IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS TUESDAY, THE 6^TH 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:

BECHU KURIAN THOMAS, J. -----------------------------------------

O.P.(Crl) No. 987 of 2023 ----------------------------------------

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 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 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.

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