ABDUL KHADER Vs. SUB INSPECTOR OF POLICE

JUDGEMENT

(1.) THE original petition is filed praying for an order to declare that the warrant issued under S. 132A of the IT Act, 1961, by the CIT and the seizure of the gold from the first respondent is without jurisdiction and for a further direction to the fourth respondent Judicial First Class Magistrate Court II, Thiruvananthapuram, to pass an appropriate direction or order directing the third respondent to return the gold seized referred to in exhibit P 4 communication of the CIT.

(2.) THE petitioner is a resident of Kallachi, Kozhikode District. He returned from a Gulf country along with his friend one Shri V. Ahmed, who was carrying 5,597 grams of gold. The said Ahmed paid the duty for the gold before the Customs Department and thereupon entrusted the gold to the petitioner to be kept in his custody. While the petitioner was carrying the said gold, the security policy on duty arrested him and seized the gold under S. 41(1)(d) and S. 102 of the CrPC. Thereafter, the petitioner was handed over to Valiyathura Police Station and a crime as Crime No. 104 of 1997 was registered. The petitioner's friend Shri V. Ahmed, filed a claim application before the Judicial First Class Magistrate for the release of the gold. In the meanwhile, the CIT has taken possession of the seized gold as per the warrant issued under S. 132A on 1st May, 1997, for the seizure of 48 gold biscuits. This original petition is filed contending that the issue of warrant and seizure of the gold by the CIT is unauthorised and without jurisdiction, since the gold was under the custody of the Judicial First Magistrate Court.

(3.) LEARNED counsel for the petitioner referred to the judgment in CIT vs. Balbir Singh (1994) 116 CTR (P&H) 308 : (1993) 203 ITR 650 (P&H) : TC 62R.309, wherein a Division Bench of the Punjab & Haryana High Court held that the order of requisition in respect of assets in custody of Court under S. 132A cannot be sustained. The remedy available to the ITO was to apply to the Chief Judicial Magistrate for release and not to issue a requisition under S. 132A of the Act which was clearly without jurisdiction.