Madhya Pradesh High Court
Asif Hanif Thara vs The State Of Madhya Pradesh on 16 October, 2025
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
1 MCRC-43784-2025
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
MCRC No. 43784 of 2025
(ASIF HANIF THARA Vs THE STATE OF MADHYA PRADESH AND OTHERS )
Dated : 16-10-2025
Shri Siddarth Agarwal - Senior Advocate with Shri Ankur
Maheshwari - Advocate for the petitioner.
Shri Mohit Shivhare - Public Prosecutor for respondent/State.
This petition under Section 528 of BNSS/482 of Cr.P.C. has been filed by the petitioner seeking quashment of FIR bearing crime No. 421/2023 dated 16.06.2023 registered at Police Station Morar Dsitrct Gwalior for offence punishable under Sections 120B, 417, 420 of IPC against the petitioner and the proceedings emanating therefrom.
Learned senior counsel for the petitioner submits that the Enforcement Directorate, on the basis of the petitioner's statement recorded under Section 37 of FEMA and with a clear element of vendetta, lodged a complaint dated 16.05.2023 before Police Station Morar, District Gwalior, alleging that the petitioner was importing poppy seeds from China and Turkey at low prices in the name of various benami proprietorship firms established in the names of his employees, in gross violation of the licensing provisions governing the import of poppy seeds as prescribed by the Department of Revenue, Ministry of Finance, Government of India.
It is further submitted that the allegation that the nine proprietorship firms are benami entities of the petitioner, purportedly engaged in fraudulently evading taxes, duties, and other legal requirements to obtain the Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 10/17/2025 10:57:20 AM 2 MCRC-43784-2025 maximum share of the country quota for import of poppy seeds, is wholly misconceived. Respondent No.2, based on such allegations, informed Respondent No.1 that offences punishable under Sections 120B, 417, and 420 of the IPC are made out against the petitioner. Respondent No.1, without independently examining or satisfying itself as to whether the ingredients of the said offences are actually made out, proceeded to register a crime solely on the basis of the information forwarded by Respondent No.2. Such registration of the FIR is legally unsustainable and suffers from a jurisdictional defect, inasmuch as it is founded entirely on material and statements collected under Section 37 of FEMA. It is respectfully submitted that FEMA does not contain any enabling provision or confer any authority to pass on such material for the purpose of initiating a criminal prosecution under the IPC. Consequently, the proceedings built upon such material are vitiated in law and cannot be permitted to continue.
Learned counsel for the petitioner, while inviting the attention of this Court to Section 61 of the Prohibition of Benami Property Transactions Act, 1988, has submitted that the offence under the said Act is categorically declared to be non-cognizable, notwithstanding anything contained in the Code of Criminal Procedure, 1973. It is further contended that Section 53 of the Act prescribes the penalty for benami transactions, which includes rigorous imprisonment for a term not less than one year and which may extend up to seven years and when the offence under the Act is non- cognizable, the F.I.R. registered under the provisions of I.P.C. is bad in law. Learned counsel has argued that even if it is assumed that the nine Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 10/17/2025 10:57:20 AM 3 MCRC-43784-2025 proprietorship firms were engaged in benami transactions, the provisions of the 1988 Act alone would be attracted. Consequently, the registration of an FIR in respect of such alleged offences would not be permissible in law.
It is further argued that no element of cheating within the meaning of Section 420 IPC is made out in the present case, as there is no corresponding loss to the public exchequer.
After hearing counsel for the petitioner, this Court deems it appropriate to issue notice to the respondents on payment of process fee through ordinary as well as RAD mode within seven working days, failing which this petition shall stand dismissed without further reference to the Court.
Notices be made returnable within four weeks, if the present petition survives.
In the meanwhile, till the next date of hearing, further criminal proceedings as well as any coercive action pursuant to FIR bearing Crime No. 421/2023 dated 16.06.2023 registered at Police Station Morar, District Gwalior, shall remain stayed (MILIND RAMESH PHADKE) JUDGE ojha Signature Not Verified Signed by: YOGENDRA OJHA Signing time: 10/17/2025 10:57:20 AM