9911796707
TMI Blog1996 (7) TMI 489X X X X Extracts X X X X X X X X Extracts X X X X ..... non-compliance with sections 37 and 38 of the Foreign Exchange Regulation Act, 1973 ("the FERA" for short). He, therefore, prays for issuance of a writ of mandamus, directing the respondents to return all the seized documents and the computer machine and for a further direction to the respondents not to proceed further on the basis of search and seizure proceedings at annexures-A to F. The case of the petitioner is that he is the chairman of Manjog and that the second respondent, without authority of law and without complying with the provisions of sections 37 and 38 of the Foreign Exchange Regulation Act, illegally conducted the raid of his residential and office premises and seized several documents including the computer machine. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be held that the writ petition is maintainable, as it is not disputed that the petitioner is the chairman of Manjog and his residential premises were also searched and materials were seized from his residence as well as from the office. It was next contended by learned counsel for the petitioner that there is violation of the provisions of section 37 as there was no investigation or proceeding pending on the date of search and further the second respondent had no reason to believe that any document will be useful for or relevant to any investigation or any proceeding under the Act and in the absence of such reason, the search and seizure were illegal. He further submits that the provisions of section 165 of the Criminal Procedure Code ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, the words 'Director of Enforcement or other officer exercising his powers' were substituted. 38. Poiver to seize documents, etc. Without prejudice to the provisions of section 34 or section 36 or section 37, if any officer of enforcement authorised in this behalf by the Central Government, by general or special order, has reason to believe that any document or thing will be useful for, or relevant to, any investigation or proceeding under this Act or in respect of which a contravention of any of the provisions of this Act or of any rule, direction or order made thereunder has taken place, he may seize such document or thing." The decision in CCTv. R. S. Jhaver [1967] 66 ITR 664, 678 ; AIR 1968 SC 59, 66, arose under the Madras Ge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the officer has to record reasons on the basis of which he entertained suspicion and in the absence of such record of reasons in the exercise of power under sub-section (3) of section 28 of the Act, the impugned order is illegal and is liable to be quashed. This decision is also rendered under the Karnataka Sales Tax Act where the learned judge dealt with the provisions of sub-section (3) of section 28 of the Act. Learned counsel for the petitioner nextly placed reliance on K. L. Sub-hayya v. State of Karnataha, AIR 1979 SC 711, wherein it was held that the search was without jurisdiction, as the safeguards provided under sections 53 and 54 of the Mysore Excise Act (21 of 1966) were not followed and the grounds for the belief of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of non-availability of passwords and, therefore, the petitioner surrendered the computer machine (DECK) with identification mark "KMIL PC-PLVS" and undertook to present himself at the institution of the second respondent, at the time of reading the programme. It is, therefore, clear from the counter that the concerned officers had reasonable belief that the seized documents, etc., would be useful and relevant for further proceedings under the Foreign Exchange Regulation Act and in order to maintain secrecy the reasons were not mentioned. It is to be noted that the entire proceedings were conducted under the provisions of the Foreign Exchange Regulation Act. The decisions rendered under the Madras General Sales Tax Act or the Central E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relating to search as enacted in section 165 shall be followed. But if a deviation becomes necessary to carry out the purposes of the Act in which section 37(1) is incorporated, it would be permissible except that when challenged before a court of law, justification will have to be offered for the deviation. This view will give full play to the expression 'so far as may be'." It is, therefore, clear that the provisions of section 165 of the Criminal Procedure Code are not mutatis mutandis applicable to the provisions of sections 37 and 38 of the Foreign Exchange Regulation Act, and they are applicable only so far as permissible. If there is a deviation from the procedure laid down under section 165 of the Criminal Procedure Code to carry ..... X X X X Extracts X X X X X X X X Extracts X X X X
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