The Supreme Court on Tuesday highlighted the
practical difficulties faced by investigators in the digital age and said
giving a prior notice before a search and seizure could effectively end an
investigation before it begins.
The top court was hearing a PIL challenging the
scope of search and seizure powers under Section 132 of the Income Tax Act on
the ground that it has the potential of misuse by the authorities.
Section 132 of the Income Tax Act empowers IT
officials to conduct a search and seizure when they have "reason to
believe" that a person has undisclosed income, assets, or documents.
A bench comprising Chief Justice Surya Kant and
Justices Joymalya Bagchi and N V Anjaria heard submissions by senior advocate
Sanjay Hegde, appearing for PIL petitioner Vishwaprasad Alva, for some time and
later deferred it for consideration after two weeks.
During the hearing, Justice Bagchi highlighted the
practical challenges of issuing prior notice in search and seizure cases,
particularly in the digital era.
Justice Bagchi said giving advance notice could
defeat the very purpose of an investigation, as electronic evidence can be
easily destroyed.
"If notice is given for search and seizure,
there is a potential for destroying the evidence. The best way to snub out such
an investigation against the digital record is to destroy the device
itself," he said.
Hegde said the impugned provision provides excessive
power in the hands of tax authorities and exposes not only the alleged tax
evader but also third parties to coercive action.
"Suppose you go after the lawyer, then you go
after the clerk's phone. Please see, it is not only the evading assessee who is
at risk. Anybody in contact is at risk, and the power is kept with the Joint
Commissioner," the senior lawyer said.
The CJI said the statutory powers were neither
uncontrolled nor unbridled.
"This is not an uncontrolled or unwieldy power.
Your concerns will go," the CJI said.