TMI Blog1986 (8) TMI 445X X X X Extracts X X X X X X X X Extracts X X X X ..... 89 has been issued by the Republic of South Africa and which is at present current and operative. The petitioner! contends that the respondent-authorities who! are functioning under the provisions of the Act have initiated proceedings against him for breach of the provisions of S. 29 of the, Act on the allegation that he is not a citizen of India but is a resident in India and that he, carries on, in India, business activity contemplated by S. 29(1)(a) of the Act and that the same has been done without obtaining permission of the Reserve Bank under S. 28 of the Act. It is, therefore, contended that the petitioner has committed breach of the provisions of S. 290) of the Act and therefore is liable to be-penalised as laid down by S. 50 of the Act and for that purpose, adjudication proceedings under S. 51 of the Act have been initiated against him. Pending these adjudication proceedings, the petitioner's present passport has been seized by the respondents. The order of seizure has been brought on record of this case by way of amendment. That order is dated 31-7-1986. It recites that whereas the South African passport bearing No. J- 1141089 dated 14-8 1984 issued at Johannesburg to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plated by S. 50 and enjoins upon the adjudicating officer to hold inquiry in the prescribed manner after giving to the person an opportunity for making representation in that connection and provides that if he, on such inquiry, is satisfied that the concerned person has committed the contravention, he may impose such penalty as he thinks fit in accordance with the provisions of that section. The penalty order as passed under S. 50 read with S. 51 is appealable under S. 52(1) to the Appellate Board. Such appeal obviously can be filed by the person against whom penalty order is passed. Further appeal lies under S. 54 to the High Court on the question of law from any decision or order of the Appellate Board under sub-section (3) or sub-section (4) of S. 52. It is obvious that the appeal would lie against the Appellate Board's decision at the instance of the party aggrieved and at that stage, even the adjudicating authority may feel aggrieved by the appellate board's order if the appellate board allows the appeal of the person against whom penalty is imposed by the adjudicating officer. It can equally be filed by the person against whom the penalty order is imposed by the adjud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t contended in the alternative that in any case, even assuming that the petitioner's passport can be treated to be a document or a thing as contemplated by S, 38, even then, it has no relevance to the adjudication proceedings under S. 51 for the alleged infraction of S. 29 by the petitioner and, therefore, also the impugned order of seizure is totally ultra vires the provisions of the Act. 7. It was lastly contended by the petitioner that if it is held that S. 38 can be validly pressed in service by the competent authority, the seizure of the petitioner's passport cannot be permitted to continue indefinitely and it cannot be for an indefinite period of time, say months or years, as that would amount to illegal deprivation of the petitioner's right to move out of India on the basis of that passport and would amount to illegal restriction on the petitioner's movements out of India and that such indefinite seizure of the petitioner's passport would become totally unreasonable and illegal in that eventuality. 8. We shall deal with the aforesaid contentions of the petitioner seratim. 9. We may note that the first three contentions of the petitioner raised in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scription . Thus, any writing would be a document. Similarly, the term 'thing' has been defined thus whatever is or may be thought about or perceived (including in opposition to person) as animate object. It is, therefore, obvious that any writing which is perceptible to the eyes would be both document and in any case, a thing. Consequently, the petitioner's passport which is made the subject-matter of seizure under S. 38 cannot but be said to be both -document and a thing or at least a thing which is capable of being perceived. The second contention, therefore, also is found to, be devoid of any substance on merits. 12. That takes us to the third contention of the petitioner which was very hotly debated before us. The petitioner vehemently submitted that if it is the case of the respondents that the petitioner's passport is relevant to the proceedings under S. 51, it is to be seen as to what is the type of the proceedings which is initiated against him. He submitted that the only infraction of the Act which is alleged against the petitioner p. infraction of S. 29(1) on the ground that he being a resident-foreigner has indulged in business in India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his having committed infraction of S. 29(1), of the Act, he would ever submit to the contrary. He submitted that on these statements being made by him on oath, the passport which is seized by the respondents does not remain any longer relevant for the inquiry and, therefore, it is required to be returned to him forthwith. So far as this contention of the petitioner is concerned, it requires a closure scrutiny. It is true that when the proceedings for adjudication under S. 51 read with S. 50 of the Act are initiated for the alleged infraction of S. 29(1)(a), the following issues become relevant for decision; that the person concerned who is said to have committed breach of S. 29(1)(a) is either (i) a person resident outside India whether a citizen of India or not; (ii) if such a person is not a citizen of India but resident in India and (iii) such person has carried on in India any business or has established in India any branch office or other place of business for carrying on any activity of a trading, commercial or industrial nature; (iv) and that the concerned person has done so without obtaining special or general permission of the Reserve Bank of India. So far as the facts of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he hearing, they agree to admit by any writing under their hands, or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings; Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions . Mr. Qureshi submitted that when the proceedings are being conducted before the adjudicating officer under S. 51 of the Act and when the question arises before him in these proceedings whether the petitioner's passport has remained relevant in view of his admission that he has entered Indian territory on South African passport, discretion will still. remain with the adjudicating officer under the proviso to S. 58 of the Evidence Act to require the facts admitted to be proved otherwise than by such admission, meaning thereby, the passport may still be required to be seen by the authority notwithstanding the admission of the petitioner about the said fact. Mr. Qureshi also submitted that the petitioner might have stated so in his affidavit supporting the petition but the possibility cannot be ignored of his future retraction of that admission of his and in case he retracts such ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... extent of showing that he is a resident-foreigner who has entered India on a foreign passport and who is holding a foreign passport. His foreign passport will be the best piece of evidence to prove this fact, his admission to that effect notwithstanding. The third contention of Mr. Jhaveri, the party-in-person for challenging the impugned order under S. 38 has also, therefore, to be repelled. Section 38, in our view, gives ample jurisdiction and power to the respondents to pass orders of seizure of passports which are found relevant for the inquiry or investigation pending against the concerned persons who are alleged to have infrind the relevant provisions of the Act or rules or directions issued thereunder. The impugned order is found to be failing squarely within the ambit of S. 38 of the Act and cannot be said to be ultra vires the said provisions as alleged by the petitioner. 14. That takes us to the last contention of the petitioner which was pressed in service as an alternative contention. In order to appreciate this contention, it must be kept in view that once the provisions of S. 38 of the Act are validly pressed in service by the competent authority for seizing the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... zed documents which are themselves evidence of contravention of the provisions of the Act and the rules, maximum period of custody of such documents with the authority seizing the documents is limited to one year or till the expiry of the adjudication proceedings under S. 51 and till they reach their final culmination through all the hierarchy of proceedings up to the High Court, or if there are any criminal proceedings, till the document is filed in the competent Court. It, therefore, stands to reason that if the documents are evidence of contravention of the provisions of the Act or the rules, fixed period is provided for their custody with the authority seizing the documents. Therefore, of' necessity, the period of custody of' those documents which are riot themselves any evidence of infraction of the Act or the rules but are merely relevant or useful for any such inquiry or proceedings under the Act and which are seized under S. 38, cannot be as large as contemplated by S. 41. It is obvious that S. 41 does not apply to those documents which are seized under S. 38. However, that does not mean that power to retain custody of seized documents under S. 38 as relevant or use ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uiry and the term of the Commission of Inquiry being limited up to Dec. 31, 1977, the impounding of the passport could not continue beyond that date and hence it would not be said that the impugned order was to operate for an indefinite period of time. Now, it is true that the passport of the petitioner was impounded on the ground that her presence was likely to be required in connection with the proceeding before the Commission of Inquiry and the initial time limit fixed for the Commission of Inquiry to submit its report was Dec. 31, 1977, but the time limit could always be extended by the Government and the experience of several Commissions of Inquiry set up in this country over the last twenty five years shows that hardly any Commission of Inquiry has been able to complete its report within the originally appointed time. Whatever might have been the expectation in regard to the duration of the Commission of Inquiry headed by Mr. Justice Shah at the time when the impugned order was made, it is now clear that it has not been possible for it to complete its labours by December 31, 1977 which was the time limit originally fixed and in fact its term has been extended up to May 31, 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ected to complete the adjudication proceedings under S. 51 during the currency of which the petitioner's passport has been seized as a relevant document under S. 38, within a period of eight weeks and to be more precise on or before 4th November, 1986 and if they are further directed to communicate the result of the adjudication proceedings within one week of 4th November. 1986. This direction to the respondents will meet the grievance of the petitioner that adjudication proceedings may be indefinitely delayed by the respondents. However, we may add a rider that the respondents will be required to observe this time scheme for completion of the inquiry under S. 51 provided in the meantime the petitioner fully co-operates in the inquiry, properly files his reply and joins issues and sees to it that the proceedings are completed, within the time schedule as prescribed above and further that no injunction or stay against the proceedings is obtained against the respondents from any competent Court. Given all that, if till 4th November, 1986, the petitioner fully co-operates with the inquiry, the respondents shall be bound t6 complete the said inquiry within that time. If as a result ..... X X X X Extracts X X X X X X X X Extracts X X X X
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