Crl.M.C.No.1262/25 1 2025:KER:29209 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE V.G.ARUN WEDNESDAY, THE 26TH DAY OF MARCH 2025 / 5TH CHAITHRA, 1947 CRL.MC NO. 1262 OF 2025 AGAINST THE ORDER/JUDGMENT DATED 15.01.2025 IN CMP NO.4948 OF 2024 OF JUDICIAL MAGISTRATE OF FIRST CLASS,TIRUR PETITIONER: R. SELVAM, AGED 55 YEARS S/O. RAMU CHETTIYAR, NO. 16/16, KANAGAVEL COLONY, EAST STREET, MADURAI, THAMIL NADU, PIN - 625009 BY ADVS. BONNY BENNY SANIL JOSE K.P.ANTONY BINU AMALJITH RESPONDENTS: 1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 Crl.M.C.No.1262/25 2 2025:KER:29209 2 GOVERNMENT OF INDIA, REP. BY DEPUTY DIRECTOR OF INCOME TAX (INVESTIGATION), KOZHIKODE, PIN - 673001 OTHER PRESENT: SMT. PUSHPALATHA. M.K, SR.PP. DSGI IN CHARGE T.C. KRISHNA. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 17.02.2025, THE COURT ON 26.03.2025 PASSED THE FOLLOWING: Crl.M.C.No.1262/25 3 2025:KER:29209 V.G.ARUN, J = = = = = = = = = = = = = = = = = Crl.M.C.No.1262 of 2025 = = = = = = = = = = = = = = = = = = Dated this the 26 th day of March, 2025 ORDER The petitioner, a resident of Tamil Nadu, claims to be engaged in the business of purchase of gold ornaments and ingots from various sources. According to the petitioner, on 25.10.2024, he had travelled to Malappuram with the intent of purchasing certain amount of gold offered for sale. En route, he was stopped by the police and a sum of Rs.16,00,000/-, kept in his possession for the purpose of business was seized and produced before the Judicial First Class Magistrate Court-I, Tirur. Subsequently, petitioner was released and no crime was registered with respect to the seizure of cash. Petitioner Crl.M.C.No.1262/25 4 2025:KER:29209 therefore sought release of the cash seized from his possession by filing a petition under Section 451 Cr.P.C. To prove his claim that he was carrying legal money, petitioner produced certain documents, including his income tax returns. The Income Tax Department opposed the petition and stated that the seized cash was not accounted. It was submitted that the amount of tax assessable on such income, along with interest and penalty leviable, are required to be adjusted from the seized cash, after completion of the assessment and penalty proceedings. Based on the objection and finding the total income of the petitioner shown in his IT Returns for the year 2023-24 to be Rs.4,64,000/- only, the petition for interim custody of the cash was dismissed. Hence, this Crl.M.C. 2. Heard, learned counsel for the petitioner, the learned Public Prosecutor and the learned Standing Counsel for the Income Tax Department. 3. Indisputably, the police seized cash from the petitioner's possession in purported exercise of the power Crl.M.C.No.1262/25 5 2025:KER:29209 under Section 102(1) of the Cr.P.C. A perusal of section 102(1) will show that seizure under the provision can be effected when any property is alleged or suspected to have been stolen, or if the property is found under circumstances which create suspicion of the commission of any offence. In the petitioner's case, apart from seizing the cash, nothing further has been done by the police. In fact, the police did not even filed objection to the petition seeking interim custody. The only reason for dismissing the petitioner's application is the objection of the Income Tax Department that the unaccounted money seized is assessable to tax. Pertinently, no proceeding has been initiated by the Income Tax Department for realisation of the tax till date. The petitioner had produced certain documents to substantiate his claim for interim custody. Some more documents are produced in this Crl.MC. Taking all the above factors into consideration, I am of the opinion that the petition for interim custody is liable to be reconsidered. For that limited purpose, the impugned order is also set aside. Crl.M.C.No.1262/25 6 2025:KER:29209 In the result, the Crl.M.C is allowed. Annexure A12 order is quashed and the Judicial First Class Magistrate-I, Tirur directed to pass fresh orders on CMP No.4948 of 2024, adverting to the factors mentioned above. sd/- V.G.ARUN, JUDGE Crl.M.C.No.1262/25 7 2025:KER:29209 APPENDIX OF CRL.MC 1262/2025 PETITIONER ANNEXURES Annexure A1 THE TRUE COPY OF THE UDYAM REGISTRATION CERTIFICATE ISSUED TO THE PETITIONER Annexure A2 THE TRUE COPY OF THE REPAYMENT SCHEDULE ISSUED BY BAJAJ FINSERV CONCERNING THE PETITIONER’S WIFE Annexure A3 THE TRUE COPY OF THE JEWEL LOAN CARD NO.199238 ISSUED BY"INDIAN OVERSEAS BANK , NORTH VADAMMBOKI STREET, MADURAI, Annexure A4 THE TRUE COPY OF THE RECEIPT ISSUED BY THE TAMIL NADU CO-OPERATIVE STATE AGRICULTURAL AND RURAL DEVELOPMENT BANK TO THE PETITIONER’S WIFE Annexure A5 THE TRUE COPY OF THE LOAN AGREEMENT DATED 11.05.2024 Annexure A6 THE TRUE COPY OF THE INCOME TAX RETURN ACKNOWLEDGEMENT FOR THE ASSESSMENT YEAR 2021-2022 Annexure A7 THE TRUE COPY OF THE INCOME TAX RETURN ACKNOWLEDGEMENT FOR THE ASSESSMENT YEAR 2022-2023 Annexure A8 THE TRUE COPY OF THE INCOME TAX RETURN ACKNOWLEDGEMENT FOR THE ASSESSMENT YEAR 2023-2024 Crl.M.C.No.1262/25 8 2025:KER:29209 Annexure A9 THE TRUE COPY OF THE INCOME TAX RETURN ACKNOWLEDGEMENT FOR THE ASSESSMENT YEAR 2023-2024 FOR THE PETITIONERS WIFE Annexure A10 THE TRUE COPY OF THE APPLICATION, DATED 29.10.2024, Annexure A11 THE TRUE COPY OF THE REPORT FILED BY THE DEPUTY DIRECTOR OF INCOME TAX IN CMP NO.4949/2024 BEFORE THE HON'BLE JUDICIAL FIRST CLASS MAGISTRATE-I, TIRUR, Annexure A12 THE CERTIFIED COPY OF THE ORDER IN CMP NO.4948/2024 BEFORE THE HON'BLE JUDICIAL FIRST CLASS MAGISTRATE-I, TIRUR, DATED 15.01.2025