Gujarat High Court
Ashish Lal (Irs) vs Ali Mamad Sale Mamad Bafan on 20 July, 2023
Author: Samir J. Dave
Bench: Samir J. Dave
NEUTRAL CITATION
R/SCR.A/5001/2022 ORDER DATED: 20/07/2023
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 5001 of 2022
==========================================================
ASHISH LAL (IRS)
Versus
ALI MAMAD SALE MAMAD BAFAN
==========================================================
Appearance:
MR.VARUN K.PATEL(3802) for the Applicant(s) No. 1
MR J. K. SHAH, APP for the Respondent(s) No. 2
RULE SERVED for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 20/07/2023
ORAL ORDER
The respondent no.1 although served with the notice of Rule issued by this Court, yet has chosen not to remain present before this Court either in person or through an advocate and oppose this application.
1. This petition has been preferred under Articles 226 and 227 of the Constitution of India essentially seeking direction by quashing and setting aside the order dated 31.07.2021 passed by the learned Additional Sessions Judge, Bhuj only to the limited extent that the muddamal amount of Rs.12,67,000/- shall be handed over to the Income Tax Department, which was seized in pursuance of the FIR bearing C.R.No.3225 of 2018 registered at Bhuj City 'B' Division Police Station, Kutch, for the offence punishable under Sections 504, 506(2) and 114 of the Indian Penal Code, 1860 and under section 42(a) of the Money Lenders Act and under section 30 of the Arms Act and under section 135 of the Gujarat Police Act.
Page 1 of 4 Downloaded on : Sat Sep 16 22:20:01 IST 2023 NEUTRAL CITATION R/SCR.A/5001/2022 ORDER DATED: 20/07/2023 undefined
2. Heard learned advocate for the petitioner and learned APP for the respondent - State.
3. Learned advocate for the petitioner submits that respondent no.1 preferred an application under section 451 of the Cr.P.C. claiming muddamal before the learned Chief Judicial Magistrate, Bhuj and meanwhile, the petitioner department issued a warrant dated 10.10.2018 under section 132A of the Act to the Investigating Officer to hand over the muddamal to the petitioner. The learned Chief Judicial Magistrate was pleased to allow to handover the said muddamal to the respondent no.1 vide order dated 19.06.2019. Against the said order, the petitioner department preferred Criminal Revision Application before the learned Additional Sessions Judge, Bhuj- Kutch. The learned Additional Sessions Judge, Bhuj-Kutch was pleased to ordered respondent no.1 to deposit back the amount of Rs.12,67,000/- with the Court of learned Chief Judicial Magistrate and also directed the learned Court to make a Fixed Deposit in any Nationaized Bank for a period of one year initially. He therefore submitted that the learned Additional Sessions Judge failed to appreciate the provision of section 132A of the Income Tax Act and also submitted that once the warrant of authorization is issued under Section 132A of the Income Tax Act, the seized muddamal is required to be handed over without any condition to the authorised offier for the purpose of investigation of the source of said muddamal as per the provisions of the Act.
4. Per contra, learned APP has heavily opposed and placed reliance upon the judgment dated 18.12.2017 passed by Co-ordinate Bench of this Court in case of Jhala Ghanshyamsingh Mobatsingh vs. State of Gujarat Page 2 of 4 Downloaded on : Sat Sep 16 22:20:01 IST 2023 NEUTRAL CITATION R/SCR.A/5001/2022 ORDER DATED: 20/07/2023 undefined in Special Criminal Application No. 9745 of 2017. Learned APP further contended that the order passed by the learned trial Court is just and proper.
5. The attention of the Court was invited to the judgment of the this Court in the case of Vipul Chavda v. State of Gujarat, [2018] 90 taxmann.com 53(Gujarat).
6. Having heard the learned counsel appearing for the parties and having considered the materials on record and in view of the judgment in the case of Vipul Chavda vs. State of Guajrat (Supra), this application succeeds and is hereby allowed. The order dated 31.07.2021 passed by the learned Additional Sessions Judge, Bhuj-Kutch is hereby quashed and set aside. It is declared that the department is entitled to retain the cash till the final conclusion of the proceedings under the Income Tax Act. The Investigating Officer is permitted to handover the Muddamal currency notes amounting to Rs.12,67,000/- to the petitioner-Deputy Director of Income Tax (Investigation), Gandhidham- Kutch at the earliest. It is clarified that prior to handing over the Muddamal currency notes, the Investigating Officer shall get the videography of the currency notes done as provided in the decision in the case of Sunderbhai Ambalal Soni vs. State of Gujarat, AIR 2003 SC 638, and if necessary, to carry out the Panchnama with the serial numbers of the currency notes, if not already done. A copy of the Panchnama or the videography be placed before the court concerned and the same shall be furnished to the Income Tax Department so also to the respondent No.1-original first informant.
7. The petitioner-department shall be free to undertake all actions Page 3 of 4 Downloaded on : Sat Sep 16 22:20:01 IST 2023 NEUTRAL CITATION R/SCR.A/5001/2022 ORDER DATED: 20/07/2023 undefined permitted under the law, however, he shall make the Fixed Deposit of the entire amount of Rs.12,67,000/- with any Nationalized Bank within a period of four weeks from the date of taking over such Muddamal currency notes, initially for a period of two years and, thereafter, the same shall be renewed from time to time till the finalization of such proceedings initiated by the petitioner-department. Any appropriation, if, is to be made, the same shall be made only with the prior permission of this Court. Rule is made absolute to the aforesaid extent.
Direct service is permitted.
(SAMIR J. DAVE,J) MEHUL B. TUVAR Page 4 of 4 Downloaded on : Sat Sep 16 22:20:01 IST 2023