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PUNJAB & HARYANA HIGH COURT
Kanwaljit Singh Ahluwalia, J.
Balhar Chand
Versus
State Of Punjab
Criminal MISCELLANEOUS No. 43953 of 2005,
Decided On : JULY 1, 2008
FEMA Act - Illegal Release of Seized Amount - Sections 411/414 IPC, 3(b) and 3(c) of FEMA Act, 1999 - Summary of Acts and Sections: The court discussed the illegal release of seized amount under Sections 411/414 IPC and Sections 3(b) and 3(c) of FEMA Act, 1999. The key legal provisions of Section 457 of Cr.P.C. and Section 132A of Income-tax Act were interpreted and influenced the court's decision.
Fact of the Case:
The case involved the illegal release of seized amount under Sections 411/414 IPC and Sections 3(b) and 3(c) of FEMA Act, 1999. The Enforcement Directorate imposed a penalty on the accused, and the Income Tax Department sought to take over the amount. The court addressed the legality of the release and subsequent actions by the authorities.
Finding of the Court:
The court found that the release of the seized amount to the FEMA authorities and subsequently to the accused was illegal. It directed the accused to deposit the remaining amount with the police and allowed for further proceedings by the Income Tax Department.
Issues: The issues raised were whether the seized amount could be handed over without court orders and whether the Enforcement Directorate was justified in releasing the amount to the accused.
Ratio Decidendi: The court held that the release of the seized amount without court orders was illegal and directed the accused to deposit the remaining amount with the police. It emphasized the need for compliance with legal procedures and the authority of the Income Tax Department to proceed with the case.
Final Decision: The court upheld the order to deposit the remaining amount with the police and allowed for further proceedings by the Income Tax Department. It remanded the matter back to the lower court to consider the outcome of the trial and proceedings before the Income Tax Authorities.
1. The present Criminal Misc. No. 43953-M of 2005 preferred by Balhar Chand and others is directed against the order passed by the Additional Chief Judicial Magistrate, Jalandhar on 17-12-2003 (Annexure P- 6) and order dated 27-5-2003 (Annexure P-7) passed by the Additional Sessions Judge, Jalandhar, whereby he affirmed the order, Annexure P-6 passed by the Additional Chief Judicial Magistrate, Jalandhar.
2. A quick glance at the facts reveals that Tarsem Lal, SI, Police Station Sadar, Jalandhar was on patrol duty and was checking the suspected vehicles, he received an information that Balhar Chand @ Billa, Balwinder Kumar, Avtar Singh @ Tari and Mohan Lal son of Gurdas Ram were distributing the huge hawala money while travelling in a Maruti Car bearing registration No.PB37A-3173 of the white colour in the villages falling within the jurisdiction of Police Station Sadar, Goraya, Phagwara and Phillaur. The information so received was recorded and was sent for registration of case which led to lodging of FIR No.311 dated 27-4-2001 at Police Station Sadar, Jalandhar under Sections 411/414 IPC read with Sections 3(b) and 3(c) of FEMA Act, 1999.
3. A perusal of the record reveals that a cash of total amount of Rs. 11,80,000/- during nakabandi was recovered from Balhar Chand @ Billa, Balwinder Kumar, Avtar Singh @ Tari and Mohan Lal. The petitioners have relied upon the complaint (Annexure P-2) filed by S.P. Subramanian, Assistant Director of Enforcement Directorate, FEMA, Ministry of Finance, Govt. of India. In the compliant, it has been stated that the statements of Balhar Chand @ Billa, Balwinder Kumar, Avtar Singh @ Tari and Mohan Lal were recorded under Section 37 of Foreign Exchange Management Act, 1999 read with Section 131 of the Income Tax Act, 1961 . Balhar Chand in his statement stated that on 27-4-2001 when he along with his cousin brother Balwinder Kumar and his friend Avtar Singh were going in a Maruti car driven by Mohan Lal, they were stopped by the police personnels near Chungi (octroi post) Paragpur and from their car Rs. 2 Lacs were recovered. On his disclosure statement, police took him to his house at Bachhowal and recovered a sum of Rs. 9,80,000/- - He further stated that the whole money does not belong to him and out of recovered amount, Rs. 4 Lacs belonged to Balwinder Kumar and Rs. 3,80,000/- belonged to Avtar Singh @ Tari. On the complaint so filed, a show cause notice (Annexure P-3) was issued by the Enforcement Directorate, Foreign Exchange Management Act, Government of India. Reply to show cause notice Annexure P-4 was filed. The Enforcement Directorate passed order Annexure P-5 in which the following stand of the accused was noticed :-
1. Balhar Chand @ Billa "That after this on 15-4-2001 an unknown person came to his house at village Bachhowal at about 10 AM and he after enquiring his name and fathers name, gave him Rs. 4 lacs in cash and told him that this money had been sent by his brother Prem Kumar from Dubai".
2. Balwinder Kumar son of Karnail Singh "That on 15-4-2001 an unknown person came to his house at Prempura, Phagwara and after enquiring his name and name of his father and elder brother residing abroad, he gave him Rs. 4 lacs in cash and told him that the same were sent by his brother Kulwinder Kumar residing in Dubai".
3. Avtar Singh @ Tari "That on 15th or 16th April, 2001 an unknown person came to his house at village Patti Natha and after making enquiries regarding him, his father and brother residing abroad, he paid Rs. 4 lacs to him and told him that this money had been sent by his brother Amarjit residing abroad".
4. The Enforcement Directorate after noticing the contention in Annexure P-5 passed the following order :-
"I have carefully gone through the evidence on record, the written replies to the show cause notice and oral submissions made during the course of personal hearing. I find that the noticees have received the payment of Rs. 4,00,000/- each at the instruction of
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