Kerala High Court
Abdul Nawas K.M vs State Of Kerala on 6 February, 2024
Author: Bechu Kurian Thomas
Bench: Bechu Kurian Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
TUESDAY, THE 6TH DAY OF FEBRUARY 2024 / 17TH MAGHA, 1945
OP(CRL.) NO. 987 OF 2023
AGAINST THE ORDER/JUDGMENT CRRP 34/2022 OF DISTRICT COURT &
SESSIONS & MOTOR ACCIDENT CLAIMS TRIBUNAL, KASARAGOD
PETITIONER:
ABDUL NAWAS K.M
AGED 32 YEARS
S/O MOIDEEN KUNHI.A,FAHIZA MANZIL,KALLANGAI
PADINJAR,MOGRAL PUTHUR,KASARAGOD DISTRICT., PIN -
671124
BY ADVS.
P.K.SUBHASH
JUBAIRIYA SALIM
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,
PIN - 682031
2 S.H.O
MELPARAMBA POLICE STATION REP.BY DISTRICT PUBLIC
PROSECUTOR, KASARAGOD, PIN - 671541
OTHER PRESENT:
SRI. NOUSHAD K.A. (PP)
THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON
06.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(CRL.) NO. 987 OF 2023
2
BECHU KURIAN THOMAS, J.
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O.P.(Crl) No. 987 of 2023
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Dated this the 6th day of February, 2024
JUDGMENT
Petitioner's application under Section 451 of Cr.P.C for the
release of currency worth Rs.4,80,000/- seized by the S.H.O.,
Malparamba Police Station has been dismissed by order dated
29-09-2022 stating that the Enforcement Directorate and the
Income Tax Department were not parties to the proceedings and no
report was received from there.
2. Sri.P.K.Subash, the learned counsel for the petitioner,
contended that the petitioner had challenged the order of the
learned Magistrate in revision before the Session Court as
Crl.R.P.No.34/2022 and by order dated 12-04-2023, the revision
petition was dismissed as not maintainable. Now petitioner has
approached this Court challenging the order of the learned
Magistrate as well as the revisional Court. It is contended that in
the petition under Section 451 of Cr.P.C it is not necessary to make
the Enforcement Directorate or the Income Tax Department parties
to the proceedings, and if the Court felt that intimation ought to
have been given to any such departments, the same could have
OP(CRL.) NO. 987 OF 2023
been done, and merely on that ground, the dismissal of the
application is erroneous and liable to be interfered with. Counsel for
the petitioner submitted that no crime has been registered till date,
and therefore retention of the money is without authority of law.
3. I have heard Sri. Noushad K.A., the learned Public
Prosecutor as well.
4. On a perusal of the impugned order dated 29-09-2022, it is
noticed that the learned Magistrate dismissed the application on
the ground that the Enforcement Directorate and the Income Tax
Department have not been made parties to the proceedings. It is not
known what is the role of the Enforcement Directorate in the matter.
As far as the Income Tax Department is concerned, in a recent
judgment of this Court in Ravirajan R.v. State of Kerala 2023 (4)
KLJ 423 it has been observed that the advantage for the revenue by
the detection of the cash is that while making the assessment the
revenue would be able to insist that the amount seized also be
included in the returns to be submitted. If in case the period for
assessment is over, the revenue can have a claim on the tax due on
the amount due from the person. For that purpose, the Income Tax
Department can be heard.
5. In case the Magistrate intends to hear the Income Tax
Department, a notice could have been issued by the Court itself to
such a department rather than dismissing the application for
OP(CRL.) NO. 987 OF 2023
interim custody. Dismissal of the application solely on the ground of
non impleadment of the Enforcement Directorate and the Income
Tax Department is, according to me, perverse and liable to be
interfered with.
6. Accordingly, I set aside the order dated 29-09-2022 in
C.M.P.No.606/2022 in C.M.P.No.5762/2022 of Melparamba Police
station and direct the learned Magistrate to re-consider the petition
for release of the currency notes afresh. If it is felt that the Income
Tax Department is a necessary party, the petitioner is given the
liberty to implead such a party.
This original petition is allowed as above.
Sd/-
BECHU KURIAN THOMAS
JUDGE
AJM
OP(CRL.) NO. 987 OF 2023
APPENDIX OF OP(CRL.) 987/2023
PETITIONER ANNEXURES
Annexure A1 THE TRUE COPY OF THE INCOME TAX
RETURNS FOR THE ASSESSMENT YEAR 2020-
21 OF MUHAMMED FAIZAL
Annexure A2 THE TRUE COPY OF THE ORDER IN CMP
NO.6062/2022 IN CMP NO.5762/2022
DATED 29.09.2023
Annexure A3 THE TRUE COPY OF THE ORDER 12.04.2023
IN CRL.R.P NO.34 OF 2022 ON THE FILES
OF COURT OF SESSIONS, KASARAGOD
DIVISION
Annexure A4 THE TRUE COPY OF THE MARRIAGE
CERTIFICATE OF THE SISTER OF THE
PETITIONER
TRUE COPY
