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The power of seizure in section 102 Cr.P.C. has to be limited to moveable property: High Court of Delhi

The writing of a letter to revenue authorities to maintain status-quo qua the title is a permissible step as it is distinct and different from attaching, sealing & seizure of immovable property as observed by the Hon’ble Supreme Court in its judgement. The power of seizure in section 102 Cr.P.C. has to be limited to moveable property whereas in the present case, property in question is immoveable, thus, the steps taken under section 102 Cr.P.C. is illegal. This was held in INDIABULLS COMMERCIAL CREDIT LIMITE v. ECONOMIC OFFENCES WING & ORS. [W.P. (CRL) 1256/2020] in the High Court of Delhi by a single bench consisting of JUSTICE SURESH KUMAR KAIT.

Facts are that the petitioner herein is a Non- Banking Financial Company, registered with the RBI and also a financial institution under the SARFAESI Act. An order/notice was issued against the petitioner by the office of the Offences Wing, New Delhi to the Sub-Registrar-IIA, Punjabi Bagh, Nangloi, Delhi under section 102 of the Code of Criminal Procedure, 1973. The writ has been filed against the same.

The counsel for the petitioner submits that the impugned order is in direct contravention of Section 102 Cr.P.C. as the said provision does not grant any power for the seizure of immovable properties and same is against law and deserves to be set aside.

The learned ASC that the notice issued is not against the overall spirit of the judgement of the Hon’ble Supreme Court in Nevada Properties Private Limited vs. State of Maharashtra.

The court made reference to the judgement of Apex court in Nevada Properties Private Limited vs. State of Maharashtra., wherein it was observed that “Section 102 postulates seizure of the property. Immovable property cannot, in its strict sense, be seized, though documents of title, etc. relating to immovable property can be seized, taken into custody and produced. Immovable property can be attached and also locked/sealed. It could be argued that the word ‘seize’ would include such action of attachment and sealing. Seizure of immovable property in this sense and manner would in law require dispossession of the person in occupation/possession of the immovable property, unless there are no claimants, which would be rare. Language of Section 102 of the Code does not support the interpretation that the police officer has the power to dispossess a person in occupation and take possession of an immovable property in order to seize it”.

The court also made reference to section 102 of Cr. P.C, wherein it is stated that “Power of police officer to seize certain property. -(1) Any police officer, may seize any property which may be alleged or suspected to have been stolen, or which may be found under circumstances which create suspicion of the commission of any offence.”.

Considering the facts of the case and the legal precedents, the court observed that as in the present case, the property in question is immoveable, thus, the steps taken under section 102 Cr.P.C. were illegal and set aside.

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