Uday Navinchandra Sangani vs Vikrant Pal Singh & 2 on 20 January, 2015

[Cites 40, Cited by 0]

Gujarat High Court

Uday Navinchandra Sangani vs Vikrant Pal Singh & 2 on 20 January, 2015

Bench: Vipul M. Pancholi

           R/SCR.A/58/2015                                           ORDER




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

        SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 58 of 2015

=========================================
               UDAY NAVINCHANDRA SANGANI....Applicant(s)
                                 Versus
                  VIKRANT PAL SINGH  &  2....Respondent(s)
=========================================
Appearance:
MR IH SYED, ADVOCATE WITH MR CB GUPTA, ADVOCATE for the 
Applicant(s) No. 1
MR MR BHATT, SENIOR COUNSEL WITH MRS MAUNA M BHATT, ADVOCATE 
for the Respondent(s) No. 1
MR MITESH R. AMIN, ADVOCATE for the Respondent(s) No. 2
MR HL JANI, INCHARGE PUBLIC PROSECUTOR for the Respondent(s) No. 1
=========================================

           CORAM: HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
 
                               Date : 20/01/2015 
                                 ORAL ORDER

[1] This petition is filed under Article 227 of the Constitution of India, whereby, the petitioner has challenged the order dated 09.12.2014 passed by the learned Additional Sessions Court, Surat, in Criminal Misc. Application No.1392 of 2014. The learned Additional Sessions Court, Surat, allowed the said application and directed the Investigating Officer to handover 42 gunny bags i.e. the Muddamal, which have been seized during the investigation of the FIR being C.R.No.I31 of 2013 registered with Jahangirpura Police Station, Surat, to the Income Tax Authority.

[2] The seminal facts giving rise to the present petition are as under:

[2.1] The petitioner is one of the accused in the FIR being Page 1 of 36 R/SCR.A/58/2015 ORDER C.R.No.I37 of 2013 registered with D.C.B. Police Station, Surat for the offences punishable under Sections 213, 214, 217, 120B of the Indian Penal Code read with Sections 7, 8, 9, 12 and 13(1) of the Prevention of Corruption Act, 1988. That before registration of the said FIR, on 06.10.2013, an FIR came to be registered with Jahangirpura Police Station, Surat bearing C.R.No.I31 of 2013 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 on the basis of the complaint given by the victim against one Narayan alias Narayan Sai alias Mota Bhagwan, Hanuman (sadhak of Narayan Sai), Ganga Sadhika, resident of Gambhoi Ashram, Jamna Sadhika, resident of Gambhoi Ashram and 6 to 7 Sadhikas of Gambhoi Ashram. At this stage, it is relevant to note that present petitioner is not an accused for the offences registered vide C.R.No. I31 of 2013 before Jahangirpura Police Station, Surat. During the course of the investigation of C.R.No.I31 of 2013, the Investigating Officer seized 42 gunny bags on 27.10.2013 by preparing panchnama from the place of respondent No.2 herein i.e. Prahlad Kishanchand Sewani. The said panchnama is produced at AnnexureA with the petition. After completion of the investigation of FIR being C.R.No.I31 of 2013, the Investigating Officer filed the charge sheet in the Court of learned Chief Judicial Magistrate, Surat and thereafter the said case has been committed to the learned District & Sessions Court at Surat which is registered as Sessions Case No.141 of 2014. In the meantime, an FIR bearing registration No. C.R.I37 of 2013 came to be registered with D.C.B. Police Station, Surat against Narayan Sai and others including the present petitioner. After completion of the investigation of the FIR being C.R.I37 of 2013, the D.C.B. Police has filed the chargesheet against the accused persons in the Court of learned Special Judge, Surat, which is registered as Special Case No.1 of 2014. It is the case of the petitioner that accused Narayan Sai preferred Page 2 of 36 R/SCR.A/58/2015 ORDER an application before the learned Sessions Court at Surat with a view to get certified copies of the documents seized in 42 gunny bags. However, the said application was rejected by the learned Sessions Court observing that the seized documents of 42 bags are not lying with the Sessions Court and the same are lying with the Investigating Officer. The petitioner, therefore, filed Special Criminal Application No.3354 of 2014 before this Court with a prayer to furnish the certified copies of the documents seized by the Investigating Officer in 42 bags. That this Court disposed of the said petition with the observations that if the petitioner would approach the Investigating Officer, it is expected that the same shall be looked into by the Investigating Officer in accordance with the law. The petitioner, thereafter, approached the Investigating Officer and requested to supply the true copies/certified copies of the documents seized in 42 bags. However, the Investigating Officer informed him that though the documents are lying with him but the custody of the said documents is with the concerned court. The petitioner, therefore, once again filed Special Criminal Application No.4243 of 2014. However, the petitioner did not press the said application and sought permission to withdraw the same with a view to file an appropriate application before the appropriate forum. The petitioner has, thereafter, filed an application at Exh.18 before the learned Sessions Court in Sessions Case No.141 of 2014. The said application is pending before the learned Sessions Court till today. It is the case of the petitioner that in the meantime, on 23.05.2014, the respondent No.1 herein submitted an application being Criminal Misc. Application No.1392 of 2014 under Section 132A of the Income Tax Act, 1961 (hereinafter referred to as 'the Act' for short) read with Sections 451 and 457 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code') and prayed before the learned Sessions Court that necessary orders be passed under Sections 451 or 457 of the Code and thereby to handover all the Page 3 of 36 R/SCR.A/58/2015 ORDER 42 gunny bags containing documents, CPU, hard disk, C.D. and other articles etc. to the Income Tax Department, Surat or to the authorized officer under th provisions of the Act, who is entitled to take possession of the said 42 gunny bags containing documents etc. for the purpose of investigation. The petitioner herein submitted an application at Exh.8 in the said proceedings for joining him as a party. The said application was given by the petitioner on 04.06.2014 before the learned Sessions Court at Surat. It is the case of the petitioner that by way of order dated 25.06.2014, the learned Additional Sessions Judge, Surat, allowed the said application and the petitioner has been permitted to join as party in the application being Criminal Misc. Application No.1392 of 2014 given by the respondent No.1 - Income Tax Department. It is further the case of the petitioner that by the impugned order dated 09.12.2014, learned Additional Sessions Judge, Surat, allowed the Criminal Misc. Application No.1392 of 2014 given by the respondent No.1 - Income Tax Department, whereby, the Investigating Officer is directed to handover 42 gunny bags, which have been seized during the investigation of the FIR being C.R.I31 of 2013 to the Income Tax Authority. Hence, this petition.

[3] Learned advocate Mr. I.H.Syed appearing with learned advocate Mr.C.B.Gupta for the petitioner, has submitted that the learned Court below has committed an error by passing the impugned order whereby the custody of Muddamal of 42 gunny bags has been handed over to the respondent No.1 - Income Tax Department. It is submitted by the learned advocate for the petitioner that 42 gunny bags have been seized by the Investigating Officer during the course of the investigation of the FIR being C.R.I31 of 2013. However, the said Muddamal is also important for trial of Special Case No.1 of 2014 arising out of the FIR being C.R.I37 of 2013. It is contended that said 42 gunny bags are the Page 4 of 36 R/SCR.A/58/2015 ORDER base for registration of the FIR being C.R.I37 of 2013. However, while passing the impugned order, learned trial Court has not referred to the FIR being C.R.I37 of 2013.

[3.1] Learned advocate for the petitioner would contend that petitioner has given an application for getting the certified copies of the documents lying in 42 gunny bags which is pending before the learned Sessions Court. It is contended that if the certified copies of the documents lying in 42 gunny bags are not given to the petitioner or if the said Muddamal - 42 gunny bags is handed over to the Income Tax Department, prejudice would be caused to the petitioner in the proceedings pending before the learned trial Court in pursuant to the FIR being C.R.I37 of 2013 and thereby right of the petitioner of fair trial would also be prejudiced. The learned advocate for the petitioner made a grievance that while passing the impugned order, learned Sessions Court has not discussed about the proceedings initiated in pursuant to the FIR being C.R.I37 of 2013 and thereby committed grave error. Thus, the learned advocate would contend that the learned trial court has not given fair hearing to the petitioner.

[3.2] Learned advocate for the petitioner further submitted that in the proceedings of the application given by the respondent No.1 under Section 451 read with Section 457 of the Code read with Section 132A of the Act, the petitioner preferred an application at Exh.8 for joining him as a party respondent and the learned Additional Sessions Judge, Surat, allowed the said application Exh.8 and thereby petitioner was joined as party in the said proceedings. Learned advocate for the petitioner relied upon the order dated 25.06.2014 passed below application Exh.8 and submitted that while allowing the said application, the learned Additional Sessions Judge observed that the Page 5 of 36 R/SCR.A/58/2015 ORDER application given by the Income Tax Department is in connection with the offence registered vide C.R.I37 of 2013, and if any order is to be passed in absence of the said person whose right is involved in the matter, it would be seriously prejudiced to the said third party accused and by making such observation, the petitioner was permitted to be joined as party respondent in the said proceedings.

[3.3] The learned advocate for the petitioner raised certain questions of law for consideration of this Court by submitting the document at the time of hearing of this petition. The said questions of law are as under:

"1. Whether the impugned judgment is sustainable without the prosecution clarifying their stand in respect of the documents (containing in 42 bags) seized by the Police that whether the prosecution relies upon the same and/or its requirement in the course of trial, in the case arising out of I.C.R.No.37/2014 at the time of hearing of the application of Section 451 CRPC?

2. Whether the impugned judgment is sustainable if the stand of the prosecution about the reliance on the documents and/or its requirement in the course of trial in the case arising out of I CR No.37/2014 has a bearing on the outcome of an application of Section 451 CRPC?

3. Whether the impugned judgment is sustainable in light of a subsequent order/judgment where in the Court dismissed the application of Section 451 filed by the Income Tax denying custody of muddamal of Rs.8 crores on the ground that the prosecution took a stand that the said muddamal is required for trial?

4. Whether the impugned judgment is sustainable without compliance of section 207 CRPC and during the time when the application under section 377 of Criminal Court Manual seeking certified copies of the document is pending in the Court?

5. Whether a hearing and decision by the Court in the Page 6 of 36 R/SCR.A/58/2015 ORDER application of section 451 without supplying the documents under section 207 or 377 would amount to a fair hearing?

6. Whether the impugned judgment is sustainable if the applicant is denied of a fair hearing in an application of section 451 of CRPC especially when the Court records a finding in the impleadment application that if a fair hearing is denied then the rights of the applicant is seriously prejudiced?

7. Whether the impugned judgment is sustainable without supplying the copies of the documents though the law is settled by the Supreme Court that even the copies of unexhibited documents are required to be supplied to the accused under section 207 of CRPC which is pre requisite for a fair trial?

8. Whether the impugned judgment is sustainable where section 132(A) of the Income Tax Act is misinterpreted and is wrongly made applicable to the case at a premature stage?

9. Whether the provisions of section 138 of IT Act which is subject to the satisfaction of the executive can be said to be overriding the expression under section 207 and section 377 of Gujarat Criminal Manual in respect of an accused of a criminal offence seeking copies of the documents before commencement of the trial from a Court?"

[3.4] Learned advocate for the petitioner relied upon Section 207 of the Code and submitted that the learned Magistrate is bound to furnish to the accused, without any delay, copy of the police report, first information report, statement recorded under subsection (3) of section 161 of the Code, the confessions and statements, if any, recorded under section 164 and any other documents or relevant extract thereof forwarded to the Magistrate with the police report under subsection (5) of section 173 of the Code. Relying upon the said provisions, learned advocate for the petitioner would contend that the learned Magistrate has not complied with the aforesaid provisions of law and therefore the Investigating Officer and/or the concerned Court is required to supply the certified copy of the documents lying in 42 gunny bags. It is further Page 7 of 36 R/SCR.A/58/2015 ORDER submitted by the learned advocate for the petitioner that if the custody of Muddamal 42 gunny bags is given to the Income Tax Department, petitioner would not be able to get the copy of the documents lying in the said bags and thereby his right of fair trial would be prejudiced.

[3.5] Learned advocate for the petitioner relied upon the decision of the Hon'ble Supreme Court in the case of V. K. Shashikala v. State reported in (2012) 9 S.C.C. 771, and more particularly, paragraphs 17 and 21 of the said decision and thereby submitted that even unexhibited documents are required to be supplied to the accused.

[3.6] Learned advocate for the petitioner further relied upon the decision of the Hon'ble Supreme Court in the case of Rattiram & Ors. V. State of Madhya Pradesh, reported in (2012) 4 SCC 516 and submitted that the accused is having a right of fair trial and the fair trial is required to be conducted in such a manner which would totally ostracize the injustice, prejudice, dishonesty and favouritism. He further submitted that once the prejudice is caused to the accused during trial, it occasions in failure of justice. Learned advocate further submitted that objection with regard to noncompliance of the provisions of Section 207 of the Code is required to be taken at the earliest and therefore such contention is taken by the petitioner.

[3.7] Learned advocate for the petitioner further relied upon Rules 377 and 378 of the Criminal Court Manual. Rule 377 of the Criminal Court Manual reads as under:

"Parties to any proceedings may, on application on the prescribed court fee made to the Court having the custody of the record, obtain certified copies of any judgment, order, depositions, memorandum of Page 8 of 36 R/SCR.A/58/2015 ORDER evidence or any other documents filed in the said proceedings. The applicant shall state whether the copy applied for is required for private use or otherwise."

The learned advocate for the petitioner, therefore, submitted that there is a violation of Rule 377 of the Criminal Court Manual in the present case.

[3.8] The learned advocate for the petitioner further contended that as per Section 132A of the Act, powers are given to the concerned Income Tax Officer for requisition of books of account etc. However, there is nothing on record to suggest that the Director General or Director or the Chief Commissioner or the Commissioner has recorded the satisfaction about exercise of powers under section 132A of the Act. Thus, in absence of satisfaction recorded by the concerned income tax authority, the application submitted by the officer of the Income Tax Department is premature.

[3.9] The learned advocate for the petitioner would contend that the learned Sessions Court passed the impugned order on the basis of the submissions advanced on behalf of the learned Special Public Prosecutor that all the articles and documents lying in 42 gunny bags are not at all required by the prosecution to prove the case of rape against the accused persons. At this stage, learned advocate for the petitioner further contended that during the pendency of this petition, the learned Sessions Court has rejected the application given by the Income Tax Department for getting custody of Muddamal of the FIR being C.R.I37 of 2013. The said Muddamal is cash amount of Rs.8.10 crore. Learned advocate for the petitioner referred to the order dated 16.01.2015 and pointed out that the said application is rejected by the learned Sessions Page 9 of 36 R/SCR.A/58/2015 ORDER Court because the learned Special Public Prosecutor has taken the objection in the said case with regard to handing over the custody of cash amount of Rs.8.10 crore to the Income Tax Department. Thus, the learned advocate for the petitioner submitted that the learned Special Public Prosecutor is taking different stand in different matters. Learned advocate for the petitioner further submitted in response to the argument of learned Senior Counsel appearing for the respondent No.1 - Income Tax Department about the period of limitation prescribed under Section 132A of the Act, that the said limitation period would start from the date of knowledge and therefore the Income Tax Department is not right in contending that if the custody of the Muddamal articles is not handed over to the Income Tax Department immediately then it would be difficult for them to make scrutiny of the documents and complete the proceedings before 31st March 2015.

[3.10] The learned advocate for the petitioner, at the time of hearing of this petition, produced on record the reply given by the petitioner before the learned Sessions Court in Criminal Misc. Application No.1392 of 2014 and pointed out that the contention was taken by him in the said reply that 42 gunny bags are the Muddamal of C.R.No.I37 of 2013 of D.C.B. Police Station and therefore the said Muddamal cannot be handed over to the Income Tax Department. Referring to the said contention, learned advocate for the petitioner submitted that the learned Sessions Court has not dealt with the aforesaid contention of the petitioner and therefore the impugned order passed by the learned Sessions Court may be quashed and set aside and thereby the matter be remanded back to the learned Sessions Court to consider the said issue afresh as there is no reference with regard to the FIR being C.R.No.I37 of 2013 in the impugned order.

[4]            On the other hand, learned Senior Counsel Shri M.R.Bhatt 


                                      Page 10 of 36
             R/SCR.A/58/2015                                            ORDER

appearing with Mrs. Mauna M. Bhatt for the respondent No.1 - Income Tax Authority has submitted that no error is committed by the learned Sessions Court, Surat, while passing the impugned order and therefore this Court may not interfere with the same. The Learned Senior Counsel referred to the copy of the Panchnama produced at AnnexureA with the petition and submitted that all 42 bags with articles and documents have been seized from the residence of respondent No.2 herein viz. Prahlad Kishanchand Sevani and the name of present petitioner is nowhere mentioned in the said Panchnama. The learned Senior Counsel further contended that the Investigating Officer has seized 42 gunny bags during the course of investigation of the FIR being C.R.No.I31 of 2013 registered with Jahangirpura Police Station, Surat. In the said case the petitioner is not an accused. It is further contended that the said 42 gunny bags are Muddamal of C.R.No.I31 of 2013. The learned Senior Counsel further contended that the arguments canvassed by the learned advocate for the petitioner before the learned Sessions Court are accordingly dealt with by the learned Sessions Court while passing the impugned order. The learned Senior Counsel further referred to para 7 of the impugned order wherein the learned Sessions Court has recorded the contentions of the learned advocate for the petitioner. The learned Senior Counsel further submitted that the petitioner has not at all stated in the petition that though a particular contention was taken by him during the course of his submission, the learned Sessions Court has not considered the same while passing the impugned order and therefore from the impugned order it appears that the learned advocate for the petitioner has not raised any other contention except those which are recorded by the learned Sessions Court in the impugned order.

[4.1] The learned Senior Counsel for the respondent No.1 further submitted that the judgment rendered by the Hon'ble Apex Court in the Page 11 of 36 R/SCR.A/58/2015 ORDER case of V. K. Shashikala (Supra) relied upon by the learned advocate for the petitioner is not applicable to the facts of the present case. Similarly, the decision rendered by the Hon'ble Apex Court in the case of Rattiram (Supra) is also not applicable to the facts and circumstances of the present case as the petitioner is not an accused in C.R.No.I31 of 2013, wherein, during the course of investigation, the Investigating Officer seized 42 gunny bags as the Muddamal from the residence of respondent No.2 herein. Therefore, there is no question of causing any prejudice to the petitioner in the trial arising out of C.R.No.I37 of 2013.

[4.2] The learned Senior Counsel further submitted that the application submitted by the petitioner for joining him as a party respondent in the application submitted by the respondent No.1 - Income Tax Department, the learned Sessions Court has under the wrong belief joined him as party respondent and therefore merely because the petitioner was joined as respondent in the said proceedings, it cannot be said that the right of the petitioner would be prejudiced if the Muddamal 42 gunny bags are handed over to the Income Tax Department.

[4.3] The learned Senior Counsel contended that the petitioner is wrongly relying upon the provisions of Section 207 of the Code and Rule 377 of the Criminal Court Manual. Learned Senior Counsel relied upon the provision of Section 207(v) and submitted that the provisions of Section 207 of the Code and Rule 377 of the Criminal Court Manual are required to be read with subsection (5) of section 173 of the Code. In the present case, the learned Special Public Prosecutor has submitted before the learned Sessions Court that Muddamal 42 gunny bags is not required to prove the offence against the concerned accused persons which has been registered vide C.R.No.I31 of 2013 with Jahangirpura Page 12 of 36 R/SCR.A/58/2015 ORDER Police Station, Surat. It is not necessary for the Investigating Officer to supply the copies of the said documents to the petitioner and more particularly when the petitioner is not an accused in C.R.No.I31 of 2013.

[4.4] Learned Senior Counsel referred to Section 132 of the Act, which provides for search and seizure and thereafter referred to the provisions of Section 132A and submitted that when the highest authority of the Income Tax Department has given the warrant of authorization on 07.05.2014 while exercising powers under section 132A(1) of the Act read with relevant rules to the concerned Income Tax Officer and when the said authorization is on the basis of the requisition and the requisition is not under challenge before this Court and when the Income Tax Department has exercised the powers in public interest, the learned Sessions Court has rightly handed over the custody of Muddamal 42 gunny bags to the respondent No.1 and thereby no error is committed by the learned Sessions Court.

[4.5] The learned Senior Counsel further contended that it is settled position of law as to whether there was adequate material for the competent authority to form the required satisfaction either under Section 132 or under Section 132A of the Act is not a question which can be agitated by any assessee. Learned Senior Counsel further submitted that only upon receipt of requisitioned assets, the assessment of the block period of 6 years can be initiated and completed under section 153B of the Act. Unless the requisitioned assets/documents are received by the Income Tax Department, the undisclosed income for 6 assessment years for the concerned assessee cannot be framed, causing substantial loss to public revenue. Learned Senior Counsel further explained the procedure and submitted that upon authorization being Page 13 of 36 R/SCR.A/58/2015 ORDER issued under section 132A of the Act, the requisitioned authority is required to handover the requisitioned assets to the Income Tax Department and upon receipt of the requisitioned assets/documents, the assessment under Section 153A of the Act is required to be commenced and finalized. In the said proceedings adequate and enough opportunity would be granted to the persons affected viz. concerned assessee whose undisclosed income is sought to be assessed. In the event, the petitioner is one of the assessees whose undisclosed income is sought to be assessed under section 153A and analogous provisions of the Act, adequate opportunity will be granted to him and the Income Tax Department will follow the principle of natural justice. Thus, the learned Senior Counsel submitted that no prejudice would be caused to the petitioner.

[4.6] The learned Senior Counsel further contended that the petitioner was intentionally delaying the hearing of the application submitted by the Income Tax Department before the learned Sessions Court by filing different applications and petitions. The learned Senior Counsel referred to para 13 of the affidavitinreply filed by the Deputy DIT of Income Tax (Investigation), Unit 3 in this proceeding and submitted that at no point of time the petitioner has come forward to own the contents of the Muddamal. In the event the petitioner owns up the contents of 42 gunny bags after the Muddamal bags were handed over to the Income Tax Department at the time of finalizing the assessment, requisite documents would be supplied to the petitioner as per the provisions of Section 138 and analogous provisions of the Act.

[4.7] The learned Senior Counsel, at the time of hearing of this petition, further submitted under the instructions received by him from the concerned officer that the Income Tax Department will provide the Page 14 of 36 R/SCR.A/58/2015 ORDER copies of the documents lying in 42 gunny bags and therefore no prejudice would be caused to the petitioner as argued by the learned advocate for the petitioner.

[4.8] The learned Senior Counsel has relied upon the decision of this Court in the case of Deputy Director of Income Tax (Investigation) v. State of Gujarat & Anr. reported in [2009] 319 ITR 292.

[4.9] The learned Senior Counsel further relied upon the decision rendered by this Court in the case of Sunil Vidhyasagar Gat & Anr. V. Shalini Verma, Officer, Deputy Director of Income Tax (Investigation) & Ors. reported in [2012] 347 ITR 1, and submitted that whether on the information in his possession the authority should exercise his powers under Section 132A must be decided by the authority and not by the High Court. The concerned authority under Section 132A alone is entrusted with the powers to administer it. Thus, the submission canvassed on behalf of the learned advocate for the petitioner with regard to the authorization is not required to be accepted by this Court.

[4.10] The learned Senior Counsel further relied upon the orders passed by this Court in Special Criminal Application No.1009 of 2010, Criminal Revision Application No.333 of 2010 and Special Criminal Application No.2499 of 2013 and submitted that while passing the impugned order, the learned Sessions Court has not committed any error.

[4.11] The learned Senior Counsel lastly submitted that when no error is committed by the learned Sessions Court, this Court may not interfere with the impugned order while exercising the powers under Article 227 of the Constitution of India. Learned Senior Counsel further Page 15 of 36 R/SCR.A/58/2015 ORDER submitted that the scope of judicial review of this Court is very limited while exercising powers under Article 227 of the Constitution of India and thereby requested that the petition be dismissed.

[5] The learned advocate Mr. Mitesh R. Amin appearing on behalf of respondent No.2 has submitted that the 42 gunny bags have been seized from the residence of respondent No.2 by the Investigating Officer during the course of investigation of the FIR being C.R.No.I31 of 2013. Thus, the aforesaid 42 gunny bags are the Muddamal of the FIR being C.R.No.I31 of 2013. It is further submitted by him that the respondent No.2 has filed the pursis at Exh.5 in the application submitted by the respondent No.1 - Income Tax Department before the learned Sessions Court, wherein, it was declared by the respondent No.2 before the said Court that he has no objection if the said 42 gunny bags are handed over to the Income Tax Department. The respondent No.2 is taking the same stand before this Court also. Thus, the learned advocate for the respondent No.2 has submitted that this Court may pass appropriate order.

[6] The learned Incharge Public Prosecutor Mr. H.L.Jani submitted on behalf of respondent no.3 that learned Sessions Court has not committed any error while passing the impugned order. He has pointed out before this Court that the learned Special Public Prosecutor has specifically made a statement before the learned Sessions Court that all the articles and documents lying in 42 gunny bags are not at all required by the prosecution to prove the case of rape against the accused persons tried for the offence registered as C.R.No.I31 of 2013. The learned Public Prosecutor further submitted that the petitioner is not an accused of the offences registered as C.R.No.I31 of 2013 and therefore he cannot object for handing over the Muddamal gunny bags of Page 16 of 36 R/SCR.A/58/2015 ORDER C.R.No.I31 of 2013 to the Income Tax Department. The learned Public Prosecutor further pointed out that the order is passed by the learned Sessions Court with regard to Muddamal of C.R.No.I31 of 2013 and not for C.R.No.I37 of 2013. The learned Public Prosecutor relied upon the provisions of Section 207 of the Code and more particularly the provisions of Section 207(v). The learned Public Prosecutor has further relied upon Section 165 of the Code and thereafter relied upon the decision of this Court in the case of Laxmansinh Dansinhji Gohil & Anr. V. State of Gujarat, reported in 1992 (2) G.L.H. 407 and submitted that the accused is entitled to get copies of documents on which the prosecution proposes to rely and which are sent to the Court under sub section (3) of Section 173 of the Code but the accused is not entitled to get the copies of the documents seized under Section 165 of the Code and on which the prosecution does not intend to rely to prove its case. The learned Public Prosecutor, therefore, submitted that in the present case it was declared by the Special Public Prosecutor before the learned Sessions Court that the documents and articles lying in 42 gunny bags are not required to prove the case of rape against the concerned accused persons of C.R.No.I31 of 2013 and therefore the copies of the said documents are not required to be given to the accused. The learned Public Prosecutor further clarified that petitioner is not an accused in the said case and therefore the learned Sessions Court has not committed any error while passing the order of handing over the custody of Muddamal 42 gunny bags to the Income Tax Department.

[6.1] The learned Public Prosecutor has submitted that so far as the contention of the petitioner with regard to the Special Public Prosecutor taking different stand in different matters is concerned, in the application preferred by the Income Tax Department for getting the custody of cash of Rs.8.10 crore the learned Special Public Prosecutor Page 17 of 36 R/SCR.A/58/2015 ORDER has objected the said application and contended that the cash amount is not Muddamal and even if it is considered to be Muddamal then also the custody of the cash cannot be handed over to the Income Tax Department since the said cash is required to prove the case against the accused of C.R.No.I37 of 2013.

[7] Heard the learned advocates appearing for the parties. I have gone through the order impugned in this petition and also the documents produced on record and also considered the rival submissions advanced by the learned advocates appearing for the parties. At the outset, it is required to be noted that from the record and the submissions advanced by the learned advocates appearing for the respective parties, it is clear that the petitioner is an accused of an FIR being C.R.No.I37 of 2013 registered with D.C.B. Police Station, Surat for the offences punishable under under Sections 213, 214, 217, 120B of the Indian Penal Code read with Sections 7, 8, 9, 12 and 13(1) of the Prevention of Corruption Act, 1988. It is further clear from the record that petitioner is not an accused of the FIR being C.R.No.I31 of 2013 registered 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 is undisputed fact that Muddamal 42 gunny bags were seized from the residence of respondent no.2 herein during the course of investigation of C.R.No.I31 of 2013 and not from the place of the petitioner. It is further clear from the record that 42 gunny bags are Muddamal of the FIR being C.R.No.I31 of 2013 and it is not the Muddamal of the FIR being C.R.No.I37 of 2013 registered with D.C.B. Police Station, Surat in which the petitioner is also one of the accused. Thus, in view of the aforesaid undisputed facts, I would like to consider the arguments of the learned advocates of the concerned parties. Before dealing with the contentions Page 18 of 36 R/SCR.A/58/2015 ORDER and submissions of the learned advocates appearing for the respective parties, certain important provisions of law are required to be referred.

[8] Section 451 of the Code reads as under:

"451. Order for custody and disposal of property pending trial in certain cases. When any property is produced before any Criminal Court during an inquiry or trial, the court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, and, if the property is subject to speedy and natural decay , or if it is otherwise expedient so to do, the court may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of .

Explanation: For the purposes of this section, "property" includes

(a) Property of any kind or document which is produced before the court or which is in its custody.

(b) Any property regarding which an offence appears to have been committed or which appears to have been used for the commission of any offence."

[9] Section 132A of the Income Tax Act, 1961 provides as under:

"132A. 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 (11 of 1922), or under subsection (1) of section 131 of this Act, or a notice under subsection (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 Page 19 of 36 R/SCR.A/58/2015 ORDER 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 Income tax 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 books of account or other documents on the return of such books of account or other documents by any officer or authority by whom or which such books of account or other documents have been taken into custody under any other law for the time being in force, or

(c) any assets represent either wholly or partly income or property which has not been, or would not have been, disclosed for the purposes of the Indian Incometax Act, 1922 (11 of 1922), or this 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, then, the Director General or Director or the Chief Commissioner or Commissioner may authorise any Additional Director, Additional Commissioner, Joint Director, Joint Commissioner, Assistant Director or Deputy Director, Assistant Commissioner or Deputy Commissioner or Incometax Officer (hereafter in this section and in subsection (2) of section 278D referred to as the requisitioning officer) to require the officer or authority referred to in clause (a) or clause (b) or clause (c), as the case may be, to deliver such books of account, other documents or assets to the requisitioning officer.

(2) On a requisition being made under subsection (1), the officer or authority referred to in clause (a) or clause (b) or clause (c), as the case may be, of that subsection shall deliver the books of account, other documents or assets to the requisitioning officer either forthwith or when such officer or authority is of the opinion that it is no longer necessary to retain the same in his or its custody.

(3) Where any books of account, other documents or assetshave been delivered to the requisitioning officer, the provisions of subsections (4A) to (14) (both inclusive) of section 132 and section Page 20 of 36 R/SCR.A/58/2015 ORDER 132B shall, so far as may be, apply as if such books of account, other documents or assets had been seized under subsection (1) of section 132 by the requisitioning officer from the custody of the person referred to in clause (a) or clause (b) or clause (c), as the case may be, of subsection (1) of this section and as if for the words "the authorised officer" occurring in any of the aforesaid subsections (4A) to (14), the words "the requisitioning officer" were substituted."

[10] The authorized officer of respondent No.1 - Income Tax submitted an application being Criminal Misc. Application No.1392 of 2014 before the learned Sessions Court in connection with C.R.No.I31 of 2013. The said application was given under Section 132A of the Act read with Sections 451 and/or 457 of the Code. In the said application, the respondent No.1 has specifically pointed out about the authorization given to him. It was further pointed out in the said application that 42 gunny bags were seized during the course of investigation and Panchnama was prepared by the Investigating Officer. The said bags contained documents, CPU, hard disk, C.D. and other articles involving the sizable investments. The said gunny bags are required by the Income Tax Department for the purpose of thorough and complete investigation as to the source of investments including the investments in real estate and immovable properties under the provisions of the Act. It was further pointed out in the said application that income tax authorities have very wide powers to investigate the source of investments as contained in the documents lying in 42 gunny bags. Therefore, thorough and complete investigation is required to be had in the interest of nation. It was further pointed out in the said application that the income tax authorities are discharging their duty bona fide. Therefore, it was prayed in the said application that necessary orders under Section 451 and 457 of the Code may be passed and thereby the custody of 42 gunny bags containing documents, CPU, hard disk, CD and other articles be handed over to the Income Tax Department for the purpose of investigation.

Page 21 of 36

             R/SCR.A/58/2015                                              ORDER




[11]           The learned Sessions Court allowed the application  Exh.8

submitted by the petitioner and thereby permitted him to join as party respondent in Criminal Misc. Application No.1392 of 2014 submitted by the Income Tax Department. However, from the order dated 25.06.2014 passed below Exh.8 by the learned Additional Sessions Judge, Surat, it appears that the learned Sessions Judge has permitted the petitioner to be joined as party respondent under the wrong belief that Muddamal articles - 42 gunny bags were seized in the C.R.No.I37 of 2013. The learned Additional Sessions Judge, therefore, observed in para 7 that application has been preferred by the Income Tax Department under Section 132A of the Act read with Section 451 and/or 457 of the Code in connection with the offence registered at Jahangirpura Police Station vide C.R.No.I37 of 2013 and therefore when the petitioner is an accused of C.R.No.I37 of 2013, if any order is to be passed then it would be seriously prejudiced to the petitioner or third party. Thus, the said observations are prima facie not correct. From the record, it is clear that C.R.No.I37 of 2013 is not registered with Jahangirpura Police Station but it is registered with D.C.B. Police Station, Surat. Further, the application was given by the Income Tax Department for getting custody of Muddamal 42 gunny bags in connection with C.R.No.I31 of 2013 registered with Jahangirpura Police Station and not for the Muddamal of C.R.No.I37 of 2013 registered with D.C.B. Police Station. Further, the petitioner is not an accused in the FIR being C.R.No.I31 of 2013. Thus, it is clear that under the wrong belief, the petitioner was permitted to be joined as party respondent in the said proceedings.

[12] It is also clear from the record that the learned Special Public Prosecutor has specifically submitted before the learned Sessions Court during the course of hearing of Criminal Misc. Application Page 22 of 36 R/SCR.A/58/2015 ORDER No.1392 of 2014 filed by respondent No.1 herein - Income Tax Department that the articles and documents lying in 42 gunny bags are not required by the prosecution to prove the case of rape against the accused persons i.e. the accused persons of C.R.No.I31 of 2013. Similarly, the respondent No.2 from whose residential house the Investigating Officer of C.R.No.I31 of 2013 has seized 42 gunny bags has already given a pursis Exh.5 before the learned Sessions Court, whereby he declared that he has no objection if the custody of 42 gunny bags is given to the Income Tax Department. From the record, it is further clear that the contentions and submissions advanced on behalf of the learned advocate for the petitioner are properly dealt with by the learned Sessions Court while passing the impugned order and it is not the case of the petitioner in the petition that though the learned advocate appearing before the learned Sessions Court has raised certain contentions, they were not dealt with by the learned Sessions Court and therefore when the learned trial Court has, after appreciating the arguments advanced by the concerned parties, passed the order, it cannot be said that the learned Sessions Court has committed any illegality.

[13] Now, in this fact situation it is to be observed that for the first time before this Court the learned advocate for the petitioner has raised certain contentions which are not at all taken by him before the learned Sessions Court. It is true that contentions of law can be raised at any point of time but it is also true that if factual contentions are not raised before the learned Sessions Court and not dealt with by the learned Sessions Court, it cannot be said that the learned Sessions Court has committed any error while not dealing with the contention of the petitioner which was never raised before the learned Sessions Court. Thus, in this background, I would like to consider the contention of the Page 23 of 36 R/SCR.A/58/2015 ORDER petitioner with regard to the violation of provisions of Section 207 of the Code and Rules 377 and 378 of the Criminal Court Manual. Section 207 of the Code provides thus:

"207. Supply to the accused of copy of police report and other documents. In any case where the proceeding has been instituted on a police report, the Magistrate shall without delay furnish to the accused, free of cost, a copy of each of the following:

(i) The police report;

(ii) The first information report recorded under section 154:

(iii) The statements recorded under subsection (3) of section 161 of all persons whom the prosecution proposes to examine as its witnesses, excluding there from any part in regard to which a request for such exclusion has been made by the police officer under sub section (6) of section

173.

(iv) The confessions and statements, if any, recorded under section 164;

(v) Any other document or relevant extract thereof forwarded to the Magistrate with the police report under subsection (5) of section 173:

Provided that the Magistrate may, after perusing any such part of a statement as is referred to in clause (iii) and considering the reasons given by the police officer for the request, direct that a copy of that part of the statement or of such portion thereof as the Magistrate thinks proper, shall be furnished to the accused:

Provided further that if the Magistrate is satisfied that any document referred to in Clause (v) is Voluminous, he shall, instead of furnishing the accused with a copy thereof', direct that he will only be allowed to inspect it either personally or through pleader in court."

[14] At this stage, provisions of Section 173 of the Code are also Page 24 of 36 R/SCR.A/58/2015 ORDER required to be considered, which read as under:

"173. Report of police officer on completion of investigation. - (1) Every investigation under this Chapter shall be completed without unnecessary delay.

[(1A) The investigation in relation to rape of a child may be completed within three months from the date on which the information was recorded by the officer in charge of the police station.

(2) (i) As soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating

(a) The names of the parties;

(b) The nature of the information;

(c) The names of the persons who appear to be acquainted with the circumstances of the case;

(d) Whether any offence appears to have been committed and, if so, by whom;

(e) Whether the accused has been arrested;

(f) Whether he has been released on his bond and, if so, whether with or without sureties;

(g) Whether he has been forwarded in custody under section 170.

(h) whether the report of medical examination of the woman has been attached where investigation relates to an offence under section 376, 376A, 376B, 376C [section 376D or section 376E of the Indian Penal Code (45 of 1860)

(ii) The officer shall also communicate, in such manner as may be prescribed by the State Government, the action taken by him, to the person, if any whom the information relating to the commission of the offence was first given.

Page 25 of 36

 R/SCR.A/58/2015                                                    ORDER



(3)           Where   a   superior   officer   of   police   has   been

appointed under section 158, the report shall, in any case in which the State Government by general or special order so directs, be submitted through that officer, and he may, pending the orders of the Magistrate, direct the officer in charge of the police station to make further investigation.

(4) Whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit.

(5) When such report is in respect of a case to which section 170 applies, the police officer shall forward to the Magistrate along with the report

(a) All documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation;

(b) The statements recorded under section 161 of all the persons whom the prosecution proposes to examine as its witness.

(6) If the police officer is of opinion that any part of any such statement is not relevant to the submatter of the proceeding or that its disclosure to the accused is not essential in the interests of justice and is inexpedient in the public interest, he shall indicate that part of the statement and append a note requesting the Magistrate exclude that part from the copies to be granted to the accused and stating his reasons for making such request.

(7) Where the police officer investigating the case finds it convenient so to do, he may furnish to the accused copies of all or any of the documents referred to in subsection (5).

(8) Notwithstanding in this section shall be deemed to preclude further investigation in respect of an offence after a report under subsection (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form Page 26 of 36 R/SCR.A/58/2015 ORDER prescribed and the provisions of' subsection (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under subsection (2)"

[15] It is clear from the aforesaid provisions that the Magistrate is bound to furnish, without delay, to the accused copy of certain documents like police report, FIR, statements recorded under subsection (3) of section 161 of the Code, confessions and statements, if any, recorded under section 164 of the Code and any other documents or relevant extract thereof forwarded to the Magistrate with the police report under subsection (5) of Section 173. Second proviso to Section 207 further provides that if the Magistrate is satisfied that any documents referred to in clause (v) is voluminous, he shall instead of furnishing the accused with a copy thereof, direct that he will only be allowed to inspect it either personally or through pleader in Court.

[16] Further, subsection (5) of Section 173 of the Code provides that the police officer shall forward to the Magistrate along with the report all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation.

[17] At this stage, at the cost of repetition, I would like to refer to Rule 377 of the Criminal Court Manual, which reads as under:

"Parties to any proceedings may, on application on the prescribed court fee made to the Court having the custody of the record, obtain certified copies of any judgment, order, depositions, memorandum of evidence or any other documents filed in the said proceedings. The applicant shall state whether Page 27 of 36 R/SCR.A/58/2015 ORDER the copy applied for is required for private use or otherwise."

[18] Further, it is clear from the submission advanced on behalf of the Special Public Prosecutor before the learned Sessions Court that the prosecution is not relying upon the documents and articles contained in 42 gunny bags seized during the investigation of C.R.No.I31 of 2013 with a view to prove the offence of rape against the accused of C.R.No.I 31 of 2013 registered with Jahangirpura Police Station. At this stage, I would like to refer to the decision rendered by this Court in Laxmansinh Dansinhji Gohil (Supra), wherein this Court in para 10A observed as under:

"10A. Section 207 of the Code is very clear as to what documents and the police report the accused is entitled to as a matter of right. In Section 207 it is also made clear that the accused is required to be supplied the documents or relevant extracts of the documents forwarded to the Magistrate with the police report recorded under subsection (5) of Section

173. Documents contemplated in subsection (5) of Section 173 are the documents which the prosecution will rely on as documentary evidence on being legally proved under the Evidence Act. Muddamal articles even if they consist of documents are not required to be proved as per Evidence Act and read in evidence but they are identified as being seized from accused. If the articles from any incriminating circumstances, the same may be considered without going into the contents thereof. Muddamal articles, if consists of any documents, is it documentary evidence as referred in the Evidence Act? It is necessary to mention at this juncture that in case if the prosecution tried to prove the muddamal articles which happens to be a document to use and rely on as documentary evidence, then, in that case, accused will be entitled to copy of those articles which happens to be a document. Here, in this case, the articles which happens to be document are not to be used as documentary evidence against the accused as made clear by the learned P.P. But they are only to be identified as articles seized from the person of the accused or from the premises occupied by the accused."

Page 28 of 36

             R/SCR.A/58/2015                                             ORDER




[19]           Now, the case of the petitioner is required to be considered

in view of the aforesaid provisions of law. At this stage, for the sake of repetition it is once again observed that the petitioner is not an accused of the FIR being C.R.No.I31 of 2013 registered with Jahangirpura Police Station during the investigation of which the Investigation Officer seized 42 gunny bags from the residence of respondent No.2 herein and therefore the contention raised by the learned advocate for the petitioner that if the copy of the documents lying in the said 42 gunny bags is not given to the petitioner, prejudice would be caused to him, in the opinion of this Court, is misconceived and not required to be accepted.

[20] Thus, in view of the facts and circumstances of the case, the decision relied upon by the learned advocate for the petitioner rendered by the Hon'ble Apex Court in the case of V. K. Shashikala (Supra) is not applicable because the petitioner is not an accused of the FIR being C.R.No.I31 of 2013. Further, Rules 377 and 378 of the Criminal Court Manual are also required to be read with the provisions of Clause (v) of Section 207, 2nd proviso to Section 207 and subsection (5) of Section 173 of the Code.

[21] Now, so far as the contention of the learned advocate for the petitioner with regard to the provisions of Section 132A of the Act is concerned, from the record it appears that the respondent No.1 herein as a Deputy Director of Income Tax (Investigation), Unit 3, Surat, had filed the application under Section 132A of the Act. The concerned authority of the Income Tax Department authorized the respondent No.1 to initiate the aforesaid proceedings. In the affidavit filed on bahalf of respondent No.1, it is specifically stated that based on the information Page 29 of 36 R/SCR.A/58/2015 ORDER made available and after causing necessary inquiry the competent authority under the Income Tax Act was satisfied about the ingredients of Section 132A of the Act to the effect that the contents of 42 gunny bags relate to transactions not recorded in the books of account. It is further stated in the affidavit by the respondent No.1 that the authorization under Section 132A of the Act is not under challenge in the present proceedings. Thus, whether there was adequate material for the competent authority to form the required satisfaction either under Section 132 or Section 132A of the Act is not a question which can be agitated by any assessee. This Court in the decision rendered in the case of Sunil Vidhyasagar Gat (Supra) has held that "Whether on the information in his possession the authority should exercise his powers under Section 132A, must be decided by the authority and not by the High Court. The concerned authority under Section 132A alone is entrusted with the powers to administer it. If from the material disclosed it may be prima facie said that he had reason to believe that any of those conditions existed, it is not open to the High Court, exercising powers under Article 226 of the Constitution, to set aside the warrant of authorization on a reappraisal of the evidence."

[22] This Court in the decision rendered in the case of Deputy Director of Income Tax (Investigation) (Supra) observed in para 14, 15 and 16 as under:

"14.This Court is now required to see whether the applicant was entitled for custody of muddamal seized by the police for completion of proceedings initiated by the Department or not. Section 132 of the Act would be relevant in this respect. Section 132 stipulates that, on a requisition being made under subsection (1), the officer or authority referred to in Clause

(a) or Clause (b) or Clause (c), as the case may be, of the sub section shall deliver the books of account, other documents or Page 30 of 36 R/SCR.A/58/2015 ORDER assets to the requisition officer either forthwith or when such officer or authority is of the opinion that it is no longer necessary to retain the same in his or its custody.

15.Under Section 451 of the Code, the Criminal Court has limited power to make inquiry. However, the Court has no power to go in detail and hence, specific provision is made in the Act under Sec.132A once the proceedings is initiated by the Department. Under Section 132A of the Act, neither the Court nor the Police Authority has the power to release the currency notes. Hence, scope of inquiry under Sec.451 of the Code as also under Sec.132A of the Act is quite different.

16.The intention of the Legislature by incorporating Section 132 of the Act is only to protect the interest of revenue of the State and if authority is satisfied regarding the source of income, it may pass appropriate order to hand over the muddamal to the assessee or any concerned person. When question of huge currency is involved and if proceedings of inquiry under Sec.132A of the Act are initiated, then certainly truth will come before the the Department regarding genuineness of the muddamal seized."

[23] Further, this Court, vide order dated 07.10.2010 rendered in Special Criminal Application No.1009 of 2010, observed as under:

"Under Section 132A of the Income Tax 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 purposes of the Indian Income Tax 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 accounts, other documents or assets to the requisitioning officer. In exercise of this power, the order for requisitioning cash currency was passed. Learned Magistrate, therefore, correctly placed the currency notes at the disposal of the Income Tax Department for further process in terms of Income Tax Act including for Page 31 of 36 R/SCR.A/58/2015 ORDER assessment under Section 153, if so found necessary."

[24] Similar view is also taken by this Court in Criminal Revision Application No.333 of 2013. In another case, this Court, vide order dated 24th April 2014 passed in Special Criminal Application No.2499 of 2013, observed in para 6 as under:

"6 Having heard learned counsels for the parties, considering the provisions of Sections 132A(2), 132B and 153A of the Income Tax Act, 1961 and the case relied by the learned Senior Advocate for the applicant - Department, I am of the view that the impugned order is contrary to the provisions of the Income Tax Act, 1961 and currency notes seized by the police during the search and seizure in exercise of powers under Prohibition of Gambling Act, deserves to be handed over to the Income Tax Department. Accordingly, order dated 28.06.2013 passed by the learned Metropolitan Magistrate, Court No.22, Ahmedabad in Misc. Application No.108 of 2013 is hereby quashed and set aside and the Incharge Police Officer of Ellisbridge Police Station, Ahmedabad shall hand over muddamal being currency notes of Rs.4,78,356/ and Rs.36,30,990/ to the concerned officer of the petitioner - department."

[25] Thus, in view of the decisions rendered by this Court in the aforesaid cases, the respondent No.1 herein - Income Tax Department is entitled to get the custody of Muddamal 42 gunny bags.

[26] Now, the important aspect which is required to be noted at this stage is that the respondent No.1 has specifically stated on oath in the affidavitinreply submitted before this Court in para 13 on page 137 that in the event the petitioner owns up the contents of 42 gunny bags upon said Muddamal being handed over to the Income Tax Department, at the time of finalizing the assessment, the requisite documents would be supplied as per the provisions of Section 138 and analogous Page 32 of 36 R/SCR.A/58/2015 ORDER provisions of the Act to the petitioner. Even the learned Senior Counsel Shri M.R.Bhatt appearing for the Income Tax Department, under the instructions from the concerned officer, has stated at the Bar that the Income Tax Department will furnish copy of the documents to the petitioner if an application to that effect is given by the petitioner. Thus, in view of the aforesaid averments and the statements made on behalf of the respondent No.1, it is clear that the Income Tax Department is not having any objection to supply the copy of the documents lying in 42 gunny bags and therefore the contention that if the copy of the documents lying in 42 gunny bags is not supplied to the petitioner then prejudice would be caused to the petitioner, is misconceived.

[27] Now, I would like to examine the contention of the petitioner that if the certified copies of the documents lying in 42 gunny bags are not supplied to the petitioner, prejudice would be caused to him. It is pertinent to note with regard to the said contention that the petitioner filed two petitions before this Court being Special Criminal Application No.3354 of 2014 and Special Criminal Application No.4243 of 2014. The memo of both the petitions are on record of the present case. If the aforesaid two petitions are carefully examined, it is found that nowhere the petitioner has stated before this Court that certified copies of the documents lying in 42 gunny bags are required to defend the case pending in pursuant to C.R.No.I37 of 2013. In the said petitions, it has been stated that because of the seized Muddamal, the Income Tax Department issued summons to the petitioner and when the time was sought for, the Income Tax officer refused to receive the application and recorded the statement as per their choice and desire. It has been further stated in the said petition that the Directorate of Enforcement Department moved an application to the Sessions Court, Surat to grant permission to record the statement of the petitioner and Page 33 of 36 R/SCR.A/58/2015 ORDER therefore the learned Special Court, Surat issued notice to the petitioner and coaccused. In this background, in the said petitions the petitioner submitted that unless and until the petitioner is furnished with the copies of the documents seized by the Investigating Officer in relation to the offence registered before the Jahangirpura Police Station being C.R.No.I31 of 2013, the petitioner is not in a position to give reply. Hence, necessity has arisen to prefer the said petitions. Thus, from the aforesaid averments made by the petitioner on oath in the aforesaid two petitions filed before this Court, it is prima facie clear that nowhere the petitioner has requested before this Court in those petitions that certified copies of the documents lying in 42 gunny bags are required to defend the trial in which he is one of the accused i.e. the case arising out of C.R.No.I37 of 2013. Thus, the contention of the petitioner that if the certified copies of the documents lying in 42 gunny bags are not supplied to the petitioner then prejudice would be caused to him in the trial wherein he is one of the accused, is required to be rejected.

[28] Now, the next contention of the petitioner is with regard to the order dated 16.01.2015 passed by the learned Sessions Court in another application submitted by the respondent No.1 with regard to getting the custody of cash amount of Rs.8.10 crores is concerned, it is required to be noted that the said currency notes are not handed over to the Income Tax Department by the learned Sessions Court because the said cash amount is important for the purpose of proving the case against the accused of C.R.No.I37 of 2013. The learned Special Public Prosecutor, therefore, objected to the application given by the Income Tax Department. The learned Sessions Court while rejecting the application of the Income Tax Department observed that the amount in question cannot be said or can be treated as Muddamal articles and is not subject of temporary custody, which is required to be handed over to Page 34 of 36 R/SCR.A/58/2015 ORDER any person claiming right over cash in question till the completion of trial as the cash in question can rightly be treated as trap money. Thus, prima facie, from the observations of the learned Sessions Court, it appears that the custody of the said amount of cash is not given to the Income Tax Department because it is not the Muddamal and the said cash is required to prove the case against the accused of C.R.No.I37 of 2013. At this stage, I clarify that the decision of the learned Sessions Court rendered on 16.01.2015 referred by the petitioner is not under challenge before this Court at this stage and therefore it is not proper for me to make any comment with regard to the observations made by the learned Sessions Court. However, I am of the opinion that in view of the fact that the said cash is required to prove the case against the accused of C.R.No.I37 of 2013, learned Special Public Prosecutor has taken the objection and therefore it cannot be said that the learned Special Public Prosecutor is taking different stand. Thus, the said contention of the petitioner is also required to be discarded.

[29] At this stage, it is required to be noted that the learned advocate for the petitioner has raised certain questions of law. However, in view of the aforesaid discussion, in the opinion of this Court, all most all the questions have been dealt with and no separate discussion is needed.

[30] In view of the aforesaid discussion made hereinabove, I am of the opinion that the learned Sessions Court has not committed any error much less the error of law, which calls for the interference of this Court by exercising the powers under Article 227 of the Constitution of India. The present petition is, therefore, dismissed. Notice discharged.



[31]           At   this   stage,   learned   advocate   for   the   petitioner   Shri   IH 


                                        Page 35 of 36
             R/SCR.A/58/2015                                             ORDER

Syed requested that the time granted by the learned Sessions Court, Surat for approaching before this Court and extended by this Court vide order dated 08.01.2015 may be extended for a further period of four weeks so that the petitioner can take appropriate recourse in the matter. The learned Senior Counsel Mr. MR Bhatt for the petitioner No.1 - Income Tax Department has strongly objected the said request on the ground that after getting the custody of the Muddamal Articles, it is required to be processed and the inquiries be completed within the stipulated time limit. However, considering the facts and circumstances of the case, I am of the opinion that reasonable time is required to be given to the petitioner for the purpose of taking appropriate recourse in the matter. Hence, the time granted by the learned Sessions Court, Surat and extended by this Court vide order dated 08.01.2015 is extended for a further period of 3 weeks from today.

(VIPUL M. PANCHOLI, J.) Jani Page 36 of 36

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