TMI Blog1972 (7) TMI 17X X X X Extracts X X X X X X X X Extracts X X X X ..... one and the same case. The criminal revision petition is by the Income-tax Officer (Assessment) IV, Calicut, and the criminal miscellaneous petition is by the 1st respondent in the said criminal revision petition. The criminal revision is stated to be under sections 435 and 439 of the Code of Criminal Procedure and the Crl. M. P. is under sections 561A and 439 of the Code of Criminal Procedure. For the purpose of discussion, I am referring to parties as arrayed in the criminal revision petition. The facts leading to these proceedings in this court may briefly be stated as follows : At about 1 a.m. on December 24, 1970, the pulice on patrol duty in certain part of Calicut saw the 2nd respondent walking along the road with a bag. The police on suspicion stopped and searched him, and found that the bag with him contained Indian currency notes of 100 rupee denomination which in the aggregate came to Rs. 1,00,000. He was arrested under sections 54 and 550 of the Code of Criminal Procedure and was produced before the Sub-Magistrate-I, Kozhikode. The learned Sub-Magigtrate remanded the accused and sent the currency notes to the Treasury for safe custody. The police had reported that at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o. 54/1971, and allowed the petition in C.M.P. No. 65/1970. In doing so, the learned Magistrate accepted the version of the 2nd respondent that he was only a servant under the 1st respondent and that he was carrying the amount in question for payment to the 1st respondent's office at Kalpetta. Aggrieved by the order passed by the learned Sub-Magistrate in M.C. No. 45/1970, both the revision-petitioner herein as well as the Income-tax Officer (Recovery), filed revisions before the District Magistrate, Calicut, in Crl. Revisions Petitions Nos. 1/1972 and 2/1972 respectively. The learned District Magistrate after hearing the parties came to the conclusion that no case was made out for reference to the High Court under section 438 of the Code of Criminal Procedure, confirmed the order passed by the learned Sub-Magistrate, and dismissed the criminal revision petitions. The criminal revision petition under consideration is against the order of the learned District Magistrate in Crl. R.P. No. 1/1972. After the disposal of Crl. R.Ps. Nos. 1 and 2 of 1972 by the District Magistrate, the 1st respondent herein filed a petition, C.M.P. No. 529/1972 on the file of the Sub-Magistrate for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... believe the second respondent who gave inconsistent versions to the police and in court as to to whom the money actually belonged, and the destination he had in view. It is also strange that the police should have taken nearly 11 months for submitting the final report in this crime. Whatever that may be, the primary question the court has now to consider is whether the petitioner is competent to claim the amount in court deposit to be made over to him. The contention of the petitioner is that the amount seized represents wholly or partly property or income which had not been disclosed for the purposes of the Income-tax Act. The petition is filed under section 132 of the Income-tax Act, 1961. The learned counsel appearing for the revision petitioner has made his submissions in extenso on the facts of the case, and has also cited certain decisions in support of his contentions. According to the learned counsel the provisions contained in section 132(1)(iii) of the Income-tax Act, 1961, would enable the petitioner to seize the amount from the second respondent, and, therefore, the appropriate order that should have been passed by the learned Magistrate under section 523, Criminal P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r v. State of Maharashtra. In that case the Supreme Court had to consider whether the service of an order of detention on the appellants, when they were already in detention in pursuance of a prior order was valid in law. The appellants before the Supreme Court were detained by an order of the Government of Maharashtra dated November 7, 1962, purported to be in exercise of the powers conferred under the provisions of the Preventive Detention Act, 1950. This order was revoked by an order dated November 10, 1962, and on the same day another order for detention of the appellants was made under rule 30 of the Defence of India Rules, 1962. The argument was that when the appellants were in custody, the second order of detention could not have been served on them. Rejecting the contentions of the appellants, the Supreme Court held as follows : " In the circumstances it would be, in our opinion, an empty formality to allow the appellants to go out of jail on revocation of the order of November 7, and to serve them with the order dated November 10, 1962, as soon as they were out of jail." . Bavajee Fakkir Mohammed v. State of Kerala In that case a person was arrested by the police when ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 27, 1966, having found him in suspicious circumstances with a filled cloth bag. When he was searched it was found that his cloth bag contained 789 Indian currency notes of one hundred rupee denomination, bundled into several lots and slips of papers attached thereto. Investigation revealed that the amount was entrusted to him by one Kesavan Madhavan, and that the remittance was made from foreign countries through secret agencies to be distributed to persons in India. The police produced accused Sukumaran and the amount seized before the court. The Magistrate remanded Sukumaran to custody. Soon thereafter, the Assistant Director, Enforcement Directorate, Madras, passed orders under section 19(2) of the Foreign Exchange Regulation Act and in pursuance thereof he made an application before the court praying that the documents (currency notes) may be made over to him for the purpose of investigation. It was that order that was challenged in the criminal revision petition which came up for decision before the Division Bench. Isaac J. held in that case as follows : " If a property, which an Enforcement Officer is entitled to seize or otherwise take possession of under section 19G of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the merits of the materials which may provide the basis for the belief that the goods concerned are contraband. That is a matter which the Customs authorities would have to prove by evidence in the proceeding that they would have to start if they want to make an order of confiscation. There is also no question of surrendering the court's discretion to the opinion of the Customs authorities because all that the court has to see in the matter of disposal of property under section 523, Criminal Procedure Code, is that the order that is passed is an appropriate order in the facts and circumstances of the case ...... There are practical difficulties in the matter of refusing to act up to the prayer made by the Customs authorities in the exercise of powers granted to them under the Act. Under the Customs Act itself, the Customs authorities would have the power given to them in section 110 to seize the goods from the custody of the police and there may be a conflict between the Customs authorities eager to exercise their powers and the police authorities anxious to carry out the orders of the court ... Then again if under the orders of the Magistrate the Customs people have to make the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... On a consideration of the above five decisions cited by the learned counsel for the revision-petitioner, it could be found that the Supreme Court case was concerned with the order that was passed under the Preventive Detention, Rules, all the three Kerala cases were concerned with the orders passed with reference to the Foreign Exchange Regulation Act, 1962, and the Calcutta case was concerned with an order that was passed under the Customs Act. The substance of all these decisions appears to be that instead of complying with empty formalities the court should consider the Practical aspects of the matter and pass appropriate orders. In the Supreme court case, releasing of the persons in custody, on the revocation of the order under which they were originally detained and then again arresting them under the new order of detention passed simultaneously with the passing of the or der revoking the previous order, was held to be an empty formality. In all the other four cases, the authorised officer under the Foreign Exchange Regulation Act or the Customs Act had the unfettered power of seizure. Therefore, by passing an order for the release of the documents to the person from whom t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d under sub-section (1) shall, without unnecessary delay, be taken to a magistrate. (3) Where any officer of Enforcement has arrested any person under sub-section (1), he shall, for the purpose of releasing such person on bail or otherwise, have the same powers and be subject to the same provisions as the officer-in-charge of a police station has, and is subject to, under the Code of Criminal Procedure, 1898 Customs Act Section 110(1) : " If the proper officer has reason to believe that any goods are liable to confiscation under this Act, he may seize such goods : Provided that where it is not practicable to seize any such goods, the proper officer may serve on the owner of the goods an order that he shall not remove, part with, or otherwise deal with the goods except with the previous permission of such officer. Section 110(3) : " The proper officer may seize any documents or things which, in his opinion, will be useful for, or relevant to, any proceeding under this Act. " The comparison would reveal that the power under the Foreign Exchange Regulation Act and the Customs Act conferred on the authorised officer is much wider than the power conferred on the authoris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n that some of the things found on search may be such as may not permit of seizure then and there. It is to meet such a situation that there is a special provision made in sub-section (3) for the service of an order by the authorised officer, if considered necessary, on the owner or the person who is in immediate possession or control of those articles, that he shall not remove, part with, or otherwise deal with them, except with the previous permission of such officer. I am in agreement with the view taken by the Orissa High Court in the decision referred to above and hold that in the instant case inasmuch as the currency notes produced in court are not those seized by the authorised officer, or which he was empowered to seize strictly in terms of section 132(1)(iii), the revision-petitioner is not competent to claim to have the documents (currency notes) made over to him for purposes of investigation. As the discovery is not claimed to be as a result of the search of any building or place as referred to in clause (iii) of sub-section (1) of section 132, the question of applying the provisions of sub-section (3) of section 132 also cannot arise. I, therefore, find that the order ..... X X X X Extracts X X X X X X X X Extracts X X X X
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