TMI Blog2003 (12) TMI 66X X X X Extracts X X X X X X X X Extracts X X X X ..... 1-1999 till realisation, thereof. The Facts : 2.The facts, in nutshell, would reveal that search and seizure operation was conducted in the shop and residential premises of the petitioner on 18-9-1990. Foreign currency equivalent to Indian currency worth Rs. 44,447.50 along with Indian currency in the sum of Rs. 4,13,600/- was recovered and seized in the said search and seizure operation. 3.A show cause notice dated 13-3-1991 was served upon the petitioner calling upon him to show cause as to why said currencies/amounts should not be confiscated. The said show cause notice was replied by the petitioner. It came to be adjudicated upon by the Additional Collector of Customs, (M. P. Wing) vide its Order-in-Original No. 72/93-Cus., date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of India vide TR-6, Challan No. CIU/11/91, dated 10-12-1991 and therefore, they are not in a position to hand over the currency to this department for confiscation. I, therefore, do not pass any order for confiscation." (Emphasis supplied) 7.In view of the aforesaid order, the learned counsel for the petitioner, entertaining belief that seized currency has not been confiscated, addressed a letter calling upon the Revenue to release the amount of Rs. 4,13,600/-, contending that though there are observations that money is liable to be confiscated but no actual order directing confiscation of the said amount has been passed finding that the moneys were deposited by the Customs Department with the Bank. In the circumstances, on 18-7-2002 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fic order of confiscation needed to be passed. In his submission, power of confiscation has to be exercised specifically. No such power has been exercised by the Asstt. Director of Enforcement though he was entitled to exercise such power of confiscation. Learned Counsel reiterated that the authorities having failed to exercise that power, the exercise of such power cannot be assumed or inferred. He submits that nobody can be deprived of his right to property without authority of law. The authorities bestowed with powers must exercise that power specifically. Since no such power has been exercised in the instant case, the petitioner is entitled to get back his property, namely; seized amount or currency in the sum of Rs. 4,13,600/-. 10.Pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lying with the State Bank of India with accrued interest thereon within one week from the date of the order. In compliance with the said order, the respondents have deposited Rs. 4,13,600/- in this Court. The respondents with regard to the deposit of accrued interest have filed an affidavit stating therein; that no interest has accrued on the said amount as the said amount was in deposit in the Government Account. The amount was not in deposit with any Bank as was believed by this Court; while issuing interim directions. As such, according to the Revenue, since no interest has accrued on the sum of Rs. 4,13,600/-, the amount of interest could not be deposited. It was thus stated that with a view to comply with the order of this Court, only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of the extracted portion of the order, which reads as : "I, therefore, do not pass any order of Confiscation" (Emphasis supplied) . In this view of the matter, in our opinion, confiscation of the currency cannot be inferred. 15.It is trite of law that the order of confiscation being penal in nature has to be exercised specifically, and in clearest possible terms backed by cogent reasons. Confiscation of property cannot be inferred by implication. Confiscation of property cannot be assumed on the basis of assumptions or suppositions. It is no doubt true that there was no impediment in the way of the adjudicating authority to confiscate the currency in question. There was an intention to confiscate but intention has not been translated i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stitutional mandate and taking overall view of the matter, we are of the opinion that the amount or currency seized in the search and seizure operations has not been confiscated in the order dated 22-10-2001 by the Assistant Director of Enforcement Directorate. The petitioner is, thus, entitled for refund of Rs. 4,13,600/-, however, without any interest as the deprivation of the amount has resulted due to vague order passed by the quasi-judicial authority for which Revenue can not be penalised. The Revenue is not at fault. Revenue did not earn any interest thereon. 18.In the result, petition is allowed in terms of this order. Rule is made absolute in terms of prayer clause Cl. 1 excluding bracketed portion marked 'A'. Prayer clause (c. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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