MUKESH KUMAR JAIN Vs. UNION OF INDIA

JUDGEMENT

(1.) PETITIONER is assailing continuance seizure of the documents pursuance to the order dated 18-8-1999 P/1 passed by the Assistant Director, Enforcement Directorate under the Foreign Exchange Regulation Act, 1973 (hereinafter referred to as 'fera' ).

(2.) PETITIONER was arrested on 15-1-1999 and remained in jail custody till 17-3-1999 and was released under the provisions of Section 167 (2) of the Criminal Procedure Code. During this time he was interrogated by the Enforcement Directorate, Government of India under the FERA. The statement of the petitioner was recorded and he was again arrested on 16-8-1999. Respondent No. 1 Government of India has issued order of detention dated 26-7-1999 under the provision of Section 3 (1) of Conservation of Foreign Currency and Prevention of Smuggling Activities Act, 1974. His detention was quashed by the Advisory Board. He was released on 26-10-1999, The documents which were seized continued to be retained by the Assistant Director, Enforcement Directorate. Petitioner submits that the maximum period provided under Section 41 of FERA is six months, if proceedings does not commence under Section 51. Detention is illegal and without authority. It is averred that in memo P/1 it was mentioned that from personal search of the petitioner on 15-1-1999 recovery and seizure of US $ 19,500, Maruti Van and Rs. 400 was made. The foreign exchange of US $ 19,500 and Rs. 400 and other seized material and the records of the case were taken over by the Enforcement Directorate on 2-2-1999 under Section 38 of the Foreign Exchange Regulation Act, 1973. The petitioner appears to have contravened provisions of Section 8 (1) of the FERA and has rendered himself liable to be prosecuted under Section 50 of the FERA. Petitioner was required to show-cause in writing in 30 days as to why adjudication proceedings as contemplated under Section 51 should not be held and US $ 19,500 and Rs. 400 seized be not confiscated to the Government Account under Section 63 of the FERA. Attention was also invited to the provision of Rule 3 of the Adjudication Proceedings and Appeal Rules, 1974 whereby personal hearing of the case could be waived at his request. Notice P/2 was issued to the petitioner informing of the adjudication proceedings in respect of show-cause notice dated 18-8-1999. The Assistant Director, Enforcement Directorate is of the opinion that the adjudication proceedings as contemplated under Section 51 of FERA should be held against the petitioner in accordance with the procedure laid down in Rule 3 of the Adjudication Proceedings and Appeal Rules, 1974 and fixed the case for personal hearing on 19-7-2001. Another notice P/8 was sent to the petitioner of hearing on 3-8-2001. It appears that the petitioner did not attend and sent the application P/9 for grant of one month time. Petitioner has submitted that since the proceedings have not commenced under Section 51 within six months from the date of seizure and Section 41 authorizes detention of the documents for six months only, thus continuous detention of the documents is illegal and unauthorized. Process of extension of time is quasi judicial and cannot be exercised unilaterally. 2a. A return has been filed by the respondents that seizure is under Section 38 of the FERA. Show-cause notice under Section 50 of FREA has been issued. Petitioner has given the voluntary statement. He was not threatened. Under Section 38 documents can be retained beyond six months. It is contended that provisions of Section 41 of the FREA are not applicable. CJM Jabalpur had directed the petitioner to remain present in the Enforcement Directorate, Agra in connection with investigation. Petitioner never appeared in the office of Enforcement Directorate, Agra in spite of the Court order. There is no illegality in detention order and the proceedings which have been initiated.

(3.) LEARNED counsel for the petitioner has submitted that continuous retention of the documents is bad in law and in violation of Section 41 of FERA. Proceedings were not commenced within six months. Hence, documents be directed to be released. His alternative submission is that proceedings cannot be kept pending for long time, thus, documents be directed to be returned.