TMI Blog2003 (12) TMI 4X X X X Extracts X X X X X X X X Extracts X X X X ..... amount could not be released. - - - - - Dated:- 8-12-2003 - Judge(s) : G. SASIDHARAN. JUDGMENT G. Sasidharan J. - This is a petition filed by the 4th accused in Crime No. 102 of 2003, of Guruvayoor Police Station. The crime was registered against the petitioner and the other accused under sections 41(1)(d) and 102 of the Criminal Procedure Code. On March 20, 2003, the Circle Inspector of Police, Guruvayoor, intercepted an ambassador car in which accused Nos. 1 to 3 were travelling and seized Rs. 52 lakhs which was suspected to have been stolen. Accused Nos. 1 to 3 said that the money belonged to the petitioner and hence he was also made an accused in the crime. On conducting investigation it was found that the currency notes seized were not stolen property and police filed a report to that effect in the court of the Magistrate. According to the petitioner, the money seized is his business income. The Assistant Director of Income-tax (Investigation), Thrissur, filed C.M.P. No. 4056 of 2003 in the court of the Judicial Magistrate of the First Class, Chavakkad, stating that the money seized was the unaccounted income from the business of the petitioner and requesting that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that what the petitioner wants is to get interim custody of the portion of the amount from court. This is a case in which the money was seized on the suspicion that it was stolen money and on conducting investigation the police was convinced that the money was not stolen from anywhere. The Investigating Officer had reason to believe that there was violation of section 3(b) and (c) of the Foreign Exchange Management Act and since the police was not competent to investigate the violation of the above provisions of the Act, he took a decision for transferring the case to the Enforcement Directorate. That is what is seen from the report filed by the police in the court because in the report it is said that an officer of the Enforcement Directorate took copies of the records kept in the police station and request is made that the first information report and other papers filed in court may be given to the Enforcement Directorate. The question is, in the above circumstances, whether the learned Magistrate was justified in making an order directing the giving of money to the Enforcement Directorate. The submission made by learned counsel appearing for the petitioner is that the money wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rict Magistrate and the District Magistrate confirmed the order of the Sub-Magistrate directing the giving of the money to the first respondent. Revision was filed before this court. A learned judge of this court said that ordinarily when any property is seized from a person arrested and when the police submits the final report stating that the investigation does not disclose commission of any offence by the accused, the duty of the court is to return the articles to the person from whom the articles were seized. In that case the second respondent from whom the currency notes were seized did not make a claim for the return of the amount to him but he filed a petition stating that the amount may be given to the first respondent. The learned judge of this court said in the above decision that it is only where the accused denies the seizure from him or contends that the article was planted, the question regarding the person who is entitled to the present possession of the property arises. In the above case, the Income-tax Department filed petition under section 132 of the Income-tax Act. Under section 132(1)(iii) of the Income-tax Act the authority under the Income-tax Act has the pow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eized. Such an order made under section 132(5) of the Act was challenged before this court. In the above decision it was held that the Customs authorities, who held the money and the authority under the Foreign Exchange Regulation Act and who held a portion of the money were holding the money on behalf of the persons from whom those amounts were seized by the authorities. There could be a lawful seizure of those amounts, by virtue of sub-section (7) of section 132 of the Income-tax Act, from those authorities who were keeping the amount. In CIT v. Tarsem Kumar [1986] 161 ITR 505 (SC) it was held that on a construction of section 132 of the Income-tax Act and the context in which the words, "search", "possession" and "seizure" had been used in the section and the rules there could not be any order in respect of goods or moneys or papers which were in the custody of another Government department under legal authority. It was also held that when physical custody of the moneys and goods was with the Customs authorities and that too by legal sanction and authority to have that custody, it would not be proper to say that possession as contemplated by section 132 was still with the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gn Exchange Management Act says that the Director of Enforcement and other officers of Enforcement, not below the rank of an Assistant Director, shall take up for investigation the contravention referred to in section 13. Sub-section (2) of section 37 says that the Central Government may, by notification, authorise any officer or class of officers in the Central Government, State Government or the Reserve Bank, not below the rank of an under secretary to the Government of India to investigate any contravention referred to in section 13. In sub-section (3) of section 37 it is said that the officers referred to in sub-section (1) shall exercise the like powers which are conferred on income-tax authorities under the Income-tax Act and shall exercise such powers, subject to such limitations as laid down under that Act. The officers who are given the powers of investigation regarding the contravention referred to in section 13 of the Act have the powers in respect of search and seizure similar to the powers given to income-tax authorities under the Income-tax Act. Section 13 of the Foreign Exchange Management Act provides for the penalty for contravention of the provisions of the Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Foreign Exchange Management Act read with section 131 of the Income-tax Act and it was revealed that the amount of Rs. 52 lakhs seized was money received by accused No. 4 through accused Nos. 1, 2 and 3 in contravention of the provisions of section 3(c) of the Foreign Exchange Management Act. This is not a case in which any order was made by the officers of the Enforcement Directorate seizing the money which is in the custody of the court and making a demand that they are entitled to get the custody of the money from the court. On the other hand, the police officer gives a report to the court saying that on conducting investigation it was revealed that the money seized by the police was brought from Gulf countries in violation of the provisions of the Foreign Exchange Management Act and hence the matter was referred to the Enforcement Directorate for further action. Moreover, a request is made by the police to give the entire records to the Enforcement Directorate along with the money seized and produced by the police in court. The officer of the Enforcement Directorate proceeded with the matter as requested by the police and gave an application in court for handing over the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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