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TMI Blog2015 (7) TMI 1267X X X X Extracts X X X X X X X X Extracts X X X X ..... uring the pendency of the trial, the vital question that is addressed by this Court is the one raised by the applicant-Department being the claimant under the provision of law which has reason to believe that the amount is unaccounted money and is liable for investigation under the Incometax Act and Rules framed thereunder, the warrant of authorisation is issued and the same is found to be sustainable by this Court. The learned trial Judge when observed that the seized amount pertained to bribe money and it was required to be preserved, it neither had regarded the provision of section 451 of the CrPC nor the law laid down on the subject, as discussed hereinabove, nor did it consider the relevant provisions of Incometax Act and the pronounced authorities on the subject while denying such requisition to the applicant-Department. The Investigating Agency was also not right in contending that the custody of this muddamal article is necessary till completion of the trial when even otherwise, the production of the same through panchnama or exhibiting the same by virtue of video recording of same could have been managed. For the foregoing reasons, the present Revision Application su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iled before the learned 5th Additional District and Sessions Judge, Surat under section 132A of the Act read with sections 451 and/or 457 of the CrPC being Criminal Miscellaneous Application No.1275 of 2014 by one Shri Vikrant Pal Singh, Deputy Director of Income tax (Investigation), UnitIII, Aaykar Bhavan, Surat; whereas another Criminal Miscellaneous Application No.1226 of 2014 was also preferred by the respondent No.3 herein i.e. Shri Ketan Mahadev Patel, seeking custody of the cash amount of ₹ 7 crore. This amount was recovered in connection with the offence registered vide IC. R. No.31 of 2013 with Jahangirpura Police Station. In pursuance of the same, after investigation, the chargesheet has been laid and case has been registered as Special ACB Case No.1 of 2014 and both the applicants preferred respective application for recovery of cash amount. 2.3 After hearing both the sides extensively, the trial Court denied the tax authority its request of handing over currency notes for proceeding further in accordance with the tax law. 3. A fortiori, Shri M.M. Bhatt, learned Senior Counsel with the learned Standing Counsel Mrs.Mauna M. Bhatt appearing for the applicantDep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g both the sides and on considering the order of rejection, so also the provisions of law, the present Revision Application deserves to be allowed for the following reasons : 6.1 As could be noted from the first information report being IC. R. No.37 of 2013 registered with D.C.B. Police Station, Surat, it transpires that prior to the said first information report, one first information report was registered vide IC. R. No.31 of 2013 with Jahangirpura Police Station, Surat, for the offences punishable under sections 376(2)(k)(f), 377, 354, 357, 342, 346, 143, 147, 148, 149, 506(2) and 120B of the Indian Penal Code. It was lodged by the complainant, who was one of the victims, against Narayan alias Narayan Sai alias Mota Bhagwan, Hanuman (sadhak of Narayan Sai), GangaSadhika, resident of Gambhoi Ashram, JamnaSadhika, resident of Gambhoi Ashram and 6 to 7 Sadhikas of Gambhoi Ashram, wherein the Investigating Officer seized 42 gunny bags of documents and other muddamal on October 27, 2013, by preparing panchnama of the place of one Shri Prahlad Kishanchand Sewani. After due investigation, the chargesheet came to be filed before the learned Chief Judicial Magistrate, Surat and the Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said petition. 6.5 It is the case of prosecution that the currency notes to the tune of ₹ 8.10 crore, which have been seized, were for bribing the Investigating Agency carrying out investigation in relation to the first information report registered vide IC. R. No.31 of 2013 and, therefore, a separate case is registered being IC. R. No.37 of 2013 for the offences punishable under sections 213, 214, 217 and 120B of the Indian Penal Code, 1860 and sections 7,8,9,12 and 13(1) of the Prevention of Corruption Act, 1988. 6.6 In the present case, such warrant of authorisation under section 132A of the Act read with section 112D(1) of the Rules has been issued on April 24, 2014 in the prescribed form No.45C in favour of Shri P.R. GhoshAdditional Director of Incometax, Shri Love Kumar, Shri Darshi Suman Ratnam, Shri Vikrant Pal Singh, Shri Vinothan Subramaniamthe Assistant Directors of Incometax and Shri Virendra Kumar, Shri M.K. Rathodthe Incometax Officers, all public servants discharging their duties under the Incometax Act. Shri J.A. Patel, Assistant Commissioner of Police, 'D' Division, Surat, has taken the amount of ₹ 8.10 crore into custody from (1) Shri Ke ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2A : Powers to requisition books of account, etc. (1) Where the Director General or Director or the Chief Commissioner or Commissioner, in consequence of information in his possession, has reason to believe that (a) any person to whom a summons under subsection (1) of section 37 of the Indian Incometax Act, 1922, or under subsection (1) of sec. 131 of this Act, or a notice under subjection (4) of section 22 of the Indian Incometax Act, 1922, or under subsection (1) of section 142 of this Act was issued to produce, or cause to be produced, any books of account or other documents has omitted or failed to produce, or cause to be produced, such books of account or other documents, as required by such summons or notice and the said books of account or other documents have been taken into custody by any officer or authority under any other law for the time being in force, or (b) any books of account or other documents will be useful for, or relevant to, any proceeding under the Indian Incometax Act, 1922 (11 of 1922), or under this Act and any person to whom a summons or notice as aforesaid has been or might be issued will not or would not produce or cause to be produced, such b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itted or failed to produce such books of account or other documents as required by the summons issued under subsection (1) of section 37 or subsection (1) of section 131 or subsection (4) of section 22 or subsection (1) of section 142 of the Act. 9.1 It further requires the officer or authority to deliver such books of account, other documents or assets to the requisitioning officer. 9.2 Section 132A(1)(c) provides that in consequence of the information in his possession, if the officer has reason to believe that any assets represent either wholly or partly income or property which has not been or would not have been disclosed for the purpose of Incometax Act, 1922, by any person from whose possession or control such assets have been taken into custody by any officer or authority under any other law for the time being in force, the request can be made and such authority or officer shall deliver the books of account, other documents and assets to the requisitioning officer either forthwith or if the authority is of the opinion that it is no longer necessary to retain in his custody. 9.3 It is pertinent to note that the Court while denying the request of the Incometax Depart ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se. Before the High Court, the case was of stealing of cash of ₹ 42.50 lakh and the employee of the concerned complainant was arrested from whom such amount of ₹ 42.50 lakh was seized. The intimation was given by the police officer to the Incometax Department to approach the trial Court to initiate the proceedings. The complainant also moved before the trial Court for getting the currency notes and the Deputy Director of Incometax submitted an application to hand over the currency notes to complete the proceedings initiated by the Incometax Department against the respondent. 10.1 The trial Court had rejected the application filed by the Deputy Director of Incometax Department and handed over the currency notes of ₹ 30 lakh to the complainant on his furnishing surety and directed the police to retain the amount of ₹ 12 lakh in its custody. The Department was also directed to complete the proceedings within 15 days under intimation to the Court if any incometax liability was accruing to the Department and to pass necessary order. It was directed that in the event of any tax liability accruing to the Department, the respondent would pay the same immediately ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or currency notes was made by the competent authority. This Court held that under section 132A of the Incometax Act, the competent authority if has reason to believe inter alia that any assets represent either wholly or partly income or property which has not been, or would not have been, disclosed for the purpose of the Incometax Act, by any person from whose possession or control such assets have been taken into custody by any officer or authority under any other law for the time being in force, may require such authority to deliver such books of account, other documents or assets to the concerned officer. In exercise of such powers, when the order of requisitioning cash currency was passed, the learned Magistrate correctly placed the currency notes at the disposal of the Incometax Department for further process in terms of Incometax Act, including for assessment under section 153, if found necessary. While so holding, reliance is placed on the decision of this Court in the case of Deputy Director of Incometax (Investigation) v. State of Gujarat (supra). 11.2 The Court also held that there is no rival claims with respect to such currency notes or other valuable assets. While h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould pass appropriate orders as contemplated under Section 451, Cr. P.C. at the earliest. 12. For this purpose, if material on record indicates that such articles belong to the complainant at whose house theft, robbery or dacoity has taken place, then seized articles be handed over to the complainant after : (1) preparing detailed proper panchnama of such articles; (2) taking photographs of such articles and a bond that such articles would be produced if required at the time of trial; and (3) after taking proper security. 13. For this purpose, the Court may follow the procedure of recording such evidence, as it thinks necessary, as provided under Section 451, Cr. P.C. The bond and security should be taken so as to prevent the evidence being lost, altered or destroyed. The Court should see that photographs of such articles are attested or countersigned by the complainant, accused as well as by the person to whom the custody is handed over. Still however, it would be the function of the Court under Section 451, Cr. P.C. to impose any other appropriate condition. 14. In case, where such articles are not handed over either to the complainant or to the person from whom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wherever such property is required for the purpose of trial, under which circumstances, the Court can photograph them or video record the muddamal. IT has also required that when valuables are not handed over to the applicant or complainant, the same be directed to be kept in a bank locker. In no circumstances either for identification or investigation it is to be kept with the Investigating Officer. The very procedure is prescribed for currency notes as well. 16. In such a background, the aspect that requires consideration is as to whether the cash of ₹ 8.10 crore would be necessary to be produced as muddamal of bribe or otherwise at the time of trial. It is the case of the prosecution that to save some of the respondents who have enormous following, being religious heads, this huge amount of ₹ 8.10 crore was arranged for bribing the Investigating Agency. It is nowhere coming on record that any trap was organised that the Court may require the detailed number of series of currency notes, which also in any case at the time of panchnama, the police ought to have done. Even if it is not done, it would not be difficult to so do it and the amount cannot continue to lie ..... X X X X Extracts X X X X X X X X Extracts X X X X
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