9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2016 (6) TMI 58 - HC - FEMASealing 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) of the CrPC. Hence, the sealing of the premises in exercise of power under Section 102(1) of the CrPC by the police was patently bad in the eyes of law in view of the decision of the Supreme Court in M.T. ENRICA LEXIE (2012 (5) TMI 696 - SUPREME COURT). Keeping in mind the ambit and scope of Section 102 of the CrPC and the ratio laid down by the Full Bench of the Bombay High Court in Sudhir Vasant Karnataki Mohideen Mohammed Sheik Dawood (2010 (11) TMI 1019 - BOMBAY HIGH COURT) and the 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 in the aforementioned decisions with regard to the powers of the police officer to attach immoveable property under Section 102(1) of the CrPC. Even otherwise, find it a bit surprising as to how the learned Chief Judicial Magistrate could have passed the impugned order dated November 04, 2015 negating the prayer made by the petitioner for unsealing the premises. Thus the Superintendent of Police, Motihari is directed to unseal the premises of the Company in question forthwith and allow the Company to run its legally operated business of the said Branch.
Issues Involved:
1. Authority of police to seal premises under Section 102 of the CrPC. 2. Validity of the company's license under FEMA. 3. Legality of the order passed by the Chief Judicial Magistrate. Detailed Analysis: 1. Authority of Police to Seal Premises under Section 102 of the CrPC: The primary issue addressed is whether the police had the authority to seal the premises of the company under Section 102 of the CrPC. The court noted that Section 102 allows police to seize property suspected to be stolen or linked to the commission of an offense. However, the court emphasized that this provision applies to movable property, not immovable property like the office premises. The court referenced the Full Bench decision of the Bombay High Court in *Sudhir Vasant Karnataki Mohideen Mohammed Sheik Dawood vs. The State of Maharashtra*, which concluded that the term "any property" in Section 102 does not include immovable property. The Kerala High Court in *Kuriachan Chacko vs. State of Kerala* and the Supreme Court in *M.T. Enrica Lexie & Anr. vs. Doramma & Ors.* also supported this interpretation. Thus, the court held that the police exceeded their authority by sealing the company's premises, as immovable property cannot be seized under Section 102. 2. Validity of the Company's License under FEMA: The court examined whether the company had a valid license under the Foreign Exchange Management Act (FEMA). It was undisputed that the company had a valid license issued by the Reserve Bank of India (RBI) to deal in foreign currency, which was valid until August 31, 2016. The court noted that the company's license was renewed in time and that the RBI had issued a letter confirming the continuation of the license until a decision on renewal was made. The court highlighted that violations under FEMA are civil offenses, not criminal, and the police have no authority to investigate or prosecute such violations. The authority to inspect and enforce compliance with FEMA lies with the RBI, not the police. 3. Legality of the Order Passed by the Chief Judicial Magistrate: The court scrutinized the order of the Chief Judicial Magistrate, which denied the company's request to unseal its premises. The Magistrate's decision was based on the absence of proof of the license renewal and the potential destruction of evidence. However, the court found that the Magistrate failed to consider the valid license and the submissions made by the District Prosecution Officer, which acknowledged the license's validity. The court criticized the Magistrate for not applying judicial mind and for abdicating his duty by not allowing the company to operate its business under a valid license. Consequently, the court quashed the Magistrate's order and directed the Superintendent of Police to unseal the premises immediately. Conclusion: The court concluded that the police had no authority to seal the company's premises under Section 102 of the CrPC, as it only applies to movable property. The company had a valid license under FEMA, and any violations of FEMA are civil offenses outside the police's jurisdiction. The Chief Judicial Magistrate's order was found to be legally flawed, leading to its quashing and the directive to unseal the premises.
|
