IBRAHIM OTHAYOTH vs SUB-INSPECTOR OF POLICE and Others

P. V. NARAYANAN NAMBIAR, J. :

The revisions are directed against the judgment in Criminal Appeal No. 126 of 1996 of the Court of Sessions, Kozhikode Division by which the Court set aside the order of the Judicial First Class Magistrates Court, Kozhikode and directed the magistrate to release the gold biscuits and currency seized in Crime No. 73 of 1996 of Kasaba Police Station to the appellant-Asstt. Director of Income Tax, Calicut. The bare minimum facts which are essential for disposing of these revisions are as follows :

On getting secret information, the Asstt. Commissioner of Police, Calicut raided house No. 17/1255 at Puthiyara on 10th March, 1996 and seized 126 gold biscuits and currency worth Rs. 14,86,500 from the house. Ten persons were arrested on the spot and Crime No. 73 of 1996 was registered by the Kesaba police under ss. 41(d) and 102 CrPC. Out of the 126 gold biscuits, 2 were seized from the 4th accused and the remaining 124 were seized from the house itself. Currency was seized from the 1st, 5th and 6th accused. As none of the arrested persons were able to produce any documents regarding the gold biscuits or the currency, those were suspected to be stolen property or involved in an offence. Requisition was made to the Income Tax officials who questioned some of the accused and recorded their statements. The accused and the seized articles were produced before the magistrate. Later, some documents showing payment of duty for 126 gold biscuits were produced before the police by accused 1 to 3. But, those documents were suspected to be spurious or forged. Other departments like the sales-tax department, customs, enforcement etc. were informed about the seizure of the gold biscuits and currency.

Claim applications were filed by the revision petitioners and officers of the Income Tax and sales-tax Departments under ss. 451 and 457 CrPC for release of the articles seized. Before disposing of the same, final report was filed by the police referring the case. So, the applications were treated as filed under s. 452 CrPC and were disposed of by the learned magistrate who allowed the applications filed by the revision petitioners and rejected those filed on behalf of the IT and ST Departments. Appeal was preferred by the Asstt. Director of Income Tax against rejection of his application, CMP No. 1097 of 1996.

The question to be decided in these revisions is whether the judgment in Criminal Appeal No. 126 of 1996 is liable to be revised or requires any modification.

The rival claimants are accused 1 to 3, 6 and 7 in the crime and the Asstt. Director of Income Tax. It is the case of IT Department that the gold biscuits and the currency seized represent the undisclosed assets/income of one Shamsudheen and that they have already commenced investigation to ascertain the same. They also relied on s. 132 of the IT Act, 1961 (for short "the Act"). A requisition has already been made for custody of the gold biscuits and currency now in the possession of the Court. The Court below, without deciding the question whether the case of the IT Department will come under s. 132A of the Act, considered the appeal and held that the Asstt. Director of Income Tax is the person entitled to possession of the said articles.

Various authorities were cited before me by counsel on either side. Counsel for the revision petitioners mainly relied on the decision reported in Commissioner of Income Tax, Allahabad and Others Vs. Vindhya Metal Corporation and Others, On the other hand, counsel for the Revenue placed reliance on the decision reported in UNION OF INDIA Vs. JUDICIAL MAGISTRATE (EASTERN RAILWAY), MUGHALSARAI, AND ANOTHER., In the latter case, it is held by the Allahabad High Court that the IT Act is a specialised law which has been enacted for specific purposes of realisation of taxes due from the citizen. The provisions of a specialised law always override the provisions of a general law. So, it was further held that the Requisitioning Officer under s. 132A of the Act would be the person entitled to the seized assets" as the assets have been seized by an officer or authority which in the instant case is the SHO". So, the property was ordered to be released to the IT Department.

From the discussion contained in the judgment of the appellate Court, it is seen that investigation by the IT Department is already on to assess whether the seized articles represent the undisclosed assets/income of Shamsudheen. The final report filed by the Asstt. Commissioner of Police on 21st March, 1996 before the learned magistrate shows that one Jaffer who is the brother of Shemsudheen has something to do with the seized articles. The documents showing the ownership of the gold biscuits and currency which were produced not at the time of seizure, but produced later, are suspected to be not genuine. The statements of accused 1 to 3 and one Ibrai which were recorded by the Asstt. Director of Income Tax, Calicut, were produced before the Court below. All the statements are to the effect that they are employees of Shamsudheen, Poomukkath House, Eranhikkal and that they carried the gold biscuits belonging to him from the Karippur airport. The statements also show that the articles were carried in a jeep which belongs to the said Shamsudheen. The appellate Court while disposing of the application under s. 452 CrPC was perfectly justified in looking into the statements recorded in the course of investigation including the statement recorded under s. 161 CrPC. The statements will go a long way to decide the claim made by the revision petitioners and the second respondent. The appellate Court considered all the aspects and came to the conclusion that the articles should be released to the IT Department. It cannot be said that the conclusion arrived at by the appellate Court is legally unsustainable or perverse. So, no interference is called for under the revisional powers of this Court.

In the result, all the revisions are dismissed, confirming the judgment in Criminal Appeal No. 126 of 1996. Direction is issued to the IT Department to complete the enquiry/investigation and the assessment within four months from the date of receipt of the seized articles from the Court and pass appropriate orders regarding the gold biscuits and the currency.