IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 1990 of 2008(A)
1. DHANESH KUMAR C.TOGANIA
... Petitioner
Vs
1. SRI. K. KOYA, S/O. MUHAMMED
... Respondent
2. MAHENDRA SINGH ASOLIYA
3. STATE OF KERALA, THROUGH THE
For Petitioner :SRI.SUNNY MATHEW
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice R.BASANT
Dated :21/10/2008
O R D E R
R. BASANT, J.
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Crl.M.C. No. 1990 of 2008
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Dated this the 21st day of October, 2008
ORDER
The petitioner has come to this Court aggrieved by the
common order passed by the Court of Session in three revision
petitions.
2. On 9/11/06 the Circle Inspector of Police, Nadakkave
Police Station, Kozhikode, conducted a raid in the residential
premises of the 2nd respondent. The police officer conducted
such raid in connection with the investigation in Crime
No.369/06 of that Police Station registered under Sec.395 IPC.
An amount of Rs.8,14,450/- and gold ornaments weighing
2619.480 grams were seized from the premises of the 2nd
respondent. The said currency and the gold ornaments were
produced before the learned Magistrate. In the course of
investigation, the police were satisfied that the said amount of
Crl.M.C. No. 1990 of 2008 -: 2 :-
money and the gold ornaments were in no way connected with
Crime No.369/06. Thus, no one now has a case that the
currency and the gold ornaments seized have anything to do with
Crime No.369/06.
3. Seizure of the currency and the gold ornaments was
reported to the Income Tax Department. The Income Tax
Department filed an application for release of the currency and
the gold ornaments. The petitioner also filed an application for
release of those articles in his favour. The learned Magistrate
by a common order came to the conclusion that the currency and
the gold ornaments do belong to the petitioner herein. The 2nd
respondent is said to be an agent of the petitioner. Cash and
the gold ornaments, it was asserted, were handed over by the
petitioner to his agent/the 2nd respondent. The learned
Magistrate accepted the said contention and directed release of
the gold ornaments seized to the police; but the cash was
directed to be released to the Income Tax department. The
court further took note of the fact that the Income Tax
department had reported that the tax liability in respect of those
articles – currency and gold ornaments, would be about Rs.10
lakhs, if the same represented unaccounted money and property.
The learned Magistrate while directing release of the gold
Crl.M.C. No. 1990 of 2008 -: 3 :-
ornaments to the petitioner, imposed a condition that a bank
guarantee of Rs.2 lakhs must be furnished by the petitioner to
secure release of the gold ornaments.
4. The learned Magistrate appears to have worked out this
amount of Rs.2 lakhs by taking note of the fact that an amount of
about Rs.8 lakhs is already available in court. The same was
directed to be retained in deposit until the completion of the
assessment took place.
5. The Income Tax department as well as the petitioner
preferred revision petitions against the order passed by the
learned Magistrate. By the impugned order, all the three
revision petitions – two filed by the department and one by the
petitioner, were dismissed.
6. A second revision petition is not maintainable and that
explains why the petitioner has come to this Court with this
petition under Sec.482 Cr.P.C. The learned counsel for the
petitioner submits that the court below had grossly erred in not
releasing the cash seized from the 2nd respondent to the
petitioner. The court below had further erred in insisting on
bank guarantee for Rs.2 lakhs, it is further contended.
7. The crux of the contention is that as it is revealed that
no crime whatsoever has been committed in respect of the
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article seized, they should have been released unconditionally to
the petitioner. It is hence prayed that the impugned directions
passed by the learned Magistrate and upheld by the court of
revision may be suitably modified. The learned counsel for the
petitioner contends that the petitioner is an income tax assessee.
The petitioner owns that the cash and the gold ornaments do
belong to him. In these circumstances, there is no necessity to
insist on any bank guarantee for the release of the gold
ornaments to the petitioner or to insist that the cash must
remain in the court’s custody until the assessment is finalised.
8. The learned counsel for the Income Tax Department, on
the contrary, contends that the department does not accept the
assertion at the moment that the cash and the gold ornaments do
belong to the petitioner. According to the department, the 2nd
respondent has not made an assertion before them that these
articles and cash belong to the petitioner, though a finding to
that effect is entered by the learned Magistrate in the impugned
order. The learned counsel for the Income Tax department
contends that the assessment proceedings for undisclosed
wealth and property will have to be initiated against the
petitioner and/or the 2nd respondent. The learned counsel
submits that as expeditiously as possible such proceedings shall
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be completed. Depending on the order passed in such
proceedings, further orders can be passed by the learned
Magistrate. It is not necessary now to modify the impugned
order upheld by the Sessions Court by invoking the jurisdiction
under Sec.482 Cr.P.C.
9. The learned counsel for the petitioner submits in
response to a specific query by this Court that the petitioner
shall furnish bank guarantee for the entire amount of
Rs.10,00,000/- which may be leviable by the Income Tax
department, if ultimately at the end of the proceedings against
the petitioner herein and/or the second respondent the same
were found to be payable by way of income tax dues. It is
submitted that for an amount of Rs.2,00,000/- already bank
guarantee has been produced. It is submitted that the petitioner
shall offer a bank guarantee for the balance amount of
Rs.8,00,000/- also if the court so directs.
10. Having considered all the relevant circumstances, I am
satisfied that such a direction shall satisfy the interests of justice
eminently. There is no contention that cash and gold ornaments
are involved in the commission of any offence. If the cash and
the gold ornaments are really unaccounted wealth, all that can
happen is that the Income Tax department may demand an
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amount of Rs.10,00,000/- from the petitioner and/or the second
respondent. If the interests of Income Tax department to
recover that amount is secured, I find no reason why the amount
should not be released to the petitioner herein. The second
respondent has already been served. He has staked no claim for
the release of the amount also before this Court or before the
court below.
11. In the result,
a) This petition is allowed.
b) The impugned orders are modified.
c) It is directed that the entire cash and ornaments
seized by the police and produced in court in this case shall be
released to the petitioner on condition that he executes
(i) a bond for Rs.10,00,000/- (Rupees ten lakhs only)
undertaking to make the said amount available to the court or
the Income Tax authorities as and when directed by the court for
discharge of income tax liability of himself and/or the 2nd
respondent in respect of such cash and ornaments released to
him.
(ii) he produces bank guarantee from any nationalised
bank for such amount of Rs.10,00,000/- (Rupees ten lakhs only)
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in all (less bank guarantee, if any, already furnished) to the
satisfaction of the learned Magistrate.
Sd/-
(R. BASANT, JUDGE)
Nan/
//true copy//
P.S. to Judge