A ABDUL SAMATH AND Vs. UNION OF INDIA

JUDGEMENT

(1.) The above writ appeal and writ petition have been posted together and heard since they involved consideration of identical issues.

(2.) W.P. No. 3487 of 1994 has been filed for a Writ of Certiorari to call for and quash the Memorandum No. T-4/15/SZ/C/94 dated 9-2-1994 issued by the Deputy Director (Sri A. K. Banerjee), Enforcement Directorate, Southern Zone, Madras-6. The said memorandum calls upon the petitioner and three others to show cause within the time stipulated as to why adjudication proceedings as contemplated in Section 51 of the Foreign Exchange Regulation Act, 1973, hereinafter referred to as 'the Act' should not be held against them for the contravention of the various provisions referred to therein and as to why U.S. $ 13,000/- and Rs. 2,60,915/- Indian currency seized from the petitioner stated to be the amount involved in the contravention in question should not be confiscated by the Central Government under Section 63 of the Act. The said memorandum also informs the recipients including the petitioner of the said memorandum that in issuing the said proceedings reliance is placed inter alia on the documents listed in the annexure thereto that the originals of the said documents will be made available to the party or their lawyer or to their authorised representative to inspect, if they so desire at the place mentioned after fixing an appointment with the Deputy Director, in addition to inviting their attention to proviso to rule 3 of the Adjudication proceedings and appeal rules 1974 hereinafter referred to as 'the adjudication Rules' and the rights available thereunder.2A. The petitioner approached this Court by filing the above writ petition on more than one ground, but at the time of hearing, the challenge was confined by the learned Senior Counsel to only a few of the grounds to which a reference will be made hereafter. The main ground of challenge directed against the memorandum in question is that the impugned memorandum, on the face of it, is shown to have been issued by a Deputy Director of the Enforcement Directorate of Southern Zone and does not contain any indication of having been issued by the said authority as adjudicating Officer and that the proceedings for adjudication could not be initiated or undertaken by any one except the designated adjudicating officer. Consequently, it is contended that the very memorandum is rendered wholly without jurisdiction and contrary to law and cannot be pursued further against the petitioner. The second ground of challenge urged is the one based upon rule 10 of the Adjudication Rules. It is contended for the petitioner, relying upon the said rule, that the impugned memorandum came to be served not on the petitioner himself personally, but on the wife of the petitioner and this method of service is not only an unauthorised one, but is contrary to the rules particularly rule 10 of the Adjudication Rules inasmuch as the wife cannot be considered to be the duly authorised agent of the petitioner. The third and the last of the contention urged at the time of hearing on behalf of the petitioner is that though the annexure to the memorandum lists out four categories of documents, Item Nos. 1 and 4 have not been supplied to the petitioner along with the impugned memorandum and that this has caused grave prejudice to the petitioner resulting in violation of the principles of natural justice, for which the impugned memorandum is liable to be set aside.2B. The respondent has filed a counter affidavit. While traversing the various averments and claims made in the affidavit filed in support of the writ petition in detail, so far as the points urged at the time of hearing, as noticed supra, are concerned, it is stated that the memorandum under challenge is valid and there is no justification to strike down the same. The Deputy Director Sri. A. K. Banerjee was said to have been authorised to issue the show cause notice as Adjudicating Officer under Section 50 read with Section 3 of the Act as per which all Officers not below the rank of an Assistant Director of Enforcement were appointed as Adjudicating Officers under Section 50 of the Act read with the Central Government Notification No. 1202, Cabinet Secreteriat Order No. 19/7/75-AVD-IV (ii) dated 29-3-1976. The claim on behalf of the petitioner that copies of the document seized from Raman Challiah were not given are stated to be false and they were also said to have been given along with other annexures to the memorandum and that there is no need to intimate to the petitioner about the further course of action taken against the said Raman Chelliah. As for the claim about the defective and irregular service of the memorandum, it is contended for the respondents that the impugned memorandum was duly sent by registered post with acknowledgment due to the petitioner and the postal acknowledgment card for the same has been signed by his wife and, therefore, the service of the impugned memorandum upon the petitioner is quite in accordance with law. It is also stated that the petitioner also sent a telegram to the Deputy Director, Madras confirming the receipt of the memorandum and, therefore, the impugned memorandum does not call for any interference of this Court at this stage of the proceedings.

(3.) W.A. No. 851 of 1994 has been filed against the order of the learned single Judge dated 22-6-1994 in W.P. No. 8326 of 1994 whereunder the learned Judge has chosen to summarily dismiss at the stage of admission the writ petition filed by the appellant seeking for a writ of certiorari to call for and quash the proceedings culminating in the memorandum No. T-4/70M/SCN/93 dated 29-12-1993. The impugned memorandum dated 29-12-1993 came to be issued by one Sri. S. S. Renjhon, Special Director Enforcement Directorate, Government of India Head Quarters Office, New Delhi-3 to the appellant and two others, calling upon them to show cause within the time stipulated therein as to why adjudication proceedings as contemplated in Section 51 of the Act should not be held against them for the various contraventions referred to therein and as to why the foreign exchange of U. S. $ 1,92,493/- Saudi Riyals 5,44,00/- Qatar Riyals 12,000/- U.A.E. Dirhams 70,500/- and Singapore $. 11 seized from the residence of the appellant on 15-7-1993 stated to be the amount involved in the contravention noticed in the memorandum should not be confiscated to the Central Government under Section 63 of the Act. It is also stated therein that the memorandum is issued relying upon the documents listed in the Annexure thereto as in the other case making it known to the persons concerned that the original documents will be made available for inspection and also apprising the petitioner and others of the rights under the proviso to rule 3 of the Adjudication Rules.