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TMI Blog2008 (7) TMI 835X X X X Extracts X X X X X X X X Extracts X X X X ..... and no interference is called for, but by a flux of time, ground realities and circumstances may have changed. In case, trial of FIR No.311 dated 27.04.2001 has concluded, the petitioners may have been convicted or acquitted. This will change the rigor of the direction that amount of ₹ 7,81,000/- be deposited back. Furthermore, in case, Income Tax Authorities had assessed the amount and imposed the penalty, the requirement of depositing the amount of ₹ 7,81,000/- will also lose its sting, in case the penalty and the income tax assessed has been deposited. Therefore, even though have held that the impugned orders are perfect and legal taking various facts mentioned above, still there is scope for variance in the directions to deposit the amount. Accordingly, remand the matter back to the Court of Additional Chief Judicial Magistrate, Jalandhar, to take into consideration the outcome of trial in case FIR No.311 dated 27.04.2001 and proceedings before Income Tax Authorities. - Criminal Misc.No.43953-M of 2005 - - - Dated:- 1-7-2008 - MR. KANWALJIT SINGH AHLUWALIA. JJ. Present: Mr. O.P. Nagpal, Advocate, for the petitioners. Mr. Mehardeep Singh, AAG, Punjab. Mr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... winder Kumar and Rs.3,80,000/- belonged to Avtar Singh @ Tari. On the complaint so filed, a show cause notice(Annexure P-3) was issued by the Enforcement Directorate, Foreign Exchange Management Act, Government of India. Reply to show cause notice Annexure P-4 was filed. The Enforcement Directorate passed oder Annexure P-5 in which the following stand of the accused was noticed:- 1. Balhar Chand @ Billa That after this on 15.4.2001 an unknown person came to his house at village Bachhowal at about 10 AM and he after enquiring his name and father's name, gave him Rs.4 lacs in cash and told him that this money had been sent by his brother Prem Kumar from Dubai . 2. Balwinder Kumar son of Karnail Singh That on 15.4.2001 an unknown person came to his house at Prempura, Phagwara and after enquiring his name and name of his father and elder brother residing abroad, he gave him Rs.4 lacs in cash and told him that the same were sent by his brother Kulwinder Kumar residing in Dubai . 3. Avtar Singh @ Tari That on 15th or 16th April, 2001 an unknown person came to his house at village Patti Natha and after making enquiries regarding him, his father and brother residin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were involved in Income Tax evasion. In the application it was prayed that Court should direct the S.H.O., Police Station Sadar, Jalandhar to hand over the amount to Income Tax Department. On the notice issued, reply was filed and it transpired that the Deputy Director, Enforcement Department in lieu of penalty after levying an amount of Rs.3,99,000/- had released the balance amount of Rs.7,81,000/- to the accused and thereby Income Tax Department was deprived of their right to take over the amount. Two issues were raised before the Trial Court:- (a) Whether the amount recovered which was a case property could be handed over by the S.H.O. to the Assistant Director, Enforcement Directorate, FEMA without the orders of the Court? (b) Whether the Enforcement Directorate was justified in releasing the amount to the accused which was a case property of case of FIR No.311 dated 27.04.2001 registered at Police Station Sadar, Jalandhar under Sections 411/414 IPC read with Section 3(b) and 3(c) of FEMA Act, 1999? The learned Additional Chief Judicial Magistrate, Jalandhar, after examining the contentions of the parties held as under:- I have considered the contentions of the learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t about the fact that sum of Rs.11,80,000/- recovered from the accused/revisionists was the case property in FIR No.311 registered under Section 411/414 IPC read with Section 3-B and 3-C of FEMA. This amount was handed over by the SHO, Police Station Sadar, Jalandhar, without getting the orders from the court. Section 102 of Cr.P.C. deals with the powers of Police Officer to seize certain property and its Clause (3) to deals with the manner in which the custody of seized property can be handed over to any other person on his executing a bond undertaking to produce it before the court as and when required and to give effect to the further orders of the court as to the disposal of the same. Similarly, Section 457 of Cr.P.C. deals with the procedure to be followed by the police upon the seizure of property when the same is reported to a Magistrate under the provisions of Cr.P.C. Clause (2) of this Section further deals regarding the manner in which the Magistrate can pass order regarding the release of property to the person who is entitled to receive the same. Keeping in view these provisions, it is clear that S.H.O., P.S. Sadar, Jalandhar, handed over the case property of this case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dings which had been initiated by lodging the case FIR No.311 dated 27.04.2001. Counsel for the parties are unable to state about the outcome of FIR No.311 dated 27.04.2001 registered at Police Station Sadar, Jalandhar under Sections 411/414 IPC read with Sections 3(b) and 3(c) of FEMA Act, 1999. Counsel for the petitioners is also ignorant regarding the result of proceedings initiated by the Income Tax Department whether the amount has been assessed or whether Income Tax Authorities have imposed any penalty or not? Counsel for the petitioners is not forthcoming. Orders Annexures P-6 and P-7 are perfectly legal and no interference is called for, but by a flux of time, ground realities and circumstances may have changed. In case, trial of FIR No.311 dated 27.04.2001 has concluded, the petitioners may have been convicted or acquitted. This will change the rigor of the direction that amount of Rs.7,81,000/- be deposited back. Furthermore, in case, Income Tax Authorities had assessed the amount and imposed the penalty, the requirement of depositing the amount of Rs.7,81,000/- will also lose its sting, in case the penalty and the income tax assessed has been deposited. Therefore, ev ..... X X X X Extracts X X X X X X X X Extracts X X X X
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