1. These two matters arise out of one and the same case. The criminal revision petition is by the Income-tax Officer (Assessment) 4, Calicut and the Criminal Miscellaneous Petition is by the 1st respondent in the said criminal revision petition. The criminal revision is stated to be under Ss. 435 and 436 the Code of Criminal Procedure and the Crl. M.P is under Ss. 561A and 439 of the Code of Criminal Procedure. For the purpose of discussion, I am referring to parties as arrayed in the Criminal Revision Petition. The facts leading to these proceedings in this court may briefly be stated as follows:—At about lam on 24-12-1970 the police on petrol duty in certain part of Calicut saw the 2nd respondent walking along the road with a bag. The police on suspicion stopped and searched him, and found that the bag with him contained Indian currency notes of 100 rupee denomination which in the aggregate came to Rs. 1,00,000/-. He was arrested under Ss. 54 and 550 of the Code of Criminal Procedure and was produced before the Sub Magistrate I, Kazhikode. The learned Sub Magistrate remanded the accused and sent the currency notes to the Treasury for safe custody. The police had reported that at the time of the arrest the second respondent had stated that the amount belonged to one Ahammed Thangal and that he was carrying it for payment to one Sri Koyappa at Puthuppady. On 28-12-1970 he filed C.M.P No. 64/1970 for bail stating inter alia that the money seized from him actually belonged to the 1st respondent. He also filed a separate petition (which does not appear to have been numbered) praying that the amount seized from him may be made over to the 1st respondent. The 1st respondent also had filed a petition Crl. M.P 65/1970 on 28-12-1970 itself claiming that the money seized from the 2nd respondent was to be made over to him. The learned Magistrate passed orders on the petition, C.M.P 65/1970, to await final report in Crime No. 372/1970, the case registered against the 2nd respondent. The bail application was rejected by the learned Magistrate; but he was subsequently enlarged on bail by the Sessions Court.

2. In the meanwhile the revision petitioner herein had filed C.M.P 1/1971 on the file of the Sub Magistrate on 1-1-1971 praying that the amount seized from the 2nd respondent represents wholly or partly property or income which had not been disclosed for purposes of Indian Income Tax Act, and therefore it may be made over to him. Later on, the Income-tax Officer (Recovery), Calicut also made a petition, C.M.P 54/1971 on the file of the Sub Magistrate, stating that the 2nd respondent had been assessed to income-tax to the tune of Rs. 58,501/-, a penalty of Rs. 42,900/- had also been imposed on him, and that in the aggregate a sum of Rs. 1,01,401/- is due from him. It was also prayed that the money in court deposit may be made over to him.

3. On 20-11-1971 the police submitted the final report in Crime No. 372 of 1970 referring the case as one of mistake of fact. The refer report was to the effect that 2nd respondent had not committed any offence and that the money seized from him actually belonged to the 1st respondent.

4. Thereafter, the learned Magistrate clubbed together all the petitions, namely C.M.P 65/1970 filed by the 1st respondent, C.M.P 1/1971 filed by the Revision Petitioner and C.M.P 54/1971 filed by the Income-tax Officer (Recovery) and drew up proceedings in M.C No. 45/1971. The learned Magistrate repelled the motions in C.M.P No. 1/1971 and C.M.P 54/1971, and allowed the petition in C.M.P 65/1970. In doing so, the learned Magistrate accepted the version of the 2nd respondent that he was only a servant under the 1st respondent and that he was carrying the amount in question for payment to the 1st respondent's office at Kalpetta.

5. Aggrieved by the order passed by the learned Sub Magistrate in M.C 45/1970, both the Revision petitioner herein as well as the Income-tax Officer (Recovery) filed, revisions before the District Magistrate, Calicut, in Crl. Revision Petition Nos. 1/1972 and 2/1972 respectively. The learned District Magistrate after hearing the parties came to the conclusion that no case was made out for reference to the High Court under S. 438 of the Code of Criminal Procedure, confirmed the order passed by the learned Sub Magistrate, and dismissed the criminal revision petitions.

6. The criminal revision petition under consideration is against the order of the learned District Magistrate in Crl. R.P No. 1/1972. After the disposal of Crl. R.P Nos. 1 and 2 of 1972 by the District Magistrate, the 1st respondent herein filed a petition C.M.P 529/1972 on the file of the Sub Magistrate for the return of the amount to him in as much as the revisions filed by the Income-tax Officers have been dismissed. The learned Sub Magistrate passed an order in these words:

“Records perused; this petition will be considered after the period of revision to High Court is over.”

7. Crl. M.P No. 487/1972 is for quashing the order of the learned Sub Magistrate in Crl. M.P 529/1972 dated 14-6-1972. Though the petition is stated to be under S. 439 of the Crl. P.C also, argumen was advanced as though it is a petition under S. 561A Crl. P.C only. It was represented that no revision has so far been preferred against the order in Crl. R.P 2/1972.

8. As it is in the criminal revision petition that substantial questions are raised, I propose to deal with it first, and to dispose of Crl. M.P No. 487/1972 in the light of the conclusions that I my reach therein.

9. The order under challenge is passed under S. 523 of the Code of Criminal Procedure. Ordinarily when any property is seized from a person arrested under Ss. 54 and 550 of the Crl. P.C and when the police submits the final report stating that the investigation does not disclose the commission of any offence by the accused the duty of the court is to return the article seized to the accused himself. It is only where the accused denies the seizure from him or contends that the article was planted, the question regarding the person who is entitled to the present possession of the property arises. From the narration of the facts of the case it could be seen that the second respondent from whom the currency notes were seized did not make a claim for the return of the amount to him, but had filed a petition to make over the amount to the 1st respondent, who, in his turn, had also filed a petition praying that the money may be ordered to be given to him. The police also had filed a report to the effect that the investigation did not disclose any offence having been committed by the second respondent and that money actually belonged to the first respondent. There is, no doubt, plenty of scope for suspecting the conduct of the respondents. It is rather strange that the first respondent allowed the second respondent, his servant, to walk along the road in Calicut town with a sum of Rs. 1,00,000/- at 1 a.m in the night. It is also difficult to believe the second respondent who gave inconsistent versions to the police and in court as to whom the money actually belonged, and the destination he had in view. Strange it is also that the police should have taken nearly 11 months for submitting the final report in this crime. Whatever that may be, the primary question the Court has now to consider is whether the petitioner is competent to claim the amount in court deposit to be made over to him.

10. The contention of the petitioner is that the amount seized represents wholly or partly property or income which had not been disclosed for the purposes of Indian Income-tax Act. The petition is filed under S. 132 of the Income-tax Act, 1961. The learned counsel appearing for the revision petitioner has made his sub-missions in extensor on the facts of the case, and has also cited certain decisions in support of his contentions. According to the learned counsel the provisions contained in S. 132(1)(iii) of the Income-tax Act, 1961 would enable the petitioner to seize the amount from the second respondent, and therefore, the appropriate order that should hare been passed by the learned Magistrate under S. 523 Crl. P.C was to give a direction for making over the money to the petitioner for purposes of investigation. Relevant provisions of S. 132 of the Income-tax Act, 1961 read as follows:

“132 Search and seizure.—(1) Where the Director of Inspection or the Commissioner, in consequence of information in his possession has reason to believe that—

(c) any person is in possession of any money, bullion, jewellery or other valuable article or thing and such money, bullion, jewellery or other valuable article or thing represents either wholly or partly income or property which has not been disclosed for the purposes of the Indian Income-tax Act, 1922 or this Act hereinafter in this section (referred to as the undisclosed income or property), he may authorise any Deputy Director of Inspection, Inspecting Assistant Commissioner, Assistant Director of Inspection or Income-tax Officer (hereinafter referred to as the authorised officer) to—

(i) enter and search any building or place where he has reason to suspect that such books of account, other documents, money, bullion, jewellery or other valuable article or thing are kept;

(ii) break open the lock of any door, locker, safe, almirah or other receptacle; for exercising the powers conferred by clause (i) where the keys thereof are not avallables

(iii) seize any such books of account, other documents, money, bullion, jewellery or other valuable article or thing found as a result of such search;

(iv) place marks of identification on any books of account or other documents or make or cause to be made extracts or copies therefrom;

(v) make a note or an inventory of any such money, bullion, jewellery or other valuable article or thing.

(3) The authorised officer may, where it is not practicable to seize any such books of account, other document, money, bullion, jewellery or other valuable article or thing; serve an order on the owner or the person who is in immediate possession or control there of that he shall not remove, part with or otherwise deal with it except with the previous permission of such officer and such officer may take such steps as may be necessary for ensuring compliance with this sub-section.”

11. The following decisions have been cited by the learned counsel in support of his argument that the amount in court custody was to be made over to the petitioner: (1) G. Parulekar v. State of Maharasthra (A.I.R 1964 S.C 1128). In that case the Supreme Court had to consider whether the service of an order of detention on the appellants, when they were already in detention in pursuance of a prior order was valid in law. The appellants before the Supreme Court were detained by an order of the Government of Maharashtra dated 7-11-1962, purported to be in exercise of the powers conferred under the provisions of the Preventive Detention Act, 1950. This order was revoked by an order dated 10-11-1962, and on the same day another order for detention of the appellants was made under Rule 30 of the Defence of India Rules, 1962. The argument was that when the appellants were in custody the second order of detention could not have been served on them. Rejecting the contentions of the appellants, the Supreme Court held as follows:

“In the circumstances it would be, in our opinion, an empty formality to allow the appellants to go out of jail on revocation of the order of November 7, and to serve them with the order dated November 10, 1962 as soon as they were out of jail.”

(2) Bavajee Fakkir Mohammed v. State (A.I.R 1967 Kerala 282). In that case a person was arrested by the police when he was carrying a sum of Rs. 25,000/- and was found in suspicious circumstances. He was, with the amount, produced in court. Later on the police recovered another sum of Rs. 11,000/- as a result of the investigation conducted on the information received from that person. The second person also was arrested and produced before court with the money seized. Ultimately the police filed a statement before court to the effect that no crime cognizable by the police could be detected and that the accused were suspected to be members of an international gang acting in violation of the foreign exchange laws. When the police filed this statement, the persons, from whom the amount was seized, filed a petition for the return of the amount to them; but in the meanwhile the Enforcement Officer intervened and claimed that the documents may be made over to him for purpose of investigation. The learned Sub Magistrate passed an order directing the documents and the currency notes to be made over to the Enforcement Officer. It was against this order of the learned Magistrate that the revision petition was filed in the High Court. While disposing of the Crl. Revision Petition, Madhavan Nair, J. held as follows:

“Under S. 523 of the Code of Criminal Procedure, property seized by the police on suspicion and produced before a Magistrate has to be returned to the person entitled to the possession thereof. Normally, when no offence is found by the Magistrate, the person entitled may be the person from whom the property was seized. But if the Enforcement Officer empowered under S. 19-D of Foreign Exchange Regulation Act 1947 is entitled to seize the property immediately from such person, he may be the person entitled to the present possession thereof. It would be an empty formality, in the face of an application moved by the Enforcement Officer, for delivery of the property to him to have the property delivered to the petitioners under S. 523 Crl. P.C and then seized by the Enforcement Officer from the bands of the petitioners at the gate of the Magistrate's Court.”

12. In coming to the conclusion His Lordship had applied the principles in the dictum laid down by the Supreme Court in A.I.R 1964 S.C 1128.

(3) Krishnan Sukumaran,… v. Enforcement Officer, Cochin,…. (AIR 1968 Kerala 208): In this case one Sukumaran was arrested by the police at 4 a.m on 27-5-1966 having found him in suspicious circumstances with a filled cloth bag. When he was searched it was found that his cloth bag contained 789 Indian currency notes of one hundred rupees denomination, bundled into several lots and slips of papers attached thereto. Investigation revealed that the amount was entrusted to him by one Kesavan Madhavan, and that the remittance was made from foreign countries through secret agencies to be distributed to persons in India. The police produced accused Sukumaran and the amount seized before the court. The Magistrate remanded Sukumaran to custody. Soon thereafter, Assistant Director, Enforcement Directorate, Madras, passed orders under S. 19(2) of the Foreign Exchange Regulation Act and in pursuance thereof he made an application before court praying that the documents (currency notes) may be made over to him for the purpose of investigation. It was that order that was challenged in the criminal revision petition which came up for decision before the Division Bench. Isaac, J., held in that case as follows:

“If a property, which an Enforcement Officer is entitled to seize or otherwise take possession of under S. 19G of the Act, is in custody of a Court or any Other authority, what that officer has to do under such circumstances is to move the Court or the authority for handing over possession of the property for any lawful purpose and it is the duty of the Court or authority to hand over to the Officer if it does not require it for some lawful purpose.”

13. This again is based on the principles of the dictum laid down by the Supreme Court in the decision in A.I.R 1964 S.C 1128.

(4) Deputy Superintendent, Customs v. Sitaram (A.I.R 1968 Calcutta 274): It was a case where certain articles of foreign origin Were seized by the police from the accused, the seizure being under S. 54 Crl. P.C read with S. 411 IPC. While the case was pending investigation by the police, the customs authorities made an application to the Chief Presidency Magistrate praying for a direction to the investigating officers concerned to hand over the seized goods to them at the conclusion of the investigation or trial to facilitate proceedings under the Customs Law against the offenders concerned. After the police ultimately filed the final report, the learned Magistrate came to the finding that it would not be proper for the court to pass any order in favour of the Customs authority as prayed for and the proper order would be the return of the goods to the accused and the Customs authorities may thereafter make their own independent seizure obviously from the person who takes delivery of the goods, without further reference to the Court. It is the propriety of the order passed by the learned Chief Presidency Magistrate that was the subject matter of the revisions before the Calcutta High Court. Mukherji, J. held thus:

“The Customs Authorities under S. 110 of the Customs Act 1962 have the unfettered power of seizure of the goods. Where the Customs Authorities by virtue of that power went to make the seizure but the goods concerned being in the custody of the Court, could not or did not want to seize the same without the Court's order, in such a case ait that the Court need see if it wants to make an order under S. 523 of Cr. P.C in favour of the Customs Authorities is whether the power that they want to exercise is vested in them by law and if it is so vested, the Court need not enter into the question of the meritr of the materials which may provide the basis for the belief that the goods concerned are contraband. That is a matter which the Customs Authorities would have to prove by evidence in the proceeding that they would have to start if they want to make an order of confiscation. There is also no question of surrendering the Court's discretion to the opinion of the Customs Authorities because all that the Court has to see in the matter of disposal of property under S. 523 Cr. P.C is that the order that is passed is an appropriate order in the facts and circumstances of the case……… There are practical difficulties in the matter of refusing to act up to the prayer made by the Customs Authorities in the exercise of powers granted to under the Act. Under the Customs Act itself the Customs Authorities would have the power given to them in S. 110 to seize the goods from the custody of the police and there may be a conflict between the Customs Authorities eager to exercise their powers and the police authorities anxious to carry out the orders of the Court…… Then again if under the orders of the Magistrate the Customs people have to make the seizure from the parties concerned after they have got back their goods from the police, it may as well be that they will never come to get back their goods and to face the consequences thereof and that again would frustrate the purposes of the Customs Act.”

(5) Enforcement Officer v. Sub Inspector of Police (1971 KLJ 267): In the case the accused was found to possess a sum of Rs. 4,04,950/-. The police on suspicion that the money was either stolen or was concerned in a cognizable offence arrested him and produced him before the Magistrate. On questioning, however, it was revealed that the money was obtained by him in violation of the Foreign Exchange Regulation Act, Act 7 of 1947. Information was thereupon conveyed by the Sub Inspector to the Enforcement Officer who filed a petition for making over the documents produced by the Sub Inspector in Court to him for the purpose of investigation inasmuch as the police had felt that the accused came by the currency notes in contravention of the provisions of Ss. 5(1)(aa) and 5(1)(c) of the Foreign Exchange Regulation Act. The learned Magistrate instead of making over the amount to the Enforcement Officer passed an order directing both sides to let in evidence in support of their respective claims, (as the accused also was making a claim for the return of the amount). Setting aside the order passed by the learned Magistrate, Sadasivan, J. held as follows:

“On a careful and anxious consideration of the matter, lam of the view that the learned Magistrate has misdirected himself in directing the parties to adduce evidence, the Magistrate is not expected to inquire into the matter, because the offence stated to have been committed is not one triable by him or cognizable by the police. The offence is one to be investigated by the officers of the Enforcement and prosecuted by them. The Act has Invested them with very wide powers in this regard. S. 19E and F of the Act provide for the summoning and examination of witnesses. A full dressed inquiry is provided for in the Act. There is also the provision for appeal by the aggrieved party to the Appellate Board and from the decision of the Board, finally to the High Court. So the inquiry is to be conducted by the Director of Enforcement and the evidence if any, intended to be produced by the party, is to be produced before that authority and not before the Magistrate………….”

14. On a consideration of the above five decisions cited by the learned counsel for the revision petitioner it could be found that the Supreme Court case was concerned with the order that was passed under the Preventive Detention Rules, all the three Kerala cases were concerned with the orders passed with reference to the Foreign Exchange Regulation Act, 1962 and the Calcutta case was concerned with an order that was passed under the Customs Act. The substance of all these decisions appears to be that instead of complying with empty formalities the court should consider the practical aspects of the matter and pass appropriate orders. In the Supreme Court case releasing of the persons in custody on the revocation of the order under which they were originally detained and then again arresting them under the new order of detention passed simultaneously with the passing of the order revoking the previous order, was held to be an empty formality. In all the other four cases the authorised officer under the Foreign Exchange Regulation Act or the Customs Act had the unfettered power of seizure. Therefore, by passing an order for the release of the documents to the person from whom the police seized them would serve no useful purpose, except to create practical difficulties, inasmuch as those documents are liable to be seized by the authorised officer the moment the accused leaves the premises of the court.

15. In none of the cases cited by the learned counsel appearing for the revision petitioner there was any need to consider whether the authorised officer under Ss. 132(1)(iii) and S. 132(3) is competent to pray for the return of the seized documents in the custody of the court, when, on investigation by the police, it was found that they were not involved in any crime. It would be advantageous at this juncture to have a comparison of the provisions of S. 132(1)(iii) and 132(3), which have already been extracted in this judgment, on which the revision petitioner relies, with S. 19A(1) and 19-B of the Foreign Exchange Regulation Act, 1957 (Act 7 of 1947) and sub-Ss. 1 and 3 of S. 110 of the Customs Act, which came up for consideration in the decisions of the Kerala High Court and the Calcutta High Court cited by the revision petitioner. For the sake of convenience these provisions in the Foreign Exchange Regulation Act and the Customs Act are reproduced below:

S. 19A(1); “If any officer of Enforcement authorised in this behalf by the Central Government, by general or special order, has reason to believe that any person has secrete a about his person any documents which will be useful for or relevant to any proceeding under this Act he may search that person.”

S. 19A(5): “Before making a search under the provisions of this section, the office, of Enforcement shall call upon two or more persons to attend and witness the search and may issue an order in writing to them or any of them so to do; and the search shall be made in the presence of such persons and a list of all documents seized in the course of such search shall be prepared by such officer or other person and signed by such witnesses.”

Section 19B: “(1) If any officer of Enforcement authorised in this behalf by the Central Government, by general or special order, has reason to believe that any person in India or within the Indian customs Waters has been guilty of an offence punishable under this Act, he may arrest such person and shall, as soon as may be, inform him of the grounds for such arrest.

(2) Every person arrested under sub-section (1) shall, without unnecessary delay, be taken to a magistrate.

(3) Where any officer of Enforcement has arrested any parson under sub-section (1) he shall, for the purpose of releasing such person on bail or otherwise, have the same powers and be subject to the same provisions as the officer-in-charge of a police station has and is subject to, under the Code of Criminal Procedure, 1898”.

Customs Act:

S. 110(1) “If the proper officer has reasons to believe that any goods are liable to confiscation under this Act, he may seize such goods:

Provided that where it is not practicable to seize any such goods, the proper officer may serve on the owner of the goods an order that he shall not remove, part with, or otherwise deal with the goods except with the previous permission of such officer”.

16. S. 110(3) “The proper officer may seize any documents or things which, in his opinion will be useful for, or relevant to, any proceeding under this Act.”

17. The comparison would reveal that the power under the Foreign Exchange Regulation Act and the Customs Act conferred on the authorised officer is much wider than the power conferred on the authorised officer under the Income-tax Act. In particular, under S. 132 of the Income-tax Act no specific power is seen to have been conferred on the authorised officer to search or arrest the person who is found or suspected to be in possession of any document, money, etc., which represents partly or wholly property or income not disclosed for the purposes of the Income-tax Act. The seizure contemplated under S. 132(1)(iii) can arise only in the case of books of account, other documents, money, bullion, Jewellery or valuable article or thing found as a result of such search. The provision contained in sub-s. (3) of S. 132 comes into play only where the authorised officer finds it not practicable to seize any such books of account, other documents, money, bullion, jewellery or other valuable article or thing. It is fairly clear that the power conferred on the authorised officer under sub-s. (2) of S. 132 when considered along with S. 132(1)(iii) of the Income tax Act can be exercised only when there is practical difficulty experienced for the seizure of the documents etc. which have been found as a result of the search conducted by the authorised officer, of the building or place where the documents etc., were lying. No wide and unfettered power has been conferred on the authorised officer under the Income-tax Act with respect to seizure.

18. Of all the decisions cited before me the one and only decision having direct bearing to the point in issue is the decision in Union of India v. Hadibandhu Das (A.I.R 1967 Orissa 154), placed before me by the learned counsel for the first respondent. In that case the scope and applicability of clause (iii) of S. 132(1) and sub-s. (3) of S. 132 came up directly for consideration. K. Ahamed, C.J on a careful consideration of the wording in the relevant clause and the sub-section held as follows:

“A careful reading of sub-section (1) makes it unambiguously clear that the stage of seizure as provided in its clause (iii) comes only after entry and search, as provided in clause (1); in other words when the authorised officer has entered into a building or place referred to in clause (i) of sub-section (1) and as a result of such entry has found there any books of account or any of the other articles referred to therein, he is empowered to seize them if considered necessary. But it may so happen that some of the things found on search may be such as may not permit of seizure then and there. It is to meet such a situation that there is a special provision made in sub-section (3) for the service of an order by the authorised officer, if considered necessary, on the owner or the person who is in immediate possession or control of those articles, that he shall not remove, part with or otherwise deal with them except with the previous permission of such officer.”

19. I am in agreement with the view taken by the Orissa High Court in the decision referred to above and hold that in the instant case inasmuch as the currency notes produced in court are not those seized by the authorised officer, or which he was empowered to seize strictly in terms of S. 132(1)(iii), the revision petitioner is not competent to claim to have the documents (currency notes) made over to him for purposes of investigation. As the discovery is not claimed to be as a result of the search of any building or place as referred to in clause (iii) of sub-s. (1) of S. 132, the question of applying the provision of sub-s. (3) of S. 132 also cannot arise. I, therefore, find that the order passed by the learned Sub-Magistrate, which has been confirmed by the learned District Magistrate, is perfectly in order and that it calls for no interference by this court in revision. The conclusion reached in the Crl. Revision Petition virtually renders Crl. M.P No. 487/1972 infructuous in so far as it relates to Crl. M.P 1/71 on the file of the Sub Magistrate. Though the period for the revision is not yet over, and no revision has been preferred against the order of the learned District Magistrate confirming the order in Crl. M.P 54/71, I make it clear that the learned Magistrate need not keep the petition in Crl. M.P 529/72 on his file pending any longer and should pass forthwith appropriate orders on the petition. Crl. M.P No. 487/72 is disposed of a above and Crl. Revision Petition No. 306/72 is dismissed.