Kerala High Court
1. Mohammed Salih vs State Of Kerala on 21 December, 2023
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
THURSDAY, THE 21ST DAY OF DECEMBER 2023 / 30TH AGRAHAYANA, 1945
CRL.MC NO. 5605 OF 2022
CRIME NO.100/2022 OF NILAMBUR POLICE STATION, MALAPPURAM
PETITIONERS:
1 MOHAMMED SALIH, S/O.IBRAHIM
AGED 38 YEARS
KARUVARAKKODE HOUSE, MUTHAMBALAM, MANIPURAM, KOZHIKODE,
PIN - 673572
2 SHABEER ALI
AGED 37 YEARS
S/O. IBRAHIM, ARANGODE HOUSE, VAZHEPOYIL, MANIPURAM,
CALICUT, PIN - 673572
3 SMT.SABEENA
AGED 50 YEARS
W/O. AZEEZ, THEKKAYIL HOUSE, CHETHUKADAVU,
KUNNAMANGALAM, PERINGOLAM, KOZHIKODE, PIN - 673571
4 C.K. MUHAMMED
AGED 46 YEARS
S/O. BEERAN, CHETTUKUZHIYIL HOUSE, NEAR MARKAZ,
KARANTHUR, KUNNAMANGALAM, KOZHIKODE, PIN - 673571
5 MUHAMMED SUHAIB P.C
AGED 31 YEARS
S/O. ABDUL MAJEED, CHOLAKKARA HOUSE, PUTHUR, KOZHIKODE,
PIN - 673572
6 MUHAMMED SHAMEER
AGED 32 YEARS
S/O. MAMMU, VATTOTH HOUSE, KALARANTHIRI, MANIPURAM
P.O., VAVAD, KOZHIKODE, PIN - 673572
7 MUHAMMED FAIQUE
AGED 33 YEARS
S/O. MUHAMMED BASHEER, PUZHANKARA HOUSE, KOZHIKODE,
PIN - 673572
BY ADVS.
BONNY BENNY
BEJOY JOSEPH P.J.
Crl.M.C.Nos.5591 & 5605 of 2022
2
GOVIND G. NAIR
BALU TOM
JINCY GEORGE(K/56/2022)
SRI.M.RAMESH CHANDER
RESPONDENT/COMPLAINANT/STATE:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT
OF KERALA, PIN - 682031
2 UNION OF INDIA, INCOME TAX DEPARTMENT
REPRESENTED BY THE DEPUTY DIRECTOR OF INCOME
TAX (INV)-II, 8TH FLOOR, AYAKAR BHAWAN,
KOZHIKODE - 673001
3 DEPUTY DIRECTOR, DIRECTORATE OF ENFORCEMENT
KENDRIYA BHAVAN, 3RD FLOOR, KALLAI,
KOZHIKODE, PIN - 673003
BY ADVS.
SRI.HRITHWIK C.S., PUBLIC PROSECUTOR
SRI.NAVANEETH.N.NATH
SRI.MANU S., SCGC
SRI.JAISHANKAR V.NAIR
SRI.SUSIE B VARGHESE(K/1300/2019)
THIS CRIMINAL MISC. CASE HAVING COME UP FOR
ADMISSION ON 21.12.2023, ALONG WITH Crl.MC.5591/2022,
THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.M.C.Nos.5591 & 5605 of 2022
3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
THURSDAY, THE 21ST DAY OF DECEMBER 2023 / 30TH AGRAHAYANA, 1945
CRL.MC NO. 5591 OF 2022
CRIME NO.100/2022 OF NILAMBUR POLICE STATION,
MALAPPURAM
PETITIONERS:
1 MOHAMMED SALIH
KARUVARAKKODE HOUSE, MUTHAMBALAM, MANIPURAM,
KOZHIKODE, PIN - 673572
2 SHABEER ALI
S/O. IBRAHIM, AGED 37 YEARS, ARANGODE HOUSE,
VAZHEPOYIL, MANIPURAM, CALICUT, PIN - 673572
3 SMT.SABEENA
W/O. AZEEZ, AGED 50 YEARS, THEKKAYIL HOUSE,
CHETHUKADAVU, KUNNAMANGALAM, PERINGOLAM,
KOZHIKODE, PIN - 673571
4 C.K. MUHAMMED
S/O. BEERAN, AGED 46 YEARS, CHETTUKUZHIYIL
HOUSE, NEAR MARKAZ, KARANTHUR, KUNNAMANGALAM,
KOZHIKODE, PIN - 673571
5 MUHAMMED SUHAIB P.C.,
S/O. ABDUL MAJEED, AGED 31 YEARS, CHOLAKKARA
HOUSE, PUTHUR, KOZHIKODE, PIN - 673572
6 MUHAMMED SHAMEER
S/O. MAMMU, AGED 32 YEARS, VATTOTH HOUSE,
KALARANTHIRI, MANIPURAM P.O., VAVAD,
KOZHIKODE, PIN - 673572
7 MUHAMMED FAIQUE
Crl.M.C.Nos.5591 & 5605 of 2022
4
S/O. MUHAMMED BASHEER, AGED 33 YEARS,
PUZHANKARA HOUSE, KOZHIKODE, PIN - 673572
BY ADVS.
BONNY BENNY
BALU TOM
BEJOY JOSEPH P.J.
GOVIND G. NAIR
M.RAMESH CHANDER (SR.)
JINCY GEORGE(K/56/2022)
RESPONDENT/COMPLAINANT/STATE:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT
OF KERALA, PIN - 682031
2 UNION OF INDIA
INCOME TAX DEPARTMENT REPRESENTED BY THE
DEPUTY DIRECTOR OF INCOME TAX (INV)-II, 8TH
FLOOR, AYAKAR BHAWAN, KOZHIKODE, PIN - 673001
3 DEPUTY DIRECTOR
DIRECTORATE OF ENFORCEMENT, KENDRIYA BHAVAN,
3RD FLOOR, KALLAI, KOZHIKODE, PIN - 673001
BY ADVS.
SRI.HRITHWIK C.S., PUBLIC PROSECUTOR
SRI.JOSE JOSEPH
SRI.JAISHANKAR V.NAIR
SRI.MANU S., ASG OF INDIA
SRI.P.K.RAVINDRANATHA MENON (SR.)
SRI.NAVANEETH.N.NATH
SMT.SUSIE B VARGHESE(K/1300/2019)
THIS CRIMINAL MISC. CASE HAVING COME UP FOR
ADMISSION ON 21.12.2023, ALONG WITH Crl.MC.5605/2022,
THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.M.C.Nos.5591 & 5605 of 2022
5
P.V.KUNHIKRISHNAN, J.
------------------------------
Crl.M.C.Nos.5591 & 5605 of 2022
----------------------------------------------
Dated this the 21st day of December, 2023
ORDER
These two Criminal Miscellaneous Cases are
connected and therefore, I am disposing of these
Criminal Miscellaneous Cases by a common order.
2. The petitioners in these Criminal Miscellaneous
Cases are one and the same. It is the case of the
petitioners that, they are permanent residents of
Kozhikode. Petitioners 1, 4, 5, 6 and 7 were non
resident Indians. The 3rd petitioner is a widow having
a daughter. It is the case of the petitioners that, it was
the desire of the petitioners to have a business of their
own so as to eke out their livelihood. According to the
petitioners, they came to know through a broker that a
hotel situated at Banglore is available for sale. Though
Crl.M.C.Nos.5591 & 5605 of 2022
the price offered was on the higher side, the
middleman who was involved for bringing out the sale
informed the petitioners that he would be able to bring
down the price demanded. They were also informed
that there can not be any piecemeal payment for the
price of Hotel but the entire amount agreed up on
would have to be paid as on the date of the sale. In
order to generate the said amount, the 1 st petitioner
consolidated an amount of Rs.1 Crore 55 lakhs which
was withdrawn from his bank with Canara Bank,
Koduvally Branch which he raised by way of sale of
gold ornaments, is the submission. Similarly the 2 nd
petitioner also raised an amount of Rs.33,10,150/- by
selling the gold ornaments and the other petitioners
also raised amount. According to the petitioners, the
entire amount are accounted money. It is further
submitted that there was a negotiation between the
petitioners 1 and 2 with the owner of Mughal Treat
Crl.M.C.Nos.5591 & 5605 of 2022
Restaurant in the presence of the broker. However, the
vendor of the property refused to bring down the price
from Rs.165 lakhs to Rs.150 lakhs. Therefore, the
talks failed and the same did not take place.
Thereafter, the 1st and 2nd petitioners returned from
Banglore to Kozhikode. It is submitted that, they had
also informed the other petitioners regarding the fact
that the sale did not go through. While they were
returning to Calicut, it is submitted that the vehicle in
which petitioners 1 and 2 were travelling was
intercepted by the police at Nilambur on 12.04.2022
and an amount of Rs.156 lakhs which was carried by
them was seized by the police. The petitioners and the
Income Tax Department, 3rd respondent herein, filed
applications for interim custody of the amount seized
from the possession of petitioners 1 and 2. The
learned Magistrate considered both the applications
together and passed an order directing to release the
Crl.M.C.Nos.5591 & 5605 of 2022
amount to the Income Tax Department after furnishing
bank guarantee. Annexure A14 produced in these
cases are the impugned orders. Aggrieved by the
same, these Criminal Miscellaneous Cases are filed.
3. Heard the learned counsel appearing for the
petitioners and the learned Standing Counsel
appearing for the Income Tax Department.
4. Counsel for the petitioners relied on the order
dated 26.09.2023 in Crl.M.C.No.5034/2023, in which
this Court considered a similar matter in detail and
found that the Income Tax department is not entitled
for the amount. In the above order, this Court
specifically observed that the order passed by the
learned Magistrate ordering the handing over of the
amount to the revenue in such situation can not be
sustained. In the light of the above order, I am of the
considered opinion that these Criminal Miscellaneous
Cases are to be allowed.
Crl.M.C.Nos.5591 & 5605 of 2022
5. When these Criminal Miscellaneous Cases came
up for consideration, the learned Standing counsel
appearing for the Income Tax Department submitted
that the issue is covered by the order dated
26.09.2023 in Crl.M.C.No.5034/2023, but the same is
challenged before the Apex Court by filing SLP (Crl.)
No.16409/2023. Therefore, this Court granted some
time to obtain necessary orders from the Apex Court.
Now both sides conceded that the Apex Court
dismissed SLP (Crl.) No.16409/2023. A copy of the
same is produced as Annexure A16 in
Crl.M.C.No.5605/2022. If that be the case, these
Criminal Miscellaneous Cases are to be allowed.
Therefore, these Criminal Miscellaneous cases are
allowed in the following manner:
i) In Crl.M.C.No.5591/2022, the order
dated 03.08.2022 in C.M.P. No.1345/2022 on the
file of the Judicial First Class Magistrate Court,
Crl.M.C.Nos.5591 & 5605 of 2022
Nilambur is set aside.
ii) In Crl.M.C.No.5605/2022, the order
dated 03.08.2022 in C.M.P. No.832/2022 on the
file of the Judicial First Class Magistrate Court,
Nilambur is set aside and the prayer in C.M.P.
No.832/2022 is allowed.
iii) The Judicial First Class Magistrate Court,
Nilambur is directed to release the amount to the
petitioners on furnishing a bond for a sum of
Rs.1,56,00,000/- (Rupees One Crore fifty six lakhs
only) with two solvent sureties each for the like
sum to the satisfaction of the learned Magistrate.
Sd/-
P.V.KUNHIKRISHNAN
DM JUDGE
Crl.M.C.Nos.5591 & 5605 of 2022
PETITIONER ANNEXURES
ANNEXUREA1 PHOTOSTAT COPY OF THE PARTNERSHIP
DEED DATED 18.04.2021.
ANNEXURE A2 PHOTOSTAT COPY OF THE GOLD ORNAMENTS
SALES BILL ISSUED BY SRI THIRUMALA
JEWELLERS IN THE NAME OF MUHAMMED
SALIH DATED 04/04/2022 UNDER THE
INVOICE NUMBER PA00004 AND THE
STATEMENT OF ACCOUNT IN THE NAME OF
MUHAMMED SALIH FROM 01/04/2022 TO
11/04/2022.
ANNEXURE A3 PHOTOSTAT COPY OF THE GOLD ORNAMENTS
SALES BILL ISSUED BY SRI THIRUMALA
JEWELLERS IN THE NAME OF SHABEERALI
DATED 01/04/2022 UNDER THE INVOICE
NUMBER PA00001 AND THE STATEMENT OF
ACCOUNT IN THE NAME OF SABEERALI
FROM 01/04/2022 TO 20/04/2022
ANNEXURE A4 PHOTOSTAT COPY OF THE GOLD ORNAMENTS
SALES BILL ISSUED BY SRI THIRUMALA
JEWELLERS IN THE NAME OF MUHAMMED
SUHAIB DATED 04/04/2022 UNDER THE
INVOICE NUMBER PA00005 AND THE
STATEMENT OF ACCOUNT IN THE NAME OF
MUHAMMED SUHAIB FROM 01/04/2022 TO
20/04/2022.
ANNEXURE A5 PHOTOSTAT COPY OF THE GOLD ORNAMENTS
SALES BILL ISSUED BY SRI THIRUMALA
JEWELLERS IN THE NAME OF MUHAMMED
SHAMEER DATED 01/04/2022 UNDER THE
INVOICE NUMBER PA00003 AND THE
STATEMENT OF ACCOUNT IN THE NAME OF
MUHAMMED SHAMEER FROM 01/04/2022 TO
Crl.M.C.Nos.5591 & 5605 of 2022
20/04/2022.
ANNEXURE A6 PHOTOSTAT COPY OF THE GOLD ORNAMENTS
SALES BILL ISSUED BY SRI THIRUMALA
JEWELLERS IN THE NAME OF MUHAMMED
FAIQUE DATED 04/04/2022 UNDER THE
INVOICE NUMBER PA00004 AND THE
STATEMENT OF ACCOUNT IN THE NAME OF
MUHAMMED FAIQUE FROM 01/04/2022 TO
05/05/2022.
ANNEXURE A7 PHOTOSTAT COPY OF THE STATEMENT OF
ACCOUNT OF CANARA BANK IN THE NAME
OF MUHAMMED SALIH UNDER THE ACCOUNT
NO.441426000009952.
ANNEXURE A8 PHOTOSTAT COPY OF THE STATEMENT OF
ACCOUNT OF CANARA BANK IN THE NAME
OF MS. SABEENA.
ANNEXURE9 PHOTOSTAT COPY OF THE STATEMENT OF
ACCOUNT OF SOUTH INDIAN BANK LTD. IN
THE NAME OF C.K. MUHAMMED UNDER THE
ACCOUNT NO.5556053000052179 AND
STATEMENT OF ACCOUNT OF KOZHIKODE
DISTRICT CO-OPERATIVE BANK LTD. IN
THE NAME OF C.K. MUHAMMED UNDER THE
ACCOUNT NO.100071200823719. (TYPED
COPY OF THE LAST PAGE ATTACHED)
ANNEXURE10 PHOTOSTAT COPY OF THE APPLICATION IN
CRL.MP 1345/22 DATED 22.04.2022.
ANNEXURE A11 PHOTOSTAT COPY OF THE COUNTER FILED
BY THE INCOME TAX DEPARTMENT DATED
25.05.2022.
ANNEXURE A12 PHOTOSTAT COPY OF THE APPLICATION
FILED BY THE 2ND RESPONDENT DATED
09.06.2022.
ANNEXURE A13 PHOTOSTAT COPY OF THE COUNTER FILED
Crl.M.C.Nos.5591 & 5605 of 2022
BEFORE THE JFCM, NILAMBUR DATED
10.12.2019.
ANNEXURE A14 PHOTOSTAT COPY OF THE COMMON ORDER
PASSED BY THE JFCM, NILAMBUR IN
CRL.MP 1345/22 DATED 03.08.2022.
Crl.M.C.Nos.5591 & 5605 of 2022
PETITIONER ANNEXURES
ANNEXURE A1 PHOTOSTAT COPY OF THE PARTNERSHIP
DEED DATED 18.04.2021.
ANNEXURE A2 PHOTOSTAT COPY OF THE GOLD ORNAMENTS
SALES BILL ISSUED BY SRI THIRUMALA
JEWELLERS IN THE NAME OF MUHAMMED
SALIH DATED 04/04/2022 UNDER THE
INVOICE NUMBER PA00004 AND THE
STATEMENT OF ACCOUNT IN THE NAME OF
MUHAMMED SALIH FROM 01/04/2022 TO
11/04/2022.
ANNEXURE A3 PHOTOSTAT COPY OF THE GOLD ORNAMENTS
SALES BILL ISSUED BY SRI THIRUMALA
JEWELLERS IN THE NAME OF SHABEERALI
DATED 01/04/2022 UNDER THE INVOICE
NUMBER PA00001 AND THE STATEMENT OF
ACCOUNT IN THE NAME OF SABEERALI
FROM 01/04/2022 TO 20/04/2022
ANNEXURE A4 PHOTOSTAT COPY OF THE GOLD ORNAMENTS
SALES BILL ISSUED BY SRI THIRUMALA
JEWELLERS IN THE NAME OF MUHAMMED
SUHAIB DATED 04/04/2022 UNDER THE
INVOICE NUMBER PA00005 AND THE
STATEMENT OF ACCOUNT IN THE NAME OF
MUHAMMED SUHAIB FROM 01/04/2022 TO
20/04/2022.
ANNEXURE A5 PHOTOSTAT COPY OF THE GOLD ORNAMENTS
SALES BILL ISSUED BY SRI THIRUMALA
JEWELLERS IN THE NAME OF MUHAMMED
SHAMEER DATED 01/04/2022 UNDER THE
INVOICE NUMBER PA00003 AND THE
STATEMENT OF ACCOUNT IN THE NAME OF
MUHAMMED SHAMEER FROM 01/04/2022 TO
Crl.M.C.Nos.5591 & 5605 of 2022
20/04/2022.
ANNEXURE A6 PHOTOSTAT COPY OF THE GOLD ORNAMENTS
SALES BILL ISSUED BY SRI THIRUMALA
JEWELLERS IN THE NAME OF MUHAMMED
FAIQUE DATED 04/04/2022 UNDER THE
INVOICE NUMBER PA00004 AND THE
STATEMENT OF ACCOUNT IN THE NAME OF
MUHAMMED FAIQUE FROM 01/04/2022 TO
05/05/2022.
ANNEXURE A7 PHOTOSTAT COPY OF THE STATEMENT OF
ACCOUNT OF CANARA BANK IN THE NAME
OF MUHAMMED SALIH UNDER THE ACCOUNT
NO.441426000009952.
ANNEXURE A8 PHOTOSTAT COPY OF THE STATEMENT OF
ACCOUNT OF CANARA BANK IN THE NAME
OF MS. SABEENA.
ANNEXURE A9 PHOTOSTAT COPY OF THE STATEMENT OF
ACCOUNT OF SOUTH INDIAN BANK LTD. IN
THE NAME OF C.K. MUHAMMED UNDER THE
ACCOUNT NO.5556053000052179 AND
STATEMENT OF ACCOUNT OF KOZHIKODE
DISTRICT CO-OPERATIVE BANK LTD. IN
THE NAME OF C.K. MUHAMMED UNDER THE
ACCOUNT NO.100071200823719. (TYPED
COPY OF THE LAST PAGE ATTACHED)
ANNEXUREA10 : PHOTOSTAT COPY OF THE APPLICATION
IN CRL.MP 832/22 DATED 22.04.2022.
ANNEXURE A11 PHOTOSTAT COPY OF THE COUNTER FILED
BY THE INCOME TAX DEPARTMENT DATED
25.05.2022.
ANNEXURE A12 PHOTOSTAT COPY OF THE APPLICATION
FILED BY THE 2ND RESPONDENT DATED
09.06.2022.
ANNEXURE A13 PHOTOSTAT COPY OF THE COUNTER FILED
Crl.M.C.Nos.5591 & 5605 of 2022
BEFORE THE JFCM, NILAMBUR DATED
10.12.2019.
ANNEXURE A14 PHOTOSTAT COPY OF THE COMMON ORDER
PASSED BY THE JFCM, NILAMBUR IN
CRL.MP 832/22 DATED 03.08.2022.
ANNEXURE A15 THE TRUE COPY OF THE JUDGMENT
RENDERED IN CRL MC.5034/2023 &
5038/2023 ON THE 26TH OF SEPTEMBER
ANNEXURE A16 PHOTOSTAT COPY OF THE ORDER OF THE
HON'BLE SUPREME COURT IN SLP (CRL.)
NO.16409/2023 DATED 15.12.2023
RESPONDENTS EXHIBITS : NIL
//TRUE COPY// PA TO JUDGE
