DHARMARAJ BHOSLE V. UNION OF INDIA

WP(C)/31758/2019

AI Insights

The case involves Dharmaraj Bhosale, who filed a writ petition against the Union of India and other respondents seeking the release of Rs.1,22,22,200 that was seized during a search of his premises under the Foreign Exchange and Management Act (FEMA). The Adjudicating Officer had previously found no contravention of FEMA by the petitioner, leading to the current petition for the return of the seized amount. The respondents, however, have appealed against this order, and the matter is pending before the appellate forum. The court advised the petitioner to approach the Appellate Authority for the release of the funds under the condition of providing sufficient security.

• Counselvise Citation: [2020] 140 COUNSELVISE.COM (IT) 678070 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 09-03-2020
• Assessment Year: misc
• Other Referred Cases: Sasikumar v. State of Kerala [2013 (2) KHC 886]
• Laws Referred To: Foreign Exchange and Management Act (FEMA)
• Result in Favour of: Partly Allowed
• Court: HIGH COURT
• Department Lawyers: P VIJAYAKUMAR; CHRISTOPHER ABRAHAM
• Assessee Lawyers: S RAJEEV; K K KRISHNAN; V VINAY; D FEROZE; K ANAND
• Keywords: Appeal Pending; Currency seizure; Illegal Detention; Writ of Mandamus; Security for release
• Section: 16; 16(3)(c)

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN MONDAY, THE 09TH DAY OF MARCH 2020 / 19TH PHALGUNA, 1941 WP(C).No.31758 OF 2019(T) PETITIONER :- DHARMARAJ BHOSALE, AGED 48 YEARS, S/O.GANGADHAR BHOSALE, SURAJ HOUSE, MANIPPURAM POST, KOZHIKODE - 673 512. BY ADVS.SRI.S.RAJEEV SRI.K.K.DHEERENDRA KRISHNAN SRI.V.VINAY SRI.D.FEROZE SRI.K.ANAND (A-1921) RESPONDENTS :- 1 UNION OF INDIA REP. BY ITS SECRETARY, MINISTRY OF FINANCE, NEW DELHI - 110 001. 2 ASST.DIRECTOR OFFICE OF THE DIRECTORATE OF ENFORCEMENT, KANOOS CASTLE, A.K.SHESHADRI ROAD, (MULLASSERY CANAL ROAD WEST), COCHIN - 682 011. 3 DY. DIRECTOR ENFORCEMENT DIRECTORATE, KOZHIKODE - 673 003. 4 INCOME TAX OFFICER WARD 1(1), KOZHIKODE - 673 001. R1-R3 BY ADV. SRI.P.VIJAYAKUMAR, ASG OF INDIA R4 BY SRI.CHRISTOPHER ABRAHAM THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.31758 OF 2019(T) -: 2 :- JUDGMENT Dated this the 9th day of March 2020 This writ petition is filed seeking the following prayers :- “(i) Issue writ of mandamus or any other appropriate writ, order or direction directing the respondent Nos.2 to 4 to hand over Rs.1,22,22,200/- to the petitioner without any further delay; (ii) Issue writ of mandamus or any other appropriate writ, order or direction directing the respondent Nos.1 to 4 to pay interest @ 9% for the amount of Rs.1,22,22,200/- from 01.08.2019 onwards for not taking any further steps to disbursing the money illegally detained by respondent Nos.2 to 4.” 2. Heard the learned counsel for the petitioner and the learned Assistant Solicitor General appearing for the respondents. 3. It is submitted by the learned counsel for the petitioner that the petitioner was engaged in the business of purchase of old gold and silver ornaments. It is stated that a search was conducted in the house of the petitioner on 7.8.2014 and an amount of Rs.1,22,22,200/- was seized. Proceedings were initiated against the petitioner under Section 16 of the Foreign Exchange and Management Act (for short FEMA). It is stated that by Ext.P1 order, the Adjudicating Officer found that the petitioner had not committed any contravention of the provisions of Section 16(3)(c) WP(C).No.31758 OF 2019(T) -: 3 :- of the FEMA and therefore the proceedings are liable to be withdrawn. The currency seized from the petitioner's premises is therefore liable to be returned to the petitioner, it is stated. 4. A counter affidavit has been placed on record on behalf of respondents 2 and 3. It is submitted that an appeal is being preferred against the order of the Adjudicating Officer and that the procedure for filing the said appeal before the appellate forum, the Special Director (Appeals), Commissioner of Income Tax, Chennai, is in progress. It is submitted by the learned Assistant Solicitor General that the appeal has already been preferred as Appeal No.51/2020 and that the same is pending before the appellate forum. 5. The learned counsel for the petitioner submits that the currency may be directed to be handed over on condition that the petitioner produces sufficient security for the equal amount. Relying on a decision of this Court in Sasikumar v. State of Kerala [2013 (2) KHC 886], it is contended that such directions had been issued by this Court even in prosecutions under the Money Lenders Act. Having considered the contentions advanced and in view of the fact that an appeal has been preferred against Ext.P1 order, WP(C).No.31758 OF 2019(T) -: 4 :- I am of the opinion that it is for the petitioner to approach the Appellate Authority for the relief as sought for by him. In case the petitioner submits an application in Appeal No.51/2020 before the Appellate Authority with copy to the appellants, the said application shall be taken by the Appellate Authority and orders shall be passed on the request for release of the amount with condition to furnish sufficient security, in accordance with law, expeditiously. Sd/- ANU SIVARAMAN JUDGE Jvt/16.3.2020 WP(C).No.31758 OF 2019(T) -: 5 :- APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1 TRUE COPY OF THE ORDER DATED 01.08.2019 PASSED BY THE SECOND RESPONDENT. EXHIBIT P2 TRUE COPY OF THE ASSESSMENT ORDER FOR THE ASSESSMENT YEAR 2014-15 PASSED BY THE FOURTH RESPONDENT. EXHIBIT P3 TRUE COPY OF THE LETTER DATED 14.10.2019 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. //TRUE COPY// P.A. TO JUDGE "