TMI Blog2016 (6) TMI 58X X X X Extracts X X X X X X X X Extracts X X X X ..... , this Court is also of the considered opinion that under Section 102(1) of the CrPC the police have no power to seal the immoveable property and the word seize under Section 102 of the CrPC used under Section 102 of the CrPC would mean only actual taking possession of the moveable property. Find myself in complete agreement with the ratio laid down by the Full Bench of the Bombay High Court and the Kerala High Court in the aforementioned decisions with regard to the powers of the police officer to attach immoveable property under Section 102(1) of the CrPC. Even otherwise, find it a bit surprising as to how the learned Chief Judicial Magistrate could have passed the impugned order dated November 04, 2015 negating the prayer made by the petitioner for unsealing the premises. Thus the Superintendent of Police, Motihari is directed to unseal the premises of the Company in question forthwith and allow the Company to run its legally operated business of the said Branch. - Criminal Miscellaneous No. 54731 of 2015 - - - Dated:- 3-5-2016 - Ashwani Kumar Singh, J. For the Petitioner : Mr. Ansul, Adv. Mr. Anuj Kumar, Adv. Mr. Archit Rajpal, Adv. Mr. Shreyanshu Kumar, Adv Fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es of the Company by forging signatures of bonafide holders of those identity cards. When he came to know that foreign currency worth ₹ 39 lakhs of the Company has been seized by the police near Chakia Toll Plaza, then he informed the police. 3. Consequent upon lodging of the First Information Report (for short FIR ), the police sealed the premises of the Company office at Motihari, East Champaran. They also seized currency and registers of the money transactions. 4. Thereafter, petitioner no.1 filed an application in the court of Chief Judicial Magistrate, Motihari on September 28, 2015 for unsealing the office premises of the Company and allowing the Company to restore the business of the said Branch as it was incurring heavy loss due to the said sealing. The aforesaid application of petitioner no.1 was rejected by the learned Chief Judicial Magistrate, Motihari, vide order dated November 04, 2015, which being relevant is reproduced below :- 4/11/2015 - The applicant, an employee of U.A.E. Exchange and Financial Services Ltd. has filed this application dated 28/9/2015 by which he has urged that the concerned authority had valid licence from R.B.I. in this regard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntending sellers and pays them back in Indian currency. The foreign currency so collected is initially deposited at different branches of the Company from where it is sent to Patna Head Office and then to Delhi Head Office by Air Cargo. All these legitimate business is carried by and under the authority of law. 7. Mr. Ansul, learned counsel, has further submitted that as it happened on September 22, 2015, the staff of the Company was carrying the foreign currency equivalent to ₹ 39 lakhs collected by Motihari and Bettiah Branch. None of it was Indian currency. Moreover, it was accompanied by the register showing details of the payments so made. While checking of the vehicles for cash transfer in election time, the vehicle of the Company was caught and the police seized the same. He has further submitted that thereafter the informant was grabbed by the police and was made to lodge flimsy and false FIR. The informant has unnecessarily mentioned one withdrawal by the Guard Indradeo Sah with which he is totally unconnected. He has submitted that the transaction by Indradeo Sah is a genuine transaction with genuine document. Furthermore, the informant has alleged that ₹ 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd rules thereon and for the purpose of maintaining peace and tranquility and also prevention of economic offences leading to affect the election processes, by the order of the District Magistrate, several teams were constituted headed by the Magistrates duly appointed and these teams were deployed for conducting raids on different check-posts of the Motihari District. Simultaneously, police team was also working for checking at different posts under the control of the Magistrate concerned. 12. He has further contended that on September 22, 2015 at 12.35 p.m. the police team headed by the Circle Inspector, Chakia was engaged in checking process at Toll Plaza located at Persauni Khem, Chakia within the jurisdiction of Chakia Police Station. In the meantime, a Bolero car, bearing Registration No.BR-05H 4303 stopped at the Toll Plaza. In the process of checking, it was found that two sealed plastic packets having reference no. 025 were kept inside the vehicle in suspicious situation. In presence of the Circle Officer, Chakia, who was present there in the capacity of the Magistrate-in- Charge, one of the packets containing foreign currency of Quibati Dinar, Saudi Rial, US Dollar, UA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... police have no power to seal a company office premises and the police cannot close any company office carrying on business in foreign exchange vide valid license from RBI. 16. I have heard learned counsel for the parties and perused the materials available on the record. 17. Be it noted first that from the pleading of the parties, it would be evident that the Company was having valid license to deal in foreign currency on the basis of license issued by the RBI on the date of sealing of the premises. 18. There is no dispute to the fact that the license of the Company as an authorized dealer is valid until August 31, 2016. There is also no dispute to the fact that the premises in question has been sealed in connection with Chakia P.S.Case No. 206 of 2015 registered under Sections 420, 120-B, 467, 468, 471 and 406/34 of the IPC as also Sections 3, 4 and 13 of the FEMA. It has to be seen in the context of the allegations made in the FIR as to whether the police or for that matter the Magistrate had any authority in law to seal the premises in question. 19. In order to examine this issue, the first question which would arise for consideration is whether the police have got ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h may extend to five thousand rupees for every day after the first day during which the contravention continues. 24. Section 14 of the FEMA gives power to the adjudicating authority to enforce the orders passed for contravention of any of the provisions of the Act punishable under Section 13. Sub-section (1) of Section 14 prescribes that subject to the provisions of sub-section (2) of section 19, if any person fails to make full payment of the penalty imposed on him under section 13 within a period of ninety days from the date on which the notice for payment of such penalty is served on him, he shall be liable to civil imprisonment under this section. Sub- Section (2) of Section 14 further prescribes that no order for the arrest and detention in civil prison of a defaulter shall be made unless the Adjudication Authority has issued and served a notice upon the defaulter calling upon him to appear before him on the date specified in the notice and to show cause why he should not be committed to the civil prison, and unless the Adjudicating Authority, for reasons in writing, is satisfied- (a) that the defaulter, with the object or effect of obstructing the recovery of penalty, h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... police or the Magistrate had no authority to carry out any inspection, search, seizure or confiscation of any property for violation of any of the provisions of the FEMA. 29. The next question which would be relevant for consideration is whether the police had any authority to seal the premises of the Company in question and stop its business transaction. In this regard, it would be relevant to look to the averments made in the counter affidavit filed on behalf of the Superintendent of Police, East Champaran, Motihari (Opposite Party No.2). In the said counter affidavit, he has admitted that the police had no power to seal a company office premises and they cannot close any company office carrying on business in foreign exchange. The relevant portions of the counter affidavit are reproduced as under : 6. That it is also worthwhile to mention here that in course of investigation by the team, the office bearers of the company office showed the required license for the foreign currency exchange business, which was to expire on 01.09.2014 and on enquiry they did not show any paper to show that they have applied for further extension of license to the authority authorized or th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of any offence. For better appreciation of the issue involved in this case, Section 102 is reproduced as under : 102. Power of police officer to seize certain property.-- (1) Any police officer may seize any property which may be alleged or suspected to have been stolen, or which may be found under circumstances which create suspicion of the Commission of any offence. (2) Such police officer, if subordinate to the officer in charge of a police station, shall forthwith report the seizure to that officer. (3) Every police officer acting under sub-section (1) shall forthwith report the seizure to the Magistrate having jurisdiction and where the property seized is such that it cannot be conveniently transported to the Court or where there is difficulty in securing proper accommodation for the custody of such property, or where the continued retention of the property in police custody may not be considered necessary for the purpose of investigation, he may give custody thereof to any person on his executing a bond undertaking to produce the property before the Court as and when required and to give effect to the further orders of the Court as to the disposal of the sam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sealing properties in criminal cases in exercise of power under Section 102 of the CrPC. The Bombay High Court has held that under Section 102 of the CrPC, the term property which the police can attach is only moveable. 36. The Full Bench of the Bombay High Court refused to extend the law laid down by the Supreme Court in the State of Maharashtra Vs. Tapas D. Neogy [(1999) 7 SCC 685] to immovable properties in order to bring them within the purview of Section 102, Cr.P.C. In paragraph no.66 of the judgment, the Full Bench has held as follows: 66. If it is taken for a while that Section 102 of the Code provided for seizure of immovable property for the purpose of ensuring the offenders do not derive benefits from the property which they got as a result of crime as well, then it would have been unnecessary for the Legislature to provide for attachment and, eventually, forfeiture of such property under the Criminal Law (Amendment) Ordinance, as also the provisions of Section 105-A to 105-L of the Code and Section 68-C to F of the Narcotic Drugs and Psychotropic Substances Act. It became necessary for the Legislature to provide for attachment and forfeiture of such property wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , could be allowed to leave India. The Single Judge of the High Court allowed the writ petition filed on behalf of the vessel and its owners. A Division Bench, however, reversed the decision by holding that the question regarding release of the vessel could be agitated before the Magistrate having necessary jurisdiction under Section 457 of the CrPC. 39. After hearing the parties, the Supreme Court observed in M.T. ENRICA LEXIE (Supra) that the police officer in course of investigation can seize any property under Section 102 of the CrPC if such property is alleged to be stolen or is suspected to be stolen or is the object of the crime under investigation or has direct link with the commission of offence for which the police officer is investigating into. A property not suspected of commission of the offence which is being investigated into by the police officer cannot be seized. Under Section 102 of the CrPC, the police officer can seize such property which is covered by Section 102(1) of the CrPC and no other. 40. Coming back to the facts of the present case, it would be evident that the office premises of the Company, which was sealed by the police in connection with the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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