T.N.R. Tirumalpad, J.C.
1. These two Writ petitions have been taken up together as the facts in both the cases are more or less the same and as the same questions of law are involved.
2. Shyama Charan Saha is the petitioner in Writ petition No. 29 of 1959. He states that he has been dealing m foreign exchange namely, Pakistan currency notes and coins as a business openly and publicly in his shop situated in Belonia Bazar for about six years past without any hindrance or objection from the police or customs authorities. On 25-2-59 the Officer-in-charge of Belonia police station, along with Sri Badal Dutta, a Sub-Inspector of police and Sri Prabir Chandra Deb Burma, an A. S. I. came to the Belonia Bazar at 10 A.M. and searched his shop along with some other shops, also dealing in Pakistan foreign currency and seized Rs. 2,704/11/- in Pakistan currency notes and coins of different denominations from his shop. This was done on the strength of a search warrant issued in favour of the O/C, Belonia police station by the Sub-divisional Magistrate, Belonia the respondent in the two petitions, under the provisions of the Foreign Exchange Regulation Act, 1947 (hereinafter to be called Act VII of 1947). A seizure list was' prepared by the A. S. I. and a carbon copy (Annexure A) of the same was supplied to the petitioner.
3. It is contended that the O/C, Belonia police station, who filed the application before the S.D.M., Belonia for the issue of the said search warrant was not duly authorised to file such an application either by the Central Government or by the Reserve Bank of India, as required by Sub-section (3) of Section 19 of Act VII of 1947 and hence the search warrant as well as the seizure on the strength of it were illegal, and invalid. It is further contended that even' if the search warrant was valid and legal, the seizure was not valid and legal as currency notes and coins cannot come within the purview of the word 'documents' under Sub-section (3) of Section 19. Hence the petitioner is entitled to get back the currency notes and coins which have been seized and detained by the police illegally and in violation of the fundamental rights guaranteed by the Constitution.
4. The petitioner is said to have repeatedly demanded the refund of the money, as no proceedings have been commenced against him before the expiry of the period of 4 months Under Section 23 of Act VII of 1947 either before the Director of Enforcement or before any court and hence the the S.D.M., it, is contended, cannot retain the seized currency after the expiry of the 4 months and is bound to return the same forthwith to the petitioner. It is stated that Pakistan currency notes and coins and books of accounts, belonging to 5 other dealers in Pakistan foreign currency of Belonia Bazar, were also seized on the same day on the strength of similar search warrants. The petitioner and the 5 other dealers sent a joint notice (Annexure B) on 24-6-59 to the S.D.M., Belonia demanding from him the refund of the said money and restoration of the book of account seized by the police and it was served on the S.D.M. on 26-6-59.
In response to the said demand notice, a reply (Annexure C) was received on 2-9-59 informing the petitioner and the others that the matter was lying with the Superintendent of Police, Tripura, and that he may be contacted in that connection. Hence the petitioner has come forward with this Writ petition to declare that the search warrant as well as the seizure of the Pakistan currency notes on the strength of the search warrant were illegal, ultra vires and unconstitutional and to issue a Writ of mandamus or other appropriate Writ directing the S.D.M., Belonia not to continue to give effect to the said seizure of the goods and to refund the Pak currency notes and coins amounting to Rs. 2,704/11/- to the petitioner forthwith.
5. The allegations made in Writ petition No. 30 of 1959 by Sachindra Kumar Sana, the petitioner therein are to the same effect except that the amount involved is Rs. 3,065/0/6 and that in addition to the currency and coins, some books of account were also seized from him and he prays for the return of the books of account also.
6. The respondent in his counter-statements in the two petitions does not admit that Shyama Charan Saha and Sachindra Kumar Saha have been dealing in Pakistan foreign exchange in Belonia Bazar, as it was not known to him. He contends that Pakistan currency notes come within the meaning of 'documents' as mentioned in Section 19(3) el Act VII of 1947. He further contends that the police officer concerned was authorised by a competent officer according to the rules framed under Article 77 of the Constitution. Again, according to the provisions of Section 19(3) of Act VII of 1947, the S.D.M., Belonia issued the search warrant Under Section 96 of the Criminal Procedure Code on the representation of the officer who was authorised in that behalf. Hence the officer concerned who was authorised to search was justified in seizing the Pakistan currency notes under the provisions of Section 96, CrIPC as the search warrant authorised the seizure. It is next contended that Section 19A of Act VII of 1947 enabled the Director of Enforcement to retain the documents for 4 months and that after the expiry of the 4 months, the Court which issued the search warrant Under Section 96 of the Criminal Procedure Code was legally competent to retain the documents including the Pakistan currency notes, seized Under Section 19(3) and hence the two petitioners were not entitled to any remedy in the Writ petitions.
7. In support of the counter-statements Annexures I, marked in the two petitions separately, were produced to show that the Director of Enforcement had authorised Sri Nani Gopal Bhatta-cherjee, Sub-Inspector of Police, Belonia to make a representation to a Sub-divisional Magistrate for obtaining permission to proceed against Shyama Charan Saha and Sachindra Kumar Saha in the manner indicated in Section 19(3) of Act VII of 1947 . Annexures 1 both bore the same date 20-1-1959.
8. The affidavits were also filed by Nani Gopal Bhattacherjee the Section 1. of police on 7-7-61 and 8-7-61 while these two petitions were part-heard. They were to the effect that on the strength of the authority, issued to him by the Director of Enforcement, he applied to the Magistrate in a cover marked 'secret' for the issue of the search warrants and that be received the search warrants issued in his favour authorising him to conduct the searches in the shops of the two petitioners, that thereafter the searches were conducted in accordance with law, that after completing the searches and seizing the currency notes, coins etc. he produced the seized articles before the S.D.M., Belonia, who kept them in the custody of the Court, that thereafter he received an order from the Superintendent of Police, Tripura with copy of a letter of the Assistant Director, Enforcement Directorate directing him to send the seized articles to the Enforcement Directorate after obtaining the order of the court, that he, accordingly, made a prayer to the S.D.M., Belonia to get back the seized articles, that the S.D.M. granted the prayer and the articles were returned to him which he sent to the Enforcement Directorate at Calcutta under Insured Cover.
9. Section 19 of Act VII of 1947 permits a Magistrate to issue a search warrant to search and seize any book or other document. The question which falls to be decided in these two petitions i whether the Pakistan currency including currency notes and coins seized from the petitioners will come within the meaning of 'any book or other document'. It is not the case of either party that they will come within the meaning of 'any book'. No doubt the books of account seized from Sachindra Kumar Saha will come within the meaning of 'any book'. But, it is the contention ot the petitioners that currency will not come within the meaning of 'other document'.
10. In support of this contention they strongly relied on the decision of my learned predecessor in Haripada Gupta v. State A.I.R. 1959 Tripura 33. It appears that there is no decision of any other High Court on this point. My learned predecessor's decision was also in a case which arose out of a search and seizure Under Section 19(3) of Act VII of 1947. In that decision, my learned predecess held that the words 'currency and foreign currency' have been defined in Section 2(b) and (c) of Act VII of 1947, but that the word 'document' has not been so defined in the Act, that it is clear from the language used in the Act that the word 'document' is used in a sense which excludes currency or foreign currency and that it was therefore not permissible to invoke the definitions of the word 'document' in the IPC and in the General Clauses Act, as was attempted on behalf of the State. This decision of my learned predecessor was taken in appeal to the Supreme Court by the State. Though the Supreme Court upheld my predecessor' order that the currency notes seized in that particular case should be returned to the party, it did so on another ground, namely, that the Sub-Inspector in that case had not been authorised to seize the currency notes in the manner prescribed by Section 19(3) of the Act.
With regard to the ground that foreign currency notes did not come within the scope of Section 19(3), their Lordships of the Supreme Court did not express any opinion, but stated that my learned predecessor need not have proceeded: to say anything regarding that point, as the other ground stated by him was itself sufficient to dispose of the matter and it did not arise for consideration in the case. The Supreme Court made it clear that they expressed no opinion as to the correctness or otherwise of the view taken by my predecessor as to whether foreign currency will come within the meaning of 'other document' in Section 19(3). They stated that it would be for the Court below to consider how this matter can be decided in any other case if and when the occasion arose.
11. Thus I shall have to decide this question afresh in these two cases. In one sense, it may appear unnecessary for me also to decide this question, as these two petitions will have to be allowed on other grounds, irrespective of a finding on this question, But this question is often cropping up for decision in this Court and it is necessary that a well considered decision is made on it, so that the Government and the other parties may know the real position under Act VII of 1947.
12. For deciding this matter, it will be necessary to understand the scheme of Act VII of 1947. The preamble of the Act states that it is expedient in the economic and financial interests of India to provide for the regulation of certain payments, dealings in foreign exchange and securities and the import and export of currency and bullion. Thus the Act is intended for the regulation of foreign exchange and the import and export of currency.
Foreign exchange is defined in Section 2 as meaning foreign currency. Currency is also defined in Section 2 as including foreign currency. Section 3 of the Act purports to regulate the dealing in foreign exchange by appointing authorised dealers. Section 4 imposes restrictions on dealing in foreign exchange. Section 5 imposes restrictions on payments with foreign exchange except those obtained from any authorised dealer or received by way of salary or payment for services. Section 8 permits the Government to place restrictions on import and export of certain classes of currency by means of a notification. Section 9 deals with the acquisition by the Central Government of foreign exchange from the owners or holders thereof and permits the Government by notification to acquire the same. Section 12 imposes restrictions regarding payment for exported goods. Section 23 of the Act makes the contravention of the provisions of Sections 4, 5, 9 and 12 or of any of the other provisions of the Act or of rules, directions or orders made thereunder punishable offences.
13. It is in the light of the preamble and the sections of the Act. which I have referred to, that we have to read Section 19. Section 19(1) permits the Government by a notification to direct owners of foreign exchange to make a return thereof to the Reserve Bank within such period as may be specified. Section 19(2) permits the Central Government or the Reserve Bank to obtain and examine any information, book or other document in the possession of any person for the purposes of the Act. Those purposes are contained' as far as currency is concerned in the sections I have dealt with earlier. Section 19(3) deals with the issue of search warrant by a Magistrate to search and seize any book or other document. Such search warrant can be issued if the Magistrate has reason to believe that a contravention of any of the provisions of the Act has been or is being or is about to be committed in any place or where a person, to whom an order Under Section 19(2) has been or might be addressed, will not or would not produce the information, book or otner document or where such information, book or other document is not known to the Magistrate to be in the possession of any person, or where the Magistrate considers that the purposes of any investigation or proceeding under the Act will Be served by- a general search or inspection and seizure of any book or other document.
Section 19A in particular deals with the custody of the documents, furnished or seized under Sub-sections (2) and (3) of Section 19 and permits the Director of Enforcement to have the custody for a period not exceeding 4 months, if he has reason to believe that the said documents would be evidence of the contravention of any of the provisions of the Act or of any rule, direction or order made thereunder. Such custody for the period beyond 4 months is restricted to cases where before the expiry of the said period of 4 months any proceedings Under Section 23 have been commenced by him or have been commenced before a Court. I shall have to deal with these provisions in Section 19A later in this order. For the present, I am dealing with the said provision only to consider the-question whether currency will be included within the meaning of the word 'other document' in Section 19(3).
14. Thus the various sections in the Act impose restrictions on the ownership, and possession of and dealing with foreign exchange, meaning foreign currency and the contravention of the restrictions have been made punishable Under Section 23 of the Act. I may also add that Section 23 (IB) permits the confiscation of any currency by a Court trying the contravention under Sub-section (1) or Sub-section (l)(a) of Section 23 in addition to any sentence or penalty, which it may impose for such contravention. Thus for the above purposes of the Act the production of the currency, including foreign exchange and foreign currency, before Court or the retention of the custody of the same with the Director of Enforcement becomes absolutely necessary. It is in the light of this that we have to see whether the term 'other document' in Section 19(3) will include currency, foreign exchange and foreign currency.
15. Now currency as defined in Section 2(W includes all coins and currency notes and bank notes. Foreign currency as defined in Section 2(c) means any currency other than Indian currency, foreign exchange as defined m Section 2(d) means foreign currency. Thus it is enough if 1 consider whether the term 'currency' will come within the meaning of 'other document' in Section 19(3). When the scheme of the Act is to impose restrictions in the ownership, and possession of and dealing with foreign exchange (included in the term 'currency'.) and when contraventions provisions of the Act in respect of 'currency' have been made clear offences and liable to penalty as provided in Section 23(1A) and liable to confiscation Under Section 23(1 B), the absence of any specific provision in Section 19(3) for the search and seizure of such 'currency' was clearly because it was felt by the framers of the Act that such currency will be included within the meaning of 'other document' in Section 19(3).
16. With great respect to my learned predecessor I am unable to agree with his observation that it is clear from the language used in the Act that the word 'document' is used in a sense which excludes currency or foreign currency. On the other' hand I consider in the light of my discussion of the various sections of the Act that the word 'document' was used as a very comprehensive term and that the intention was certainly to include 'currency' within that term. It is not merely books and currency which may have to be searched for and seized Under Section 19(3) for the purpose of any investigation or proceeding under the Act.
There are provisions in the Act like Section 6 relating to blocked accounts, like Section 7 relating to special accounts, like Sections 13 and 13A relating to regulation of export and transfer of securities and placing restrictions in respect of certain securities, and like Section 14 relating to custody of securities. These securities and papers relating to blocked accounts and special accounts may also have to be seized. There is a separate definition for 'security' in Section 2(k) meaning shares, stocks, bonds, debentures, debenture stock and Government securities, deposit receipts and units or sub-units of unit trusts and certificates of title to securities as defined in Section 2(aii) and (aiii). Again coupon meaning coupon representing dividends or interest on a security is defined in Section 2(aiv). All these may also have to be searched and seized in addition to currency. It is not possible to mention them separately in a Section of the Act. A comprehensive term has necessarily to be used. Hence the term 'other document' is used.
17. The term 'document' is not defined in Act VII of 1947. But it has been defined in the General Clauses Act, 1897. Section 3 of the General Clauses Act defines various terms including the term 'document'. Section 3 says that unless there is anything repugnant in the subject or context the definitions shall apply to all Central Acts and Regulations made after the commencement of the General Clauses Act. Document is defined in Section 3(18) as follows:
3(18). 'document' shall include any matter written, expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means which is intended to be used, or which may be used, for the purpose of recording that matter.
In the absence of any definition of the term 'document' in Act VII o 1947, we have to take the definition the term the General Clauses Act as provided in Section therein. 1 nave pointed out that not only is there nothing repugnant in the subject or context in Section 19(3) of Act VII of 1947 to adopt the definition of the term 'document' in the General Clauses Act. but that the Framers of the Act have purposely used the term in the comprehensive sense mentioned in Section 3(18) of the General Clauses Act.
It has to be accepted that if Section 3(18) of the General Clauses Act is applied, currency as defined in Section 2(b) of Act VII of 1947 will be included within the meaning of the term 'document'. We are here concerned with only coins and currency notes in the definition of currency in Section 2(b) of Act VII of 1947, As far as currency notes are concerned, they are written on paper by means of letters, figures and marks and the substance namely, the paper is intended to be used for the purpose of recording the matter. In such a case the matter written will mean a 'document. It is matter written on the paper which makes it a currency note. In the same way in the case of coins, the substance use is metal on which the matter is written expressly or described by means of letters, figures or marks and it is that matter which makes it a coin and so it cannot be said that coin is not a document within the meaning of Section 3(18) of the General Clauses Act. I need not dilate on this very much, as it was not seriously contended for the petitioners that if Section 3(18) of the General Clauses Act is applied, currency meaning currency notes and coins will not come within that definition. It was for that reason that it was argued before my learned predecessor that the definition in the General Clauses Act should not be applied.
18. The same definition for 'document' is given in Section 3 of the Evidence Act. As the currency and the coins seized shall have to be produced in Courts in proof of the contravention of the provisions of Act VII of 1947, the definition in the Evidence Act is also quite relevant for our purpose. Since the definitions in both the General Clauses Act and the Evidence Act tally, it is clear that the Framers of Act VII of 1947 deliberately used the word 'other document' to include currency. The definition in Section 29 of the Indian Penal Code of the same term slightly varies. It refers to the matter expressed in any substance which may be used as evidence of that matter whereas the definition in the General Clauses Act and in the Evidence Act mentions the substance being used for the purpose of recording the matter. Thus the definitions in the General Clauses Act and the Evidence Act are wider in scope than the definition in the Indian Penal Code.
19. I have therefore no doubt that currency will come within the meaning of 'other document in Section 19(3) of Act VII of 1947. There is no special significance in the use of the word 'other'. it is only intended to mean that the word 'book' will also be included in the term 'document', but that 'book' is specifically mentioned in addition to 'other document, perhaps to avoid vagueness or doubt, it may also be mentioned that Section IVa relating to me custody 01 documents 'book' is also included in the term 'document'. Thus it is quite clear to me that the word 'document' was used in Section 19(3) in the sense in which it has been defined in Section 3(18) of the General Clauses Act and hence the respondent was justified in issuing the search warrants Annexures P-6 and P-7 for the seizure of the foreign exchange from the petitioners, No Writ can be issued on that ground.
20. The next contention of the petitioners is that the search warrants were not issued by the respondent on a representation in writing made by a person authorised in that behalf by the Central Government or by the Reserve Bank. The respondent has produced Annexures I in the two Writ petitions, and Annexing 2-4 to show that the Director of Enforcement had the authority to authorise a person to obtain a search warrant and that the Director of Enforcement had in fact authorised Nani Gopal Bhattacherjee, S. I. of police, Belonia to make the necessary written representation to the Magistrate. Annexures 2-4 clearly show that the Director of Enforcement could give the authorisation. Annexures I in the two Writ petitions also show that the authorisations were given to Sri Nani Gopal Bhattacherjee on 20-1-1959. The petitioners strongly attacked Annexures I as fraudulent documents and argued that no reliance should be placed on them by the Court. They pointed out that notices were served in the Writ on the respondent for the hearing on 18-4-1960 and that the respondent did not file any counter statement, even though time was granted on 9 occasions covering the period from 18-4-1960 to 16-5-1961 and that ultimately the Court had to order costs against the respondent, when the petitions were posted for ex parte hearings before this Court on account of the absence of counter statements and that ultimately counter statements were filed only on 27-5-1961.
21. At this stage it is necessary for me to say that it has been the experience of this Court that in all Writ petitions in which the Tripura Administration or its servants were made parties, there is considerable delay invariably in filing the counter statements, that no proper explanations are given for such inordinate delay and that in some cases even costs had to be ordered by this Court before the counter statements were ultimately filed. There have been also cases where even after such considerable delay no counter statements were filed at all and the petition had to be heard without knowing the stand taken by the respondents on facts. Such delay has often stood in the way of this Court in disposing of these Writ petitions within reasonable time. This has to be brought to the notice of the Tripura Administration, so that such delays may be avoided at least in future.
22. The petitioners have pointed out that Annexures I were not produced even with the counter-statements on 27-5-1961, but that they were filed only on 19-6-1961 after the petitions were posted for final hearing to 22-6-1961. My attention-was also drawn 10 paragraph the counterstatement in which no reference was made to the existence of Annnexure 1 or to the dates of Annexure 1 out there was only statement that the O/C, Belonia police station was not only authorised either by the Central Government or by the Reserve Bank as required by the provisions of Sub-section (3) of Section of Act Vll of 1947 was-not tenable. Even in paragraph J4 of the counter-statements, it was simply stated that the police officer concerned was authorised by a competent authority according to the rules framed under Article 77 of life Constitution and no mention was made that the Director of Enforcement had issued the authorisations on 20-1-1959. Again, it was was pointed out to me that if Annexures I had been produced before the S.D.M., Belonia they ought to contain the seal of the Court, but Annexures 1 produced in this Court did not contain the seal of the Court. Actually the two Annexures were not even produced with the counter-statements on 27-5-1961, but only on 19-6-1961. I was asked to conclude from this that they were subsequently got up during the time when adjournments were being asked for to file the counter-statements and and that they have been got up just for the purpose of supporting the S.D.M's order issuing the search warrants.
23. In view of such serious allegations made against the respondent and against a high official of the Central Government like the Director or. Enforcement who is not before me, I sent for the entire file before the S.D.M., Belonia relating to the proceedings. The entire file was produced and the documents therein were marked as Annexure P series. The order-sheet of the S.D.M. is Annexure-P-l. There is nothing in the order-sheet to show that on 25-2-1959, on which date the search warrants were issued, the authorisations from the-Director of Enforcement were produced before the S.D.M. or that any representations in writing were made to him by Nani Gopal Bhattacherjee before the S.D.M. issued the search warrants. But when the said file was produced on 7-7-1961, Nani Gopal Bhattacharjee filed two affidavits one-on 7-7-1961 and another on 8-7-1961 in which he stated that he made a petition to the Sub-divisional Magistrate in a cover marked 'secret' with a prayer to issue search warrants and that he did so after he was authorised to make the representation, by means of Annexures I, by the Director of Enforcement and that it was sent in a secret cover as it was thought that otherwise the matter might leak out and the purpose might be frustrated. The petitioners protested against the filing of the affidavits by Nani Gopal Bhattacherjee, particularly as there was no document in the file got from the S.D.M. Belonia either to snow that any such representation in writing was made by Nani Gurpal-Chattcharjee or to show that Annexures I were filed before the Magistrate.
24. It any representation in writing had been made to the S.D.M. even in a secret cover, he said representation in writing must form part of the record. I have to take it in the absence of Annexures 1 were not produced before the S.D.M. and no written representation was made. any such petition in the record or even any reference to it lfi any record that no such wrItten petitIOn was tiled betore the S.D.M. it it had been tiled it was tor the S.D.M. hunself to say that he had received such a representation in writing. He has not stated so in the counter-statements. If annexures I had been filed before the S.D.M. along with the petition, they ought to have formed part of the record and would have contained the seal of the S.D.M as we see the seal in every other paper in the file. Thus it is clear that Annexures I were not produced before the S.D.M. Nor does Nani Gopal Bhattacherjee say in his affidavit that he filed Annexures I before the S.D.M. along with his petition.
He simply says that he made the petitiop on the basis of the authority. It was stated tha. it was not necessary to file Annexures I before the S.D.M. But it is clear from a reading of Section 19(3) that the Magistrate has to be satisfied before issuing the search warrants that the representation is made to him by a person authorised in that behalf by the Central Government. Thus Annexures I have to be produced before the S.D.M. along with the representation in writing and the representation in writing must itself be in the record.
25. When we look at Annexures polS and P-23 which are the search warrants issued in res. pect of the two petitioners before me, we find in Annexure P-18 that tbe Magistrate has stated that 'a complamt has been laid down before him of the commission of an offence under Sub-section (3) of Section 19' while we find from Annexure P-23 that 'a complaint has been laid before bun of the commission of an offence Under Section 19(3).' I am not able to understand what the Magistrate meant by tbe words 'laid down' or 'laid' in Annexures p-r8 and P-23. The respondent has not made the meaning of those words clear. In any case, he has not stated in his counter-statements that a representation In writing was made to him. Nani Gopal Bhattacherjee is not a respondent in this petition. His affidavit on this matter cannot be accepted, particularly when the respondent was the proper person to file the affidavit knowing the fact per. sonally. Thus in the absence of a statement from the respondent, I cannot accept either that Annexures I were produced before the S.D.M. or that a representation in writing was made to the Magistrate. Even in Annexure P-2 which was the petition filed by Nani Gopal BhattacherJee on 26-2-59. the day of the seizure bringing to the notice of the Magistrate that the seizure has been effected, he did not state that he made a representation in writing.
Thus I cannot accept that a representation in writing was made and that Annexures I were produced before the S.D.M. It is not necessary to go into the question whether Annexures I had in fact been given to Nani Gopal Bhattacherjee by the Director of Enforcement. I must however say that the letter Annexure P-2 itself makes reference to Annexures I as Central Government No. 1(93)ENFIII/58 dated 20-1-59. Thus I have no' reason to think that Annexure~ I had been obtained sub sequenily. But I have to say that Annexures 1 were not produced before tbe S.D.M. and no written representatlOn was maoe.
26. The petitioners have however stated in paragrah 7 of their petition that the search warrant was issued to the officer-in-charge of Beloma Pollee Station who filed an application praying for the issue of the search warrant. But this statement does not mean that a written representation was made or that Annexures I were filed before the S.D.M. The petitioners cannot know whether any written petition was actually filed. They have also denied that there was any authorisation. Thus) cannot accept that the petitioners admitted that there was a written application. It means there fore that the search warrants were issued by the S.D.M. without any representation in writing and without the production of Annexures I before him and the search warrants were thus illegally issued by him. It follows that the search and the seizure were illegal and that the currency and the books of account seized have been illegally seized and that the petitioners are entitled to a refund of the currency and the books of acount seized from them.
27. It was next contended for the petitioners at the time of the hearing of the petition that even granting that the search warrants were legally issued, the search and the seizure as disclosed from the search warrants Annexures P-18 and P-23 and the corresponding seizure lists Annexures P-19 and P-24 were not made by the person to whom the search warrants were issued. It was pointed out that the search, evidenced by Annexure P-18, was made by an A. Section 1. Sri PraDir Chandra Deb Barma while the search in Annexure P-23 was made by one Badal Dutta, Section 1. of police. My attention was drawn to Section 19(3) in which it was stated that the person to whom search warrant is directed may search or inspect in accordance therewith and seize any book and other document.
But I cannot accept this argument of the petItioners as the petitioners have themselves admitted in paragraph 4 of their petitions that Nani Gopal Bhattacherjee, the O/C, Belonia police station along with the two other officers mentioned earlier came to the Belonia Bazar at 10 A.M. on 25-2-59 and searched the shops of the petitioners and seized the currency and the books of account. Thus though the search lists appear to have been written by the other officers and the endorsements on the search warrants were made by those officers it was done in the presence of Nani Gopal Bhattacherjee and I find that he has himself made endorsements to that effect on Annexures P-18 and P-23. I find from Annexure P-2 also that he has stated that he carried out the searches. Thus this objection of the petitioners cannot be accepted.
28. After the searches ana the seizures, tbe currency and the books of account were produced before Court and entered in the Court Malkhana. as we see from Annexure P- f the order-sheet. They remained ip tbe Court Malkhana, as we again see from Annexure P-l until 31-8-1959. On 24-6-19511 the petitioners along with 4 other persons, whos Pak currency and books of account had also been' searched and seized on the same day, filed the petition Annexure B before tbe respondent. A copy of that petition was filed as Annexure B and reference was made to the said petition in paragraph 15 of the petition. This was not disputed by the respondent in his counter-statement. Hence I have to accept the copy of the petition as correct, In that petition they pointed out the illegality of the issue of the search warrants and of the search and seizure which followed. They therefore demanded the return of the currency and the books of account seized and detained by the respondent. They also stated in the petition that if they were not returned to them they will be under the painful necessity of filing a Writ of mandamus before this Court.
29. It has to be mentioned here that the petition Annexure B was filed just before the expiry of the period of 4 months during which, even granting that the seizure was legal, the Director of Enforcement would be entitled to keep the seized books and documents Under Section 19A of Act VII of 1947. The said period of 4 months expired on 25-6-1959 while the petition was filed on 24-6-1959, In the meantime the Superintendent of Police, Tupura wrote to Nani Gopal Bhattacherjee by Annexure P-35 on 25-6-1959, enclosing Annexure P36, a copy of the letter from the Assistant Director of Enforcement dated 5-6-59 requesting that the seized articles may be forwarded under insured cover to the Calcutta Office of the Enforcement Directorate. The Superintendent of Police, in his letter, directed Nani Gopal Bhattacherjee to obtain the order of the respondent and to send the seized articles to the Assistant Director. On the strength of Annexures P-35 and P-36 Nani Gopal Bhattacherjee applied by Annexure P-34 to the respondent on 7-7-59, praying that orders may be passed to hand over the seized articles to him. Annexure P-34 was filed after the period of four months no expired
30. Thus two petitions were before the respondent, one by the petitioners on 24-6-1959 for returning the currency and the books of account to them and another by Nani Gopal Bhattacherjee to hand over the article to him. What was the duty of the respondent on receipt of these two petitions? The seized articles were in his custody as seen from the order dated 2-3-59 in Annexure P-l. They had been produced before him after the seizure. It was admitted for the respondent in the counter statements that the seizure was effected Under Section 96, CrIPC as Section 19(3) of Act VII of 1947 has made the provisions of the Criminal Procedure Code applicable to searches under the search warrant issued Under Section 19(3). When the seized articles are produced before the Magistrate, how is he to dispose of the articles? The only provision under the Criminal Procedure Code which, I am able to find, is Section 523, CrIPC Section 523 provides that the seizure by any police officer of property found under circumstances which create suspicion of the commission of any offence, shall be forthwith reported to a Magistrate, who shall make such order as the thinks fit respecting the disposal of such property or the delivery of such property to the person entitled to the possession thereof. The search warrants Annexures P-18 and F-23 themselves show that the Magistrate issued them because complaint was made to him of the commission of offences Under Section 19(3) of Act VII of 1947. Thus the seizure took place under circumstances which created suspicion of the commission of an offence. Thus Section 523, CrIPC alone can apply to the disposal of the property so seized.
31. The respondent had two petitions before him, one by the petitioners saying that the seizure was illegal and another by Nani Gopal Bhattacherjee stating that the Assistant Director of Enforcement wanted the seized articles. The respondent had to decide which of them was entitled to the possession of the seized articles. He had first to decide whether the seizure was illegal because if the seizure was illegal, the property has to be returned to the possession of the petitioners, from whom they were seized and who are the owners of the seized articles. The respondent did not decide this matter. I have now pointed out that the issue of the search warrants and the seizure were illegal.
32. Now let us grant for the sake of argument that the search and the seizure were legal and let us take it that the respondent felt that the search and the seizure were quite proper. Even then the Magistrate had to decide Under Section 523, CrIPC which of the parties was entitled to the possession of the seized articles. If the Director of Enforcement or Nani Gopal Bhattacherjee on his behalf, had made the application for handing over the seized articles within 4 months of the seizure, the Magistrate could certainly have handed over the seized articles to Nani Gopal Bhattacherjee, because Section 19A of Act VII of 1947 permits such a retention for a period not exceeding 4 months.
Even then, the Director of Enforcement has to satisfy the Magistrate that he has reasons to believe that the seized books and documents would be evidence of the contravention of any of the provisions of the Act or of any rule, direction or order made thereunder and that it would be necessary to retain them in his custody. He can show this to the Magistrate by satisfying film that proceedings Under Section 23 of VII of 1947 will be or have been commenced before him within the period of 4 months or that proceedings will be or have been commenced before a Court, again Under Section 23 before the expiry of the period of 4 months. It is stated for the petitioners that no proceedings Under Section 23 were ever taken against them either before the Director of Enforcement or in any Court within 4 months. This was stated in paragraph 15 of the petitions and it has not been denied in the counter-statements. If any proceedings were to -be started in any Court. it must be in the very Court of the respondent and the respondent himself knew that no such proceedings had been so started before him.
The Assistant Director of Enforcement, in his letter Annexure P-36, has stated that the seized articles may be sent to him for necessary action. if does not say that any proceedings have been commenced. it only indicated that any proceedings be commenced in future. It is clear from Section 19A that such proceedings have to be commenced before the expiry of the 4 months in order to enable the Director of Enforcement to retain the seized articles beyond the period of 4 months. But by 7-7-59 when the application was made by Nam Copal Bhattacherjee the period of 4 months bad already expired and the Director of Enforcement had not obtained possession of the seized articles within the 4 months. If he had not obtained their possession within 4 months there is no question of his retaining possession beyond the period of 4 months. Possession cannot be ordered to him by the respondent after the period of 4 months was over. Thus the position is that when the two applications were before the respondent the only order which the Magistrate could make was to return the seized articles to the two petitioners. He had no jurisdiction to hand over the articles after 25-6-59 to Nani Gopal Bhattacherjee.
33. Now let us see what the Magistrate did. Even though the two petitions were before him as early as 7-7-59 he did not hold any enquiry Under Section 523 as to who was entitled to the possession. He simply made an order on 31-8-59 stating that the O/C, Belonia police station prayed for getting back the seized currency notes and other records for sending to the Assistant Director of the Enforcement Directorate as asked by the Superintendent of Police and that the Court Inspector will therefore hand over the same to the O/C, Belonia. The respondent, it is clear, did not take into account the provisions of Section 19A of Act VII of 1947. The respondent did not consider the petition filed by the petitioners at all. In fact, I do not even find the petition in the record sent to this Court, even though he has not denied the receipt of the petition in his counter statements.
After having made this order on 31-8-59 the respondent sent the letter Annexure C on 2-9-59 to the petitioners stating that with reference to their joint petition dated 24-6-59, he had to inform them that as per instructions received from the higher authority, the O/C Belonia police station, prayed for search warrant and accordingly the search warrant was issued and search was made and that the matter was now lying with the Superintendent of Police, Tripura and that the petitioners may contact the latter in that connection. The respondent did not care to state that he cannot return the seized articles to the petitioners nor did he state that he had already ordered the handing over of the seized articles to Nani Gopal Bhattacherjee. It is clear that he has not treated the matter as a judicial officer as he was expected to do. He has dealt with it as if he was an executive officer and as if he was making an executive order. This is the result of posting executive officers, who have no legal or judicial background, as Magistrates.
34. The order of the respondent dated 31-8-59 seen in Annexure P-l cannot be allowed to stand. The petitioners have not prayed for setting aside that order because in Annexure C the respondent did not intimate to them that he has passed any such order but merely directed them to contact the Superintendent of Police, Tripura with whom the matter was stated to be pending. The order came to light only when the records were obtained by this Court from the respondent. It was the duty of the respondent to have 'filed those records in this Court even without an order of this Court. It is clear that the functions of a Magistrate Under Section 19(3) of Act VII of 1947 and the provisions of the' CrIPC which have been made applicable to proceedings under that Section are judicial functions and have to be exercised judicially and are liable to the scrutiny of this Court, in proceedings under Article 226 of the Constitution. As the provisions of Sections 19(3), and 19A of Act VII of 1947 and of Section 523, CrIPC have not been complied with by the respondent his order dated 31-8-59 has to be set aside and a Writ of mandamus has to be issued by this Court directing the return of the seized articles to the petitioners. Again as the search warrants Annexures P-l 8 and P-23 were issued not in accordance with the provisions of Section 19(3) of Act VII of 1947 the search and the seizure have also to be held to be illegal and on this ground also a Writ of mandamus should issue directing the return of the seized articles to the petitioners.
35. It was however argued by the learned Government Advocate that the seized articles have been already sent to the Assistant Director of Enforcement and are no longer in the custody of the respondent, that it would not be possible for the respondent even if ordered by this Court to return them to the petitioners and that this Court should not make an order which it was not within the power of the respondent to comply with. This has not been taken as a ground of defence to the Writ applications. On The other hand, it was stated in paragraph 15 of the counter statements that after the expiry of 4 months the Court which issued the search warrants Under Section 96, CrIPC was legally competent to retain the documents seized Under Section 19(3) of Act VII of 1947. There is not a word in the counter statements that any order was passed by the respondent directing the seized articles to be handed over lo Nani Gopal Bhattacherjee. The said order came to light only when the records were got produced in this Court. It is clear that an attempt has been made in the counter statements to suppress the fact of the order dated 31-8-59. It was only when the said order came to light that Nani Gopal Bhattacherjee filed the affidavit stating that the seized articles were sent to the Enforcement Directorate, Calcutta under an insured cover.
36. It was further argued by the learned Government Advocate that as the seized articles were now with the Assistant Director of Enforcement, who was beyond the jurisdiction' of this Court, it will not be proper to issue a Writ of mandamu directing the respondent to return the said articles to the petitioner. The short answer to this argument is that the respondent has to function as a Court and that on the Writ of mandamus being issued by this Court, the respondent will have to direct Nani Gopal Bhattacherjee of produce the articles in Court for their return to the petitioner and that it will be the duty of Nani Gopal Bhattacherjee to comply with the orders of Court by getting the articles back from the Assistant Director of Enforcement.
I have no doubt that if the orders of this Court, showing that the Assistant Director of Enforcement had no right Under Section 19A to get the seized articles from the Court through Nani Gopal Bhattacherjee after the period of 4 months had expired, are brought to the notice of the Assistant Director of Enforcement, he will in duty bound obey the orders of this Court and return them to Nani Gopal Bhattacherjee for production in Court. Officers of Government however highly placed have to act within the law and cannot seek to retain seized articles whose custody has been obtained by them against the provisions of the very statute under which they are functioning.
37. There is some difference in the amount involved in the Writ petition 29 of 1959. The petitioner has claimed only Rs. 2,704/11/0, This was in accordance with the copy of the seizure list namely, Annexure A given to him. But I find from the original seizure list Annexure P-19 that the total amount seized was Rs. 2,814/11/0. This difference arose because evidently after the copy Annexure A was taken, it has been added in the original that eleven 10 rupee currency notes were also seized amounting to Rs. 110/-. Thus in the endorsement in the seizure list Annexure P-18 it is stated that Pak currency amounting to Rs. 2,814/11/0 have been seized. There is no doubt that the petitioner in Writ petition No. 29 of 1959 is entitled to the return of Rs. 2,814/11/0.
38. The two Writ petitions are therefore allowed. In Writ petition No. 29 of 1959 a Writ of mandamus will issue directing the respondent to return the Pak currency of Rs. 2,814/11/0 seized under the search warrant Annexure P-18 and under seizure list Annexure P-19 to the petitioner therein. The respondent will pay the costs of the petition. Advocate's fee Rs. 100/-. In Writ petition No. 30 of 1959 a Writ of mandamus will issue directing the respondent to return the Pak currency amounting to Rs. 3,065/0/6 and the books of account and the papers seized under the search warrant Annexure P-23 and the seizure list Annexure P-24 to the petitioner therein. The respondent will pay the costs of the petition. Advocate's fee Rs. 100/-.