High Court · 2007

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED :: 19-09-2007CORAMTHE HONOURABLE MR.JUSTICE S.PALANIVELUCRIMINAL ORIGINAL PETITION No.20275 OF 2007V.Baskaran...Petitioner-vs-1.The Chief Enforcement Officer, Enforcement Directorate, No.26, Haddows Road, Shastri Bhawan, Chennai-600 006.2.The Assistant Director, Enforcement Directorate, Shastri Bhawan, III Floor, III Block, No.26, Haddows Road, Chennai – 600 006....RespondentsPetition under Section 482 of the Code of Criminal Procedure.For petitioner : Mr.T.Murugesan, Senior Counsel, for Mr.R.Syed Mustafa.For respondents : Mr.R.Dhanapal Raj, Special Public Prosecutor.O R D E RThis petition has been filed, praying for a direction to therespondents to return the petitioner's passport bearing No.M-155984 so asto enable the petitioner to travel abroad.2. The facts are thus :2.1. Respondents conducted a search in various places during1995-1996 on assumption of irregularities, inclusive of the premises of https://hcservices.ecourts.gov.in/hcservices/ the petitioner, and seized certain records along with the passport of thepetitioner, bearing No.M-155984, dated 25.08.1992. Six complaints came tobe registered by the respondents against the petitioner before theEconomic Offences/Additional Chief Metropolitan Court, Egmore, Chennai, inE.O.C.C.Nos.163 of 1996, 17 of 1997, 44 of 1998, 45 of 1998, 411 of 2002and 459 of 2002 and the said cases are pending.2.2. According to the petitioner, since his passport was alsoseized along with records, he could not undertake travel to foreigncountries for his business purpose; the respondents have been retainingthe passport, under the guise of investigation and, hence, he has comeforward with this petition, for the relief stated supra.3. Mr.T.Murugesan, learned Senior Counsel for the petitioner,would vehemently argue that it is uncharitable on the part of therespondents to keep back the passport of the petitioner, violating theprocedure contemplated in The Foreign Exchange Regulation Act,1973, whichwas applicable to the relevant period. He draws attention of this Courtto Section 41 of the Act, which reads thus :"41. Custody of documents, etc.- Where in pursuance ofan order made under sub-section (2) of Sec.33 or theprovisions of Sec.34 or Sec.36 or Sec.37 or of arequisition or summons under Sec.39 or Sec.40, anydocument is furnished or seized and any officer ofEnforcement has reason to believe that the saiddocument would be evidence of the contravention of anyof the provisions of this Act or of any rule, directionor order made thereunder, and that it would benecessary to retain the document in his custody, he mayso retain the said document for a period not exceedingsix months or if, before the expiry of the said periodof six months any proceedings -(i)under Sec.51 have been commenced, until thedisposal of those proceedings, including theproceedings, if any, before the Appellate Boardand the High Court, or(ii)under Sec.56 have been commenced before aCourt, until the document has been filed in theCourt :Provided that the aforesaid period of six monthsmay, for reasons to be recorded in writing, be extendedby the Director of Enforcement for a further period notexceeding six months." https://hcservices.ecourts.gov.in/hcservices/

4. It shall be stated, that, previously, the period forretention of document was one year and, by means of Foreign ExchangeRegulation (Amendment) Act,1993, the said period has been amended as sixmonths.5. The further argument of the learned Senior Counsel for thepetitioner is that within six months from the date of seizure, therespondents failed to initiate the proceedings and, therefore, thepassport has necessarily to be returned to the petitioner. In support ofhis contention, the learned counsel cites a decision of the Hon'bleSupreme Court in Marie Andre Leclerc v. State (Delhi Admn.), AIR 1983SUPREME COURT 1092 = 1983 Cri.L.J.1445, wherein, a direction for return ofpassport was issued, on humanitarian ground. The operative portion of thesaid ruling goes thus :"2.....But, at the same time, we have to protectthe interests of justice because the petitioner issuffering a sentence of life imprisonment for theoffence of murder in one case and there are two othercases pending against her – one in the State of U.P.and the other in the State of Karnataka. We would,therefore, direct that the petitioner be allowed to goto Canada on condition that she files an undertaking inthe form of an affidavit to this Court to return toIndia within one year from the date of her departurefrom this country....."6. Relying upon the observations made in the above decision, thelearned Senior Counsel submits that even the request of a murder caseconvict, who was suffering life imprisonment, was considered by theSupreme Court and, in the present case, the offences are not so grave asthat of murder.7. When there is a specific provision for return of passport orother records by the authority in a special statute, it must bescrupulously followed by the authority. This proposition of law has beenilluminatingly highlighted in the judgment in K.M.Amir Abdul Kader v. Dy.Director, Enforcement Directorate, AIR 1986 MADRAS 140, relied upon by thelearned Senior Counsel. In the said decision, a learned single Judge ofthis Court followed the decision of the Apex Court and concluded as such.The relevant portion of the said judgment has been culled out as follows :"5. It is seen from para 4 of the counteraffidavit that the retention is sought to be justifiedon the basis of a judgment of a Division Bench of this https://hcservices.ecourts.gov.in/hcservices/ Court dt.21-9-1976 in the Enforcement Officer, Madras-6v. S.O.Arjunan Chettiar, W.A.237 of 1976 i.e., (1977) 1Mad LJ 497 : (AIR 1977 Mad 279). Though that decisionproceeded on the footing that if steps had been takenfor initiating proceedings under the Act, whetherwithin or beyond one year, it would be open to theofficers of the Enforcement Directorate to retain thedocument seized, the Supreme Court in S.O.ArjunaChettiar v. Enforcement Officer (1977) 2 Mad LJ 5 (SC)disapproving such a view stated as under at p.6 :-".....we must express our disapprovalof the action of the department inretaining the document beyond the period ofone year specified in S.41 of the ForeignExchange Regulation Act 1973. When thestatutory provision requires that thedocument seized from a person should not beretained for a period exceeding one yearunless before the expiration of the saidperiod, adjudication proceedings arecommenced under S.51, the department mustobey the law and return the document unlessin the meantime it has commencedadjudication proceedings under S.51. If itis found by the department that the periodof one year, which is specified in S.41, isnot adequate, it would be for theLegislature to amend the section in orderto provide for extension of time, but solong as the section stands as it is, itmust be complied with by the department."8. From the above said decision, as held by the Apex Court, whena special statute stipulates a specific provision as to the procedure tobe followed by an authority, the said authority is bound to follow it andany deviation or violation of it would not be tolerated. This is aspecial statute and specific provisions have been incorporated,regularising the procedure to be followed by the authorities, and, hence,the Supreme Court has not recognised the deviation from the procedure.9. As far as the present case is concerned, on a tip-off, theoffice premises of M/s.Super Duper TV Pvt.Ltd., situated at 25, I Floor,Wellington Plaza, No.90, Mount Road, Chennai, was searched on 12.07.1995and certain documents were seized by the respondent officials. 10. In order to ascertain the right of the respondents toproceed with the petitioner as regards his passport, the dates and events https://hcservices.ecourts.gov.in/hcservices/ in this matter are relevant, which are furnished by the learned SeniorCounsel for the petitioner as under :Date of Searchand SeizureDate of issuance of ShowCause Notice withcorresponding Nos.Corresponding C.C.Nos.to theShow Cause Notice and Datesof complaints preferredbefore the Economic OffencesCourt, Chennai. 12/07/1995F.No.T-4 26-D/95 (SCN-XV)20.08.1996C.C.No.163 of199614.10.1996F.No.T-4 26-D/95(SCN-XX)16.01.1997C.C.No.17 of 199729.01.1997F.No.T-4 26-D/95(SCN-XI)17.02.1997C.C.No.44 of 199827.03.1998F.No.T-4 168/SZ/CITY/964/12/96C.C.No.45 of 199827.03.1998F.No.T-4 26-D/95 (SCN-XXIX)21.01.1999C.C.No.411 of200228.05.2002F.No.T-4 26-D/95(SCN-XXXII)5/4/02C.C.No.459 of200230.05.200211. From the above, it is seen that the first show cause noticefrom the respondents, during the course of adjudication, emanated only on20.08.1996 in F.No.T-4 26-D/95 (SCN-XV) and, with regard to other matters,the show cause notices were issued afterwards in the years 1997,1999 and2002. Further, the dates of the complaints lodged by the respondents arealso after the lapse of statutory period, provided under Section 41. 12. As per Section 41 of the Act, adjudication proceedingsshould have been initiated within six months from the date of seizure andthe respondents are not empowered to retain the passport of the petitionerbeyond the said period. Even though the proviso to Section 41 proceeds tothe effect that for the reasons to be recorded in writing, the period ofsix months, prescribed in Section 41, may be extended by the Director ofEnforcement for a period not exceeding six months, the respondents havenot shown that there was any such order from the said authority. Inaddition, the adjudication proceedings, in this case, were initiated aftera lapse of 13 months. Hence, the retention of passport by therespondents is not legally sustainable. Since the mandate inSection 41 and the proviso have not been followed by therespondents, they are bound to return back the passport to the petitioner. https://hcservices.ecourts.gov.in/hcservices/

13. For the foregoing reasons, this petition is allowed,directing the respondents to return back the passport bearing No.M-155984to the petitioner, within a period of two weeks from the date of receiptof a copy of this order. dixitSd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1. The Chief Enforcement Officer,Enforcement Directorte,No.26,Haddows Road,shastri Bhawan ,Chennai6.2. The Assistant Director,Enfrecement Directorte,Shastri Bhawan III Floor,III Block,No.26 Haddows Road,Chennai.6+ 1 cc to R.Syed Mustafa Advocate SR.NO.58399CRL.O.P.No.20275 OF 2007