BHURAMAL CHORARIA Vs. CHIEF ENFORCEMENT OFFICER & ORS.

JUDGEMENT

(1.) In this writ application the petitioner has challanged, inter alia, the validity of an order dated April 3, 1974 passed by the Chief Enforcement Officer, Respondent No. 1 whereby the petitioner has been arrested under Sec. 35 of the Foreign Exchange Regulation Act, 1973 hereinafter described as "the said Act" on the same day at the letter's office in Calcutta. He has also challanged the order of the Deputy Director of Enforcement, Calcutta dated June 3, 1975 imposing a penalty of Rs. 500.00 on the petitioner under Sec. 50 of the Foreign Exchange Regulation Act, 1973. The facts of the case may, briefly be stated as follows :

(2.) On Nov. 12, 1957, the petitioner left India for United Kingdom and permanently settled there with his family. The petitioner was a partner of a firm M/s. Bhuramal Manikchand in which the only other partner was elder brother Punam Chand Choraria. On Jan. 24,1958, the said partnership firm was dissolved. His brother, however, continued the business of the said partnership firm in the firm name along with others. On Jan. 21, 1960, the petitioner was granted British citizenship, on April 29, 1961 the respondents issued a notice to show cause in connection with an offence punishable under the Foreign Exchange Regulation Act, 1947. The said notice was issued against the said firm and its partners. The petitioner, however, has denied the service of the said notice on him. On Jan. 7, 1974, the petitioner came to Bombay and among other places he visited Calcutta and was staying at the residence of his said brother at 1, Minto Park, Calcutta. On Feb. 15, 1974 search took place at the instance of the respondents at the said house. On the following day the petitioner left Calcutta for Rajasthan. On or about Feb. 16 and 18, 1974, the Deputy Director of Enforcement issued summonses to the petitioner under Sec. 40 of the Foreign Exchange Regulation Act, 1973 directing him to appear before the Enforcement Directorate at 8, Lindsay Street, Calcutta together with evidence in connection with said search of his brother's house on Feb. 15,1974. As the petitioner was not available the said two summonses were served on his said brother. It is alleged that copies of the said two summonses were affixed at the said premises No. 1, Minto Park, Calcutta, being the last known address of the petitioner. On Feb. 21,1974, a show cause notice was issued for alleged disobedience of the said two summonses but the said show cause notice also could not be served on the petitioner personally. On March 31, 1974, the petitioner was retuning to England when he was interrupted at Palam Airport, Delhi. His passport was seized along with two amounts of £ 280 and Rs. 62/-. There he was asked to attend the office of the Enforcement Directorate at 8, Lindsay Street, Calcutta. On April 2. 1974, the petitioner came to Calcutta and attended the said office. On the following day, he again came to the said office for replying in the interrogatories but he was arrested under the said impugned order on April 3, 1974. On April 4, 1974, the petitioner was produced before the Chief Metropolitan Magistrate, Calcutta and was released on bail. On April 6, 1974 another notice was issued alleging that the petitioner had not replied to the show cause notice dated 21.2.74. On April 10, 1974, the petitioner filed on application before the Deputy Director, Enforcement Branch, praying for proper service of the show cause notice dated 21.2.74 and for an opportunity to show cause. His application was allowed and a notice was served on him. On April 27, 1974, the petitioner submitted to the Deputy Director of Enforcement a reply to the purported show case notice dated Feb. 21, 1974. On June 3, 1975 the Deputy Director, Enforcement Directorate, Calcutta after hearing the petitioner held that the petitioner flouted the summons dated 16.2.74 issued under Sec. 40 of the said Act deliberately and imposed a penalty of Rs. 500.00 on the petitioner under section 50. On June 15, 1974 a show cause notice was issued by the Assistant Collector, Palam Airport, regarding the said two sums which had been seized at Palam Airport. On July 22, 1974 fresh summons was issued by the Chief Enforcement Office for the alleged non-compliance of the two summons dated 16.2.74 and 18.2.74 requiring the petitioner to give evidence in connection with some allegation against Punamchand Choraria. On July 29. 1974 the petitioner appeared before the Chief Enforcement Office and replied to the questions put to him by the latter. On Sept. 13, 1974 the petitioner replied to the above show cause notice dated June 15, 1974 in connection with the seizure of the said two amounts at Palam Airport. On Oct. 9, 1974, the petitioner was detained under the Maintenance of Internal Security Acts, 1971 and 1974 and thereafter on Dec. 19, 1974 an order of detention under the Conservation of Foreign Exchange and Prevention of Smuggling Articles Act known as Cofeposa. On Dec. 3, 1974 the Assistant Collector of Customs (Palam Airport) confiscated the said two amounts and imposed a fine of Rs. 1500.00. On Oct. 27, 1975, the petitioner made an application in the Court of the Chief Metropolitan Magistrate in connection with the impugned order of arrest of arrest dated 3.4.74, stating that no complaint was filed in connection with the proceeding in which he was arrested on April 3, 1974.

(3.) It may be stated here that an appeal was preferred by the petitioner against the said order of imposition of penalty dated June 3, 1975 before Foreign Exchange Regulation Appellate Board. On Oct. 15, 1976, the Appellate Board decided in favour of the petitioner to the following effect :