9911796707
TMI Blog2002 (1) TMI 1217X X X X Extracts X X X X X X X X Extracts X X X X ..... lance amount of foreign exchange released to the petitioner before he made his visit to foreign countries. It is alleged by the petitioner that the documents seized from his office premises are not incriminating. The enforcement officers have forcibly taken him to their office and obtained involuntarily false statements from the petitioner by using threat, force and intimidation. The petitioner was also arrested under section 35 of the Act and later released on bail by Economic Offences Court II, Egmore, Chennai. The authorities have not commenced the adjudication proceedings within the period of six months from the date of seizure of the documents and the petitioner has sent a letter dated 20-9-1995 to the 1st respondent requesting him to return the seized documents, foreign currencies and his passport and the copy of the said letter was also sent to the 2nd respondent. The 1st respondent has issued a show-cause notice under T-4/41/95 (SCN I to IV) dated 12-10-1995 and T/4/42/M/95 (SCN I) dated 16-10-1995 as to why adjudication proceedings under section 51 of the Act should not be held against him and the foreign currencies seized from him should not be confiscated to the Governme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 36 - Power to stop and search conveyance, section 37 - Power to search premises, section 39 - Power to examine persons and section 40 - Power to persons to give evidence and produce documents. The learned counsel also argued that on the basis of reliable information, the premises of Obitex and International Services at No. 1/1, South Mada Street, Srinagar Colony, Saidapet, Chennai - 15 were searched by the offices of the enforcement directorate on 14-3-1995 which resulted in seizure of foreign currencies and incriminating documents. The seized documents indicate over-invoicing and under-invoicing of exports and also unauthorized collection of foreign exchange and payments. The learned counsel further argued that the petitioner in his statement under section 40 of the Act has stated that he was acting as an indenting agent of IBO Tax and its sister concern in Netherlands and also proprietor of Obitex, Madras, that Obitex has been indulging in over-invoicing and under-invoicing of exports to IBO Tax and their sister concerns in Netherlands. On the basis of seized documents, follow-up action were initiated against Fashion India by searching its office and residential premises under s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rectorate of Enforcement v. Deepak Mahajan AIR 1994 SC 1775 it has been held as follows : "32. True, normally Courts should be slow to pronounce the Legislature to have been mistaken in its constantly manifested opinion upon a matter resting wholly within its will and take its plain ordinary grammatical meaning of the words of the enactment as affording the best guide, but to winch up the legislative intent, it is permissible for Courts to take into account of the ostensible purpose and object and the real legislative intent. Otherwise, a bare mechanical interpretation of the words and application of the legislative intent devoid of concept of purpose and object will render the Legislature inane. In cases of this kind, the question is not what the words in the relevant provision mean but whether there are certain grounds for inferring that the Legislature intended to exclude jurisdiction of the Courts from authorizing the detention of an arrestee whose arrest was effected on the ground that there is reason to believe that the said person has been guilty of an offence punishable under the provisions of FERA or the customs Act which kind of offences seriously create a dent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ospectively. In accordance with the provisions of law, as prevailing at the time of seizure, the authorities were entitled to retain the seized currency for the period of one year and should the show-cause notice be issued within such period, it would be open to the respondents to continue to retain the currency until completion of the proceedings. On a careful consideration of the provisions of law, we are of the view that the provisions of the unamended section 41 of the Act would be applicable to the facts of the instant case and the contentions of the writ petitioner therefore have no basis either on facts or in law. In this case the currency was seized from the writ petitioner before the amendment of section 41 of the Act. In any event, the retention of document is vital for investigation. While so, on the date of seizure, there was a right to retain the currency and investigate thereon for a period of a year should thereafter of amendment alter such period. Such alteration could only be prospective since it would prejudice the investigation, which was being proceeded with as per the earlier section. This would be against the interest of public policy and interest cannot be as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the leave of this Court." 7. Now we look into the relevant provisions of Foreign Exchange Regulation Act, 1973 : "2 ( h ) - Foreign exchange means foreign currency and includes ( i )all deposits, credits and balances payable in any foreign currency, and any drafts, traveller s cheques, letters of credit and bills of exchange, expressed or drawn in Indian currency but payable in any foreign currency; ( ii )Any instrument payable, at the option of the drawee or holder thereof or any other party thereto, either in Indian currency or in foreign currency or partly in one and partly in the other; ( iii ) Foreign security means any security created or issued elsewhere than in India, and any security the principal of or interest on which is payable in any foreign currency or elsewhere than in India; 33. Power to call for information. ****** Explanation For the purposes of this section, section 34 and sections 36 to 41 (both inclusive), document includes Indian currency, foreign exchange and books of account. 41. Custody of documents, etc. - Where in pursuance of an order made under sub-section (2) of section 33 or of the provision of section 34 or section 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was also sent to the petitioner. Even in the written arguments nowhere it is stated that the respondents have obtained extension for a further period of six months. Judgments relied on by the petitioner show that when the statutory provisions require that the documents seized from a person should not be retained for a period exceeding one year unless before the extension of the said period adjudication proceedings were commenced under section 51, the department should obey the law and return the documents. 11. The documents inclusive of passport were seized from the petitioner on 4-3-1995. The petitioner has sent a letter dated 20-9-1995 to the first respondent to return the seized documents and forwarded copy of the same to the 2nd respondent. After receipt of the said letter dated 20-9-1995 the respondents have issued show-cause notices dated 12-10-1995 and 16-10-1995, however not given any reply to the letter dated 20-9-1995 before the issuance of the said two show-cause notices. By letter-dated 9-11-1995, the respondent has informed the petitioner that as the show-cause notices have been issued, the return of documents is not possible. As rightly pointed out by the learned ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
