods remain in the custody of the Department and till they are returned to their lawful owner, the Department continues to have custody thereof notwithstanding the expiry of one hundred and eighty days. (66.) Even under Section 71 of the Contract Act, a finder of goods is obliged to restore the goods to their owner. Till the goods are delivered to the owner, Section 71 of the Contract Act casts on such finder of goods the same responsibilities as a bailee. Under Section 151 of the Contract Act, a bailee is enjoined to take the same care of the goods as a man of ordinary prudence takes of his own. Sections 168, 169 and 171 of the Contract Act speak of the right and lien of the bailee. (67.) The upshot is that on the expiry of one hundred and eighty days, the Department loses the right to retain the goods. But, nevertheless, the Department is under a duty to ensure the safety of the goods till the owner gets back possession thereof. Thus, under law, it cannot be said that the custody of the goods by the Department is unlawful. (68.) The petitioner's counsel relied on a decision of the Supreme Court in CIT v. Oriental Rubber Works [1984] 145 ITR 477, in support of his submission regarding entitlement to get back the photostat copies. In this case, that was not the controversy before the Supreme Court. The facts would reveal that without obtaining the prior approval of the Commissioner of Income-tax and intimating about the same to the assessee, the papers had been retained beyond one hundred and eighty days. Search was made in this case on February 17, 1965, and it was followed by an assessment order dated February 5, 1969, and in which the books of account seized from the possession of the assessee were also taken into consideration. The Supreme Court although it maintained the order of the High Court for the return of the books of account and documents, did not quash the assessment order. As against the grievance of the assessee against assessment order of the assessee, the Supreme Court observed that the same would be looked into in appeal. This decision can be read as having laid down that the assessment order could even be made on the basis of papers retained after one hundred and eighty days. That by itself would not be a ground for setting aside the assessment, Had that been so, the Supreme Court would have quashed the assessment order. (69.) From the side of the Revenue, a judgment of the Delhi High Court in Khandani Shafakhana v. Union of India [1989] 175 ITR 408 (infra), has been filed showing that were the books of account and other documents although had been retained after one hundred and eighty days, and their photostat copies had been obtained thereafter, the Supreme Court refused to grant leave to appeal as against the same (see [1987] 164 ITR (St.) 34). The last paragraph of the judgment of the Delhi High Court (at p. 409) is quoted below : "Without going into the merits of the petition, we direct that the respondents shall within 15 days from today prepare the photo copies of the relevant entries and documents and thereafter the books of account and the documents seized from the petitioner shall be returned to him after the petitioner certifies the photo copies to be true copies of his books of account and documents. The petition is disposed of. We leave the parties to bear their own costs." (70.) It was rightly suggested by the petitioners' counsel that rejection of the leave application without reasons is not of any avail, being not a precedent. (71.) I agree with brother R.M. Sahai J., expressing his anguish for the serious lapse of the Department. The averment of inadvertent mistake made in the counter-affidavit of the Revenue does not inspire confidence. It has been argued before me that there has been tax evasion of crores of rupees, but it is strange that even this case escaped the notice and necessary approval was not obtained within one hundred and eighty days. A case of a raid made at the premises of a businessman should not be taken lightly and if there has been evasion and papers are found to prove it, the same should be taken seriously, and no lapse should occur. If the Revenue has been able to collect materials showing tax evasion, it was its duty to have obtained the Commissioner's approval within one hundred and eighty days. This is a mandatory requirement and every one is supposed to know the law. Whether this omission was deliberate or accidental is a matter to be investigated and found out by the Central Government. (72.) For what I have said above, in my opinion, the photostat copies of the books of account and other documents, even though obtained after one hundred and eighty days, are not returnable. No mandamus can be issued to the Revenue in this regard. Whether they can be used, how and in what manner, is a question which does not presently arise in these proceedings. That will arise in the assessment proceedings. But, I find no legal authority for giving a direction to the assessee to attest the photostat copies or extracts taken by the Department.