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TMI Blog1972 (7) TMI 17X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the time of the arrest the 2nd respondent had stated that the amount belonged to one Ahammed Thangal and that he was carrying it for payment to one Sri Koyappa at Puthuppady. On December 28, 1970, he filed C. M. P. No. 64/1970 for bail stating, inter alia, that the money seized from him actually belonged to the 1st respondent. He also filed a separate petition (which does not appear to have been numbered), praying that the amount seized from him may be made ever to the 1st respondent. The 1st respondent also had filed a petition, Crl. M.P. No. 65/1970, on December 28, 1970, itself claiming that the money seized from the 2nd respondent was to be made over to him. The learned Magistrate passed orders on the petition, C. M. P. No. 65/1970, to await final report in Crime No. 372/1970, the case reg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earned 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 return of the amount to him inasmuch as the revisions filed by the Income-tax Officers have been dismissed. The learned Sub-Magistrate passed an order in these words : " Records perused; this petition will be considered after the period of revision to the High Court is over. " Crl. M.P. No. 487/1972 is for quashing the order of the learned Sub-Magistrate in Crl. M.P. No. 529/1972 dated June 14, 1972. Though the petition is stated to be under section 439 of the Crl. P.C. also, argument was advanced as though it is a petition under section 561-A, Criminal Procedure Code, only. It was represented that no revision has so far been preferred against the order in Crl. R.P. No. 2/1972. As it is in the criminal revision petition that substantial questions are raised, I propose to deal with it first, and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 Procedure Code, was to give a direction for making over the money to the petitioner for purposes of the investigation. Relevant provisions of section 132 of the Income-tax Act, 1961, read as follows : " 132. Search and seizues.- (1) Where the Director of Inspection or the Commissioner, in consequence of information in his possession, has reason to believe that- (c) any person is in possession of any money, bullion, jewellery or other valuable article or thing and such money, bullion, jewellery or other valuable article or thing represents either wholly or partly income or property which has not been disclosed for the purposes of the Indian Income-tax Act, 1922, or this Act (hereinafter in this section referred to as the undisclosed income or property), he may authorise any Deputy Director of Inspection, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 he was carrying a sum of Rs. 25,000 and was found in suspicious circumstances. He was, with the amount, produced in court. Later on the police recovered another sum of Rs. 11,000 as a result of the investigation conducted on the information received from that person. The second person also was arrested and produced before court with the money seized. Ultimately, the police filed a statement before court to the effect that no crime cognizable by the police could be detected and that the accused were suspected to be members of an international gang acting in violation of the foreign exchange laws. When the police filed this statement, the persons, from whom the amount was seized, filed a petition for the return of the amount to them ; but in the meanwhile the Enforcement Officer intervened and claimed that the docume ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ments (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 the Act, is in the custody of a court or any other authority, what that officer has to do under such circumstances is to move the court or the authority for handing over possession of the property for any lawful purpose and it is the duty of the court or authority to hand it over to the officer if it does not require it for some lawful purpose. " This again is based on the principles of the dictum laid down by the Supreme Court in the decision in G. Parulekar v. State of Maharashtra. Deputy Superintendent, Customs, Preventive, West Bengal v. Sitaram Navsaria : It was a case where certain articles of foreign origin were seized by the police from the accused, the seizure being under section 54, Criminal Procedure Code, read with section 411, Indian Penal Code. While the case was pending investigation by the police, the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oms 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 seizure from the parties concerned after they have got back their goods from the police, it may as well be that they will never come to get back their goods and to face the consequences thereof and that again would frustrate the purposes of the Customs Act. " Enforcement Officer v. Sub-Inspector of Police In that case the accused was found to possess a sum of Rs. 4,04,950. The police on suspicion that the money was either stolen or was concerned in a cognizable offence arrested him and produced him before the Magistrate. On questioning, however, it was revealed that the money was obtained by him in violation of the Foreign Exchange Regulation Act, 1947 (7 of 1947). Information was thereupon conveyed by the sub-inspector to the Enforcement Officer who filed a petition for making over the documents produced by the sub-ins ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tention 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 the police seized them would serve no useful purpose, except to create practical difficulties, inasmuch as those documents are liable to be seized by the authorised officer the moment the accused leaves the premises of the court. Incone of the cases cited by the learned counsel appearing for the revision-petitioner there was any need to consider whether the authorised officer under section 132(1)(iii) and section 132(3) is competent to pray for the return of the seized documents in the custody of the court, when, on investigation by the police, it was found that they were not involved in any crime. It would be advantageous at this juncture to have a comparison of the provisions of sections 132(1)(iii) and 132(3), which have already been extracted in this judgment, on which the revision-petitioner relies, with sections 19A(1) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) : " 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 authorised officer under the Income-tax Act. In particular, under section 132 of the Income-tax Act no specific power is seen to have been conferred on the authorised officer to search or arrest the person who is found or suspected to be in possession of any document, money, etc., which represents partly or wholly property or income not disclosed for the purposes of the Income-tax Act. The seizure contemplated under section 132(1)(iii) can arise only in the case of books of account, other documents, money, bullion, jewellery or other valuable article or thing found as a result of such search. The provision contained in sub-section (3) of section 132 comes into play only where the authorised officer finds it not practicable to seize any such books of account, other documents, money, bullion, jewellery or other valuable article or thing. It is fairly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 passed by the learned Sub-Magistrate, which has been confirmed by the learned District Magistrate, is perfectly in order and that it calls for no interference by this court in revision. The conclusion reached in the criminal revision petition virtually renders Crl. M. P. No. 487/1972 infructuous in so far as it relates to Crl. M. P. No. 1/71 on the file of the Sub-Magistrate. Though the period for the revision is not yet over, and no revision has been preferred against the order of the learned District Magistrate confirming the order in Crl. M. P. No. 54/71, I make it clear that the learned Magistrate need not keep the petition in Crl. M. P. No. 529/72 on his file pending any longer and should pass forthwith appropriate orders on the petition. Crl. M. P. No. 487/72 is disposed of as above and Crl. Revision Petition No. 306/72 is dismissed.< ..... X X X X Extracts X X X X X X X X Extracts X X X X
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