TMI Blog1998 (2) TMI 377X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the respondent searched the office and residential premises of the petitioner and as a result of that US $ 12,500/- and documents were seized from the petitioner. Relying on Section 41 of the Foreign Exchange Regulation Act, 1973 (herein after called the Act), the petitioner has come forward with the above writ petition on the basis that the proceedings as contemplated under Sections 51 or 56 have not been initiated within six months of seizure and so the respondent cannot retain the documents without returning the same. 3. The respondent filed a counter stating that proceedings under the Act have been initiated against the petitioner on 14-9-1993 by the Special Director of Enforcement, Government of India, New Delhi. In the said pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Khanna v. Collector of Central Excise, Allahabad - 1987 (29) E.L.T. 9 (Allahabad) a similar view was taken while considering the term `giving . It will, therefore, be clear and we are of the opinion that though no limitation for initiation of adjudication proceedings under Section 51 of the Act is prescribed, but a reasonable opportunity to the person can only be said to have been afforded after the notice to show cause 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... already stated earlier the search as aforesaid took place on September 17, 1985 and even as per the case of the non-petitioners a show cause notice under Section 51 of the Act was issued on September 15, 1986 or September 17, 1986, i.e. within one year of the seizure of the Indian currency. It is contended by Mr. Rathore, learned Counsel for the petitioner that though the notice bears the date September 15, 1986 but it was actually 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 notice which is relevant and not the service on the petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asis of the abovesaid decision, the learned counsel for the petitioner has tried to sustain the prayer sought for in the writ petition. 6. The enforcement authorities of the respondent are empowered to search premises by virtue of Section 37 of the Act. The power of seizure of documents is conferred on the authorities under Section 38 of the Act. Regarding the documents so seized, the other relevant provision is Section 41 of the Act which reads as follows :- Custody of documents, etc. - Where 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 summons under Section 39 or Section 40, any document is furnished or seized and any officer of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or of any rule, direction or order made thereunder, or (b) the said document could not be used for commencing any proceedings under Section 51 of Section 56, or (c) the proceedings under Section 51 of Section 56 could not be commenced, the time of the continuance of the injunction or order, the day on which it was issued or made and the day on which it was withdrawn, shall be excluded". From the abovesaid provision, it is clear that the Enforcement authorities are empowered to retain the document seized under Section 38 of the Act for a period of six months time as stated in sub-section (i) and (ii) of the Section 41 of the Act. The said period can be extended for reasons to be recorded in writing, by the Director of Enforcement for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould be for the purpose of technically obeying the requirements of Section 19C, if a direction were to be made for the return of the documents when the officer could exercise his powers to summon them. If a direction to return the documents is to be issued, it is only for the purpose of making the Enforcement officers obey the provisions of the Act. This question had arised before the Supreme Court of the United States where the desirability of strict enforcement of Fourth Amendment and the question whether the evidence procured during any illegal search is to be admitted or not were considered repeatedly. Recently the Supreme Cout in a decision Stone Warden v. Powell 1983 (13) E.L.T. 1477 (S.C.) = 1971 (3) S.C.R. 802 = (1972) 1 S.C.J. 579 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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