MUHAMMED HASHIR V. UNION OF INDIA

Crl.MC/3761/2019

AI Insights

The case involves the seizure of a large cache of unaccounted money by the Koyilandy Police from a vehicle. The money, amounting to Rs. 20 lakhs, was allegedly part of a transaction related to a sale agreement. The Income Tax Department, upon learning of the seizure, requisitioned the money under a warrant of authorization as per Section 132A of the Income Tax Act, 1961. The petitioner, Muhammed Hashir, challenged the Magistrate's decision favoring the Income Tax Department over his claim for the return of the money. The court's decision emphasized the primacy of the Income Tax Act in matters of tax assessment and related seizures.

• Counselvise Citation: [2019] 140 COUNSELVISE.COM (IT) 722255 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 31-05-2019
• Assessment Year: misc
• Laws Referred To: Cr.P.C., Income Tax Act, 1961
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: P VIJAYAKUMAR; B JAYASURYA
• Assessee Lawyers: ZUBAIR PULIKKOOL
• Keywords: Assessment proceedings; Income Tax; Interim Custody; Seizure; Unaccounted money
• Section: 102; 132A; 131(1A); 41(1)(d)

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V FRIDAY, THE 31ST DAY OF MAY 2019 / 10TH JYAISHTA, 1941 CRL.MC.NO. 3761 OF 2019 AGAINST THE ORDER IN CMP NO.4761/2018 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, KOYILANDY DATED 08.03.2019 CRIME NO.697/2018 OF KOYILANDY POLICE STATION, KOZHIKODE PETITIONER/ACCUSED NO.1: MUHAMMED HASHIR, AGED 23 YEARS, S/O BASHEER, RESIDING AT AMINAS HOUSE, PATHIYARAKKARA, PUTHUPPANAM, VATAKARA, KOZHIKODE DISTRICT. BY ADV. SRI.ZUBAIR PULIKKOOL RESPONDENTS/COMPLAINANTS & ACCUSED NO.2 & 3 : 1. UNION OF INDIA, INCOME TAX DEPARTMENT, REPRESENTED BY THE DEPUTY DIRECTOR OF INCOME TAX (INVESTIGATION), INCOME TAX OFFICE, KOZHIKODE, PIN-673001. 2. STATE OF KERALA, REPRESENTED BY SUB INSPECTOR OF POLICE, KOYILANDY POLICE STATION, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN-682031. 3. MUHAMMED THAHA, AGED 23 YEARS, S/O KAREEM, MEETHALEKANDOTH HOUSE, PATHIYARAKKARA, VATAKARA, PIN-673101. 4. MUHAMMED ASLAM, AGED 23 YEARS, S/O ABDUL RAZAK, MEETHALEKANDOTH HOUSE, PATHIYARAKKARA, VATAKARA, PIN-673101. BY SRI.P.VIJAYAKUMAR, ASGI OTHER PRESENT: SRI B.JAYASURYA, PUBLIC PROSECUTOR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 31.05.2019, ALONG WITH CRL.M.C. NO.3764 OF 2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.MC.No. 3761 & 3764 of 2019 2 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V FRIDAY, THE 31ST DAY OF MAY 2019 / 10TH JYAISHTA, 1941 CRL.MC.NO. 3764 OF 2019 AGAINST THE ORDER IN CMP NO.3897/2018 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, KOYILANDY DATED 08.03.2019 CRIME NO.697/2018 OF KOYILANDY POLICE STATION, KOZHIKODE PETITIONER/ACCUSED NO.1 : MUHAMMED HASHIR, AGED 23 YEARS, S/O.BASHEER, RESIDING AT AMINAS HOUSE, PATHIYARAKKARA, PUTHUPPANAM, VATAKARA, KOZHIKODE DISTRICT. BY ADV. SRI.ZUBAIR PULIKKOOL RESPONDENTS/COMPLAINANTS & ACCUSED NOS.2 & 3 : 1 STATE OF KERALA, REPRESENTED BY SUB INSPECTOR OF POLICE, KOYILANDI POLICE STATION, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN-682031. 2 MUHAMMED THAHA, AGED 23 YEARS, S/O.KAREEM, MEEETHALEKANDOTH HOUSE, PATHIYARAKKARA, VATAKARA, PIN-673101. 3 MUHAMMED ASLAM, AGED 23 YEARS, S/O.ABDUL RAZAK, MEETHALEKANDOTH HOUSE, PATHIYARAKKARA, VATAKARA, PIN-673101. OTHER PRESENT: SRI.AMJAD ALI, SENIOR PUBLIC PROSECUTOR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 31.05.2019, ALONG WITH CRL.MC. NO.3761 OF 2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.MC.No. 3761 & 3764 of 2019 3 O R D E R A large cache of unaccounted money was seized by the Sub Inspector of Police, Koyilandy, from a car bearing Reg.No. KL-56-D-5820. As the occupants were unable to explain the source of money, Crime No.697 of 2018 of the Koyilandy Police Station was registered under Section 41(1)(d) and Section 102 of the Cr.P.C. 2. On receipt of information about the seizure, the Assistant Director of Income Tax (Investigation), Kozhikode, requisitioned the detecting officer to hand over the money and for that purpose, a warrant of authorisation under Section 132A of the Income Tax Act, 1961 was issued. However, by then, the seizure had been reported before the court below. 3. Separate applications were filed seeking interim custody of the cash. The learned Magistrate allowed the application filed by the Income Tax Department and dismissed the application filed by the petitioner. The said orders are under challenge in these petitions. 4. Heard the learned counsel appearing for the petitioner and the learned Standing Counsel appearing for the Income Tax. Crl.MC.No. 3761 & 3764 of 2019 4 5. The learned counsel appearing for the petitioner submitted that an agreement for sale was entered into between the mother of the petitioner and one Ferook and a sum of Rs.20 lakhs was handed over to him. While transporting the said cash from Thalassery to Vadakara, the vehicle was intercepted and the cash was seized by the police. The petitioner had a valid source and the amount, which has been seized, cannot be said to be unaccounted, contends the learned counsel. 6. The learned Standing Counsel appearing for the 1st respondent, on the other hand, submitted that the petitioner had no satisfactory explanation for the source of Rs.20 lakhs seized from his possession. He would further urge that a summons under Section 131(1A) was served on the occupants of the vehicle and the proceedings are pending. He would further contend that under Section 132A of the Income Tax Act, 1961, it is the department which is entitled for the proper custody of the seized currency notes. On the completion of proceedings, the Assessing Officer, will assess the tax, if any, on such income along with interest and penalty leviable and the amount due would be apportioned from the seized cash. 7. I have considered the submissions advanced and have Crl.MC.No. 3761 & 3764 of 2019 5 gone through the materials made available. The Income Tax Act is a special law which has been enacted for specific purposes of realising tax on income from a citizen. The provisions of the Special Act would always override the provisions of the general law. As the assessment proceedings have commenced, the officer under Section 132A of the Act would be entitled to the seized assets until the assessment is complete as the tax on such income along with interest and penalty leviable is required to be adjusted from the amount seized. The exact amount of tax due can be ascertained only on completion of assessment proceedings under the relevant provisions of the Income Tax Act. 8. In view of the above, I find no reason to interfere with the orders passed by the learned Magistrate. The petitioner may approach the Assessing Officer, who shall expedite the proceedings. Subject to such directions, these petitions are closed. Sd/- RAJA VIJAYARAGHAVAN V., JUDGE NS Crl.MC.No. 3761 & 3764 of 2019 6 APPENDIX IN CRL.M.C. NO.3761 OF 2019 PETITIONER(S) ANNEXURES: ANNEXURE 1 COPY OF THE SALE AGREEMENT. ANNEXURE 2 COPY OF THE AFFIDAVIT PETITION FILED BY THE PETITIONER BEFORE JFCM, KOYILANDY. ANNEXURE 3 COPY OF THE AFFIDAVIT PETITION FILED BY THE ASST. DIRECTOR OF INCOME TAX (INV), KOZHIKODE. ANNEXURE 4 COPY IN ORDER CMP 4761/2018 IN CRIME NO.697 OF 2018 OF KOYILANDY POLICE STATION. RESPONDENT(S) ANNEXURES : NIL APPENDIX IN CRL.M.C.NO.3764 OF 2019 PETITIONER(S) ANNEXURES: ANNEXURE 1 COPY OF THE SALE AGREEMENT. ANNEXURE 2 COPY OF THE AFFIDAVIT PETITION FILED BY THE PETITIONER BEFORE JFCM, KOYILANDY. ANNEXURE 3 COPY OF THE AFFIDAVIT PETITION FILED BY THE ASST. DIRECTOR OF INCOME TAX (INV), KOZHIKODE. ANNEXURE 4 COPY IN ORDER CMP 3897/2018 IN CRIME NO.697 OF 2018 OF KOYILANDY POLICE STATION. RESPONDENT(S) ANNEXURES: NIL "