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TMI Blog1979 (11) TMI 13X X X X Extracts X X X X X X X X Extracts X X X X ..... gwara Railway Station on April 27, 1970. A case was registered against the said Assa Ram vide First Information Report No. 65, dated April 27, 1970, by the Government Railway Police, Jullundur, under ss. 411 and 414 of the I.P.C. He was prosecuted under s. 5(i)(e) read with s. 5(2) of the Prevention of Corruption Act and was convicted and sentenced to one year's rigorous imprisonment and a fine of Rs. 1,000 or in default of payment of fine, to undergo further six months' rigorous imprisonment, by the learned Special judge, Jullundur. On appeal, by the said Assa Ram, his conviction was maintained by me with some alteration in the sentence of imprisonment vide my judgment dated November 20, 1979, passed in Criminal Appeal No. 837 of 1977 (Ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by Mr. Awasthi, learned counsel for the appellant, that the money in question was found in possession of Assa Ram (accused) and, therefore, he is presumed to be the owner of the said money until the contrary is proved and that since there is a valid tax claim of the I.T. Dept. against him, the Department is entitled to the money seized from the possession of Assa Ram. I am unable to agree with this contention of Mr. Awasthy. The money recovered from the possession of Assa Ram was the case property and the Special judge has found that the money did not belong to Assa Ram and as he could not explain its sources, he was convicted under s. 5(1)(e) read with s. 5(2) of the Prevention of Corruption Act. Therefore, the contention of the Revenue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Procedure, 1973 (No. 2 of 1974) according to which the case property is to be disposed of. This provision is in the following terms: " 452. (1) When an inquiry or trial in any Criminal Court is concluded, the Court may make such order as it thinks fit for the disposal by destruction, confiscation or delivery to any person claiming to be entitled to possession thereof or otherwise, of any property or document produced before it or in its custody, or regarding which any offence appears to have been committed; or which has been used for the commission of any offence. (2) An order may be made under sub-section (1) for the delivery of any property to any person claiming to be entitled to the possession thereof, without any condition or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions the claim of the I.T. Dept. cannot be sustained with regard to the case property. Section 226(4) of the Act is in the following terms: " 226. (4) The Income-tax Officer may apply to the court in whose custody there is money belonging to the assessee for payment to him of the entire amount of such money, or, if it is more than the tax due, an amount sufficient to discharge the tax. " From the reading of this provision it is clear that the ITO can lay claim and file an application to the court in whose custody the money is lying belonging to the assessee for payment to him (the ITO) of the entire amount of such money. Admittedly, Assa Ram was not an assessee before the money was recovered from him. It was during the trial unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ority is not at all relevant to the facts of the present case. In that case, the petitioner was an assessee and a carrier by sea. On April 24, 1981, the Central Excise authorities seized 4,999 biscuits of gold weighing ten tolas each from the launch " Lakshmi " belonging to the petitioner. The Collector of Central Excise ultimately confiscated the gold so seized by order dated September 18, 1981. The petitioner and some others were tried before a magistrate for offences under s. 120B of the IPC, s. 167(9) of the Sea Custom Act, 1878, and s. 23 of the Foreign Exchange Regulation Act of 1947 and convicted and sentenced to two years' imprisonment. Their convictions and sentences were confirmed by the High Court and the Supreme Court. In the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority was brought to my notice by the counsel for the Revenue and he could not show any law on the point that the money in question belonged to Assa Ram. The basic question which is to be determined in disposing of such application is that where the money lying in the custody of the court belongs to the accused Assa Ram, then such money can be handed over to the Department not otherwise. In the present case, as observed earlier, the money recovered from Assa Ram was not claimed by him. It was not his money. Ghansham Dass also did not claim the money earlier, but when he appeared as a court witness he made the claim, but he has also not filed any appeal against the dismissal of his claim. The Revenue does not come in the picture at al ..... X X X X Extracts X X X X X X X X Extracts X X X X
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