TMI Blog1967 (11) TMI 116X X X X Extracts X X X X X X X X Extracts X X X X ..... cused persons arrested by them, the Sub-Inspector saw a person standing by the side of the public road near the Mission Hospital, with a filled cloth bag. The Sub-Inspector stopped his car. when the above person went to the car with the bad. Apparently, he was waiting for somebody to come in a car. But when he saw the police, he tried to escape. He was stopped and the bag was searched. It contained 789 Indian currency notes of one hundred rupees denomination, bundled into several lots and slips of papers attached thereto. He was arrested on the spot, and the whole currency notes were seized by the Sub-Inspector. The person thus arrested is the petitioner before us. He told the police that these currency notes were entrusted to him by one Kesavan Madhavan, that they were amounts remitted from foreign countries through secret agencies to be distributed to persons in India, and that he was waiting there for Kesavan Madhavan, who had promised to come in a car and meet him The arrest and seizure were made on the reasonable belief that the petitioner alone with others were guilty of offences under the Foreign Exchange Regulation Act. 1947 (hereinafter referred to as the Act) and that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the said information and documents forthwith through Sri M. D. Gopinath, Enforcement Officer, Cochin. Particulars of information and documents required : (1) Indian currency notes to the value of ₹ 78,900/-. (2) all other documents found in the possession of Sri Krishnan Sukumaran. Dated at Madras this 28th day of May. 1966. Sd/- K A Ganapathy Asst. Director, Enforcement Directorate Ministry of Finance. Dept. of Rev. Govt. of India. Madras. To The Sub-Inspector of Police. Varkala, Trivandrum District, Kerala State In the light of the contentions advanced in this case it is necessary to read also the application made by the respondent. IN THE HON'BLE COURT OF THE MAGISTRATE. VARKALA M. P. No. Nil of 1966 in Crime No. 83/66 of Varkala Police Station. The petitioner herein is the enforcement officer, Enforcement Directorate, Ministry of Finance Government of India. Cochin authorised by the Central Government to obtain the documents in connection with Crime No 83/66 of Varkala Police Station. The case under reference has been found by the police, falling under the provisions of the Foreign Exchange Regulation Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not claim any interest in this amount, he is not entitled to question an order passed regarding the disposal of the same. This is enough to dispose of this case; but as such a contention was not raised before us; and as the case has been referred to a Division Bench stating that it involves important questions of law, we do not propose to dispose of it on such a preliminary ground. 5. The application made by the respondent for the custody of the currency notes has been sought to be supported by the Central Government Pleader under Section 19(2) of the Act. If this is the only ground on which the claim can be supported, he must fail. Section 19 of the Act reads as follows:-- 19(1) The Central Government may. at any time by notification in the Official Gazette, direct owners, subject to such exceptions, if any as may be specified in the notification, of such foreign exchange or foreign securities as may be so specified, to make a return thereof to the Reserve Bank within such period, and giving such particulars, as may be so specified (2) Where for the purposes of this Act the Central Government or the Reserve Bank considers It necessary or expedient to obtain and examin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion, book or document, which is in the possession of a court or a third person, and in respect of which the person so ordered has no manner of right to possession or custody The above order was obviously passed for getting into the custody of the Enforcement Directorate, the currency notes seized by the police and produced before court, for the purpose of investigation of a case under the Act. We do not think that Section 19 is a provision intended for this purpose, nor can it be pressed into service for the same. 7. The petitioner's learned counsel is also right in his contention that currency notes are not documents' , and that an order under Section 19(2) cannot direct any person to furnish currency notes. The Act does not contain a definition of the word document . The learned Central Government Pleader referred to the definition contained in Section 3(18) of the General Clauses Act, 1897, and contended that document includes currency note This section reads- 3(18) -- document shall include an matter written, expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means which is intended to be used, or whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, that the currency notes in the custody of the court are very important documents for evidence of the contravention of the Act, and that the officers of Enforcement are competent to the custody of these documents under Section 19G of the Act. This application was drawn up in a very clumsy manner It is also evident from the order passed by the Assistant Director under Section 19(2) of the Act, and the averments in the above application made by the respondent, that neither of these officers were aware of the relevant provisions of the Act under which they could get the currency notes from the custody of the court for the purpose of investigation of the case under the Act. But this cannot stand in the way of the respondent getting custody of the same, if he is entitled to them under any provision of law. 9. Section 19A empowers any officer of Enforcement authorised in this behalf by the Central Government to search any person and seize documents, if he has reason to believe that such a person has secreted any document which will be useful for or relevant to any proceeding under the Act. Section 19D empowers an officer of Enforcement, not below the rank of Assistant Director to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10. The learned counsel for the petitioner contended that the above section does not apply to such a case. We can find no warranty for this contention in the language of the section. It certainly applies to property seized by a police officer under circumstances which create suspicion of the commission of any offence: and that is precisely the circumstance which leads to the seizure of the currency notes concerned in this case. In Suraj Mohan v. State. AIR 1967 Guj 126 Shelat. J said:-- There are three stages in a matter in which the Magistrate may be required to pass orders regarding custody or disposal of any such property The first is before the charge-sheet in any criminal case is received by the Court and such a matter may well be covered under Section 523 of the Criminal Procedure Code. Then the court may have to pass orders relating thereto during the pendency of the inquiry or trial and that can he done under Section 516A of the Code. Then comes Section 517 which requires the Court to pass orders in that respect when the trial is concluded Speaking about the scope of Section 523 of the Criminal Procedure Code, Anna Chandy, J. observed in Ali Kunju v AH Kunju, A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... While they were in jail, the above order was cancelled on 10-11-1962, and another order under the same rule for their detention was passed and served on them on the same date. It was contended in that case, among other things, that the second order of detention was bad, as it was served on the appellants, while they were in jail. Rejecting this contention, the Supreme Court said - In these circumstances, it would be in our opinion an empty formality to allow the appellants to go out of jail on the revocation of the order of November 7, and to serve them with the order dated November 10, 1962, as soon as they were out of jail . The same Principle applies to the case before us. 12. If a property which an officer is entitled to seize or otherwise take possession of under any provision of law is in the possession or custody of a court or any other authority, it is plain common sense that what that officer has to do under such circumstances is to move the court or the authority, as the case may be, for handing over possession of the said property to the officer. And if the court or authority does not require to have possession of the property for any lawful purpose it is its ..... X X X X Extracts X X X X X X X X Extracts X X X X
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