S. RAGHU Vs. SPECIAL DIRECTOR, ENFORCEMENT DIRECTORATE, NEW DELHI AND ADDITIONAL DIRECTOR, ENFORCEMENT DIRECTORATE, MADRAS

JUDGEMENT

(1.) The petitioner has filed the above writ petition for a writ of mandamus to direct the respondents to return the documents seized by the respondents on 14 -03 -1995.

(2.) The case of the petitioner is that he is an exporter of ready made garments, besides he is doing business of indenting agent of various garment exporter of South India and due to his efforts, number of exporters in India got export orders from foreign buyers thereby he has made contribution of earning foreign exchange to the country. The enforcement officers, Madras has searched his business premises on 14 -03 -1995 and seized under Mahazar documents, foreign currencies and his passport under the provisions of Foreign Exchange Regulation Act, 1973, hereinafter referred to as the Act. US dollars and Sterlings seized from the petitioners have nothing to do with the foreign exchange violation which are nothing but the balance amount of foreign exchange released to the petitioner before he made his visit to foreign countries. It is alleged by the petitioner that the documents seized from his office premises are not incriminating. The enforcement officers have forcibly taken him to their office and obtained involuntarily false statements from the petitioner by using threat, force and intimidation. The petitioner was also arrested under Sec. 35 of the Act and later released on bail by Economic Offences Court II, Egmore, Chennai. The authorities have not commenced the adjudication proceedings within the period of six months from the date of seizure of the documents and the petitioner has sent a letter dated 20 -09 -1995 to the 1st respondent requesting him to return the seized documents, foreign currencies and his passport and the copy of the said letter was also sent to the 2nd respondent. The 1st respondent has issued a show cause notice under T -4/41/ -95 (SCN I to IV) dated 12 -10 -1995 and T/4/42/M/95 (SCN I) dated 16 -10 -95 as to why adjudication proceedings under Sec. 51 of the Act should not be held against him and the foreign currencies seized from him should not be confiscated to the Government under the provisions of the Act. With reference to the petitioner's representation dated 20 -09 -1995, the first respondent sent a reply letter dated 09 -11 -1995 informing that the show cause notice has already been issued as such returning the foreign currencies is to be decided by the adjudicating authority at the time of adjudication. The petitioner has also caused a notice dated 12 -01 -1995 through his counsel requesting the 2nd respondent to return the passport but the 2nd respondent did not comply with the same, hence this writ petition.

(3.) The learned counsel appearing for the petitioner has argued that retention of the documents, foreign currencies and passport of the petitioner by the respondents and their attempt to confiscate it in the adjudication proceedings is illegal and against law. The enforcement office seized the said document on 14 -03 -1995, show cause notices were issued on 12 -10 -1995 and 16 -10 -1995 as such it has to be deemed that no proceedings either under Sec. 51 or 56 of the Act has been commenced before the expiry of the 6 months period as prescribed under Sec. 41 of the Act. Learned counsel for the petitioner further argued that the word document means and includes Indian Currency, Foreign Exchange and books of accounts as defined in Sec. 33, 34, 36 to 41, combined reading of Sec. 2(h) and 33 (Explanation) would show Foreign currency also a document. The counsel for the petitioner further pointed out the further period of six months as mentioned under Sec. 41 was not extended by the respondents and no such order extending such period of six months was received by the petitioner. Learned counsel for the petitioner emphasized that since proceedings were not commenced within a period of six months from the date of seizure of the foreign currency seized from the petitioner are liable to be returned. After the expiry of six months the documents are deemed to have been returned to the petitioner as such the respondents are not legally entitled to make use of the document.