## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM &**
**THE HONOURABLE MR. JUSTICE T.R.RAVI**
**MONDAY, THE 16TH DAY OF MARCH 2020 / 26TH PHALGUNA, 1941**
## **WA.No.338 OF 2020**
**AGAINST THE JUDGMENT IN WP(C) 2226/2020(C) OF HIGH COURT OF KERALA**
## **APPELLANT:**
**M/S FIRDOUS GOLD PATTAMBI LLP, FIRDOUS MAHAL, KUNNUMPURAM, MALAPPURAM, REPRESENTED BY ITS DESIGNATED PARTNER PALASSERY PULIKKAL MUHAMMADALI.**
**BY ADVS. SRI.P.N.DAMODARAN NAMBOODIRI SHRI. HRITHWIK D. NAMBOOTHIRI**
## **RESPONDENTS:**
**1 GOVT. OF INDIA INCOME TAX DEPARTMENT, REPRESENTED BY DEPUTY DIRECTOR OF INCOME TAX, CHUDAKKAYIL COMPLEX, MANJAKULAM ROAD, PALAKKAD-678 014. 2 STATE OF KERALA REPRESENTED BY SUB INSPECTOR OF POLICE, KOPPAM POLICE STATION, PALAKKAD-679 308.**
**3 THE PRINCIPAL COMMISSIONER OF INCOME TAX CENTRAL CIRCLE-2, AAYAKAR BHAVAN, NORTH BLOCK, NEW ANNEXE BUILDING, MANANCHIRA, KOZHIKODE-673 001.**
## **OTHER PRESENT:**
## **SC,IT DEPT. SRI. JOSE JOSEPH**
**THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 16.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
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## **C.K. ABDUL REHIM & T.R. RAVI, JJ.**
**----------------------------------------------------W.A. No. 338 OF 2020 -------------------------------------------------------** _Dated this the 16[th] day of March, 2020_
## **J U D G M E N T**
## _**Abdul Rehim, J.**_
The petitioner in W.P.(C) No.2226/2020 is in appeal against judgment of the Single Judge, dated 27[th] January, 2020. The respondents herein are the respondents in the writ petition.
2. Case of the writ petitioner was that, they are registered dealer in gold ornaments and jewels, under the Goods and Service Tax Act. On 08.01.2019, the Sub Inspector of Police, Koppam Police Station, Palakkad had registered a crime with FIR No.07/2019, against one Sri. Muhammed Sahir and two others on the allegation that an amount of Rs.99,00,000/- were seized from them, while transporting the amount without proper
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and valid documents in order to prove the source of the said amount. The money seized was produced before the Judicial First Class Magistrate's Court, Pattambi, wherein the case was registered as R.C. No.231/2019. The petitioner moved Crl.M.P. No.479/2019 before the said court, under Section 451 Cr.P.C., seeking to release the money in interim custody to them. The said application was considered along with a petition filed by the 1[st] respondent as C.M.P. No.248/2019 wherein the authorities of the Income Tax Department sought for custody of the amount seized. Through Ext.P3 order, the learned Magistrate allowed the application filed by the Income Tax Department and handed over interim custody of the amount to the Department on the authority concerned executing on a bond, subject to the condition that it will be produced before the court as and when required. Aggrieved by Ext.P3 order, the writ petitioner preferred a revision petition before the Sessions Court, Palakkad, as Crl.R.P. No.47/2019, which is now pending disposal. According
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to the writ petitioner, the 1[st] and 2[nd] accused in the criminal case registered are the staff of the writ petitioner and the 3[rd] accused is a friend of accused Nos.1 and 2. It is stated that the money was taken on behalf of the writ petitioner for depositing in the Federal Bank, Malappuram Branch, which was intended to be utilized for purchasing Bullion from a dealer at Thrissur. It is stated that, the accused persons were carrying the money with them, because they could not make deposit of the same in the Bank, since there was a strike in the entire Malappuram District and the Bank was not opened on that day. It is while carrying back the amount in a car, the same was seized by the Sub Inspector of Police, is the case of the writ petitioner. It is averred that, since 08.01.2019, the money is in the custody of the 1[st] respondent and that the 1[st] respondent is keeping it illegally. Therefore the petitioner sought for release of the amount. It is made clear that the petitioner is ready and willing to furnish any sort of security, as insisted upon. The petitioner had produced
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Ext.P9 notice issued by the Income Tax Officer, Kozhikode to one of the accused in the case, intimating the proposal that the case will be transferred to the Deputy Commissioner of Income Tax, Central Circle-2, Kozhikode. By the said notice the accused was required to submit objections if any, and to appear for personal hearing with respect to the proposal. In the Writ petition the petitioner also challenged Ext.P9. _Inter alia,_ it is prayed to restrain the 1[st] and 3[rd] respondent from initiating any further steps in the matter, during the pendency of the case before the Judicial First Class Magistrate's Court, Pattambi.
3. The learned Single Judge, on considering the matter, observed that, the legality and correctness of the order passed by the Judicial First Class Magistrate, Pattambi is now pending under challenge in the revision petition filed before the Sessions Court, Palakkad. Therefore it is not proper for the writ petitioner to approach this court seeking an identical relief. It was found that, even after disposal of the revision petition, the writ
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petitioner may be having other remedies available before this court. Hence it is found that no relief can be granted in the writ petition by exercise of the powers vested on this court under Article 226 of the Constitution of India. The other reliefs sought for were found to be not entertainable by this court in a writ petition. Hence the writ petition was disposed of by declining the reliefs sought for. It is aggrieved by the said decision, the above writ appeal is filed.
4. Sri. P.N. Damodaran Namboodiri, learned counsel for the appellant contended that, the Department of Income Tax cannot retain the money indefinitely and the same need to be released to the appellant, if necessary, on furnishing proper security. In support of his contention he cited a decision of the High Court of Punjab and Haryana in _**Naresh Kumar Kohli v. Commissioner of Income Tax and others[(2004) 187 CTR(P&H)140]**_ as well as an order of the High Court of Allahabad in _**Ved Prakash Agrawal v. Additional District &**_
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## . _**Sessions Judge[(2002)123 TAXMAN 577(All)**_
5. When the above writ appeal came up for admission, we directed the Standing Counsel for the Government of India(Taxes), who entered appearance on behalf of the respondents 1 to 3, to ascertain the stage of proceedings if any initiated by the Income Tax Department pursuant to seizure of the money. It was also directed to ascertain whether any claim petition was submitted by the appellant before any appropriate authority in the Department, claiming ownership over the amount. Learned Standing Counsel on instruction from the Principal Commissioner of Income Tax, Kozhikode submitted that, “centralization proceedings” were already initiated against the accused persons and the matter has to be dealt with by the Deputy Commissioner of Income Tax/Assistant Commissioner of Income Tax, Central Circle-2, Kozhikode. It is stated that, assessment proceedings related to seizure of the money will also be completed by the authority concerned at the Income Tax
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Department. It is stated that, the 'centralization proposal' was issued by the Principal Commissioner of Income Tax, Thrissur. It is further stated that the petitioner or their designated partner has not approached the authority concerned in the Income Tax Department, seeking release of the seized money. According to the Standing Counsel, if the appellant has got any claim over the money, they have to approach the Principal Commissioner of Income Tax, Thrissur seeking release of the same.
6. While appreciating the factual scenario as mentioned above, we take note of the fact that the crime registered with respect to seizure of the money is now pending before the Magistrate's court concerned. An application filed by the appellant seeking interim custody of the money was already declined and a revision petition filed against the said order is pending disposal before the Sessions Court. Evidently, now the Income Tax Department is _in seisen_ of the matter and had already initiated 'centralization proceedings'. They are now
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keeping custody of the money based on an order passed by the Magistrate's Court. It is for the appellant to approach the appropriate authority in the Income Tax Department claiming ownership and release of the amount, pending finalization of the proceedings, on adducing proof with respect to its ownership. They can also purse the remedy of revision petition filed before the Sessions Court. At any rate, this court, by exercising the powers vested under Article 226 of the Constitution of India, cannot issue any direction with respect to release of the money, at this stage of the matter, unless the matter is considered by the appropriate authority. As found by the learned Single Judge, interference by this court may be warranted only in a proper proceedings wherein the appellant challenges any order which may be passed by the authority or court concerned. We do not think that it is proper to exercise the discretionary jurisdiction vested on this court under Article 226 to issue any direction with respect to release of the money, unless a proper adjudication is
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made by the authority or court concerned.
Hence we find no illegality, error or impropriety in the judgment of the Single Judge, impugned herein. Consequently, the above writ appeal deserve no merit and the same is hereby dismissed, reserving liberty to the appellant to approach the appropriate authority/court seeking appropriate reliefs.
**Sd/- C.K. ABDUL REHIM, JUDGE** .
**Sd/- T.R. RAVI, JUDGE** .
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