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Bavajee Fakkir Muhammed and anr. Vs. the State of Kerala and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Case NumberCriminal Revn. Petn. Nos. 211 and 236 of 1966
Judge
Reported in1967CriLJ1641
ActsForeign Exchange Regulation Act, 1947 - Sections 19A, 19D and 19G; Code of Criminal Procedure (CrPC) , 1898 - Sections 439 and 523
AppellantBavajee Fakkir Muhammed and anr.
RespondentThe State of Kerala and anr.
Appellant Advocate N. Raghava Kurup and; V. Kalyanam Iyer, Advs., in Cri. R.P. No. 211 of 1966,;
Respondent Advocate V.A. Sayed Muhammed, Adv. General and; V. Narayana Menon, Adv., for No. 2,;
DispositionPetitions dismissed
Cases ReferredCourt. In Smt. Godavari Shamrao Parulekar v. State of Maharashtra
Excerpt:
.....of offence under foreign exchange regulation act (fera) - certain documents seized from accused - enforcement officer sought delivery and custody of certain document for purpose of investigation - section 19d empowers enforcement officer only to seize documents and not to retain them in his custody - his possession of documents for any lengath of time would be unlawful - provision for seizure of suspected articles necessarily implies power in seizing officer to retain them for reasonable time to facilitate purpose for which their seizure has been made - documents should be released. - - it is well established that when an authority passes an order which is within its competence, it cannot fail merely because it purports to be made under a wrong provision if it can be shown to be..........the documents seized from them respectively. on information passed by the police, the enforcement officer, enforcement directorate, cochin, intervened in the proceedings before the sub magistrate, chengannur, and moved for delivery to him of some of the documents (inclusive of all the currency notes) kept in the custody of the court; and the sub magistrate has allowed the same, repelling the counter motions by the petitioners. the petitioners challenge those orders in these petitions for revision thereof2. in his application, the enforcement officer made clear that the documents sought were 'to facilitate investigation under the foreign exchange regulation act, 1947'. along with the application he produced in court a letter dated april 7, 1966, of the deputy director, enforcement.....
Judgment:
ORDER

M. Madhavan Nair, J.

1. On March 12, 1966, the Sub Inspector of Police at Chengannur found the petitioner in Crl. R. P. No. 211 of 1966, travelling in taxi with Rs. 25,000 odd in currency notes and certain documents of strange contents. As he could not account for his possessions, the Sub Inspector suspected some sharp practice and therefore, seized the documents the terms 'documents' in this judgment includes currency notes and arrested the accused. On information obtained from him the Circle Inspector, Chengannur, went to the house of the petitioner in Crl. R. P. 236 of 1966 and recovered another sum Rs. 11,000 in currency notes the same day. All the documents thus seized were sent to the Court of the Sub Magistrate, Chengannur. After investigation, the Police reported to the Magistrate that no crime cognizable by them could be detected and that they suspected the accused to be a member of an international gang engaged in violations of the Foreign Exchange laws. The petitioners herein moved for return of the documents seized from them respectively. On information passed by the Police, the Enforcement Officer, Enforcement Directorate, Cochin, intervened in the proceedings before the Sub Magistrate, Chengannur, and moved for delivery to him of some of the documents (inclusive of all the currency notes) kept in the custody of the Court; and the Sub Magistrate has allowed the same, repelling the counter motions by the petitioners. The petitioners challenge those orders in these petitions for revision thereof

2. In his application, the Enforcement Officer made clear that the documents sought were 'to facilitate investigation under the Foreign Exchange Regulation Act, 1947'. Along with the application he produced in Court a letter dated April 7, 1966, of the Deputy Director, Enforcement Directorate, Government of India, Madras, which reads thus:

'The Central Government hereby authorises Sri M.P. Gopinathan, Enforcement Officer, Enforcement Directorate, Ministry of Finance, Department of Revenue and Insurance, Government of India, Cochin, to make a representation to the Sub Magistrate, Chengannur and to receive certain documents relevant to the enquiry in respect of Crime No. 46 of 1966 of Chengannur Police Station for further investigation under Foreign Exchange Regulation Act, 1947 (VII of 1947)'.

3. Section 19-D of the Foreign Exchange Regulation Act, 1947-1964, hereinafter 'the Act' for short reads:

'If an officer of Enforcement, not below the rank of Assistant Director of Enforcement has reason to believe that any documents which in his opinion will be useful for or relevant to any proceeding under this Act, are secreted any place, he may authorise any officer of Enforcement to search for and seize .....such documents'.

Sub-section (7) of Section 19-A of the Act defines that 'in Sections 19-C to 19-G, the expression 'document' includes Indian currency, foreign exchange and books of account.'

4. The learned Advocate General, appearing for the Enforcement Officer, submitted that the above said letter of the Deputy Director, Enforcement Directorate, is an authority issued to the Enforcement Officer, Cochin, to search for and seize the documents in question under Section 19-D of the Act. That the Deputy is above the rank of an Assistant Director of Enforcement mentioned in Section 19-D is conceded on all hands. Contention of counsel for petitioners is that the said letter is invalid in law because it is not in conformity with Section 19-D of the Act. What is contemplated by Section 19-D is an empowerment by the Officer himself; but the letter in question purports to be an authorisation by the Central Government, acting through the Deputy Director, Enforcement Directorate, Madras. I am afraid that this formal defect would not invalidate, much less nullify, the authority conferred by the letter. In Hukum Chand Malhotra v. Union of India, AIR 1959 SC 536, it has been observed:

'Mr. Chatterjee referred to certain mistakes of reference in the order of the President dated October 1, 1954. Instead of referring to Rule 15 of the Government Servants' Conduct Rules, Rule 13 was referred to. There was also a reference to para 5 of a particular Government order which prohibited Government servants from taking up commercial employment within two years of retirement. Mr. Chatterjee submitted that this particular order did not apply to Government servants in Class II. We do not think that the inaccurate references were of any vital importance. In effect and substance the order of removal dated October 1, 1954, was based on the ground that the appellant violated Rule 15 of the Government Servants' Conduct Rules and Rule 11 of the Fundamental Rules; he accepted private employment without sanction of the Government while he was still in Government service. That was the basis for the enquiry against the appellant and that was the basis for the order of removal passed against him.

For these reasons we hold that there is no merit in the appeal ........'.

And recently in Lekharaj Sathramdas v. N.M. Shah, AIR 1968 SC 334, the Supreme Court held:--

'It is true that the order Exts. P-18 and P.16 is signed by Mr. Mathur as 'the Managing Officer-cum-Deputy Custodian of Evacuee Property' but the order of removal of the appellant from the management is valid because Mr. Mathur had the legal competence to make the order under the 1950 Act, though he has also described himself in that order as Managing Officer. It is well established that when an authority passes an order which is within its competence, it cannot fail merely because it purports to be made under a wrong provision if it can be shown to be within its power under any other rule, and the validity of the impugned order should be judged on a consideration of its substance and not of its form. The principle is that we must ascribe the act of a public servant to an actual existing authority under which it would have validity rather than to one under which it would be void'.

The Deputy Director of the Enforcement Directorate is competent to authorise seizure of documents under Section 19-D of the Act for purposes of a probable proceeding under the Act; and the letter in question appears to be such an authorisation by the Deputy Director. Though the statutory provision under which the letter is issued is not indicated therein, the Deputy Director must be deemed to have acted under Section 19-D of the Act; and his describing himself therein as a representative of the Central Government is immaterial and may, as such, be ignored. I hold that the Enforcement Officer has been lawfully empowered by the Deputy Director to seize the documents in question from any person concerned.

5. The next question is whether he can, by virtue of that authority, move the Sub Magistrate, who has the custody of the required documents, to deliver them to him. Under Section 523 of the Code of Criminal Procedure, property seized by the police on suspicion and produced before a Magistrate has to be returned to the person entitled to the possession thereof. Normally, when no offence is found by the Magistrate, the person entitled may be the person from whom the property was seized. But if the Enforcement Officer is entitled to seize the property immediately from such person, he may be the person entitled to the present possession thereof. It would be an empty formality, in the face of the application moved by the Enforcement Officer, to have the property delivered to the petitioners under Section 523 Crl. P. C. and then seized by the Enforcement Officer from the hands of the petitioners at the gate of the Magistrate's Court. In Smt. Godavari Shamrao Parulekar v. State of Maharashtra, AIR 1964 SC 1128, the appellants were detained by an order dated November 7, 1962, of the Commissioner of Police under the Preventive Detention Act. On November 10, that order was revoked and another order for their detention was made by the Government under the Defence of India Rules and served on the appellants In jail. The Supreme Court observed :

'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, 1992, as soon as they were out of jail'

and upheld the continued detention of the appellants as lawful. The principle in that dictum applies well to the facts and circumstances of the present ease. Instead of enacting a mere farce, without any purpose to anybody, to hand over the documents to the petitioners and then to have them seized immediately by the Enforcement Officer, the Magistrate directed delivery of the document straight to the Enforcement Officer. I find he was quite right in doing so -- the delivery to the Officer being considered in law as a delivery to the petitioners under Section 523 Crl P. C. followed by immediate seizure from the petitioners by the Enforcement Officer under Section 19-D of the Foreign Exchange Regulation Act.

6. Counsel for petitioners urged that there is no ground in these cases to suspect any violation of the Foreign Exchange law by the petitioners. The learned Advocate General, on behalf of the Enforcement Officer, assures me that the investigation in the matter, is not yet over. I am afraid that the adequacy, or sufficiency of grounds to suspect violations of Foreign Exchange law by the petitioners cannot he gone into in these motions. The Sub Magistrate has observed that the petitioners have not made any attempt before him to explain how they came into possession of the large amounts seized from them. It is too early now to have any opinion on the matter which is only in the stage of a preliminary investigation by the statutory authorities.

7. It is next contended that no investigation in a case of suspected violation of that Act is contemplated or provided for in the Act and that therefore the Enforcement Officer cannot seek the custody of the documents in question to facilitate an investigation of an offence under the act. The act contains express provisions for arrest of suspected persons, and for search and seizure of documents in their possession (Vide Sections 19-A and 19-D), they necessarily connote an investigation in oases of suspected violations of the provisions of the Act.

8. Lastly it is contended by counsel that Section 19-D empowers the Enforcement Officer only to seize the documents and not to retain them in his custody and that therefore his possession of the documents for any length of time would be unlawful. The argument appears to me desperate. A provision for seizure of suspected articles necessarily implies power in the seizing officer to retain them for a reasonable time to facilitate the purpose for which their seizure has been made. The provisions of Section 19-G which relates to custody of documents would be attracted only at a later stage of the proceeding, not immediately on seizure under Section 19-D. It is only after a preliminary investigation, the Enforcement Officer who seizes the documents can be expected to pass the result of his investigation to the Director of Enforcement, when, the latter may exercise his powers under Section 19-G. The length of time that may be considered reasonable for the Enforcement Officer to retain the documents in his custody to facilitate his investigations under the Act does not arise now, in these proceedings.

9. All the grounds urged by counsel inthese motions are thus found to be withoutmerit. The motions fail and are dismissedhereby.


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