TMI Blog1985 (2) TMI 309X X X X Extracts X X X X X X X X Extracts X X X X ..... gn Exchange Regulation Act 1973 (hereinafter referred to as the 'Act'). Only on 3-12- 1984, a show cause notice was issued to the petitioner for the alleged contravention of .S. 9(1)(b) of the Act, requiring him to show cause as to why proceedings under S. 51 of the Act should not be initiated and why S. 63 of the Act should not be invoked in respect of the currency seized from the petitioner. In the meanwhile, realising that the officers of the Enforcement Directorate had not initiated any proceedings against the petitioner, within one year from the date of the seizure of the currency, the petitioner issued a lawyer's notice on 27-7-1984 demanding the return of the currency notes seized from the petitioner, but no reply was received by him. Characterising the withholding of the currency seized by the officers of the Enforcement Directorate as illegal, the petitioner has come up before this Court in this writ petition praying for the relief set out earlier. 2. In the counter filed by the respondent, while accepting the seizure of ₹ 1.72 lakhs from the petitioner in Indian currency on 2-6-1983, the respondent referred to the issue of show cause notice to the pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Superintendent, Preventive, Service Customs Calcutta v Charandas Malhotra 1973ECR1(SC) and M/s Lokenath Tolaram etc. v. B. N. Rangwani, 1975CriLJ540 . Strong reliance was also placed by the learned counsel for the petitioner upon the decision of the Supreme Court reported in S.O. Arjunan Chettiar v Enforcement Officer, 1977) 2 Mad 5 disapproving the decision of the Division Bench of this Court in the Enforcement Officer, Madras 6 v S. O. Arjunan Chettiar, W A 2.31 of AIR1977Mad279 . In answer to this, the Additional Central Government Standing Counsel relied upon S. 53(1)(b) of the Act, as enabling the officers of the Enforcement Directorate to continue to retain the seized currency. It was also pointed out that there was no indication in S. 41 of the Act, that the currency seized should be returned and that such return should be to the person from whom it was seized, 4. Under S. 33 of the Act, the Central Government has the power to direct the owners of foreign exchange, foreign securities or immovable properties as may be specified, in the notification to submit a return or periodical returns to the Reserve Bank of India within such period and giving such particulars as may be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d or, other document reference to which would be necessary for examining or using the said document, was in force preventing a full examination of the document or the use of the document for commencing proceedings under S. 51 or S. 56 of the Act, or preventing the commencement of proceedings under S. 51 or S. 56 of the Act. It is not the case of the Enforcement Directorate that there was any operative order of injunction as to attract the applicability of the Explanation. Therefore, under S. 41 of the Act, the seized currency which Would be document for purposes of the Act can be retained for a period not exceeding one year i.e not beyond 2-6-1984. Alternatively, under S 41 of the Act the document seized could be retained till the disposal of the proceedings under S. 51 of the Act including the proceedings before the Appellate Board and the High Court, if before the expiry of the period of one year, the proceedings under S. 51 of the Act had been commenced. Similarly, it proceedings under S. 56 of the Act had been commenced before a Court before the expiry of one year then, the retention of the document can be done, till the document has been filed in the Court. In this case, apart ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... my view, that section cannot be read as justifying retention of the seized document beyond one year without fulfilling the other requirements. The period of retention is limited to one not exceeding one year, unless, before the expiry of the period of one year, adjudication proceedings under S. 51 have been commenced or proceedings under S. 56 have been initiated, in which case, the benefit of extended time would be available for the retention of the seized document. Indeed there is no positive direction in S. 41 of the Act, that, the document should be returned to the person from whom they were seized. Even so when the retention of the seized document cannot, under law, be extended beyond the period of one year, unless certain conditions are satisfied, it follows that beyond the period of one year, in the absence of the fulfillment of the other requirements enabling the retention even beyond that period, whatever had been seized should be restored back and that could be only to the person from whom it was seized. Me decision of the Supreme Court in Nilratan Sircar v. Lakshmi Narayan Ram Nivas, 1965CriLJ100 throws considerable light on this aspect. Though in that case, the questio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seized documents only for a period of one year unless certain events justifying such retention beyond that period of one year, had taken place within the period of one year. S. 53(1)(b) of the Act cannot, therefore be pressed into service by the learned counsel for the respondent to support the continued retention of the currency seized from the petitioner by the officers of the Enforcement Directorate. Besides, there is one other aspect, which deserves to be noticed. Only by reason of the Explanation to S. 33 of the Act. 'document' would include Indian currency but that could only be for the purpose of S. D, and S. 34 and Ss. 36 to 41, and not for others. The Explanation would not be applicable to S. 53 of the Act and necessarily, therefore. it is difficult to read into S. 53(1)(b) of the Act, the power to require the production of the currency notes as falling within the definition of a 'document' for purposes of the Act as to justify the retention thereof for a period in excess of what has been prescribed under S. 41 of the Act. 8. On this aspect of the case, it only remains to consider the reliance placed by the learned counsel for the petitioner upon S. 110 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... torate. 10. The learned counsel for the respondent next submitted that the seized currency now retained by the officers of the Enforcement Directorate would be the only evidence available in respect of the proceedings taken or initiated under the Act and if that currency is parted with at this stage, that would render the conduct of the further proceedings impossible. The difficulty in securing back the learned counsel for the respondent, also relied upon the identical currency notes seized, if they are directed to be returned back to the petitioner at this stage. It is i1rue that in the case of documents other than currency, it would be easy for the officers of the Enforcement Directorate to take Xerox or Photostat copies of the documents and return the originals. However, in the case of seizure of the currency notes, as in this case, especially when a large amount is involved, it would be exceedingly difficult and even almost impossible to secure back the identical currency notes seized if they are now returned. Resort to copying methods like Xerox or Photostat would not also be of any avail. While, undoubtedly, the petitioner is entitled to a return of the seized currency, th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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