FEDERATION OF PAKISTAN through Secretary, Ministry of Finance, Federal

' ABDUL HAMEED DOGAR, J.---Petitioner seeks leave to appeal against the order, dated 31-1-2001 passed by a learned Division Bench of the High Court of Sindh, Karachi, whereby Constitutional Petition No, D-1926 of 2000 filed by the respondent was allowed.

2. Facts leading to the filing of the instant petition are that respondent-company incorporated under the Companies Ordinance, 1984, was engaged, inter alia, in the business of polyurethane foam products since 1963 in the name of "Master Moldy Foam" registered as a manufacturer-cum- importer. Petitioners Nos.3 to 5 regularly conducted monthly, quarterly and yearly audits of the respondent-company. By notice, dated 9-8-1999, the respondent-company was informed that audit for the period 1998-99 would be conducted on 23-8-1999 which was conducted by the above mentioned petitioners whereby the respondent was required to deposit a sum of Rs,214,508 with the Sales Tax Department which was deposited. On 2-8-2000, the respondent was served with a notice purportedly issued under section 38 of the Sales Tax Act, 1990 (hereinafter referred to as 'the Act'), whereby it was informed that a team of Headquarters Intelligence, Sales Tax and Central Excise had been nominated to scrutinize the prescribed Sales Tax record being maintained by the respondent for the last five years. By the said notice, the respondent was required to produce the record before the aforesaid team. It was on 2-8-2000, the nominated team of the petitioners conducted a raid on the respondent's premises, inspected the record, stock books accounts and diskettes relating to the period of five years and seized the originals without preparing an inventory on the premises and giving copy thereof. The respondent challenged the above action of the petitioners in the above mentioned Constitutional petition urging therein that the above said notice being illegal on the face of it and without lawful authority be quashed and the raid conducted by the petitioners be declared to be without lawful authority and also that the documents seized from the company premises be returned.

3. We have heard Mr. Akhlaq Ahmed Siddiqui, learned Advocateon-Record for the petitioners and Mr. Abid S. Zuberi, learned Advocate Supreme Court for the respondent at length and have gone through the record in minute particulars.

4. Mr. Akhlaq Ahmad Siddiqui, learned, Advocate Supreme Court for the petitioner seriously attacked the impugned order and stated that the action taken by the petitioner-department was quite in accordance with law. According to him, since the respondent had indulged in the evasion of the Sales Tax, the petitioners were justified in issuing notice under section 38 of the Act and did not commit any illegality by conducting the raid under sections 40 and 40-A of. The Act whereby they were authorized to have free access to the business and manufacturing premises and rightly seized the documents.

5. On the other hand, Mr. Abid S. Zuberi, learned, Advocate Supreme Court for the respondent vehemently controverted the above contentions and argued that the respondent had never indulged in the evasion of the tax but on the contrary, the audit of the record of the company was conducted by the petitioners and no fraud or fault was ever noticed. As per notice under section 38 of the Act, a team was constituted to scrutinize the record only and was not authorized to raid and seize the record, as such, it has travelled beyond its scope which is in clear violation of the law. He further contended that neither the search was made under provisions of sections 40 and 40-A of the Act nor any memorandum of seizure of the documents was ever prepared, therefore, the entire action is without lawful authority. He supported the impugned judgment and stressed that it being in accordance with law is not open to any exception.

6. We are in full agreement with the contentions raised at the bar by the learned counsel for the respondent. Admittedly, the provisions of sections 40 and 40-A of the Act have not been complied with by the petitioners while conducting raid and seizing the documents. It is expressly stipulated in the above provisions that all searches made under Act or the Rules shall be carried out in accordance with the provisions of the Code of Criminal Procedure, 1898 (Act V of 1898) (hereinafter referred to as the Code'). Procedure regarding search has been laid down in sections 96, 98, 99-A and 100 of the Code whereby, firstly, a search warrant is to be obtained from the Illaqa Magistrate when search of the premises is to be made. In view of section 103 of the Code, it is mandatory to join two or more respectable inhabitants of the locality in B which the place to be searched is situated to attend and witness the search and a list of all articles taken into possession shall be prepared and a copy thereof shall be delivered there and then. Though repeatedly called upon learned counsel for the petitioners failed to show from record that the above provisions of law were strictly followed while seizing the record and sealing the premises of the respondent-company. As such, we do not find any cogent reason to interfere with the impugned judgment which is unexceptionable.

7. Resultantly, the petition being devoid of any force is dismissed and leave to appeal refused.