Relying Up On The Decision In Abdul Kadhar v. Sub Inspector Of Police And Others, Income Tax Reports

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE. P.S.GOPINATHAN TUESDAY, THE 17TH DAY OF JANUARY 2012/27TH POUSHA 1933 Crl.MC.No. 3201 of 2011 ( C ) --------------------------- CRMP.3254/2011 of C.J.M., KALEPETTACRIME NO.338/2011 OF KALPETTA POLICE STATION. PETITIONER(S):------------- KARAT ABDUL SALEEM S/O.T.AHAMMED, AGED 42 YEARS, KARAT HOUSE KODUVALLY, KOZHIKODE DISTRICT. BY ADV. SRI.SUNNY MATHEW. COMPLAINANT(S):--------------- 1. MUHAMMED, S/O.ABDURAHIMAN PUZHANKARA HOUSE, KODUVALLY PO,KOZHIKODE DISTRICT.2. STATE OF KERALA, THROUGH THE SUB INSPECTOR OF POLICE, KALPETTA POLICE STATION REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM.3. THE DEPUTY COMMISSIONER INCOME TAX,KOZHIKODE 673 001'4. ADDITIONAL RESPONDENT 4 AND 5 IMPLEADED CHIEF COMMISSIONER, CUSTOMS, CENTRAL EXCISE AND SERVICE TAX,CR BUILDING, JF PRESS ROAD, KOCHI IS SUOMOTO IMPLEADED AS PER ORDER DT.3.10.11 IN CRL.M.C.3201/2011.5. ASSISTANT DIRECTOR, DIRECTORATE OF ENFORCEMENT, KOZHIKODE. IS IMPLEADED AS PER ORDER DATED 18.10.2011 IN CRL.M.C.3201/2011. R2 BY PUBLIC PROSECUTOR SRI.RAJESH VIJAYAN. R3 BY SRI.JOSE JOSEPH, SC, FOR INCOME TAX R4 BY SRI.THOMAS MATHEW NELLIMOOTTIL,SC,CB EX R5 BY SRI.P.PARAMESWARAN NAIR,ASG OF INDIA THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 17-01-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: amk P.S.GOPINATHAN, J ---------------------------- Crl.M.C.No. 3201 OF 2011 -------------------------- Dated this the 17[th] day of January, 2011. O R D E R In this petition under Section 482 of the Code of Criminal Procedure, the petitioner assails Annexure A2 order dated 16-05-2011 issued by the Chief JudicialMagistrate, Kalpetta in Crl.M.C.No.3254/2011 in CrimeNo.338/2011 of Kalpetta Police Station. 2. The brief facts leading to the petition are that on 11-05-2011, the 1[st] respondent was found in possessionof Rs.15,00,000/-. Suspecting that it is 'Hawala Money', itwas seized by the Sub Inspector of Police, Kalpetta PoliceStation and the above case was registered. The 1[st]respondent was arrested and produced before the ChiefJudicial Magistrate who let him on bail. The amount was also produced before the court with notice to AssistantDirector of Investigation, Income Tax Office, Kozhikodeand Assistant Director, Directorate of Enforcement,Kozhikode. In pursuance to that, Deputy Director ofIncome Tax investigation issued a warrant of authorizationunder sub Section (1) of Section 132 of the Income TaxAct, 1961 directing the Sub Inspector of Police to handover the said amount to the Income Tax Department. Onfurther investigation the Sub Inspector of Police reportedthat the amount seized was not involved in any robbery ortheft. Therefore, in obedience to the warrant under Section132(1) of IT Act, the Sub Inspector filed Annexure 1 reportbefore the Chief Judicial Magistrate requesting to handover the amount to him so as to hand over the same to the Crl.M.C.No. 3201 OF 2011 3 Deputy Director of the Income Tax. Acting up onAnnexure A1 report, Annexure A2 order was issuedordering to release the amount to the Sub Inspector to handover the money to the authorized officer of the Income TaxDepartment. 3. Relying up on the decision in Abdul Kadhar Vs. Sub Inspector of Police and others, Income tax reports Volume 240 ITR 489, the learned counsel for the petitionerwould submit that since the amount was deposited beforethe court, the request made by the Income Tax Officer tothe Sub Inspector of Police as an officer holding the assetson behalf of the court is not correct and what the IncomeTax Officer should have done is to apply before court torelease the amount. In the above decision it was held by this court at page 492, Crl.M.C.No. 3201 OF 2011 3 Deputy Director of the Income Tax. Acting up onAnnexure A1 report, Annexure A2 order was issuedordering to release the amount to the Sub Inspector to handover the money to the authorized officer of the Income TaxDepartment. 3. Relying up on the decision in Abdul Kadhar Vs. Sub Inspector of Police and others, Income tax reports Volume 240 ITR 489, the learned counsel for the petitionerwould submit that since the amount was deposited beforethe court, the request made by the Income Tax Officer tothe Sub Inspector of Police as an officer holding the assetson behalf of the court is not correct and what the IncomeTax Officer should have done is to apply before court torelease the amount. In the above decision it was held by this court at page 492, “ therefore a warrant could not havebeen issued against the court sinceofficer is holding assets on behalf ofthe court. Of course, it is open to theIncome tax office to apply to theMagistrate for release release of theassets in their favour”.been issued against the court sinceofficer is holding assets on behalf ofthe court. Of course, it is open to theIncome tax office to apply to theMagistrate for release release of theassets in their favour”. 4. Having heard either side, I find merit in the submission made by the learned counsel for the petitioner as there is no reason to have divergent conclusion. Thelearned standing counsel appearing for the respondents 3and 4 filed a statement that the Income Tax Departmentcan apply before the Magistrate under Section 451 of theCode of Criminal Procedure. The learned counsel for thepetitioner submitted that in adopting such a procedure, thepetitioner has no objection. He also further requested that Crl.M.C.No. 3201 OF 2011 5 the petitioner may also be permitted to file petition under Section 451 of the Code of Criminal Procedure. I find that the proper course open to the court below is to have adisposal of the property under Section 451 of the Code ofCriminal Procedure. In the result, this petition is allowed. Annexure A2 order would stand set aside. The learned Magistrate is directed to dispose the property under Section 451 of theCode of Criminal Procedure. The respondents 3 and 4 areat liberty to apply for release of the amount in depositunder Section 451 of the Code of Criminal procedure. Thepetitioner is also at liberty to apply. amk P.S.GOPINATHAN, JUDGE