1. Purpose of this write-up is to initiate a debate so as to build a defence against the Search & Seizure actions under Income Tax Act (both, ITA 1961 as well as ITA 2025) in addition to better enforcement of laws with accountability and safeguarding the fundamental rights against overreach of state powers.

2. Provisions of search & seizure under civil laws have always been a bone of contention. They are basically police powers but legislature has enabled civil authorities with those powers as well. All major fiscal laws have provisions empowering the search and seizure. They all have one common drafting that we will make the heart of this write-up.

3. Before going into actual text of provisions, please try to interpret the term ‘So Far As May Be’. It is present in section 158BC(1)(b) or 153A(1)(a) or 43CA(2) or 139(4A) or 155(1) or 201(4). It is present in many more sections but effect of the term ‘So Far As May Be’ means to apply the reference to another provision unless main provision is contrary to that. In other words, apply it to the extent possible and not to exclude it.

4. For example in section 43CA, provisions similar to section 50C have been incorporated. However, subsection 2 to section 43CA provides that, provisions of Section 50C(2) & 50C(3) will be applied to give effect to Section 43CA so far as may be. 50C(2) enables the reference to valuation officer and 50C(3) enables a margin or limit of difference that can be condoned. It means reference to DVO is possible even when section 43CA is invoked and margin mentioned in 50C(3) is applicable to section 43CA as well. It can never mean the exclusion.

5. This analogy can be applied wherever the term ‘So Far As May Be’ has been used in the law. It enables the compliance to other provisions, it does not mean any exclusion of the provision unless expressly mentioned. It does not allow any exclusion by use of interpretational means for sure. This foundation is most important aspect of this write-up.

Bare Text of Section 132 of ITA 1961 provides as follows:

(1) Where the Principal Director General or Director General or Principal Director or 6. Director or the Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner or Additional Director or Additional Commissioner or Joint Director or Joint Commissioner in consequence of information in his possession, has reason to believe that—

1. any person to whom a summons under sub-section (1) of section 37 of the Indian Income-tax Act, 1922 (11 of 1922), or under sub-section (1) of section 131 of this Act, or a notice under sub-section

(4) of section 22 of the Indian Income-tax Act, 1922, or under sub-section (1) of section 142 of this Act was issued to produce, or cause to be produced, any books of account or other documents has omitted or failed to produce, or cause to be produced, such books of account or other documents as required by such summons or notice, or

1. any person to whom a summons or notice as aforesaid has been or might be issued will not, or would not, produce or cause to be produced, any books of account or other documents which will be useful for, or relevant to, any proceeding under the Indian Income-tax Act, 1922 (11 of 1922), or under this Act, or
2. any person is in possession of any money, bullion, jewellery or other valuable article or thing and such money, bullion, jewellery or other valuable article or thing represents either wholly or partly income or property which has not been, or would not be, disclosed for the purposes of the Indian Income-tax Act, 1922 (11 of 1922), or this Act (hereinafter in this section referred to as the undisclosed income or property),

then,—

1. the Principal Director General or Director General or Principal Director or Director or the Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner, as the case may be, may authorise any Additional Director or Additional Commissioner or Joint Director, Joint Commissioner, Assistant Director or Deputy Director, Assistant Commissioner or Deputy Commissioner or Income-tax Officer, or
2. such Additional Director or Additional Commissioner or Joint Director, or Joint Commissioner, as the case may be, may authorise any Assistant Director or Deputy Director, Assistant Commissioner or Deputy Commissioner or Income-tax Officer,

(the officer so authorised in all cases being hereinafter referred to as the authorised officer) to—

1. enter and search any building, place, vessel, vehicle or aircraft where he has reason to suspect that such books of account, other documents, money, bullion, jewellery or other valuable article or thing are kept;
2. break open the lock of any door, box, locker, safe, almirah or other receptacle for exercising the powers conferred by clause (i) where the keys thereof are not available;

(iia)  search any person who has got out of, or is about to get into, or is in, the building, place, vessel, vehicle or aircraft, if the authorised officer has reason to suspect that such person has secreted about his person any such books of account, other documents, money, bullion, jewellery or other valuable article or thing;

(iib)  require any person who is found to be in possession or control of any books of account or other documents maintained in the form of electronic record as defined in clause (t) of sub-section (1) of section 2 of the Information Technology Act, 2000 (21 of 2000), to afford the authorised officer the necessary facility to inspect such books of account or other documents;

1. seize any such books of account, other documents, money, bullion, jewellery or other valuable article or thing found as a result of such search:

Provided that bullion, jewellery or other valuable article or thing, being stock-in-trade of the business, found as a result of such search shall not be seized but the authorised officer shall make a note or inventory of such stock-in-trade of the business;

1. place marks of identification on any books of account or other documents or make or cause to be made extracts or copies therefrom;
2. make a note or an inventory of any such money, bullion, jewellery or other valuable article or thing :

Provided that where any building, place, vessel, vehicle or aircraft referred to in clause (i) is within the area of jurisdiction of any Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner, but such Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner has no jurisdiction over the person referred to in clause (a) or clause (b) or clause (c), then, notwithstanding anything contained in section 120, it shall be competent for him to exercise the powers under this sub-section in all cases where he has reason to believe that any delay in getting the authorisation from the Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner having jurisdiction over such person may be prejudicial to the interests of the revenue :

Provided further that where it is not possible or practicable to take physical possession of any valuable article or thing and remove it to a safe place due to its volume, weight or other physical characteristics or due to its being of a dangerous nature, the authorised officer may serve an order on the owner or the person who is in immediate possession or control thereof that he shall not remove, part with or otherwise deal with it, except with the previous permission of such authorised officer and such action of the authorised officer shall be deemed to be seizure of such valuable article or thing under clause (iii):

Provided also that nothing contained in the second proviso shall apply in case of any valuable article or thing, being stock-in-trade of the business:

Provided also that no authorisation shall be issued by the Additional Director or Additional Commissioner or Joint Director or Joint Commissioner on or after the 1st day of October, 2009 unless he has been empowered by the Board to do so.

Explanation.—For the removal of doubts, it is hereby declared that the reason to believe, as recorded by the income-tax authority under this sub-section, shall not be disclosed to any person or any authority or the Appellate Tribunal.

(1A) Where any Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner, in consequence of information in his possession, has reason to suspect that any books of account, other documents, money, bullion, jewellery or other valuable article or thing in respect of which an officer has been authorised by the Principal Director General or Director General or Principal Director or Director or any other Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner or Additional Director or Additional Commissioner or Joint Director or Joint Commissioner to take action under clauses (i) to (v) of sub-section (1) are or is kept in any building, place, vessel, vehicle or aircraft not mentioned in the authorisation under sub-section (1), such Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner may, notwithstanding anything contained in section, authorise the said officer to take action under any of the clauses aforesaid in respect of such building, place, vessel, vehicle or aircraft.

Explanation.—For the removal of doubts, it is hereby declared that the reason to suspect, as recorded by the income-tax authority under this sub-section, shall not be disclosed to any person or any authority or the Appellate Tribunal.

[(2) The authorised officer may requisition the services of,—

1. any police officer or of any officer of the Central Government, or of both; or

1. any person or entity as may be approved by the Principal Chief Commissioner or the Chief Commissioner or the Principal Director General or the Director General, in accordance with the procedure, as may be prescribed, in this regard,

to assist him for all or any of the purposes specified in sub-section

(1) or sub-section (1A) and it shall be the duty of every such officer or person or entity to comply with such requisition.]

1. The authorised officer may, where it is not practicable to seize any such books of account, other documents, money, bullion, jewellery or other valuable article or thing, for reasons other than those mentioned in the second proviso to sub-section (1), serve an order on the owner or the person who is in immediate possession or control thereof that he shall not remove, part with or otherwise deal with it except with the previous permission of such officer and such officer may take such steps as may be necessary for ensuring compliance with this sub-section.

Explanation.—For the removal of doubts, it is hereby declared that serving of an order as aforesaid under this sub-section shall not be deemed to be seizure of such books of account, other documents, money, bullion, jewellery or other valuable article or thing under clause (iii) of sub-section (1).

1. The authorised officer may, during the course of the search or seizure, examine on oath any person who is found to be in possession or control of any books of account, documents, money, bullion, jewellery or other valuable article or thing and any statement made by such person during such examination may thereafter be used in evidence in any proceeding under the Indian Income-tax Act, 1922 (11 of 1922), or under this Act.

Explanation.—For the removal of doubts, it is hereby declared that the examination of any person under this sub-section may be not merely in respect of any books of account, other documents or assets found as a result of the search, but also in respect of all matters relevant for the purposes of any investigation connected with any proceeding under the Indian Income-tax Act, 1922 (11 of 1922), or under this Act.

(4A) Where any books of account, other documents, money, bullion, jewellery or other valuable article or thing are or is found in the possession or control of any person in the course of a search, it may be presumed—

1. that such books of account, other documents, money, bullion, jewellery or other valuable article or thing belong or belongs to such person;
2. that the contents of such books of account and other documents are true; and
3. that the signature and every other part of such books of account and other documents which purport to be in the handwriting of any particular person or which may reasonably be assumed to have been signed by, or to be in the handwriting of, any particular person, are in that person's handwriting, and in the case of a document stamped, executed or attested, that it was duly stamped and executed or attested by the person by whom it purports to have been so executed or attested.
4. [***]
5. [***]
6. [***]
7. 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 month from the end of the quarter in which the order of assessment or reassessment or recomputation is made] under sub-section (3) of section 143 or section 144 or section 147 or section 153A or clause (c) of section 158BC unless the reasons for retaining the same are recorded by him in writing and the approval of the Principal Chief Commissioner or Chief Commissioner, Principal Commissioner or Commissioner, Principal Director General or Director General or Principal Director or Director for such retention is obtained :

Provided that the Principal Chief Commissioner or Chief Commissioner, Principal Commissioner or Commissioner, Principal Director General or Director General or Principal Director or Director 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 (11 of 1922), or this Act in respect of the years for which the books of account or other documents are relevant are completed.

(8A) An order under sub-section (3) shall not be in force for a period exceeding sixty days from the date of the order.

1. The person from whose custody any books of account or other documents are seized under sub-section (1) or sub-section (1A) may make copies thereof, or take extracts therefrom, in the presence of the authorised officer or any other person empowered by him in this behalf, at such place and time as the authorised officer may appoint in this behalf.

(9A) Where the authorised officer has no jurisdiction over the person referred to in clause (a) or clause (b) or clause (c) of sub-section (1), the books of account or other documents, or any money, bullion, jewellery or other valuable article or thing (hereafter in this section and in sections 132A and 132B referred to as the assets) seized under that sub-section shall be handed over by the authorised officer to the Assessing Officer having jurisdiction over such person within a period of sixty days from the date on which the last of the authorisations for search was executed and thereupon the powers exercisable by the authorised officer under sub-section (8) or sub-section (9) shall be exercisable by such Assessing Officer.

(9B) Where, during the course of the search or seizure or within a period of sixty days from the date on which the last of the authorisations for search was executed, the authorised officer, for reasons to be recorded in writing, is satisfied that for the purpose of protecting the interest of revenue, it is necessary so to do, he may with the previous approval of the Principal Director General or Director General or the Principal Director or Director, by order in writing, attach provisionally any property belonging to the assessee, and for the said purposes, the provisions of the Second Schedule shall, mutatis mutandis, apply.

(9C) Every provisional attachment made under sub-section (9B) shall cease to have effect after the expiry of a period of six months from the date of the order referred to in sub-section (9B).

[(9D) The authorised officer may, during the course of the search or seizure or within a period of sixty days from the date on which the last of the authorisations for search was executed, make a reference to,—

1. a Valuation Officer referred to in section 142A; or
2. any other person or entity or any valuer registered by or under any law for the time being in force, as may be approved by the Principal Chief Commissioner or the Chief Commissioner or the Principal Director General or the Director General, in accordance with the procedure, as may be prescribed, in this regard,

who shall estimate the fair market value of the property in the manner as may be prescribed, and submit a report of the estimate to the authorised officer or the Assessing Officer, as the case may be, within a period of sixty days from the date of receipt of such reference.]

1. If a person legally entitled to the books of account or other documents seized under sub-section (1) or sub-section (1A) objects for any reason to the approval given by the Principal Chief Commissioner or Chief Commissioner, Principal Commissioner or Commissioner, Principal Director General or Director General or Principal Director or Director under sub-section (8), he may make an application to the Board stating therein the reasons for such objection and requesting for the return of the books of account or other documents and the Board may, after giving the applicant an opportunity of being heard, pass such orders as it thinks fit.
2. [***]

(11A) [***]

1. [***]
2. The provisions of the Code of Criminal Procedure, 1973 (2 of 1974), relating to searches and seizure shall apply, so far as may be, to searches and seizure under sub-section (1) or sub-section (1A).
3. The Board may make rules in relation to any search or seizure under this section ; in particular, and without prejudice to the generality of the foregoing power, such rules may provide for the procedure to be followed by the authorised officer—
   1. for obtaining ingress into any building, place, vessel, vehicle or aircraft to be searched where free ingress thereto is not available

;

1. for ensuring safe custody of any books of account or other documents or assets seized.

[Explanation 1.—For the purposes of sub-sections (9A), (9B) and (9D), the last of [authorisations] for search shall be deemed to have been executed,—

1. in the case of search, on the conclusion of search as recorded in the last panchnama drawn in relation to any person in whose case the warrant of authorisation has been issued; or
2. in the case of requisition under section 132A, on the actual receipt of the books of account or other documents or assets by the authorised officer.]

Explanation 2.—In this section, the word "proceeding" means any proceeding in respect of any year, whether under the Indian Income-tax Act, 1922 (11 of 1922), or this Act, which may be pending on the date on which a search is authorised under this section or which may have been completed on or before such date and includes also all proceedings under this Act which may be commenced after such date in respect of any year.

1. Provisions of Section 247 of ITA 2025 are pari materia and it can be reasonably assumed that legal precedence applicable to Section 132 of ITA 1961 will be applied to Section 247 of ITA 2025 as well.
2. Section 132 (13) provides that the provisions of the Code of Criminal Procedure, 1973 (2 of 1974), relating to searches and seizure shall apply, so far as may be, to searches and seizure under sub-section
3. or sub-section (1A).
5. Section 247(10) of ITA 2025 provides that The provisions of the Bharatiya Nagarik Suraksha Sanhita, 2023 (46 of 2023) relating to searches and seizure shall apply, so far as may be, to search and seizure under this section.
6. It means prior till 31st March 2026 while invoking the powers under section 132 of ITA 1961 and from 1st April 2026, while invoking the powers under section 247 of ITA 2025, income tax authorities are required to follow the mandate of the provisions in Code of Criminal Procedure or Bharatiya Nagarik Suraksha Sanhita, 2023 related to search and seizure as the case may be.
7. In other words, to conduct the search u/s 132, specified authority (or competent authority in ITA 25) has to comply with provisions of section 132(13) (or 247(10) of ITA 25). It means if this compliance is not made, it can be argued that action of search is ultra vires the provisions of 132(13) of Income Tax Act 1961.
8. Both the provisions contain the wording ‘shall’ and not ‘may’, it means they are mandatory and not directory. In any case, they are the safeguards against the violation of various fundamental rights and are part of due process. They cannot be read down or cannot be made optional and certainly not at the instance of state. This aspect on constitutional grounds is discussed in later paragraphs as well.
9. With effect from 1st July 2024, BNSS came in effect and replaced Cr.PC. Consequently, Ministry of Law, Union Government issued the notification 2790(E), F No. 13/12/2024-Leg I, dated 16th July 2024, under General Clauses Act 1897. It stipulated that where any reference is made to Code of Criminal Procedure 1873 in any act made by parliament or any act made by state legislature, ordinance, regulations, presidential order, such reference shall be read as reference of Bharatiya Nagarik Suraksha Samhita 2023 and corresponding provisions of such law shall be construed accordingly.
10. Even without such notification, successor law would have been read into other laws by doctrine of substitution but notification has effect of reinforcement, especially against the revenue.

In short, after 1st July 2024, in section 132(13) of ITA 1961, BNSS has to be read in.

1. Section 105 of BNSS provides as follows “The process of conducting search of a place or taking possession of any property, article or thing under this Chapter or under section 185, including preparation of the list of all things seized in the course of such search and seizure and signing of such list by witnesses, shall be recorded through any audio-video electronic means preferably mobile phone and the police officer shall without delay forward such recording to the District Magistrate, Sub-divisional Magistrate or Judicial Magistrate of the first class”.
2. Provision is clear on its own. There is no scope for any ambiguity or interpretational adjustment. It can only mean the authorised officers that are conducting the search are bound by law to record the entire process. There is no escape from it.
3. If this provision is not followed, it can be said that adherence to BNSS has not been made & thereby provisions of section 132(13) of ITA 1961 or 247(10) of ITA 2025 have not been followed.
4. This makes the search ultra vires the income tax act. Once the search is ultra vires the law, subsequent proceedings like notice u/s 148 for reassessments or the same u/s 158BC for block assessments have no standing.
5. In addition to this, various presumptions u/s 132(4A) as well as 292C shall cease to be operational. Statements recorded u/s 132(4) will have no sanctity.
6. However, incriminating material cannot be excluded from evidentiary value and they can be used for issuing reassessment notices as Indian Evidence Act as well as Bharatiya Sakshya Adhiniyam do not exclude any evidence on grounds of due process. We have only relevancy test and not fruits of poisonous tree test.
7. If there is no video recording made during the search after 1st July 2024, this issue can be raised by way of raising ground or additional ground at appellate stage to question the validity of initiating notices as well as assessments.

1. Most effective remedy would be to file a writ petition under article 32 or at least article 226. As non-adherence of BNSS means compliance under the ITA itself is vitiated and search becomes an unreasonable violation of various fundamental rights. Action of search cannot be reversed but judicial declaration as to search being violative of ITA itself is enough to get various notices, assessments and penalties annulled.
2. Validity of these powers on constitutional grounds have been examined in the context of Income Tax Act by Hon. Apex Court in past in case of Pooran Mal [TS-5059-SC-1973-O].
3. Search and seizure actions have been under question even before than Pooran Mal case. In case of [TS-5031-SC-1969-O], Seth Brothers,

Hon. Apex Court held that since, by the exercise of the power a serious invasion is made upon the rights, privacy and freedom of the taxpayer, the power must be exercised strictly in accordance with the law and only for the purposes for which the law authorizes it to be exercised. If the action of the officer issuing the authorization or of the designated officer is challenged, the officer concerned must satisfy the court about the regularity of his action. If the action is maliciously taken or power under the section is exercised for a collateral purpose, it is liable to be struck down by the court. If the conditions for exercise of the power are not satisfied the proceeding is liable to be quashed. But where power is exercised bona fide, and in furtherance of the statutory duties of the tax officers any error of judgment on the part of the officers will not vitiate the exercise of the power. Where the Commissioner entertains the requisite belief and for reasons recorded by him authorises a designated officer to enter and search premises for books of account and documents relevant to or useful for any proceeding under the Act, the court in a petition by an aggrieved person cannot be asked to substitute its own opinion whether an order authorising search should have been issued. Again, any irregularity in the course of entry, search and seizure committed by the officer acting in pursuance of the authorisation will not be sufficient to vitiate the action taken, provided the officer has in executing the authorisation acted bona fide.

1. In HL Sibal case [TS-5345-HC-1975(Punjab & Haryana)-O] Hon. Punjab & Haryana High Court held as follows:

Because of the applicability of section 165, Criminal Procedure Code, to the searches and seizures by virtue of sub-section (13) of section

132 of the Act, the taxpayer has been provided with important safeguards against arbitrary action.

These safeguards, according to the observations made by their Lordships of the Supreme Court in Commissioner of Commercial Taxes v. Ramkishan Shrikishan Jhaver [TS-5061-SC-1967-O], are:

"(i)The empowered officer must have reasonable grounds for believing that anything necessary for the purpose of recovery of tax may be found in any place within his jurisdiction,

1. He must be of the opinion that such thing cannot be otherwise got without undue delay,
2. He must record in writing the grounds of his belief, and
3. He must specify in such writing so far as possible the thing for which search is to be made. After he has done these things, he can make the search. These safeguards, which in our opinion apply to searches under sub-section (2), also clearly show that the power to search under sub-section (2) is not arbitrary."

Even if the above matters are not expressly mentioned in section 132(1) of the Act, they have assumed statutory character by the force of-sub-section (13) of the same section. The important words of section 165, Code of Criminal Procedure, are "such officer may after recording in writing the grounds of his belief and specifying in such writing so far as possible the thing for which search is to be made". Consequently, it cannot be argued with any justification that the statute does not require the Commissioner of Income-tax to record his grounds of the requisite belief. It is needless to point out that section 165, Code of Criminal Procedure, does not authorise a general search on the off chance that something might be found. See in this connection Divakar Singh v. A. Ramamurthi Naidu AIR 1919 Mad 751. and Paresh Chandra Sen Gupta v. Jogendra Nath Roy Chowdhury AIR 1927 Cal 93.

1. It was further observed that the measure would be objectionable if its implementation is not accompanied by safeguards against its undue and improper exercise. In case the safeguards were

on the lines adopted by the Criminal Procedure Code, they were to be regarded as adequate.

When the revenue defends the validity of a taxing statute on the basis of the safeguards accepted as adequate by the highest court of the land, then it is bound to provide all these safeguards in their letter and spirit to those against whom action is taken under that statute. Any departure from this principle would be regarded as fraudulent exercise of power by the revenue for, nobody, including the revenue, can be allowed to approbate and reprobate or to take different stands about the interpretation of a statute according to the exigencies of the occasion.

1. In Pooran Mal v. Director of Inspection (Investigation) Income-tax, New Delhi [TS-5059-SC-1973-O] while repelling the attack against the constitutional validity of section 132 of the Act, the court observed as under:

"We are, therefore, to see what are the inbuilt safeguards in section 132 of the Income-tax Act. In the first place, it must be noted that the power to order search and seizure is vested in the highest officers of the department. Secondly, the exercise of this power can only follow a reasonable belief entertained by such officer that any of the three conditions mentioned in section 132(1)(a), (b) and (c ) exists. In this connection it may be further pointed out that under sub-rule

1. of rule 112, the Director of Inspection or the Commissioner, as the case may be, has to record his reasons before the authorisation is issued to the officers mentioned in sub-section (1). Thirdly, the authorisation for the search cannot be in favour of any officer below the rank of an Income-tax Officer. Fourthly, the authorisation is for specific purposes enumerated in (i) to (v ) in sub-section (1), all of which are strictly limited to the object of the search. Fifthly, when money, bullion, etc., is seized the Income-tax Officer is to make a summary enquiry with a view to determine how much of what is seized will be retained by him to cover the estimated tax liability and how much will have to be returned forthwith. The object of the enquiry under sub-section (5) is to reduce the inconvenience to the assessee as much as possible so that within a reasonable time what is estimated due to the Government may be retained and what should be returned to the assessee may be immediately returned to him. Even with regard to the books of account and documents seized, their return is guaranteed after a reasonable time. In the meantime the person from whose custody they are seized is permitted to make copies and take extracts. Sixthly, where money, bullion, etc., is seized, it can also be immediately returned to the person concerned after he makes appropriate provision for the payment of the estimated tax dues under sub-section (5), and, lastly, and this is most important, the provisions of the Criminal Procedure Code relating to search and seizure apply, as far as they may be, to all searches and seizures under section 132. Rule 112 provides for the actual search and seizure being made after observing normal decencies of behaviour. The person in charge of the premises searched is immediately given a copy of the list of articles seized. One copy is forwarded to the authorising officer. Provision for the safe custody of the articles after seizure is also made in rule 112. In our opinion, the safeguards are adequate to render the provisions of search and seizure as less onerous and restrictive as is possible under the circumstances. The provisions, therefore, relating to search and seizure in section 132 and rule 112 cannot be regarded as violative of article 19(1)(f) and (g)."

1. In 2016, Hon. Apex Court held in Spacewood [TS-266-SC-2015-O]

Para 5, The "classical" notion of the extent of power that the High Court would have in the exercise of its writ jurisdiction to cause such interference is formulated in ITO v. Seth Bros. [TS-5031-SC-1969-O] and Pooran Mal v. Director of Inspection [TS-5059-SC-1973-O] The parameters of permissible interference as laid down in the aforesaid two decisions have stood the test of time and continue to hold the field even today. We may, therefore, advert to Seth Brothers case (supra) in the first instance.

Para 6, If the conditions for exercise of the power are not satisfied the proceeding is liable to be quashed.

1. In the context of Legal Metrology Act, where provisions relating to search are pari materia & mandate to follow CRPC is present, Hon. Apex Court (HMJ R Mahadevan) in case of ITC vs State 2025 INSC 1111 quashed the search for non-adherence to the provisions of CRPC. When state argued that no prejudice has been caused, in Para 21, Hon. Court has made clear that it is settled law that where the initial proceedings are vitiated, all subsequent proceedings are unsustainable. Any act in violation of law cannot be brushed aside on the ground that no prejudice was caused; every violation of law is deemed to cause some prejudice.
2. Following is text of Legal Metrology Act

1. In substance, these provisions are identical and ratio of judgment must apply to every other law.
2. In State of Rajasthan v. Rehman AIR 1960 SC 210, the question that arose for consideration was whether the provisions of Section 165 Cr.P.C could be invoked in respect of a search conducted by an Excise Officer under the Central Excise and Salt Act, 1944. The search in that case had been effected without recording reasons as mandated under Section 165 Cr.P.C. The Court (J Subba Rao) observed that Section 18 of the Act expressly stipulated that searches under the Act shall be carried out in accordance with the provisions of the Cr.P.C. Consequently, it was held that Section 165 Cr.P.C was squarely attracted and that the search, having been conducted in violation of the said requirement, was illegal.
3. By now, one must get reasonably convinced that strict compliance to Section 132(13) is mandatory and there is considerable merit in that. However, when challenged at Tribunal or High Court or Supreme Court level, state is likely to play on the nature of wordings ‘so far as may be’. They will try to get away with violation by arguing that it enables them to not follow BNSS in substance.
4. We have already seen how such interpretation could affect in other sections. Additionally, Hon. Supreme Court has in case of Shesh Nath Singh vs Baidyabati AIR 2021 SC 2637, held in Para 94 as follows, The use of words ‘as far as may be’, occurring in Section 238A of the IBC tones down the rigour of the words ‘shall’ in the aforesaid Section which is normally considered as mandatory. The expression ‘as far as may be’ is indicative of the fact that all or any of the provisions of the Limitation Act may not apply to proceedings before the Adjudicating Authority (NCLT) or the Appellate authority (NCLAT) if they are patently inconsistent with some provisions of the IBC. At the same time, the words ‘as far as may be’ cannot be construed as a total exclusion of the requirements of the basic principles of Section 14 of the Limitation Act, but permits a wider, more liberal, contextual and purposive interpretation by necessary modification, which is in harmony with the principles of the said Section.

Since, 132(13) mandates the adherence to CRPC & BNSS, it cannot be excluded when it suits to state to shield violation of law especially against fundamental rights. At least a justifiable & justiciable reasons for non-adherence must be given.

1. This has been explained by Hon. Apex Court in case of Blue Moon [TS-113-SC-2010-O], Para 15 The expression "so far as may be" has always been construed to mean that those provisions may be generally followed to the extent possible. Para 16 The case of the revenue is that the expression `so far as may be apply' indicates that it is not expected to follow the provisions of Section 142, sub-sections 2 and 3 of Section 143 strictly for the purpose of Block assessments. We do not agree with the submissions of the learned counsel for the revenue, since we do not see any reason to restrict the scope and meaning of the expression `so far as may be apply'. In our view, where the assessing officer in repudiation of the return filed under Section 158 BC(a) proceeds to make an enquiry, he has necessarily to follow the provisions of Section 142, sub-sections (2) and (3) of Section 143.
2. It is possible that state might urge Hon. Courts to use extraordinary powers under article 142 or article 226 to condone but people should argue that it would mean violation of due process, violation of fundamental rights, lack of accountability and reading down the law at the instance of state that cannot be allowed.
3. Provisions of section 105 of BNSS have been recently examined in the context of NDPS Act. Section 51 of NDPS Act is pari materia. Hon. Delhi High Court in case of Bantu vs State 2024:DHC:5006 (Bail Application 2287/ 2022) has held as follows: Para 80, An important aspect however, which cannot be ignored is that the Hon’ble Apex Court in those cases was concerned with the incident relating to the period when, admittedly, there was not much advancement in technology. The Hon’ble Apex Court in the year 2018 in Shafhi Mohammad v. State of H.P. (supra), taking note of the technological advancement, had passed certain directions. The present case relates to the allegation of recovery in the year 2019. The State, at that stage, was aware of the opinion of the Hon’ble Apex Court, emphasizing the role of audio-visual technology in enhancing, both on the efficacy and transparency in the police investigations. Para 81, Realizing the need of changing time, the legislature has now passed the Bharatiya Nagarik Suraksha Sanhita (‘BNSS’). The practice of photography and videography has now been made mandatory. Even though it is contended that, at the relevant time, the same was not mandatory, it cannot be denied that the Courts have, time and again, discarded the prosecution’s story and had emphasized on the importance of independent witnesses and additional evidence in the form of audiography and videography when the same can easily be obtained due to advancement of technology. Para 82, This legislative enhancement is designed to ensure a more transparent and accountable approach in investigation. BNSS, with its comprehensive emphasis on technological integration, heralds a transformative era in criminal justice, promoting a system that is not only transparent and accountable but also fundamentally aligned with the principles of fairness and justice. Para 83, Photography and videography are universally accepted as the best practices for better erudition and appreciation of the evidence. The same ensures that the prosecution is able to better document the recovery during the investigation. BNSS stipulates that the proceedings of search and seizure shall be recorded through any audio – video means preferably through a mobile phone. As noted above, these days mobile phones are handy with almost everyone especially, in a metropolitan city like Delhi. Para 84, It is not the case of the prosecution that the police team were not carrying any instrument (mobile phone) at the time of raid. The same even though, is not fatal to the case of the prosecution, however, at this stage, the benefit cannot be denied to the accused. Para 85, This Court has come across a number of cases where the investigating authority has in fact done photography and videography of the recovery. It is peculiar that the investigating authorities, understanding the importance of such additional evidence, makes efforts to belie allegations of false implication and endorse the recovery of contraband by photography and videography in some cases, but fails to undertake any steps to do the same in other cases.

Para 86, Even if the explanation tendered by the prosecution for non-joinder of independent witnesses is to be believed, it is more peculiar that despite the same, evidently, no effort to photograph or videotape the recovery has been made by the prosecution in the present case to endorse the credibility of the recovery.

1. It is also possible that state might argue that assessee by cooperating and not objecting during the search operation has waived its right to object the search at a later stage, thereby creating an estoppel.
2. However, this aspect too has been settled by Hon. Apex Court in case of Mr P Firm Muar [TS-1-SC-1964-O], Hon. Court writes, The doctrine of "approbate and reprobate" is only a species of estoppel; it applies only to the conduct of parties. As in the case of estoppel, it cannot operate against the provisions of a statute. If a particular income is not taxable under the Income-tax Act, it cannot be taxed on the basis of estoppel or any other equitable doctrine. Equity is out of place in tax law; a particular income is either exigible to tax under the taxing statute or it is not. If it is not, the Income-tax Officer has no power to impose tax on the said income.
3. As we all know, The doctrine of approbate and reprobate is based on the maxim ‘quod approbo non reprobo’ which translates to 'that which I approve, I cannot disapprove' or it can also be inferred as ‘one cannot eat a cake and have it too’. It is a doctrine based on equity and is sharply related to the doctrine of election. The word "approbation" denotes an official acknowledgment or acceptance of any document or instrument, while the word "reprobation" denotes a firm rejection of the same. The foundation of the notion of election is the idea that an individual cannot simultaneously approbate and reprobate under the law. The doctrine of election points out that parties under litigation cannot accept and reject the same transaction at the same time, and that no one may claim the benefit of a transaction at one point by declaring it to be valid and so entitled, and later declare it void in order to gain another advantage. It is based on the premise that the individual who benefits from an instrument must also pay its burden. Election is the obligation to choose between two rights that conflict or are alternative when the grantor specifically wants the grantee to not have both.

1. However, in case of Chhaganlal Keshavlal Mehta vs Patel Narandas Haribhai 1 SCC 223, 1982 AIR 121, Hon. Apex Court has held that (i)There must have been a representation by a person to another person, which may be in any form - a declaration or an act or an omission. (ii)Such representation must have been of the existence of a fact, and not of future promises or intention. (iii)The representation must have been meant to have been relied upon. (iv)There must have been belief on the part of the other party in its truth. (v)There must have been some action on the faith of that declaration, act or omission. In other words, such declaration, etc., must have actually caused the other person to act on the faith of it and to alter his position to his prejudice or detriment. (vi)The misrepresentation or conduct or omission must have been the proximate cause of leading the other party to act to his prejudice. (vii)The person claiming the benefit of an estoppel must show that he was not aware of the true state of things. There can be no estoppel if such a person was aware of the true state of affairs or if he had means of such knowledge. (viii)Only the person to whom the representation was made or for whom it was designed, can avail of the doctrine. The burden of proving estoppel lies on such person.
2. It is also possible that state might argue that such interpretation will lead to absurd results and tax evaders will go scot free and huge public revenue will be sunk. However, this aspect too has been explained by Hon. Apex Court in case of Orissa State Warehousing vs CIT [TS-5038-SC-1999-O], Para 33, Let us however at this juncture consider some of the oft cited decisions pertaining to the interpretation of fiscal statutes being the focal point of consideration in these appeals. Lord Halsbury as early as 1901, in Cooke v. Charles

1. Vogehar Co. 1901 A.C. 102 stated the law in the manner following

: "a court of law, has nothing to do with the reasonableness or unreasonableness of a provision of a statute except so far as it may held it in interpreting what the Legislature has said. If the language of a statute be plain, admitting of only one meaning, the Legislature must be taken to have meant and intended what it has plainly expressed, and whatever it has in clear terms enacted must be enforced though it should lead to absurd or mischievous results. If the language of this sub-section be not controlled by some of the other provisions of the statute, it must, since, its language is plain and unambiguous, be enforced, and your Lordships' House sitting judicially is not concerned with the question whether the policy it embodies is wise and unwise, or whether it leads to consequences just or unjust, beneficial or mischievous." 34. The oft-quoted observations of Rowlatt, J. in the case of Cape Brandy Syndicate v. Inland Revenue Commissioners 1921 (1) KB 64 ought also to be noticed at this juncture. The learned Judge observed: "In a taxing statute one has to look at what is clearly said. There is no equity about a tax. There is no intendment. There is no presumption as to a tax. Nothing is to be read in, nothing is to be implied. One can only look fairly on the language used." 35. The observations of Rowlatt, J. as above stand accepted and approved by the House of Lords in a later decision, in the case of Canadian Eagle Oil Co. Ltd. v. The King 1946 AC 119. Lord Thankerton also in a manner similar in England Revenue Commissioner v. Ross & Coulter [Bladnoch Distillery Co. Ltd. [1948] 1 AE LR 616 observed : "That if the meaning of the provision is reasonably clear, the courts have no jurisdiction to mitigate any harshness in the event the word 'penor' is to be read having an in built meaning of harshness. The English Courts as a matter of fact has been consistent in their approach that consideration of hardship, injustice or absurdity pertaining to an interpretation ought to be had with utmost care and caution." 36. The decision of this Court in Keshavji Raviji & Co. v. CIT AIR 1991 SC 1806 also lends concurrence to the views expressed above. This Court observed : "As long as there is no ambiguity in the statutory language resort to any interpretative process to unfold the legislative intent becomes impermissible. The supposed intention of the legislation cannot then appealed to whittle down the statutory language which is otherwise unambiguous. If the intendment is not in the words used it is nowhere else. The need for interpretation arises when the words used in the statute are, on their terms, ambivalent and do not manifest the intent of the Legislature.

. . . Artificial and unduly latitudinarian rules of construction which, with their general tendency to 'give the taxpayer the breaks' are out of place where the legislation has a fiscal mission." 37. Be it noted that individual cases of hardship and injustice do not and cannot have any bearing for rejecting the natural construction by attributing normal meanings to the words used since 'hard cases do not make bad laws'. 38. In fine thus, a fiscal statute shall have to be interpreted on the basis of the language used therein and not de hors the same. No words ought to be added and only the language used ought to be considered so as to ascertain the proper meaning and intent of the legislation. The Court is to ascribe natural and ordinary meaning to the words used by the Legislature and the Court ought not, under any circumstances, to substitute its own impression and ideas in place of the legislative intent as is available from a plain reading of the statutory provisions.

1. In the era after Puttaswamy case, where right to privacy has been held as part of liberty under article 21, provisions of search must be construed in strictest possible way. BNSS has made the reform to ensure accountability from authorities. It must be made effective. It is true that ultimately assessee may not be able to get video footage of his search as investigating agencies are kept out of RTI Act, but at least he can urge the court and tribunal to give a judicial finding as to existence of such recording and that will lead to challenge to notices and assessments that arise out of search, if not search itself.