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Brajesh Kumar Srivastava, S/o Surendra Prasad Srivastava Versus The State of Bihar

2016 (6) TMI 58 - PATNA HIGH COURT

Sealing of office premises challenged - case registered under Sections 420, 120-B, 467, 468, 471, 406/34 of the Indian Penal Code (for short ‘IPC’) and Sections 3, 4 and 13 of the Foreign Exchange Management Act, 1999 - Held that:- The office premises of the Company, which was sealed by the police in connection with the police case, is neither a stolen property nor the object of the crime nor has any link with the commission of any offence. It is not a property which is covered by Section 102(1) .....

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he Kerala High Court in Kuriachan Chacko (2012 (7) TMI 979 - KERALA HIGH COURT), 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 .....

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w 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 For the Respondent : Dr. Mayanand Jha, APP ORDER This is an application invoking the inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure (for short CrPC ) for quashing the order dated November 04, .....

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al Code (for short IPC ) and Sections 3, 4 and 13 of the Foreign Exchange Management Act, 1999 (for short FEMA ) on the report of one Roshan Kumar, be unsealed and the Company be allowed to restore the business of the said Branch as it was incurring heavy loss due to the said sealing. 2. The facts concerning the instant case in brief are that the informant Raushan Kumar lodged a written information with Chakia Police Station at about 7.00 p.m. on September 23, 2015 alleging therein that in the y .....

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ure, Manjeet Kumar, Ankit Pandey, Chandramohan Chaudhary and Vikas Kumar Srivastava, all staff of the Company and Indradeo Sah, the Guard of the Company have defalcated ₹ 65,840/-. Similarly, they have also defalcated ₹ 23,781/- by making signature of Indradeo Sah. The informant further alleged that these people defalcated the foreign currency. He also alleged that the employees of the Company also get the passports prepared and they also deal with foreign currency. While preparing t .....

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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 .....

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r its renewal and according to the provision contained by R.B.I. his licence for this purpose is in existence unless cancelled. According to the applicant his transaction is fair and in accordance with the law and the police has sealed the said exchange centre restraining from its business and it is incurring very loss to the authority and its customers so kindly the said office be de-sealed so that business transaction may be performed. The learned D.P.O. has appeared on behalf of State and has .....

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yees of the authority so in my view, if the office is allowed to its work after opening the seal the evidence regarding the offences might be destroyed so in my view, the application is not fit and accordingly it is rejected. (emphasis supplied) 5. The aforesaid order dated November 04, 2015 is under challenge in the present application. 6. Mr. Ansul, learned counsel appearing for the petitioners has submitted that the petitioner no.1 is the Branch Manager of the Company at Motihari, incorporate .....

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The Company is also licensed to assist passengers in getting their passport made and is accredited by International Air Transport Association. The work of the Company involves collecting foreign currency from the intending 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 u .....

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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 ₹ 65,840/- was defalcated by forging his signature, but it is not indicated as to when and w .....

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5.81.001/2014-15 dated August 29, 2014, wherein it was explicitly mentioned that when an application for renewal of money changer s license is submitted to the RBI, the license shall continue in force until the date on which the license is renewed or the application is rejected as the case may be. 9. He has further submitted that in pursuance of the aforesaid letter, the RBI, in exercise of its power under Section 10 of the FEMA renewed the license of the Company as an authorized dealer AD Categ .....

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the mortgaged articles or jewellery. The Branch is sealed and the customers are agitated and confused as to how and where they can repay the loan installments and recover their mortgaged items. 10. Advancing his argument, he has further submitted that the sealing of the premises has been done with an ill motive and is completely illegal and unjust for the reason that the Company met all statutory requirements and followed all rules and regulations laid down in that regard and the action of the p .....

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ral 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 wi .....

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ham etc. amounting to ₹ 703070,96/- in terms of Indian valuation and the another packet containing foreign currency amounting to ₹ 3209,031,17/- in terms of the Indian valuation were seized. 13. Dr. Jha, learned counsel, has further contended that on September 23, 2015, on a written complaint of the informant Raushan Kumar with the Chakia Police Station complaining forgery, preparation of false documents and criminal conspiracy by the office bearers of the Company, an FIR was drawn i .....

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ercise of power under Section 102(1) of the CrPC. 14. However, Dr. Jha, learned counsel, has fairly conceded that on query by the raiding team, the office bearers of the Company showed the license for the foreign currency exchange business which was to expire on September 01, 2014, but on further query they did not show any paper to establish the claim that they had applied for further extension of license so that a reasonable inference could have been drawn that the license was valid on date of .....

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he Opposite Party No.2, which has duly been sworn by the Superintendent of Police, East Champaran, Motihari, it has been admitted in Paragraph No.6 that the license of the Company has been renewed and extended till September 01, 2016. Referring to Paragraph No.7 of the aforesaid counter affidavit, it has been submitted that the Superintendent of Police, Motihari has admitted that the police have no power to seal a company office premises and the police cannot close any company office carrying on .....

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ugust 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 qu .....

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nomic reforms and liberalization of Indian economy. FEMA has come into force with effect from June 1, 2000. As a matter of fact, any offence under the FERA was a criminal offence punishable with imprisonment as per the CrPC, but under the FEMA, the contravention is considered to be a civil offence only punishable with some amount of money as penalty. 21. A reading of Section 10 of the FEMA would make it evident that the RBI may, on an application made to it in this behalf, authorize any person t .....

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uthorized person as may appear to it to be necessary or expedient for the purpose of - (a) verifying the correctness of any statement, information or particulars furnished to the RBI; (b) obtaining any information or particulars which such authorized person has failed to furnish on being called upon to do so; or (c) security compliance with the provisions of this Act or of any rules, regulations, directions or orders made thereunder. 23. Under Chapter IV of the FEMA, Section 13 deals with contra .....

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ay 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 no .....

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ating Authority, for reasons in writing, is satisfied- (a) that the defaulter, with the object or effect of obstructing the recovery of penalty, has after the issue of notice by the Adjudicating Authority, dishonestly transferred, concealed, or removed any part of his property, or (b) that the defaulter has, or has had since the issuing of notice by the Adjudicating Authority, the means to pay the arrears or some substantial part thereof and refuses or neglects or has refused or neglected to pay .....

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ing Authorities for holding an inquiry in the manner prescribed after giving the person alleged to have committed contravention under section 13, against whom a complaint has been made under sub-section (3) a reasonable opportunity of being heard for the purpose of imposing any penalty. Sub-section (2) of Section 16 prescribes that the Central Government shall, while appointing the Adjudicating Authorities under sub-section (1), also specify in the order published in the Official Gazette, their .....

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y authority either to institute a complaint or register an FIR on a complaint or to investigate the same for contravention of the provisions of the FEMA. The violation of the provisions of the FEMA can only be considered as civil offence punishable with some amount of money as penalty and in failure of compliance with the order passed by the Adjudicating Authority duly appointed under the Act by the Central Government, a person may be liable to civil imprisonment. 28. Thus, there is no doubt in .....

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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 lic .....

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said business concerned has bee extended till September, 2016. 7. That, so far as the points required for clarification, it is submitted as follows : i. The police have got no power to seal a company office premises. ii. The police can t close any company office carrying on Business in foreign exchange vide valid license from RBI. iii. That on the very point of time when the investigation was conducted, the office bearers of the company did not show any paper showing that company office has file .....

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as the learned counsel for the State has tried to justify the action of the police. 31. Apart from FEMA, the only other provision under which the offences are alleged to have been committed in the FIR is IPC, which is the primary penal law of India and the procedure for trial of the offences under the IPC is governed by the CrPC. The CrPC is a comprehensive and exhaustive procedural law for collection of evidence, examination of witnesses, interrogation of accused, arrests, search and seizure, s .....

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tolen or which may be found under the circumstances which create suspicion of commission 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 t .....

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ed 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 same : Provided that where the property seized under sub-section (1) is subject to speedy and natural decay and if the person entitled to the possession of such property is unknown or absent and the value of such property is less tha .....

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ection 102(1) of the CrPC. 34. In this regard, it would be relevant to note that the question whether the police have power to seize immoveable property under Section 102 of the CrPC came up for consideration before a Division Bench of the Bombay High Court. However, in view of conflicting judgments of two Division Benches of the High Court, the matter was referred to the Full Bench. The Full Bench of the Bombay High Court considered the matter in detail in Sudhir Vasant Karnataki Mohideen Moham .....

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property" used in Sub- section (1) of Section 102 of the Code of Criminal Procedure, 1973 would mean to include "immovable property"? Ans. We, therefore, hold that the expression "any property" used in Sub-section (1) of Section 102 of the Code does not include immovable property. Question (a) is, therefore, answered in the negative. Q. (b) Whether a police officer can take control of any immovable property which may be found under circumstances which create suspicion of .....

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rashtra 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 .....

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7. Similar issue had arisen before the Kerala High Court in Kuriachan Chacko Vs. State of Kerala in W.P.(C) No.12275 of 2012 dated 26.07.2012 and it has been held in paragraph 14 as under : "14. Section 102, by no stretch of imagination, can apply in a situation like this. Even though the words "any property" are there in Section 102, it is clear from a reading of sub-sections (1) to (3) together, that what is involved is not the seizure of immovable property. As already noticed, .....

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cer, cannot hold good. The said letter, even going by the wordings therein, cannot amount to an order of attachment also. Therefore, merely because there is a power for the Police officer to conduct investigation and collect details of properties of the accused or others involved in that process, it can never be treated as an order of attachment for enabling the Sub Registrar to put an endorsement in the registers." 38. Recently, in M.T. ENRICA LEXIE & Anr. VS. DORAMMA & Ors. [(2012 .....

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le for protecting the vessel from pirates. The stand of the vessel owners was that the crew had no control over action of marines deputed by the Italian Government. The limited issue in that case was whether the vessel and the marine, against whom a criminal case was pending, 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 regar .....

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he 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 aforesaid police case, is neithe .....

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Bombay High Court in Sudhir Vasant Karnataki Mohideen Mohammed Sheik Dawood (Supra) and the Kerala High Court in Kuriachan Chacko (Supra), 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. I find myself in complete agreement with the ratio laid down by the Fu .....

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