K M A ABDUL KABEER Vs. ENFORCEMENT DIRECTORATE

JUDGEMENT

(1.) THE petitioner in both the writ petitions are one and the same and the two reliefs sought for in the two petitions arise out of the same facts. I therefore, proceed to dispose of the writ petitions by a common order. THE facts are as follows :-

(2.) THE argument is that after 8-1-1993 Section 41 of the FERA Act empowers the authorities to retain the currency only for a peried of six months, unless of course proceedings had been initiated as per sub-clauses (i) and (ii) of Section 41 of the FERA Act. Prior to the amendment the authorities had power to retain the documents for a period of one year. If a period of one year is available, the power to retain the documents can be unheld because within the period of one year from 18-8-1992, a show-cause notice was issued on 4-8-1993. If the amended provision of law applies, the respondent will have only six months from 18-8-1992 and the period of six months from 18-8-1992 and the period of six months had expired on 17-8-1993. Consequently, show-cause notice issued on 4-8-1993 will not enable the authorities to retain the documents being the currency notes after 17-2-1993. THE prayer in W.P. No. 1279 of 1994 is for the issue of a writ of mandamus to direct the respondent to return the seized documents namely, currency notes to the tune of Rs. 1, 65, 000/- to the petitioners.

(3.) TWO separate counter affidavits have been filed by the respondents. While the facts are not disputed with reference to the sequence of events, it is contended that the amended provision of Section 41 of the FERA Act will not have any application to the present case and the show cause notice having been issued within a period of one year, they are entitled to retain the seized currency. In other words, the argument is that the amended provisions do not have a retrospective effect, and they can be applied only prospectively. It is also contended that the right of seizure and retention of documents is a substantive right, and therefore, the same cannot be taken away by reducing the period of retention. It is therefore, contended that the argument of the petitioner that the period of limitation is only procedural in nature, and therefore, the amended provisions alone should be applied cannot be accepted. In W.P. No. 1280 of 1994, the argument is that by a specific notification dated 22-9-1989, the Government has exercised the power under sub-section (1) of Section 4 read with Clause (c) of Section 3 of the FERA Act and appointed one S.S. Renhgen to be an Officer of Enforcement with the designation of Special Director of Enforcement giving him powers of adjudication under Section 50 of the Act. The contention is the delegation of powers to the incumbent of the first respondent is perfectly legal and in accordance with Sections 3 and 4 of the FERA Act. Consequently, it is contended that the show-cause notice is valid and not liable to be quashed.