Bombay High Court has said sealing of a premises by the Customs department when it does not have explicit power to do so amounts to drastic action, which results in tinkering with substantive rights of a person to hold, use and occupy an immovable property.
A division bench of Justices G S Kulkarni and Jitendra Jain in the order passed on Tuesday said it was of the opinion that the power to search cannot mean a power to seal and directed the Customs authorities to unseal the Navi Mumbai premises of a company.
The order was passed on a plea filed by Narayan Power Solutions, through advocate Sujay Kantawala, seeking to unseal their office premises in Navi Mumbai. Kantawala had argued the Customs department does not have the authority and jurisdiction to seal premises under provisions of the Customs Act.
The court said, A power to seal the premises is a drastic power. In our opinion, such powers cannot be exercised unless the same is expressly conferred by law. The Customs authorities would not have an explicit power under section 105 of the Customs Act to seal the premises, it said.
It results in tinkering with substantive rights of a person to hold, use and occupy any immovable property. The property may be used for the business purposes or otherwise, hence, any action to seal the premises would have a direct bearing and effect on legal rights of the person to use and occupy the premises as guaranteed by Article 300A of the Constitution, the HC said.
HC bench, however, said the Customs authorities had straightaway resorted to take a drastic action against the company. The court said since the company has said it was willing to cooperate with the investigation, the Customs authorities need to unseal the office premises forthwith and can undertake search of the same.