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TMI Blog1988 (10) TMI 241X X X X Extracts X X X X X X X X Extracts X X X X ..... f Section 41 of the Foreign Exchange Regulations Act, 1973 (for short hereinafter referred to as the Act ), more so when within one year of the seizure of the currency notes neither any proceedings under Section 51 of the Act had been commenced, nor proceedings under Section 56 of the Act had been commenced before a Court. 2. In exercise of the powers conferred under Section 37 of the Act the business premises of M/s. Govind Ram Sita Ram, Sarafa Bazar, Sikar and the residence of petitioner Mool Chand were searched by the officers of the Enforcement Directorate, New Delhi and as a result of which Foreign Exchange to wit US. $ 200, Omani Riyals 70, K. Dinar 126, Indian currency Rs. 11,830/- and documents from business premises and US $ 402 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... non-petitioners that a show cause notice was issued on September 15,1986 prior to one year with regard to the seizure of documents as required under Section 41 of the Act and by issue of notice proceedings under Section 51 of the Act have also commenced within one year of the seizure of the Indian currency and, therefore, even beyond a period of one year the Indian currency could be retained and the retention is legal. It is also the case of the non-petitioners that prosecution under Section 56 of the Act has already been filed against the petitioner in the Court of Chief Judicial Magistrate (Economic Offences), Jaipur on December 23, 1986 and those proceedings are still pending. 4. The first question is as to whether can it be said that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has to be given. In the eye of law however giving is complete in many matters where it has been offered to a person but not accepted by him. Tendering of a notice is in law therefore giving of a notice even though the person to whom it is tendered refuses to accept it. We can find however no authority or principle for the proposition that as soon as the person with a legal duty to give the notice despatches the notice to the address of the person to whom it has to be given, the giving is complete." The above case of the Supreme Court came up for consideration in the case of Ambalal Morarji Soni v. Union of India and others - A.I.R. 1972 Gujrat 126, and the Gujrat High Court dealing with the provisions of Section 79 of the Gold (Control ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is served on that person and not by merely despatch of notice to show cause. Under Section 41 of the Act a power is vested in any officer of the Enforcement Directorate if he has reason to believe that the document seized in pursuance of an order made under sub-section (2) of Section 33 or of the provisions of Section 34 or Section 36 or Section 37 or of a requisition or summons under Section 39 or Section 40 would be evidence of the contravention of any of the provisions of the Act, to retain it for a period not exceeding one year. The document within the meaning of Section 41 as per the Explanation to Section 33 of the Act includes Indian currency also. The retention of the documents beyond a period of one year is also permissible, if bef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the petitioner that though the notice bears the date September 15,1986, but it was actully despatched on September 1986. It has also been stated in para 3 of the writ petition that the notice in fact was received by the petitioner on September 25,1986. This fact has not been specifically denied and whatever stated is that it is the date of the notice which is relevant and not the service on the petitioner. We have already said earlier that the term giving means the service of the notice and not its despatch. Therefore, it can be said that the notice was given when it was served on the petitioner i.e. on September 25, 1986. Therefore, the adjudication proceedings cannot be said to have commenced in this case within one year of the seizur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Exchange Regulation Act, 1973. When the statutory provision requires that the document seized from a person should not be retained for a period exceeding one year unless before the expiration of the said period, adjudicalion proceedings are commenced under S. 51, the department must obey the law and return the document unless in the meantime it has commenced adjudication proceedings under S. 51. If it is found by the department that the period of one year, which is specified in S.41, is not adequate, it would be for the Legislature to amend the section in order to provide for extension of time, but so long as the section stands as it is, it must be complied with by the department. The above case was relied upon by the Madras High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X
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