KA.Manshoor v. Assistant Director,Enforcement Directorate,Government of India,Sastri Bhavan, Chennai-6

3. The petitioner has come forward to challenge the summonsissued by the respondent, dated 29.12.2008 issued under Section 37of the FEMA read with Section 131 of the Income Tax Act, 1961. Thesummon issued reads as follows:-''WHEREAS your attendance is required in connectionwith the proceedings under the Foreign ExchangeManagement Act, 1999, in your case, you are herebyrequired to personally attend before me at the aboveaddress, on the 23rd day of January 2009 at 11.00 A.M.to give evidence and to provide documents specifiedunder the Schedule and not to depart until you receivemy permission to do so.SCHEDULE1.Your passport;2.Your bank pass book with up to date entries;3.Details of your immovable properties withdocuments.Without prejudice to the provisions of any otherlaw for the time being in force, if you intentionallyomit to attend and give evidence or produce the booksof account or documents, a penalty, which shall not beless than Five Hundred Rupees, but which may extend toTen Thousand Rupees may be imposed upon you underSection 272A(1) of the Income Tax Act, 1961."4. The learned Senior Counsel attacked the issuance of thesummons on the ground that the Enforcement Directorate, which hasthe power to issue summons under Section 37, can do so, only if itis satisfied that the purpose has relevance to the issue in whichthe summons was issued. Therefore, when the summons is issued, theperson against whom the summons is issued is entitled to know thefull details of the nature of proceedings in the Court. There mustbe an inbuilt safeguard into the provisions so that the right toprivacy and the right not to have his affairs discussed openly arealso preserved. If the inbuilt safeguards are not provided, theprocedure will become unconstitutional and violative of Article 21of the Constitution. Since the impugned summons was issued withoutdisclosing any purpose or nature of enquiry that has been takenagainst the petitioner, it is contrary to the Act.5. Pending notice on the writ petition, this Court granted aninterim stay, which was continued from time to time. On notice fromthis Court, the respondents have filed a counter affidavit, dated17.11.2009 justifying the issuance of the summons. It was statedthat the power given to the Enforcement Directorate under Section 37is the same as that of an Income Tax Officer under the Income TaxAct in terms of Section 131. Such power is available to deal with https://hcservices.ecourts.gov.in/hcservices/ the discovery of materials in contravention of foreign exchangeviolations. It was also stated that there is no necessity todisclose the particulars even at the time of summons, which willenable a person to manipulate or conceal the required particulars.The summoning authority need not disclose the nature of the enquiry/investigation to the person so summoned. The issuance of summonswill no way affect the rights of the person, as it is only for thepreliminary investigation and for production of documents before theauthority for further investigation. It was also stated that thepetitioner was well aware that the summons was issued to him withregard to the enquiry, which was initiated on the basis of a caseregistered by the Director General of Central Excise (Intelligence),Chennai and the summons issued is for a preliminary enquiry and forsubmission of documents mentioned in the schedule to the summons.6. Before dealing with the contentions raised by the learnedcounsel, it is necessary to refer to the Statement of Objects andReasons for the introduction of FEMA, and it reads as follows:-''The Foreign Exchange Regulation Act, 1973 wasreviewed in 1993 and several amendments were enactedas part of the on-going process of economicliberalisation relating to foreign investments andforeign trade for closer interaction with the worldeconomy. At that stage, the Central Governmentdecided that a further review of the Foreign ExchangeRegulation Act would be undertaken in the light ofsubsequent developments and experience in relation toforeign trade and investment. It was subsequentlyfelt that a better course would be to repeal theexisting Foreign Exchange Regulation Act and enact anew legislation. Reserve Bank of India wasaccordingly asked to undertake fresh exercise andsuggest a new legislation. A Task Force constitutedfor this purpose, submitted its report in 1994recommending substantial changes in the existing Act.Significant developments have taken place since1993 such as substantial increase in our foreignexchange reserves, growth in foreign trade,rationalisation of tariffs, current accountconvertibility, liberalisation of Indian Investmentsabroad, increased access to external commercialborrowings by Indian corporates and participation offoreign institutional investors in our stock markets.Keeping in view the changed environment, theCentral Government has decided to introduce theForeign Exchange Management Bill and repeal theForeign Exchange Regulation Act, 1973. The provisions https://hcservices.ecourts.gov.in/hcservices/ of the Bill aim at consolidating and amending the lawrelating to Foreign Exchange with the objective offacilitating external trade and payments and forpromoting the orderly development and maintenance offoreign exchange markets in India.7. Therefore, there is a complete departure was made from theearlier enactment, namely, Foreign Exchange Regulation Act, 1973(for short, FERA), which was repealed by Section 49 of FEMA. Theconcept of an offence being committed has been dispensed with. Thepresent procedure under the Act is for imposition of a penaltycontravention of the provisions of the Act. Any contravention ofFEMA is determined by an adjudicating authority. There is a furtherappeal to the Special Director, failing which, there is furtherappeal to an Appellate Tribunal for Foreign Exchange. The Act alsoprovides for compounding of contraventions under Section 15 of FEMA.Therefore, the entire face of the Act has completely been overhauledand the concept of the offence has been removed and replaced only bypenalty with a two-tier appellate system. Therefore, at this stage,it is unthinkable to question the summons issued by the EnforcementDirectorate under Section 37 of the FEMA. 8. Section 37 of FEMA reads as follows:-''37. Power of search, seizure, etc. - (1) theDirector of Enforcement and other officers of Enforcement,not below the rank of an Assistant Director, shall take upfor investigation the contravention referred to in section13.(2) Without prejudice to the provisions of sub-section (1), the Central Government may also, bynotification, authorise any officer or class of officersin the Central Government, State Government or the ReserveBank, not below the rank of an Under Secretary to theGovernment of India to investigate any contraventionreferred to in section 13.(3) The officers referred to in sub-section (1) shallexercise the like powers which are conferred on income-taxauthorities under the Income-tax Act, 1961 (43 of 1961)and shall exercise such powers, subject to suchlimitations laid down under that Act."9. Since Section 37(3) of FEMA applies the provisions ofSection 131 of the Income Tax Act, it is necessary to extract thatprovision, which reads as follows:-''131. Power regarding discovery, production of evidence,etc.- https://hcservices.ecourts.gov.in/hcservices/ (1) The Assessing Officer, Deputy Commissioner(Appeals), Joint Commissioner, Commissioner (Appeals) andChief Commissioner or Commissioner shall, for thepurposes of this Act, have the same powers as are vestedin a court under the Code of Civil Procedure, 1908 (5 of1908) when trying a suit in respect of the followingmatters, namely:-(a) discovery and inspection(b)enforcing the attendance of any person, including anyofficer of a banking company and examining him onoath;(c)compelling the production of books of account andother documents; and(d)issuing commissions.(1A). If the Director General or Director or JointDirector or Assistant Director or Deputy Director or theauthorised officer referred to in sub-section (1) ofsection 132 before he takes action under clauses (i) to(v) of that sub-section, has reason to suspect that anyincome has been concealed, or is likely to be concealed,by any person or class of persons, within hisjurisdiction, then, for the purposes of making anyenquiry or investigation relating thereto, it shall becompetent for him to exercise the powers conferred undersub-section (1) on the income-tax authorities referred toin that sub-section, notwithstanding that no proceedingswith respect to such person or class of persons arepending before him or any other income-tax authority.(2) (omitted by the Direct Tax Laws (Amendment) Act,1987, w.e.f.1.4.1989).(3) Subject to any rules made in this behalf, anyauthority referred to in sub-section (1) (or sub-section(1A) may impound and retain in its custody for suchperiod as it thinks fit any books of account or otherdocuments produced before it in any proceeding under thisAct:Provided that an Assessing Officer or an AssistantDirector or Deputy Director shall not-(a)impound any books of account or other documentswithout recording his reasons for so doing, or(b)retain in his custody any such books or documentsfor a period exceeding fifteen days (exclusive ofholidays) without obtaining the approval of theChief Commissioner or Director General orCommissioner or Director therefor, as the case maybe." https://hcservices.ecourts.gov.in/hcservices/

10. The Act has deliberately chosen not to apply the concept ofsummons used either under the Code of Civil Procedure or under theCode of Criminal Procedure, but has chosen to apply analogousprovisions found in the Income Tax Act. Therefore, whileinterpreting the scope and width of Section 37 of FEMA, one cannotapply the concept of summons as available to a Civil Court under theCode of Civil Procedure, only because the power of a Civil Court wasconferred on the authorities. 11. The word ''summons'' is defined in K.J.Aiyar's JudicialDictionary (10th Ed. 1988) to mean as ''a call of authority toappear before a Judicial Officer". In the Oxford Dictionary of Law(2003) published by the Oxford University Press, it is defined asfollows:-''A court order to an individual to appear in court at aspecified place and time. The term is used in criminalcases for appearance at a Magistrate's Court. Before theintroduction of the Civil Procedure Rules in 1999, it wasused in civil cases for hearing in the county court andapplications to a Judge sitting in chambers aboutprocedural matters prior to the court hearing. Such ordersare now made by application notice."12. Mr.B.Kumar, learned Senior Counsel referred to the case ofBarium Chemicals Ltd. and another -vs- Sh. A.J.Rana and othersreported in (1972) 1 SCC 240. The said judgment arose in the contextof interpreting Section 19(2) of the Foreign Exchange RegulationAct, 1947. Under Section 19(2), it is stated that where the CentralGovernment or the Reserve Bank considers it necessary or expedientto obtain and examine any information, book or other document in thepossession of any person or which in the opinion of the CentralGovernment or the Reserve Bank, it is possible for such person toobtain and furnish, the Central Government, or, as the case may be,the Reserve Bank may, by order in writing, require any such person(whose name shall be specified in the order), to furnish or toobtain and furnish, to the Central Government or the Reserve Bank orany person specified in the order with such information, book orother document. 13. While interpreting Section 19(2) of FERA, in paragraph 14of Barium Chemicals Case (cited supra), it was observed as follows:-''14. The words 'considers it necessary' postulatethat the authority concerned has thought over thematter deliberately and with care and it has beenfound necessary as a result of such thinking to passthe order. The dictionary meaning of the word'consider' is 'to view attentively, to survey, https://hcservices.ecourts.gov.in/hcservices/ examine, inspect (arch), to look attentively, tocontemplate mentally, to think over, meditate on,give heed to, take note of, to think deliberately,bethink oneself, to reflect' (vide shorter OxfordDictionary). According to Words and Phrases –Permanent Editiion Vol. 8-A 'to consider' means tothink with care. It is also mentioned that to'consider' is to fix the mind upon with a view tocareful examination; to ponder; study; meditate upon,think or reflect with care. It is, therefore,manifest that careful thinking or due application ofthe mind regarding the necessity to obtain andexamine the documents in question is sine qua non forthe making of the order. If the impugned order wereto show that there has been no careful thinking orproper application of the mind as to the necessity ofobtaining and examining the documents specified inthe order, the essential requisite to the making ofthe order would be held to be non-existent."14. Therefore, placing reliance upon the said passage, it isstated that Section 131 (1A) of the Income Tax Act is also ananalogous provision and, therefore, the summons before its issuancemust be based on reasons and calling for all the documents relatingto an immovable property owned by the petitioner is nothing but afishing expedition. In the Barium Chemicals case (cited supra) inparagraph 19, the Supreme Court had also observed as follows:-''19. The fact that an omnibus order was made inrespect of all documents relating to the appellants,which were in the custody of the Registrar under theorder of this Court, including some of the documentswhich have not even remotest bearing on the mattercovered by the Act, goes to show that there was no dueapplication of the mind by the authority concerned. Asmentioned earlier, an essential condition precedent tothe making of an order under Section 19(2) is that theauthority concerned should have considered it necessaryto obtain and examine for the purpose of the Act thespecified information, book or other document. Theelement of due care and attention which is an essentialingredient of the phrase 'considers it necessary' islacking in this case. As such, the impugned ordershould be held to be not in conformity with sub-section(2) of Section 19 of the Act."15. It is in this context, the learned Senior Counsel submittedthat the summons has been issued not in conformity with the FEMA andthere is no basis for calling for such information. It is alsosubmitted that the Calcutta High Court vide its judgment in New https://hcservices.ecourts.gov.in/hcservices/ Central Jute Mills Co. Ltd. -vs-Dwijendralal Brahmachari and othersreported in 1973 Vol.90 I.T.R. 467 dealt with the scope of Section131 of the Income Tax Act. Applying the Barium Chemicals case whileinterpreting the said section, it was observed as follows:-''It is true that the language of the two sections isdifferent but under both the sections it is necessaryto apply the mind to determine the question ofrelevancy of the documents. Under section 131 of theIncome Tax Act, 1961, the officers mentioned thereinhave no larger power than a civil court trying a suit,under the Code of Civil Procedure, and the powers todirect production, discovery and inspection ofdocuments are controlled by section 30 of the CivilProcedure Code and Order 11 of the Code. But the civilcourt cannot direct production of any document unlessit considers that the said documents are relevant. Inthis case it is difficult to accept the position thatthe Income-tax Officer considered the said documentsto be relevant for two reasons. Firstly, admittedly,the Income-tax Officer did not have and could not haveany knowledge about the contents of the documents.Secondly, the omnibus nature of the order passed alsoindicated non-application of the mind. Counsel for thepetitioner in this connection drew my attention to adecision of T.K.Basu, J. in the case of Dwarkadas ShahBrother Private Ltd. -vs- Income-tax Officer, ''F''Ward, Companies District, III (Matter No.60 of 1967,decided on 01.12.1969). The facts of that case wereslightly different because there a third party wasdirected to produce the documents. In such cases,unless the documents are identified, there might bedifficulty in complying with the order. Here, in viewof the fact that the documents had been seized beforethe issue of the summons, it may be considered fromone point of view that the documents have beenidentified. But, it appears for the reasons mentionedhereinbefore that the documents had been directed tobe produced without consideration of the relevancy ofthe documents. Therefore, in view of the judgment ofthe Supreme Court in the case of Barium Chemicals Ltd.-vs- A.J.Rana (AIR 1972 S.C.591), in this case I mustaccept the petitioner's contention that there has beenno application of mind by the Income-tax Officer and,as such, the impugned summons was beyond the powerunder Section 131 of the Income-tax Act, 1961."16. The said judgment came to be confirmed by a Division Benchof the Calcutta High Court in Dwijendra Lal Brahmachari and others-vs- New Central Jute Mills Co. Ltd. and another reported in 1978 https://hcservices.ecourts.gov.in/hcservices/ Vol.112 I.T.R. 568. At page Nos.573 and 574, it was observed asfollows:-''From a perusal of section 131 of the Income-tax Act,we are of the opinion, that the power of the Income-taxOfficer under that section is co-extensive with that ofa court trying a suit under section 30 of the CivilProcedure Code, read with rules 12, 14 and 15 of Order11 of the Code. Section 131 empowers the officersmentioned in the section to act for the purpose of theAct, but that cannot be the only limitation set outunder section 131 imposed upon the powers of theofficers mentioned in the said section to act in theterms of the said section. All statutory bodies mustact for the purposes of the statute even though theterm ''for the purposes of the Act" be not expresslystated. Secondly, it appears to us that the statutorypower cannot be exercised without application of mindas urged by Mr.R.C.Deb appearing on behalf of therespondent. If such powers are granted then such powerswould be so naked that the section itself would becomeultra vires. Application of mind must be in regard tothe question of relevancy of the documents to the lisinvolved in the matter before the Income-tax Officer. Acivil court cannot order discovery, production orinspection of documents until it is of the opinion thatsuch documents are relevant for the purpose of theissues involved in the suit pending before it.Similarly, it seems to us that the officers mentionedin section 131 of the Income-tax Act have been vestedwith powers to make the orders as mentioned thereinprovided they are satisfied that the orders made wouldbe relevant for the purpose of deciding the casepending before them. If we hold otherwise, we would beholding that section131 (1) has conferred naked andarbitrary powers upon such officers which would makethe section itself liable to be struck down. It appears from the terms requiring theproduction of the books, documents, etc. as containedin the above-quoted notice under section 131 (1)(c)that the Income-tax Officer concerned had no idea asto what those documents were and as such there was nooccasion for him to apply his mind to the question asto whether the same were relevant or necessary for thepurpose of assessment or re-assessment of the incomeof the respondent company for any particular year. Itseems to us that it has been admitted that, as thedocuments were lying in sealed boxes, the officerconcerned could not and, in fact, did not apply his https://hcservices.ecourts.gov.in/hcservices/ mind to those documents. In the premises, it appearsthat the Income-tax Officer did not apply his mind tothe question of relevancy of documents in determiningany issue required to be determined by him. The wideambit of the language requiring the production of thedocuments itself goes to show that the officerconcerned did not apply his mind at all to the natureof the documents or the purpose for which he requiredthe production of the said documents."17. Once again another Division Bench of the Calcutta HighCourt in Income-Tax Officer and others -vs- James Joseph O'Gormanreported in 1993 Vol.204 I.T.R. 454, referred to DwijendralalBrahmachari's case (cited supra) and in page 458, it was observed asfollows:-''Under the circumstances, it appears that theissuance of such notice by the Income-tax Officer waswithout jurisdiction. It has been averred in paragraph10 of the writ petition that in respect of proceedingswhich were pending similar notices were issued by theIncome-tax Officer and those had been duly compliedwith. Under the circumstances, as very rightlyobserved by the learned court below, the Income-taxOfficer was not entitled to exercise such power as amere cloak for the purpose of making a fishinginvestigation and a roving enquiry in order to takeproceedings under section1 47 of the Act."18. But this line of reasoning did not find acceptance by thiscourt. A Division Bench of this Court in V.Datchinamurthy andanother -vs- Assistant Director of Inspection (Intelligence),I.T.Department and another reported in 1984 Vol.149 I.T.R. 341, setout the purpose of the power conferred on an Income-tax Officerunder Sections 131 and 132 of the Income Tax Act. In page 356,V.Sethuraman, J. speaking for the Bench, had observed as follows:-''It is thus manifest that there is great latitudeallowed to the ITO in the collection of materials andhe does not act as a court at that stage. There are notwo parties before him, and the procedure in theadversary system of proceedings cannot be applied tohim. However, the ITO, before he uses the materials socollected, is bound to give the necessary opportunityto the assessee to test the evidence, to adduce anyevidence in rebuttal and to explain the facts thatappear against him. Thus, it is clear that the ITOcannot be asked to put on, or be thrust with, the garbof a court, even at the stage of collection ofevidence. There can be no reasonable apprehension ofthe ITO not utilising the favourable materials https://hcservices.ecourts.gov.in/hcservices/ appearing in such evidence. The Supreme Court hasexamined this aspect in Suraj Mall Mohta and Co. -vs-A.V.Visvanatha Sastry (1954) 26 ITR 1, at page 13 andpointed out the rights available to the assessee underthe I.T.Act as contrasted with the rights availableunder the Taxation on Income (Investigation Commission)Act, 1947 (Act No.XXX of 1947). It was pointed out thatwhile in the proceedings under Act No.XXX of 1947, theassessee would be entitled only to get copies of thatportion of the materials, which were brought on recordand which were going to be used against him, theportion of the material which was in his favour andwhich had not been brought on record may not beavailable to him. In contrast, it was observed thatthere was fullest right of inspection under ordinarylaw and the Civil Procedure Code available to anassessee in order to meet the case made against him. Wecannot assume that the ITO is not likely to act inaccordance with law and give directions to him.Therefore, the apprehension of the Federation at thisstage appears to be absolutely misconceived."19. Mr.M.Dhandapani, learned special counsel for EnforcementDirectorate submitted that the provisions of FEMA cannot be comparedwith the provisions of other enactments. Here the question ofapplication of Article 20(3) or Article 21 of the Constitution doesnot arise. A person who is summoned to appear before the EnforcementDirectorate is not an accused in a criminal case. The Supreme Courtin Poolpandi -vs- Superintendent, Central Excise reported in 1992(60) ELT 24 (SC) in dealing with the analogous provision of theCustoms Act, held that the purpose of Customs Act or similar statutewill be completely frustrated, if whims of the person in possessionof useful information for the Department are allowed to prevail. Therelevant provisions of the Constitution have to be construed in thespirit in which they were made and the benefits thereunder shouldnot be expanded to favour the exploiters engaged in tax evasion atthe cost of public exchequer and, therefore, such persons do nothave the protection of Article 20(3) of the Constitution. 20. He also referred to the judgment of this Court inT.T.V.Dinakaran -vs- Enforcement Officer, Enforcement Directoratereported in 1995 (80) ELT 745 (Mad) for the purpose of stating thatunder the earlier enactment, viz., FERA, 1973, the attempt tochallenge the summons served under section 40 was repelled by thisCourt. In paragraph 11, it was stated as follows:-Para 11. .''.... ... Moreover, if the summons is takeninto consideration it is stated therein that thepetitioner's attendance is necessary to giveevidence and/or to produce documents in aninvestigation being made by the respondent under https://hcservices.ecourts.gov.in/hcservices/ the FERA Act. So far as the documents mentionedare concerned, it is mentioned the petitioner'spassport, petitioner's account books relating tohis accounts in India and abroad and his propertydetails. If we take into consideration therequired documents mentioned in the schedule, theenquiry relates only to the petitioner in respectof his involvement in some transaction under theFERA Act. If the investigation relates to anyother person, then the authorities would havementioned the documents relating to the concernedthird parties or the transaction between thepetitioner and those third parties. Hence, I am ofthe view that the non-mentioning of the (nature)of investigation and the purpose of therequirement of documents do not vitiate thesummons in any manner."21. Further, the attack on the ground of non-application ofmind and also summoning of documents having nexus with theinvestigation, were also repelled by this Court in paragraphs 12 and13 and it reads as follows:-Para 12. ''So far as the second point is concerned, thelearned Senior Counsel for the petitioner contendsthat the summons has been issued withoutapplication of mind, because it does not specifyas to whether the appearance of the petitioner isnecessary to give evidence or to produce thedocuments specified in the schedule or for bothbecause 'and/or' has been left without strikingout the unnecessary words. It is specificallystated in the summons that the Enforcement Officerconsidered the attendance of the petitionernecessary. When once these words are specified inthe summons, that is an indication for theapplication of the mind of the authority issuingsummons that he has satisfied that the attendanceof the petitioner is necessary for the purposementioned in the summons. The non-striking of thewords either 'and' or 'or' (does) not go to showthat the respondent has not applied his mindbefore ever the summons were issued. Whenever theattendance is required to give evidence and toproduce documents, it is clear that the concernedperson is required for both the purposes. Sometimes on production of the documents the authoritymay satisfy without recording any evidence thatthe petitioner's involvement is not there, thenthe petitioner may be free. In case if on the https://hcservices.ecourts.gov.in/hcservices/ verification of the records he found that thepetitioner's involvement is there, in that case,naturally his statement has to be recorded. Atthis stage, it may not be possible for theconcerned authorities to issue summons for arestricted purpose. It is known that the summonsare being issued only to hold the preliminaryenquiry and hence it would be too premature forthe petitioner to contend that the authorityshould apply his mind for what purpose thepetitioner's attendance is required and indicatethe same in the summons. Hence, this contention isalso rejected.Para 13. ''So far as the third point is concerned thatthe documents and the investigation must havenexus with each other, as already mentioned whileconsidering the first point, that the documentsmentioned are only concerned with the petitioneri.e. his passport, his bank account passbooksrelating to his accounts in India and abroad andhis property details. The documents 'are' all'not' related to third parties but related to thepetitioner himself. While so, the investigationmay be in respect of the petitioner himself or inrespect of third person who had some connectionwith the petitioner. When there is suspicion withregard to the involvement of the petitioner in anyof the transactions which are prohibited under theFERA Act, it is open to the authorities to summonhim for enquiry. Since the documents arepertaining to him, it cannot be said that theinvestigation has no nexus with the documentscalled for from the petitioner. When aninvestigation is commenced, it is not possible forthe authorities to come to the conclusion withretard to the involvement or the non-involvementof any person until the enquiry is completed.During the enquiry if the authorities get anyinformation with regard to the involvement of anyother individual, those individuals can also besummoned by the concerned officer in order tocomplete the enquiry. When Section 40(4) of theFERA Act specifically mentions that theproceedings taken by the authorities are judicialproceedings, it is not open to the petitioner tochallenge the summons issued under the saidproceedings as ab initio void. The petitionercannot claim any right under Article 21 of theConstitution of India and Section 24 of theEvidence Act, as he is not an accused." https://hcservices.ecourts.gov.in/hcservices/

22. The learned special counsel has also referred to anotherjudgment of this Court in Kishore J.Chawla -vs- Union of Indiareported in 2000 (117) ELT 4 (Mad.), wherein this Court has heldthat when a person is examined under Section 108 of the Customs Act,1962, he does not have a right to have the assistance of a lawyer.This was on the premise that the proceedings under the enactmentcannot be compared with the principles evolved in criminal cases.Therefore, it was stated that the attempt by the petitioner to stallanswering the summons issued by the Department is completelymisconceived. The learned Special counsel for the EnforcementDirectorate also produced the original file relating to the summonsfor the perusal of this Court. This Court perused the file. Onperusal, it cannot be said that there was no material for theissuance of the summons. 23. It must be noted that out of three documents, the first twodocuments, viz., the passport and the bank passbook (with upto dateentries) will have relevance to the issue on hand. Therefore, thepetitioner cannot feel shy of producing these documents. However,the learned Senior Counsel Mr.B.Kumar alternatively submitted thatthe production of all the immovable property documents is totallymisconceived. The power under section 37 of the FEMA cannot bestretched to the level of disturbing every private citizens to partwith all the information in the absence of relevance for the same.24. In this context, it is necessary to refer to Section 13(2)of the FEMA. The explanation to Section 13(2) defines ''property"and Section 13(2)(c) deals with a property which has resulted out ofthe conversion of that property. Under the said sub-section, theadjudicating authority, adjudging the contravention under sub-section (1) to Section 13, if he thinks fit then in addition to anypenalty, which he may impose for such contravention, direct theproperty in respect of which the contravention has taken place to beconfiscated to the Central Government. Therefore, the petitionercannot contend that he has no obligation to inform the authoritiesabout the nature of properties possessed by him. 25. The Supreme Court in C.Sampath Kumar -vs- EnforcementOfficer reported in (1997) 8 SCC 358, while deciding the case inrespect of Section 40 of the FERA, held that when a person issummoned and examined under Section 40, it cannot be presumed that astatement will be obtained under pressure or duress. In fact it washeld in that case that such a statement obtained does not infringethe constitutional guarantee of protection against self-incrimination under Article 20(3) of the Constitution. Therefore,the concept of applying the theory of self-incrimination even at thestage of investigation in case of violation of FEMA cannot be raisedto the level of an investigation of a criminal offence protected byArticles 20(3) and 21 of the Constitution. https://hcservices.ecourts.gov.in/hcservices/

26. If it is seen in this context, then the attack made againstthe summons issued by the Department cannot be countenanced by thisCourt. The petitioner in essence seeks for a writ of prohibitionagainst the department for having issued the summons by the exerciseof the powers vested on them under section 37 read with section 131of the Income Tax Act. In Standard Chartered Bank and others -vs-Directorate of Enforcement and others reported in (2006) 4 SCC 278which arose out of the FERA violation, the Supreme Court spelt outthe parameters in entertaining a writ petition against initiation ofadjudication proceedings. Para 25 of the said decision may beusefully extracted below:-''25. The prayer for the issue of a writ ofprohibition restraining the authorities under the Actfrom proceeding with the adjudication and theprosecution is essentially based on the constitutionalchallenge to the relevant provisions of the Act on theground that they violate Articles 14 and 21 of theConstitution. Once we have held, as the High Courtdid, that the provisions are constitutional, the basison which the writ of prohibition is sought for by theappellants disappears. It is settled by the decisionsof this Court that a writ of prohibition will issueto prevent a tribunal or authority from proceedingfurther when the authority proceeds to act without orin excess of jurisdiction; proceeds to act inviolation of the rules of natural justice; or proceedsto act under a law which is itself ultra vires orunconstitutional. Since the basis of the claim for therelief is found not to exist, the High Court rightlyrefused the prayer for the issue of a writ ofprohibition restraining the authorities fromcontinuing the proceedings pursuant to the noticesissued. As indicated by this Court in State of U.P.-vs- Brahm Datt Sharma (1987) 2 SCC 179 when a show-cause notice is issued under statutory provisioncalling upon the person concerned to show cause,ordinarily that person must place his case before theauthority concerned by showing cause and the courtsshould be reluctant to interfere with the notice atthis stage unless the notice is shown to have beenissued palpably without any authority of law. On thefacts of this case, it cannot be said that thesenotices are palpably without authority of law. In thatsituation, the appellants cannot successfullychallenge the refusal by the High Court of the writ ofprohibition prayed for by them." https://hcservices.ecourts.gov.in/hcservices/

27. Therefore, the attempt by the petitioner to stall thesummons issued by the respondent has to be necessarily rejected.Accordingly, the writ petition will stand dismissed. However, therewill be no order as to costs. Consequently, the connectedmiscellaneous petition is also dismissed.jsSd/-Asst. Registrar//True Copy//Sub Asst. RegistrarToThe Assistant Director,Enforcement Directorate,Government of India,Sastri Bhavan, Chennai-6. + 1 cc to Mr. M. Dhandapani, Standing Counsel for EnforcementDirectorate SR No.63135+ 1 cc to Mr. S. Ramachandran, Advocate SR No.63142KA(CO)SR/2.12.2009 order in W.P.No.2429 of 2009and M.P.No.1 of 2009