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Madhya Pradesh High Court · body

2011 DIGILAW 617 (MP)

Income Tax Officer v. State of M. P.

2011-05-19

G.D.SAXENA

body2011
ORDER 1. This petition under section 482 of the Code of Criminal Procedure 1973, is directed against an order dated 13th January 2011, passed in Miscellaneous Case No. 0/2005 in connection with Crime No. 03/90. registered by the Police Station G.R.P., Gwalior. 2. The learned Chief Judicial Magistrate, Gwalior (M.P.) by the aforesaid order dated 13th January 2011, decided the application under sections 451 and 457 of CrPC filed by Income. Tax Officer Circle-3 (3) Mathura, (U.P.) for delivery of silver ornaments weighing 285.871 k.g., allegedly seized from one Nirbhay Kumar Sharma, who was travelling on 9th June 1990 through Delhi bound Kerala Express from Selam Junction (Tamiinadu) to Mathura Junction (Uttar Pradesh) and intercepted by Government Railway Police at Gwalior Junction under the apprehension of carrying some stolen property and directed for delivery of the seized articles from Government Treasury Gwalior which were kept under the directions of this Court vide order dated 31st July, 1995 in Writ Petition No. 1716/90, provided that the petitioners shall furnish Supurdginama worth Rs. 1,40,00,000=00, equivalent to the price value of the silver ornaments with condition that on receiving the seized property on Supurdginama the petitioners shall submit an undertaking to the effect that they shall further deposit the worth value of silver ornaments on the directions by the Court and shall also ensure compliance of order of the Court/Superior Court/High Court in future. Being aggrieved by the imposition of said condition in Supurdginama, the petitioners have presented this petition before this Court. 3. The contentions of the learned counsel for the petitioner are that the impugned order passed by the Court of Chief Judicial Magistrate for imposing the condition in Supurgiama with regard to delivery of the property seized and kept under the orders of this Court, in Government Treasury Gwalior are not in consonance with the orders passed by this Court and the Income Tax Law and Criminal Procedure Code. It is contended that the se zed property has no concern with any pending or disposed of criminal Case, therefore, nobody except the Income Tax Authorities as per the provisions of the Income Tax Act can claim over the seized property. The Tax Authorities has assessed the tax liabilities of the Concerned Firms and after assessment of the tax liabilities and penalties imposed by the Income Tax Authorities, the properties belonging to the concerned should be returned by the Assessment Authorities. The Tax Authorities has assessed the tax liabilities of the Concerned Firms and after assessment of the tax liabilities and penalties imposed by the Income Tax Authorities, the properties belonging to the concerned should be returned by the Assessment Authorities. The petitioners are the appointed authorities of the Central Government. The authorities are bound by law to comply all directions passed by the Superior Authorities and the directions passed by any Court of law. Therefore, the condition of production of Supurdginama before the trial Court for delivery of the seized properties from the Government Treasury Gwalior is unnecessary and embossing to the authorities who are persona and destinate responsible, therefore, it is requested to set aside the condition imposed under the impugned order. 4. In Writ Petition No. 1716/1990 vide order dated 31st July, 1990, Single Bench of this Court issued certain directions, which read as are under:- (i) Criminal Court had no authority to order handing over of the property, i.e. Jewellary or cash to the persons claiming it; (ii) Satisfaction of the authority issuing the warrants is to be determined as per the situation existing on the date when the warrant is issued and the requisite satisfaction satisfy the test of judicial review; (iii) lack of territorial jurisdiction is not fatal to the issuance of the warrant; (iv) Once an assessment is over the seized property is to be disposed of as per determination made by the assessing authority; (v) Where assessment is not complete the authority issuing the warrant shall take further steps within the stipulated period as required under section 132 (5) of the Income Tax Act. (2) Thus Writ Petitions No. 1705, 1711,1712,1713,1714,1715, 1716,1717,1718 and 1719 of 1990 filed by the Union of India are allowed. The silver ornaments shall be deemed to in custody of the Income Tax Department (though in reality these shall remain in custody in Government Treasury Gwalior. (3) So far as Writ Petition No. 1853 of 1991 and Writ Petition No. 1984 of 1990 are concerned, these are disposed of with a direction that further steps in terms of section 132 (5) be taken and completed. Even the Assessing authority at Mathura would be at liberty to proceed further. As a matter of fact it could have completed the proceeding pending before it. There was no prohibitory order in existence. Even the Assessing authority at Mathura would be at liberty to proceed further. As a matter of fact it could have completed the proceeding pending before it. There was no prohibitory order in existence. (4) So for as writ Petition No. 2155 of 1990 is concerned the same is dismissed. Assessment order having been passed the custody of the cash in question is not required to be given to the officer issuing the warrant. In writ petition No. 2003/1990 a direction is given to handover the cash to the parties after clearance is given by the assessing authority that all liabilities have been met. (5) Writ Petition No. 1689 of 1991 is dismissed. Assessing authority would be at liberty to apply the seized property to meet the demand raised by the Assessing Authority. (6) So far as Writ Petition No. 1475 of 1990 is concerned the same is disposed of with the direction that officer issuing the warrant would now complete the proceeding within the stipulated period in the terms of section 132 (5) of the Income Tax Act. 5. Prior to above, in the case of Union of India v. Police Station Janakganj. [ 1990 JLJ 734 ], the Division Bench of this Court held that "According to us the police officer, who had seized the money from the respondent No.3 on being served with the order of the Income Tax Authority and Warrant of Authorization, and for that matter learned Magistrate also suffered statutory handicap to deal with the money in any other manner than as contemplated under the special law enacted as aforesaid. Be it noted in this connection that the police had not registered any crime against respondent No.3 and the Income Tax Department on being apprised of the seizure had laid claim to that money and to custody thereof in accordance with previous afore-quoted. Neither SHO Janakganj Police Station, nor learned Magistrate had any jurisdiction to enquire into the validity of the warrant of Authorization for delivery of that money to the Income Tax Authority nor of the competence of the officer. Indeed, we are of further of the view that this Court also in this matter, is not at all concerned with the validity of the warrant of Authorization." 6. Now, adverting to the provision of section 457 of CrPC, which deals with seizure of property by the police. "457. Indeed, we are of further of the view that this Court also in this matter, is not at all concerned with the validity of the warrant of Authorization." 6. Now, adverting to the provision of section 457 of CrPC, which deals with seizure of property by the police. "457. Procedure by police upon seizure of property:- (I) Whenever the seizure of property by any police officer is reported to a Magistrate under the provisions of this Code, and such property is not produced before a Criminal Court during an inquiry or trial, the Magistrate may make such order as he thinks fit respecting the disposal of such property or the deli very of such property to the person entitled to the possession thereof, or if such person cannot be ascertained, respecting the custody and production of such property. (2) If the person so entitled is known, the Magistrate may order the property to be delivered to him on such conditions (if any) as the Magistrate thinks fit and if such person is unknown, the Magistrate may detain it and shall, in such case, issue a proclamation specifying the articles of which such property consists, and requiring any person who may have a claim thereto, to appear before him and establish his claim within six months from the date of such proclamation." 7. On perusal of the impugned order passed by the Chief Judicial Magistrate Gwalior, it appears that the condition as imposed under the impugned order for delivery of the seized goods kept in the Government Treasury Gwalior is to the effect that the petitioner shall furnish Supurdginama worth Rs. 1,40,00,000=00, equivalent to the price value of the silver ornaments with condition that on receiving the seized property on Superdginama, the petitioners shall submit an undertaking to the effect that they shall further deposit the worth value of silver ornaments on the directions by the Court and shall also ensure compliance of order of the Court/Superior Court/High Court in future is superfluous and redundant because the Income1 Tax Authority is a Statutory Authority under the Act, which is responsible to its higher authorities/Tribunals and the Courts of law having jurisdiction. 8. Consequently, the petition is allowed and it is directed that the conditon that the petitioners shall furnish Supurdginama worth Rs. 8. Consequently, the petition is allowed and it is directed that the conditon that the petitioners shall furnish Supurdginama worth Rs. 1,40,00,000=00 equivalent to the price value of the silver ornaments with condition that on receiving the seized property on Supurdginama, the petitioners shall submit an undertaking to the effect that they shall further deposit the worth value of silver ornaments on the directions by the Court and shall also ensure compliance of order of the Court/Superior Court/High Court in future, is hereby waived, for the reasons mentioned in the preceding paragraphs.