- (1.) V. N. Mehrotra, J. This revision has been filed against the order dated 12th August, 1988 by Sri R. P. Pandey, Special Chief Judicial Magistrate, Allahabad, allowing the application by opposite party No. 2 Ziauddin alias Chunnoo for releasing an amount of Rs. 2,74,065. 00 seized from him.
(2.) IT is in this case not disputed that an amount of Rs. 2,74,065. 00 was seized from the possession of opposite party No. 2 by the authorities under Foreign Exchange Regu lation, Act. The authorities concerned, however, did not press the charge under the Foreign Exchange Regulation Act. The opposite party No. 2 moved an application for release of the entire amount before the Special Chief Judicial Magistrate. The authorities concerned intimated the learned Magistrate that the Income Tax authorities have been informed about the seizure of this amount. An application on behalf of the Income Tax authority was also moved before the learned Magistrate. IT was alleged that under the provisions of Section 132-A of the Income Tax Act, a warrant of authorisation has been issued in favour of the requisitioning officer, Hence the asset should be delivered to him. The learned Magistrate, however, rejected the application by the Income Tax authorities mainly on the ground that under the provisions of Section 132 sub section (8) of the Income Tax Act, the asset could not be retained for more than ninety days and, as in the pre sent case, that period had already expired, the asset is to be handed over to the persor, from whom it was seized. In this revision it has been contended on behalf of the revisionist that under the provisions of Section 132-A the authority concerned was bound to deliver the asset to the requisitioning officer, who has been authorised under the provisions of this section, and only after the asset has been so delivered, the provisions of sub section (4a) to (14) of Section 132 could be made applicable. It is further argued that as in the present case the asset was never delivered to the requisitioning officer, no enquiry could be held as provided under Section 132 of the Act and the question of limitation as provided under that Section could not arise. I have heard the learned counsel for the revisionist-applicant and the opposite party No. 2. It is in this case not disputed that the asset in question was seized from the possession of opposite party No. 2 by authorities under the Foreign Exchange Regula tion Act. It is also not disputed that under the provisions of Section 132-A requisitioning officer -was appointed, to whom the asset was to be delivered in accordance with the provisions of sub section (2) of that Section. It is also not disputed that the asset was not delivered to the requisitioning officer but it remained in the custody of the authorties concerned under the Foreign Exchange Regula tion Act. Sub section (3) of Section 132 provides that: " (3) Where any books of account, other documents or assets have been delivered to the requisitioning officer, the provisions of sub-section (4-A) to (14) (both in clusive) of Section 132 and Section 132-B shall so far as may be, apply as if such books of accounts, other documents or assets had been seized under sub section (1) of section 132 by the requisi tioning officer from the custody of the person referred to in clause (9) or clause (b) or clause (c), as the case may be, of sub-section (1) of this Section and as if for the words "the authorised officer" occurring in any of the aforesaid sub section (4a) to (14), the words "the requisitioning officer" were substituted. " Thus under this provision the provisions of sub-section (4-A) to Section (14) of Section 132 as well as'section 132-B will be appli cable after the asset has been delivered to the requisitioning officer. Thus after the asset has been so delivered to the requisi tioning officer, necessary enquiry is to be made by him as provided under Section 132 ,of the Act and only then the period of limitation provided under that Section could be made applicable.
(3.) A similar question arose for determination in the case Union of India v. Judicial Magistrate (Eastern Railway) Mughal Sarai and another (1) In that "case also certain assets were seized and the person concerned was challenged under Section 41/102 Cr. P. C. read with Section 411 I. P. C. The Commissioner having reason to believe that the assets represented undisclosed income, issued warrants of au thorisation under Section 132-A of the Income Tax Act. The asset was, however, not delivered to the requisitioning authority. The Magis trate concerned direction the delivery of asset to the person from whose possession it was seized. It was held that under Section 132-A of the Income Tax Act, 1961, the re quisitioning officer would be the person entitled to the seized assets and that it was not the function of the Magistrate embark upon an enquiry into the nature of assets and the ownership of the same in a summary way, that enquiry has to be conducted by the Income Tax Officer u/s132 (5) of the Income Tax Act. In the present case as the assets was never delivered to the requisitioning authority as provided under Section 132-A that authority could not' hold enquiry under the provisions of Section 132 and in the circumstances, there could be no question of expiry of period of limitation. The Magistrate was bound to deliver the asset to the requisitioning authority as provided under sub section (2) of Section 132-A of the Income Tax Act. The order by the learned Magistrate, in the circumstances, was not legal and is' liable to be set aside.;