Allowed

Thonikkadan Abdul Nasar v. the State of Kerala

Kerala HC26 Jul 2016Crl.MC/2443/2016

Case brief

AI extract

What is this about?

The Court directed the release of Rs.18,90,000 seized from the petitioner during a forest offence investigation. The petitioner was ordered to provide a 25% bank guarantee and property security for the balance to satisfy the State.

What did the court decide?

Directed the Learned Magistrate to release the seized amount upon the petitioner furnishing a bank guarantee of 25% of the sum and providing other property security.

Thonikkadan Abdul Nasar Vs the State of Kerala — Property and Title | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V

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TUESDAY, THE 26TH DAY OF JULY 2016/4TH SRAVANA, 1938

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Crl.MC.No. 2443 of 2016 ()

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--------------------------CRL.MP.4316/2015 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II (FOREST OFFENCES), MANJERI. OR NO.12/2015 OF KANJIRAPUZHA FOREST STATION, MALAPPURAM.

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PETITIONER/ACCUSED NO.1:

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THONIKKADAN ABDUL NASAR, S/O.ABOOBACKER, THONIKKADAVAN HOUSE, KURUNBALANGODE AMSOM, MEMUNDA DESOM,NILAMBUR TALUK, MALAPPURAM DISTRICT.

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BY ADV. SRI.K.RAKESH

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RESPONDENT/STATE:

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THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682031, FOR THE DEPUTY RANGER, KANHIRAPUZHA FOREST STATION, MALAPPURAM DISTRICT.

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*ADDL. R2 IMPLEADED

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2. THE DEPUTY DIRECTOR OF INCOME TAX (INVESTIGATION), 8TH FLOOR, AAYAAKAR BHAVAN, MANANCHIRA, KOZHIKODE, PIN - 673 001.

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ADDL. R2 IS IMPLEADED AS PER ORDER 06.06.2016 IN CRIL.M.A.5327/2016 IN CRL.M.C.2443/2016.

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R1 BY PUBLIC PROSECUTOR SRI.ROY THOMAS R2 BY MR.P K R MENON (SENIOR SC) ADV. SRI.JOSE JOSEPH, SC

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 26-07-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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mbr/

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Crl.MC.No. 3734 of 2016 ()

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APPENDIX

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PETITIONERS’ ANNEXURES:

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ANNEXURE A : TRUE COPY OF THE SALE AGREEMENT EXECUTED BETWEEN THE PETITIONER WITH SAINUL ABID DATED 6.10.2015. ANNEXURE B : TRUE COPY OF THE ORDER IN CRL.M.P.NO.4316/2015 OF THE J.F.C.M.II (FOREST OFFENCES), MANJERI DATED 28.3.2016.

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RESPONDENTS' ANNEXURES: NIL.

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//TRUE COPY//

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P.S. TO JUDGE mbr/

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RAJA VIJAYARAGHAVAN.V., J

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Crl.M.C. No. 2443 of 2016

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- - - - Dated 26^th July, 2016

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ORDER

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1.The petitioner herein is the 1^st accused in O.R.No.12 of 2015 of Kanhirappuzha Forest Station. The aforesaid crime was registered alleging offences punishable under Sections 27(1)(e)(iii) & (iv) of the Kerala Forest Act, 1961

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and under Sections 9, 39, 50 and 51 of the Wild Life (Protection) Act, 1972.

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2.It appears that the house of the petitioner was searched

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by the Forest Officials and it was found that a sum of Rs.18,90,000/- was kept by the petitioner in his residence. The said amount was seized under the premise that the amount had some connection with the commission of the Forest Offence and the same was produced before the learned Magistrate.

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3.The petitioner filed an application under Section 451 of the Code of Criminal Procedure before the learned Magistrate.

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Crl.M.C. No.2443 of 2016 -2-

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According to him the money seized by the Forest Officials is not involved in the Forest Offence. It is further contended that the amount was raised by selling immovable property. He therefore prayed that the amount be released.

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4.The learned Magistrate, after observing that proceedings have been initiated by the Deputy Director, Income Tax, Kozhikode, as per Annexure B order, refused to release the cash as the proceedings to find out the source of money has not been completed.

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5.When the matter came up before this Court, the petitioner was directed to implead the Deputy Director of Income Tax (Investigation). The learned Standing Counsel for the 2^nd respondent has entered appearance. It is submitted by the learned Standing Counsel that Section 269SS mandates that no person shall take or accept from any other person, any loan or deposit or any specified sum, otherwise than by an account payee cheque or account payee bank draft or use of electronic clearing system

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Crl.M.C. No.2443 of 2016 -3-

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through a bank account, if the amount or the aggregate amount exceeds Rs.20,000/-. The learned counsel also invites the attention of this Court to Section 271D of the Income Tax Act, 1961 and submits that on the failure to comply with Section 269SS, the said person is liable to pay, by way of penalty, a sum equal to the amount of loan or deposit so taken or accepted.

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6.In other words, it is the submission of the learned standing counsel that a sum equal to the amount seized can be ordered as penalty under Section 271D. It is further submitted that if the Court is inclined to release the amount, the petitioner be directed to offer sufficient security.

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7.After hearing the rival submissions and also the learned Public Prosecutor, I am of the view that it will be only just and proper to order the release of amount to the petitioner by imposing appropriate condition to safeguard the interest of the 2^nd respondent as well.

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8.Accordingly, Annexure B is set aside. The learned

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Crl.M.C. No.2443 of 2016

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-4-

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Magistrate is directed to release the amount to the petitioner on condition that the petitioner furnishes bank guarantee to the tune of 25% of the amount seized. For the rest of the amount, the petitioner shall furnish property security to the satisfaction of the learned Magistrate. The learned Magistrate shall be at liberty to impose appropriate conditions.

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The petition is disposed off.

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Sd/- RAJA VIJAYARAGHAVAN.V., JUDGE

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kp/-27.7.16

Thonikkadan Abdul Nasar v. the State of Kerala

Case brief

What is this about?

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Thonikkadan Abdul Nasar v. the State of Kerala

Case brief

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