B S GANDHI Vs. UNION OF INDIA

JUDGEMENT

(1.) THE petitioner has filed the above writ petition seeking to issue a writ of mandamus, directing the respondent to forthwith return to the petitioner US $ 12, 500 along with interest yielded so far and documents of five sheets seized from the possession of the petitioner on 17.3.1993.

(2.) IT is the case of the petitioner that on 17.3.1993 the officers of the respondent searched the office and residential premises of the petitioner and as a result of that US $ 12, 500 and documents were seized from the petitioner. Relying on Section 41 of the Foreign Exchange Regulation Act, 1973, (hereinafter called 'the Act'), the petitioner has come forward with the above writ petition on the basis that the proceedings as contemplated under Sections 51 or 56 have not been initiated within six months of seizure and so the respondent cannot retain the documents without returning the same.

(3.) UNDER Section 53 of the Act, the adjudicating officer and the Appellate Board have power of a civil court, to summon relevant documents while considering the said power of the adjudicating officer, the Division Bench of this court in. Enforcement Officer v. Arjunan Chettiar, 1977 (I) M.L.J. 497, has held that mandamus cannot be issued when the officers have got right to summon the documents after initiating proceedings though the proceedings are started after the prescribed period, under Section 41 of the Act, and observed as follows: "The position therefore, is that while under section 19-G, it will not be proper for the Court to direct the return of the documents, for, in law, he would be entitled to have the documents for adjudication purposes. It would be for the purpose of technically obeying the requirements of section 19-G, if a direction were to be made for the return of the documents when the officer could exercise his powers to summon them. If a direction to return the documents is to be issued, it is only for the purpose of making the Enforcement Officers obey the provisions of the Act. This question had arisen before the Supreme Court of the United States where the desirability of strict enforcement of Fourth Amendment and the question whether the evidence procured during any illegal search is to be admitted or not were considered repeatedly. Recently the Supreme Court in a decision Stone Warden a. powell, 1971 (3) S.C.R. 802: 1972 (1) S.C.J. 579: A.I.R. 1972 S.C. 689 delivered on 6th July, 1976, went back on its earlier view and held that the basis of exclusion of evidence to deter the policement deflects the truth- finding process, and often frees the guilty and is not in conformity with the concept of justice. Taking all the circumstances into account, we do not think that a writ of mandamus should issue when the officers have got a right to retain the documents under the other provisions of the Act."