METHODEX SYSTEMS LTD Vs. UNION OF INDIA

JUDGEMENT

(1.) BY this petition under Article 226 of the Constitution of India, the petitioner seeks the relief of a direction against the respondents that they be directed to return back the complete records which were seized from his office and different branches in search made somewhere in the year 1994 and 1996 excepting the records which have been relied upon by the department for issuing a show cause notice to the petitioner. The respondents have issued a notice to the petitioner to show cause as to why action under the Act be not taken against him and with the said notice they supplied him the copies of all such documents on which the department is placing reliance. According to the department, the petitioner is causing unnecessary delay in the matter by not filing the reply to the show cause notice, his insistance upon return of the records is misconceived as in the opinion of the department, the unreturned records would not provide any defence to the petitioner.

(2.) THE parties are heard at length.

(3.) THE defence raised by the department is not only strange but is most unfortunate. No prosecutor can be allowed or permitted to say that the defence should be raised in accordance with the directions of the department. Once a person feels that his defence would be founded on the number of the documents, facts, circumstances and the legal provisions, the department cannot press its foot to crush the legal defences or the documentary defences available to a noticee. It is fully the choice of a noticee to raise all defences which are available to him under the law and the right of the department/ authority would only be to consider the defences and reject the same if the same are not in accordance with law or are based on mis-construction of the factual aspect or misconception of law. I fail to understand as to how the department can say that the documents which are in their possession and are not relied upon by the department would provide no defence in favour of the petitioner. None has filed any affidavit in support of the department's contention that such particular officer has gone through the entire seized records, still not returned, and has found as a defence counsel or as a noticee that such documents would not provide any defence in favour of the noticee. A defence whether is genuine or misconceived whether is false or truthful cannot be decided before the defence is raised. It would be too much to say that a particular defence cannot be permitted to be raised because in the opinion of the department or its officers such defence may prove to be futile.