Samaresh Banerjea, J.
1. Common questions of law and fact being involved in both the writ petitions, the same have been heard analogously and will be governed by the same judgment.
2. One of the questions which has come up for consideration in the instant writ proceedings, is, whether Section 40(1) of the Foreign Exchange Regulation Act of 1973 (hereinafter referred to as FERA) and Section 34(2) of FERA are ultra vires the Constitution of India and is illegal, invalid and null and void.
3. Each of the writ petitioner has also challenged in the writ petition summons issued against each of them under Section 40(1) one of FERA by the appropriate authority on merits.
4. In the writ petition No. 2580 of 1996, it is the case of the petitioner Ms. Amgana Sengupta, daughter of Justice Ajit Kumar Sengupta, a former Judge of this Hon'ble Court and the Allahabad High Court, and who has obtained a Bachelor's Degree in law from London University and Master's Degree in law from Cambridge University and had also qualified as a Barrister at law from the Inner Temple that she left for England in September. 1990 for prosecuting higher studies and had been residing there since then and she is non-resident Indian. On 31st July, 1996 she returned to India to visit her parents and to make a decision as to whether she would practise here in Calcutta or in London. On 9th and 10th October. 1996 Officers of the Income Tax Department conducted a raid at the residence of her father and seized a number of documents including the bank papers and records of the petitioner. It is alleged that the income tax department with a mala fide motive and illegally passed on some other seized documents and papers to the respondents whereupon the respondent No. 1 on 10th October, 1996 issued a summon purportedly under Section 40 of FERA. directing the petitioner to appear before him on 17th October, 1996 together with her passport and bank pass books/transcripts of bank accounts maintained by her in India and abroad.
5. By a letter dated 17th October, 1996, the petitioner intimated the respondent No. 1 that Income Tax Department seized the copies of the petitioner's bank records and as such the said documents were not available with her and the Income Tax Department had not even made available to her the copies of the seized documents. The petitioner, however, prayed for a fortnight's time to enable her to obtain the copies of the documents in question. Along with her reply the petitioner sent a photo copy of her passport. The respondent No. 1 and 2 again issued such summons dated 18th and 25th October, 1996 calling upon the petitioner to produce the same documents as referred to in the summons dated 16th October, 1996 without considering at all the representation made by the petitioner in her letter dated 17th October, 1996. Accordingly the petitioner again prayed for time.
6. That on 14th November, 1996 the Officers of the Enforcement Directorate raided the residence of the parents of the petitioner and seized a diary in which professional engagements and appointments of her father were noted; thereafter the petitioner and her father were taken to the Office of the respondent No. 1 allegedly forcibly and were questioned by the said Officers for several hours. But no summons were issued at their residence to either of them to attend the office of the said respondent No. 1 on 14th November, 1996, although a purported summon was later handed over to both of them after they were taken to the respondents' office. The petitioner was interrogated till 8 p.m. and her father was interrogated till about 11 p.m.
7. It is further alleged by the petitioner that in course of such interrogation the petitioner was spoken to in foul and intemperate language, refused water and adequate bathroom facilities and was repeatedly threatened with all sorts of dire consequences including immediate arrest, unless she recorded a statement as per the dictates of the said respondents. The petitioner somehow withstood such physical and mental torture and gave her evidence and she was ultimately permitted to leave the said office at about 8 p.m. on 14th November, 1996. It is further alleged that although the petitioner initially declined to do so, she was compelled by the respondents to write a statement in her own hand. It is further alleged that the father of the petitioner was summoned also on 21st November, 1996 and he attended the office of the respondents at Calcutta at 2 p.m. and inspite of the fact that he was fully co-operative and suffers from angina, he was subjected to both physical and mental torture by the said respondent and was made to record a statement in his own hand as per the dectates of the said respondents and thereafter he was arrested at about 3.30 a.m. on 22nd November, 1996. The petitioner also once again was summoned before the respondent No. 1 on 22nd November, 1996, whereupon she prayed for adjournment being mentally upset because of such arrest of her father and the ill treatment meted out to him. But on 4th December, 1996, she received . another summons under Section 40 of FERA calling upon her to appear before the respondent No. 1 on December 10, 1996 with transcripts of her two bank accounts in UK from the inception of the accounts till date.
8. In W.P. No. 2579 of 1996 it is the case of Dr. Tapati Sengupta, who is the wife of Ajit Kumar Sengupta a former Judge of Calcutta and Allahabad High Court that she has been associated with South Calcutta Law College from the year 1982 to 1986 as a lecturer from 1986 to 1988 as Vice Principal and since 1988 she was the Principal of the said College. That apart she is a guest lecturer in Burdwan and Calcutta University Law Department as also in Surendranath Law College for a considerable period of time in the past.
9. On 9th/10th October, 1996 certain officers of the Income Tax Department conducted a search and seizure at her residence and seized certain jewellery belonging to her and other members of her family. Subsequently it appears that the Income Tax Department wrongfully and illegally with an ulterior motive passed on certain seized documents and papers to the respondents whereupon the respondent No. 1 issued summons under Section 40 of FERA as also to the husband of the petitioner and her daughter for the purpose of appearance before them together with the documents on diverse dates. On 14th November, 1996 certain officers of the FERA conducted a search at the residence of the petitioner during which they did not find any incriminating documents, but one diary containing professional engagement and appointments of the husband of the petitioner was seized. Thereafter the husband of the petitioner and her daughter were allegedly forcibly taken to the office of the respondent No. 1 at about 10 a.m. and were grilled for several hours although no summons were issued at either upon the husband of the petitioner or upon her daughter and a summon later on was handed over to both of them after they were taken into office of the Enforcement Directorate. The Daughter of the petitioner was interrogated till 8 p.m. and her husband was interrogated till about 11 p.m. and in course of such interrogation they were spoken to in foul and intemperate language, refused water and adequate bathroom facilities and were repeatedly threatened with all sorts of dire consequences including immediate arrest, unless they recorded a statement as per the dictates of the said respondents. The Daughter of the petitioner somehow withstood such physical and mental torture and gave her evidence and she was ultimately permitted to leave the said office at about 8 p.m. on 14th November, 1996. but she was compelled by the respondents to write a statement in her own hand. The husband of the petitioner was released from interrogation at about 11 p.m. On 14th November, 1996 after the husband of the petitioner was allowed to come back home a summon was handed over to him for appearance on 15th July, 1996 whereupon the respondents were duly informed that the husband of the petitioner would have to attend an international arbitration at Delhi on and from 15th November, till 20th November, 1996 inspite of which the respondent insisted that both the petitioner's husband and her daughter must be present on 15th November, 1996 also. The husband of the petitioner however left for Delhi because of such international arbitration; as he was keeping indifferent health the daughter also accompanied him to Delhi. The respondents were informed by a letter dated 15th November, 1996 that the husband of the petitioner would return to Calcutta on 20th November, 1996 and thereafter a date could be fixed for attendance of the petitioner's husband and her daughter. The Enforcement Directorate at Delhi was also informed accordingly. On 21st November, 1996 a summon was served upon the petitioner's husband asking him to appear on the same day whereupon the husband of the petitioner duly attended the office of the respondents at Calcutta at. 2 p.m. Inspite of the fact that he was fully co-operative with the respondent and he suffers from angina he was subjected to both physical and mental torture by the respondent and was made to record a statement in his own hand as per the dictates of the said respondents and thereafter he was under arrest at about 3.30 p.m. on 22nd November, 1996. 'laughter of the petitioner was also served with the summon asking appear before the respondent No. l on 22nd November, 1996 at 11 a.m. whereupon by a letter dated 22nd November, 1996, the daughter of the petitioner expressed her inability to appear in the late since because of the alleged wrongful arrest of the petitioner the ill treatment meted out to her father she was mentally Hered and she was not fit mentally and physically to appear in the office of the respondent. On 4th December, 1996, the petitioner and also her daughter received summons dated 3rd November, 1996 erier Section 40 of FERA. By the said summon the petitioner was ashed to appear to give evidence and to produce her passport for verification and also to produce her bank accounts passbooks in India and abroad, as an investigation was being conducted under FERA. 'Jong with the said summons the petitioner was also served with an order passed under Section 33(2) of FERA calling for the information referred to therein and asked to produce documents as the same was eoissidered necessary for the purpose of investigation under FERA. She was asked to furnish the details of Foreign Bank Accounts in her name or any other names of her family members and she was also asked to furnish number of foreign visits with date and purpose of visits, name of travel agents from whom the air tickets were purchased. amount of foreign exchange drawn, source of funds and node of payment during the period from 1984 till date.
10. It is the contention of the petitioner that whole object of issuance of the summon was mala fide in as much as any document having no relevance with regard to an alleged violation of FERA and which wholly and essentially pertains to Income Tax cannot be forwarded by the income tax department to the FERA authorities in view of the provision of Section 138 of Income Tax Act 1961 and no interrogation can be made by FERA authorities on such document. It is alleged that it was published in certain newspapers that the object of issuance of such summon was to extract information on a confidential document forwarded by Income Tax Department. It is further alleged that the FERA authorities by making statement to the press causing serious prejudice to the petitioner and it is apparent that they are acting with ulterior motive at the instance of the Income Tax Department. It is contended by the petitioner that she never maintained nor does she maintain now any bank account outside India or in abroad. It is alleged that she reasonably apprehends that the respondents will also subject the petitioner to physical and mental torture for the purpose of recording a false statement at the dictate of the officers of the respondents thereby implicating her in violation of FERA. It is alleged that such apprehension is real and bona fide.
11. At this stage both the writ petitioners moved the present writ applications under Article 226 of the Constitution of India challenging the summons as also the vires of Section 40 of FERA. The petitioners have also obtained anticipatory Bail from the City Session Court,
12. Each of such writ petition initially was heard by one of us sitting singly (S.B. Sinha, J.) on December 11. 1996 and His Lordship in view of the important question of law involved in the writ petitions, referred the matters to a Division Bench. On the said date an interim order was also granted to the effect that each of the writ petitioner being a lady will be interrogated at her residence for not more than 4 hours between 10 a.m. and 4 p.m. with sufficient prior notice. Liberty was granted to the respondents to ask for variation of such order before the Division Bench.
13. Thereafter the present Division Bench which is not a regular bench was formed by the Hon'ble Chief Justice. But the respondents did not ask for variation of such interim order before us till 12th June, 1997 when the hearing of the writ petitions were on the verge of conclusion.
14. During the pendency of such writ petitions before us the respondents issued further summons and notices under Section 40 of the Act and under Section 33(2) of the Act respectively. Each of the writ petitioner filed supplementary affidavits, inter alia, also challenging such notices under Section 33(2) of FERA on merits as also the vires of the same.
15. It has been pleaded by each of the petitioners in the writ petition that Section 40 of FERA confers uncanalised, uncontrolled and unguided arbitrary power upon the Officers of the Enforcement. Directorate, including the present respondents permitting them not only to carry out a roving and fishing enquiry in the name of alleged investigation, but also to summon any person at their whims and fancy and further empower them to call for any documents whether relevant or irrelevant as per their whims and fancy and also empower the respondent to detain any person in their office for any period of time and even till the dead of night as per their whims and fancy. It has been further pleaded that the aforesaid provision of FERA clearly empowers the officers of the Enforcement Directorate including the respondent to recklessly abuse and' misuse the powers conferred upon them under FERA and to act in blatant disregard to all the principles of justice, equity and fairplay. It has been further pleaded that taking advantage of the said provision, the officers of the Enforcement Directorate confine concerned persons in their office under the garb of alleged investigation and almost inevitably the concerned person is compelled to write, under duress, coercion and threats of physical violence, alleged confessional statement which the said officers use in the adjudication proceeding against the person concerned. It has been contended that said Section 40 of FERA is therefore, arbitrary, unreasonable and is violative of Ariticles 14 and 19(1)(g) of the Constitution of India.
16. It has also been pleaded that the aforesaid section is discriminatory not only in substance, but also as regards procedural aspects and therefore is violative of the right of the petitioner as guaranteed under Articles 13 and 14 of the Constitution. It has been contended that Section 40 of FERA contains wide and sweeping departure from the ordinary law of procedure contained in the Code of Criminal Procedure, 1973 which ex facie causes prejudice to a person subjected to the procedure prescribed by FERA and constitutes discrimination against such persons; the said section does not contain any guideline indicating the circumstances in which a summon can be issued and the issue of summon is left entirely to subjective satisfaction of the concerned officers and there is an inherent arbitrariness and unreasonableness in the procedure prescribed in the said section as nothing is indicated when and in what circumstances summons to give evidence or to produce evidence can at all be given. It is contended that the said section contains no method to get any erroneous summons corrected and no opportunity is given to the person to question the validity and legality of the summons.
17. Such challenge of the petitioners, however, is not at all tenable.
18. FERA has been included in the Ninth Schedule of the Constitution of India by the 39th amendment of the Constitution 1975 as item No. 100 with effect from 10th October, 1975.
19. By such incorporation of the said Act in the Ninth Schedule of the Constitution the said Act or any provisions thereof became immune from any challenge on the ground of violation of any of the provisions of chapter III of the Constitution, in view of the protective umbrella of Article 31(B) of the Constitution.
20. During the course of hearing of the writ petitions when Mr. Usgaonkar, the 1d. Additional Solicitor General appearing for the respondents and Mr. Anindya Mitra, 1d. Additional Solicitor General appearing for the Attorney General of India, drew the attention of the Court to such fact, realising the difficulty, Mr. Kapoor the 1d. Counsel appearing for the petitioner sought to argue that notwithstanding such inclusion of the said Act in the Ninth Schedule of the Constitution, it is open to the petitioner to challenge the vires of the said section on the ground that the same destroys the basic structure or essential features of the Constitution. In the writ petition, however, there was no pleading whatsoever in that regard. In course of hearing the petitioners filed two supplementary affidavits one dated 19th February, 1997 and another dated 21st March, 1997, which undoubtedly has the effect of amending the writ petition.
21. In the supplementary affidavit dated 19th February, 1997, apart from making a number of allegations of mala fide against the office of Enforcement Directorate while interrogating Ms. Amgana Sengupta and her father, notices issued by the respondent under Section 33(2) of FERA were also challenged on merits. In addition to that the vires of the said section was also challenged on the same ground Section 40 of the FERA was challenged in the Writ Petition.
22. In the subsequent supplementary affidavit dated 21st March, 1997 to the writ petition, for the first time the pleadings as to the alleged destruction of basic features of the Constitution were incorporated. It was pleaded that fundamental rights as contained in part III of the Constitution, are the basic features of the Constitution and the 39th amendment Act to the Constitution enacted in 1975 by which FERA was included in the Ninth Schedule of the Constitution was beyond the Constitutional power of the Parliament as same has damaged the basic structure or the essential features of the Constitution as reflected in Articles 14, 19 and 21 of the Constitution. It was further pleaded that the Act enacted in September 1973 was violative of such fundamental rights and was consequently was void ab initio and subsequent incorporation thereof in the Ninth Schedule of the Constitution without reenactment does not and cannot revive the same.
23. But even in the said supplementary affidavit dated 21st of March, 1997. the only pleading which is there in respect of the alleged violation of Article 21 of the Constitution was to the effect that Section 33(2) and Section 40(1) authorises deprivation of right of the petitioner to personal liberty without prescribing any lawful procedure and the provision of the said section was not just, fair, and reasonable and the same does not contain sufficient procedural safeguards to rule out arbitrary exercise therein.
24. But there is no pleading whatsoever either in the writ petition or in the said supplementary affidavit in what manner the aforesaid provision of the Act takes away any of the rights guaranteed under Article 19 of the Constitution.
25. The pleadings which are there in the writ petition as also in the supplementary affidavit really appear to be relating to empowering the appropriate authority with unguided and uncanalised power and lack of procedural safeguards against possible abuse of such power. Consequentially if such submissions of the petitioner is to be accepted, the same may amount to violation of Article 14 of the Constitution of India. 26. In absence of specific pleading in what manner the right of the petitioner under Articles 19 and 21 is sought to be violated because of the aforesaid provision of the Act. the same need not engage our attention any further, as the constitutionality of a legislation is to be presumed and the burden of proving a legislation to be unconstitutional lies heavily on the person who challenges the same.
27. But before adverting to other points it is worthwhile to recall that the Supreme Court in the case of Poolpandi v. Superintendent of Central Excise, reported in : 1992CriLJ2761 has held while interpreting provision of Sections 107 and 108 of the Customs Act 1962 and Section 39 and 40 of FERA that a person while being interrogated during investigation under Customs Act or FERA is not entitled to the assistance of lawyer. In paragraph 11 of the said judgment the Supreme Court rejected the contention of the petitioners that if a person is called away from his own house and questioned in the atmosphere of the office of the respondent without the assistance of his lawers or his friends, his fundamental right under Article 21 is violated. Upholding the interrogation of a person in the Customs Office or FERA Office it was held by the Supreme Court that the purpose of enquiry under the Customs Act and other similar statutes will be completely frustrated if the whims of the persons in possession of useful information for the departments are allowed to prevail and for achieving the object of such an enquiry if the appropriate authorities are of the view that such persons should be dissociated from the atmosphere and the company of persons who provide encouragement to them in adopting a non-co-operative attitude to the machineries of law, there cannot be any legitimate objection in depriving them of such company. It was further held by their Lordships that the relevant provisions of the Constitution in this regard have to be construed in the spirit they were made and the benefits there under should not be expanded to favour exploiters engaged in tax evasion at the cost of public exchequer. Their Lordships referred to the judgment of the United States Supreme Court in Re Rroban ease (reported in 352 US 330 : 1 LEd 2nd 367) with approval, to the effect prosecution of an individual differs widely from investigation of incidents damaging to the economy or dangerous to the public; the enquiry under consideration in the said case was a proceeding to elicit facts on the basis of which it could be determined whether the fire was the result of carelessness or design, and although it could lead to arrest of any person against whom there was sufficient evidence on which a charge of arson could be based, it was held that the fact that the testimony of the witnesses might provide basis for criminal charges against them did not mean that they were entitled to insist on the presence of their counsel.
28. It has rightly been contended by the Ld. Additional Solicitor General that in order to succeed on the plea of violation on fundamental rights and basic structure of the Constitution specific plea has to be raised in the pleadings so as to enable the other side to meet the points, which however, has not been done in the instant case in as much as although Article 19 of the Constitution contains many clauses, it has not been pleaded at all either in the writ petition or in the supplementary affidavits which of the clauses of Article 19 has been violated and in what manner.
29. It has therefore, now necessary to examine the contention of writ petitioners that Section 33(2) and Section 40(1) of FERA are violative of Article 14 of the Constitution and damages the basic structure of the constitution.
30. The Supreme Court in the case of Maharao Sahib Sri . Bhimsinghji and Ors. v. Union of India, reported in : AIR1981SC234 while considering the challenge as to the constitutionality of the Urban Land (Ceiling & Regulation) Act of 1976, and the question whether the entire Act or any provisions thereof is violative of Article 14 of the Constitution and damaged the basic structure or essential feature of the Constitution, by a majority judgment held the entire Act to be valid except Section 27(1) of the said Act. Such majority of the Hon'ble Judges were of the view that betrayal of the basic structure of the Constitution is not a mere violation of Article 14, but a shocking, unconscionable or unscrupulous travesty of the quintessence of equal justice. The relevant observations made by Krishna Iyer, J, in this regard in paragraph 21 of the said judgment is quoted hereunder:--
The question of basic structure being breached cannot arise when we examine the vires of an ordinary legislation as distinguished from a constitutional amendment. Kesavananda Bharati : AIR1973SC1461 cannot be the last refuge of the Proprietariat when benign legislation takes away their 'excess' for societal weal. Nor, indeed, can every breach of equality spell disaster as a lethal violation of the basic structure. Peripheral inequality is inevitable when large scale equalisation processes are put into action. If all the judges of the Supreme Court in solemn session sit and deliberate for half a year to produce a legislation for reducing glaring economic inequality their genius will let them down if the essay is to avoid even peripheral inequalities. Every large cause claims some martyr, as sociologists will know. Therefore, what is a betrayal of the basic feature is not a mere violation of Article 14 but a shocking, unconscionable or unscrupulous travesty of the quintessence of equal justice. If a legislation does go that far it shakes the democratic foundation and must suffer the death penalty. But to permit the Bharati : AIR1973SC1461 ghost to haunt the corridors of the court brandishing fatal writs for every feature of inequality is judicial paralysation of Parliamentary function....
Keeping the above principles in mind when the challenge of the petitioners to the constitutionality of the said sections is examined, it appears to us that the petitioners have failed to prove that the constitutional amendment incorporating the FERA in the Ninth Schedule of the Constitution damaged the basic structure of the Constitution or the said provisions of FERA are violative of Article 14 of the Constitution. It appears to us that there is no lethal violation of the basic structure of the Constitution, but at most a peripheral inequality, if at all. The petitioners have also failed to satisfy us that there has been a shocking, unconscionable violation of the provision of Article 14 of the Constitution.
31. It has been pleaded and has been argued that Section 33(2) and Section 40(1) of FERA gives uncanalised, uncontrolled, unguided and arbitrary power upon the officers of the Enforcement Directorate including the present respondents permitting them not only to carry out roving and fishing enquiry in the name of alleged investigation, but also to summon any person at their whims and fancy and further empowering them to call for any documents whether relevant or irrelevant as per their whims and fancy and to detain any person in their office for any period of time even till the dead of night. It has been argued that the aforesaid provisions of FERA empowers the officers of the Enforcement Directorate including the present respondents to recklessly abuse and misuse the power conferred upon them and to act in blatant disregard of all principles of justice, equality and fair play against which no procedural safeguard even has been provided by way of appeal as a result whereof there is no opportunity for the affected person to question such act of the concerned officers including the issue of summons. It has been further submitted because of such empowering the concerned offices with such uncanalised, arbitrary and unguided power and absence of any procedural safeguard against any chance of abuse and misuse of such power, the officers of the Enforcement Directorate confine the concerned person in their office under the pretence of investigation and almost invariably the concerned person is compelled and made to write under duress, coercion and threats of physical violance as it has been done allegedly in the instant case and such alleged confessional statements are used in the adjudication proceeding against the person concerned.
32. It has also been pleaded and submitted on behalf of the petitioner that Section 40 of FERA contains wide and sweeping departure from the ordinary law of procedure contained in the Code of Criminal Procedure 1973, which ex facie causes prejudice to a . person subjected to the procedure prescribed by FERA and constitute discrimination against such a person; the said section does not contain any guideline indicating the circumstances in which a summon can be issued and the issue of summon is left entirely to the subjective satisfaction of the concerned officers and there is an inherent arbitrariness and unreasonableness in the procedure prescribed in the said section as nothing is indicated under what circumstances such summon can be issued. A number of Supreme Court decisions have been relied upon by the petitioners where under different circumstances the Supreme Court found that there was violation of Article 14 of the Constitution and hence the relevant provision of the statute were hold to be ultra vires of the Constitution.
33. The possible chance of abuse or misuse of power, however, would not make a particular legislation and specially an economic legislation unconstitutional.
34. As it has been held by the 9 Judges Constitution Bench judgment the Supreme Court in the case of R.K. Garg v. Union of India and Ors. reported in : [1982]133ITR239(SC) , every legislation particularly in economic matters is essentially empiric and based on experimentation; there may be crudities, inequalities and even possibilities of abuse but on that account alone it cannot be struck down as invalid and laws relating to economic activities should be viewed with greater latitutude than laws touching civil rights such as freedom of speech, religion etc.
35. The relevant observation of the Supreme Court made in this regard may be quoted hereunder:--
Another rule of equal importance is that laws relating to economic activities should be viewed with greater latitude than laws touching civil rights such as freedom of speech, religion etc. It has been said by no less a person than Holmes, J. that the legislature should be allowed some play in the joints, because it has to deal with complex problems which do not admit of solution through any doctrinaire or strait-jacket formula and this is particularly true in case of legislation dealing with economic matters, where, having regard to the nature of the problems required to be dealt with, greater play in the joints has to be allowed to the legislature. The court should feel more inclined to give judicial deference to legislative judgment in the field of economic regulation than in other areas where fundamental human rights are involved. Nowhere has this admonition been more felicitiously expressed than in Morey v. Doud where Frankfurter, J. said in his inimitable style:--
In the utilities, tax and economic regulation cases, there are good reasons for judicial self-restraint if not judicial deference to legislative judgment. The legislature after all has the affirmative responsibility. The courts have only the power to destroy, not to reconstruct. When these are added to the complexity of economic regulation, the uncertainty, the liability to error, the bewildering conflict of the experts, and the number of times the judges have been overruled by events--self-limitation can be seen to be the path to judicial wisdom and institutional prestige and stability.
The Court must always remember that 'legislation is directed to practical problems, that the economic mechanism is highly sensitive and complex, that many problems are singular and contingent, that laws are not abstract propositions and do not relate to abstract units and are not to be measured by abstract symmetry'; 'that exact wisdom and nice adaption of remedy are not always possible' and that 'judgment is largely a prophecy based on meagre and uninterpreted experience'. Every legislation particularly in economic matters is essentially empiric and it is based on experimentation or what one may call trial and error method and therefore it cannot provide for all possible situations' or anticipate all possible abuses. There may be crudities and inequities in complicated experimental economic legislation but on that account alone it cannot be struck down as invalid. The courts cannot, as pointed out by the United States Supreme Court in Secretary of Agriculture v. Central Reig Refining Co., be converted into tribunals for relief from such crudities and inequities. There may even be possibilities of abuse, but that too cannot of itself be a ground for invalidating the legislation, because it is not possible for any legislature to anticipate as if by some divine prescience, distortions and abuses of its legislation which may be made by those subject to its provisions and to provide against such distortions and abuses....
36. The aforesaid principles of law pronounced by the Supreme Court is very much applicable in the instant case in as much as FERA is an economic legislation. Preamble of the said Act describes the same as an Act to consolidate and amend the law relating to certain payment dealing in foreign exchange and transcripts affecting foreign exchange. It has been rightly contended by the Additional Solicitor General that the said Act belongs to the family of the group of laws relating to economic offences, other Acts of the same family being Contravention of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA) and Smugglers and Foreign Exchange Manipulators Forfeitures of Property Act (SAFEMA).
37. Similar principles of law has been enunciated by the Supreme Court also in the case of Federation of Hotel and Restaurant Association of India v. Union of India reported in : [1989]178ITR97(SC) in case of Taxing statutes.
38. If the provision of Sections 33 and 40 of FERA is now examined in the light of the aforesaid principles of law laid down by the Supreme Court as stated above it will appear that the aforesaid provision of the Act are not violative of Article 14 of the Constitution.
39. The submission of the petitioners that the power given to the concerned officers under Section 33(2) of calling for information and Section 40(1) to issue summons is unguided, uncontrolled and uncanalised, there being no guideline under what occasion such power can be exercised, are not tenable at. all.
40. The aforesaid section themselves contain the guideline and indicate the circumstances when such power can be exercised.
41. Section 33(2) itself provides that the concerned officers may call for such information or documents when for the purpose of the Act the concerned officers considers it necessary or expedient to obtain such information and documents etc. Such power, therefore, can be exercised only when the concerned officer considers the same necessary for the purpose of the Act and not otherwise. What is the purpose of the Act would obviously appear from the preamble of the Act as also from the scheme of the Act and it will appear there from that the purpose of the Act, inter alia, is conservation of the foreign exchange resources of the country and the proper utilisation thereof in the interest of economic development of the country and prevention of misuse of such foreign exchange.
42. Satisfaction of the concerned officers, therefore, under the aforesaid provision of Section 33(2) of the Act as to the necessity to call for such information and documents even assuming to be subjective, such power is not uncontrolled and uncanalised but are very much controlled by the purpose of the Act. Similarly the power under Section 40(1) to issue summons to any person to attend the concerned officers to. give evidence or to produce a document is not uncontrolled or uncanalised as alleged in as much as such power can only be exercised during the course of any investigation or proceedings under the said Act. Obviously such investigation and proceeding can only be related with the purpose of the Act as aforesaid and consistent with the scheme of the Act and not extraneous to the same and such proceeding will include adjudication proceeding.
43. The chance of abuse of such power, namely, exercise of such power calling for informations and documents and issuing such summons arbitrarily, nor for the purpose of the Act or investigation and enquiry not connected with the purpose of the Act, cannot make the aforesaid section unconstitutional or void, although, such arbitrary action may be held to be bad and may be set aside by the court.
44. It has been submitted that such sections are violative of Article 14 of the Constitution in absence of any procedural safeguards either by way of appeal or giving an opportunity to the affected person to challenge such subjective satisfaction of the concerned officer.
45. Mere absence of the provisions of appeal against such calling from information or issue of summons which really relate to investigation and enquiry, however, cannot make the aforesaid provisions either arbitrary or violative of Article 14 of the Constitution.
46. Even though, the aforesaid provisions of the Act may appear to be harsh, the same again cannot amount to violation of Article 14 of the Constitution particularly in view of the fact that aforesaid provisions are economic legislation and therefore, such provisions cannot be interpreted in the same manner as other legislations are interpreted in as much as in case of economic legislation, the legislature is entitled to a greater 'play in the joint' as held by the Supreme Court in the abovementioned decisions.
47. That apart any arbitrary exercise of power in that regard will be open to judicial review. In fact in case of Barium Chemicals Ltd. v. Union of India reported in : [1972]2SCR752 a Constitution Bench of the Supreme Court has already interpreted the provision of Section 19(2) of the Foreign Exchange Regulation Act, 1947, which is pari materia with Section 33(2) of FERA and has held, inter alia, while calling for such informations or documents, it is essential that such information, book or other documents called for should be specified in the order and mind has to be applied with regard to the necessity to obtain an examination of the documents mentioned in the order. What is the meaning of the words 'considers it necessary, has already been explained in paragraph 15 of the said judgment of the Supreme Court pointing out, inter alia, that such expression would mean that the concerned authorities has thought over the matter deliberately and with care and it has been found necessary as a result of such thinking to call for such informations.
48. Similarly the probability of the concerned officers abusing power under Section 40 of the Act by interrogating the concerned person in the office for a long period time and even in late night and thereby subjecting him to mental torture or obtaining a statement by exercising coercion or influence, will not make the section ultra vires of the Constitution although may make such action bad.
49. That apart against any vexatious detention by the concerned officer, the concerned person has his remedy under Section 58(b) of FERA under which an officer of the Enforcement exercising the power under the Act, inter alia, in case of such vexatious detention is liable to be convicted by a court and can be sentenced to pay fine up to Rs. 2000/-.
50. It is also sought to be argued by Mr. Kapoor that the aforesaid provision of Section 40 is violative of Article 14 being discriminatory in as much as in case of such investigation and enquiry a citizen is not amply protected as he is under the provision of Code of Criminal Procedure. It has been submitted that under the Code of Criminal Procedure there are several safeguards under Sections 160, 161 and 162 and Section 4(2) of the said Code defines offence that can be tried under the Code and Section 2(H) defines investigation and Section 2(1) defines offences which protections are clear in FERA.
51. It has rightly been submitted by the Ld. Additional Solicitor General that the Foreign Exchange Regulation Act is a self-contained Code in respect of investigation and enquiry for the purposes of the Act and the provisions of the Criminal Procedure Code can be resorted only to the extent specifically provided in the said Act itself. The purpose of the two Acts are different from each other, therefore, the enquiry and investigation contemplated under FERA should be understood within the meaning of the said Act having relation to the purpose of the Act and not comparing the same with the relevant provision of Code of Criminal Procedure.
52. Similar argument has been rejected by the Supreme Court in the case of Dr. Pratap Singh and Anr. v. Directorate of Enforcement reported in : 1986CriLJ824 where the Supreme Court was interpreting the provisions contained in Section 37 of FERA. It was sought to be contended in the aforesaid case by the petitioners that as it was provided in Section 37(2) of the FERA that the provision of Code of Criminal Procedure relating to searches, may be applied to searches under said Section 37(2) of FERA subject to the modification as indicated therein, it was obligatory upon the officer issuing the search warrant to record in writing the grounds of its belief. The aforesaid contention was rejected by the Supreme Court holding thus:
It was however contended that when Sub-section (2) of Section 37 is read in juxtaposition with Sub-section (1), the legislative mandate clearly manifest itself that before issuing a search warrant in exercise of the power conferred by Section 37(1), it is obligatory upon the officer issuing the search warrant to record in writing the grounds of his belief and specifying in such writing, so far as possible, the thing for which search is to be made because Section 37(2) provides that the provisions of the Code of Criminal Procedure, 1898 (now 1973) relating to searches, shall, so far as may be, apply to searches under this section subject to the modification that Sub-section (5) of Section 165 of the said Code shall have effect as if for the word 'Magistrate', wherever it occurs, the words 'Director of Enforcement or other officer exercising his power' is substituted.'
'It was submitted that if the power to search premises is conferred on the officer therein mentioned, it is hedged in with a condition that in exercise of the power he is bound by the requirements of. Section 165 of the Code. In other words, it was said that by Sub-section (2) of Section 37, Section 165 of the Code is incorporated in pen and ink in Section 37....'
'Section 37(2) provides that 'the provisions of the Code relating to searches, shall so far as may be, apply to searches directed under Section 37(1). Reading the two sub-sections together it merely means that the methodology prescribed for carrying out the search provided in Section 165 has to be generally followed. The expression 'so far as may be' has always been construed to mean that those provisions may be generally followed to the extent possible. The submission that Section 165(1) has been incorporated by pen and ink in Section 37(2) has to be negatived in view of the positive language employed in the section that the provisions relating to searches shall so far as may be apply to searches under Section 37(1). If Section 165(1) was to be incorporated by pen and ink as Sub-section (2) of Section 37, the legislative draftsmanship will leave no room for doubt by providing that the provisions of the Code of Criminal Procedure relating to searches shall apply to the searches directed or ordered under Section 37(1) except that the power will be exercised by the Director of Enforcement or other officer exercising his power and he will be substituted in place of the Magistrate. The provisions of Sub-section (2) of Section 37 has not been cast in any such language. It merely provides that the search may be carried out according to the method prescribed in Section 165(1)....
53. It has been further contended by Mr. Kapoor relying on the decision of the Supreme Court in the case of Directorate of Enforcement v. Dipak Mahqjan reported in AIR 1994 SC 1174 that the aforesaid decision makes it clear that the provision of Section 4(2) of the Code of Criminal Procedure will be attracted to the area of investigation, enquiry and trial of the offences under the special Acts including FERA and Customs Act and consequently the proviso of Section 160(1) of the Code of Criminal Procedure will be applied which provides, inter alia, that no woman shall be required to attend at any place other than the place in which such woman resides.
54. Relying on the same it has been further submitted that in view of the application of the aforesaid provision of Section 160(1) of the Code of Criminal Procedure as aforesaid the present petitioners who are women can be examined, or questioned only at their residence and they cannot be asked to attend the office of the respondents to give evidence pursuant to summon issued under Section 40 of FERA.
55. In the said decision, the Supreme Court was considering the question that when a person is arrested under a special Act like Section 35(1) of FERA or Section 104(1) of Customs Act and is produced before the Magistrate under Section 35(2) or Section 104(2) thereof whether the Magistrate has the jurisdiction to remand him under Section 167 of the said Code and the answer of the Supreme Court was in the affirmative.
56. In the said decision no doubt the Supreme Court also held that the operation of Section 4(2) of the Code is attracted to the area of investigation, enquiry and trial of the offences under the special law including FERA and Customs Act, but it has also been held by the Supreme Court in paragraph 128 of the said judgment that in view of Section 4(2) of the Act the provision of the Code would be applicable to the extent in the absence of any contrary provision in the general Act or any special provision excluding the jurisdiction or applicability of the Code.
57. As held by the Supreme Court, in fact, Section 4(2) of the Code itself restricts the application of the provision of the Code to special statutes by providing therein that such application will be subjected to any enactment for the time being in force regulating the manner or place or investigating, enquiring into, trying or otherwise dealing with such offences.
58. Under FERA the expression investigation and enquiry have not been defined and therefore, have to be understood in their common parlance. But specific provisions of investigation and enquiry under FERA has been made in Section 33 of the Act which empowers the appropriate authority to call for information from any person; in Section 34 empowering the appropriate authority to search suspected person and to seize documents; in Section 35 which empowers the appropriate officers to arrest a person on the reasonable belief that he is guilty of offence; in Section 36 empowering the appropriate officer to stop and search conveyance. In Section 37 empowering the appropriate officers to search premises: in Section 38 containing power to seize documents; in Section 39 containing power to examine persons: in Section 40 providing for power to summon persons to give evidence and produce documents: in Section 41 empowering the appropriate officer to retain a document when the same is furnished pursuant to a notice under Section 33(2) or under the provision of Section 34 or Section 37 or 39 or 40: in Section 42 containing the power to issue direction for encashment of cheques or drafts; in Section 43 empowering the appropriate officer to inspect the books and accounts and other documents of any authorised dealer; in Section 45 empowering a police officer and other officer to enter a premises and search any public place and arrest a person without warrant; in Section 46 which contains the procedure to be followed by the appropriate officer in respect of foreign exchange or any other goods seized followed by the police officer.
59. It will thus appear from the aforesaid provision of FERA independent provision of investigation and enquiry has been made in FERA itself. That apart Section 40 of FERA which empowers the appropriate officer to summon any persons whose attendance be considered necessary either to give evidence or produce a document during the course of any investigation on proceeding under the Act pursuant to which the person so summoned is bound to attend itself, makes exception from such attendance only in case of Pardanasin women. Proviso to Sub-section (3) of Section 40 provides that exemption under Section 132 of the Code of Civil Procedure 1908 shall be applicable to any requisition for attendance under the section.
60. Proviso of Section 160(1) of the Code of Criminal Procedure which prohibits examination of a woman other than in her residence, therefore, cannot be applicable in FERA specific and contrary provision having been made in Section 40 of FERA itself.
61. It is not the case either of the petitioner that she is Pardanasin or by any custom or law she cannot appear in public. On the contrary both the writ petitioners are highly educated and admittedly have gone to abroad several times.
62. The aforesaid contention of Mr. Kapoor, therefore, is not well founded and the same is rejected.
63. The petitioners no doubt has referred to certain decisions of the Supreme Court to substantiate their challenge as to the violation of the said provision of the Act or Article 14 of the Constitution.
64. Reliance has been placed in the case of State of Punjab v. Khan Chand reported in AIR 1974 SC 443; State of Bihar v. K.K. Mishra reported in : [1970]3SCR181 ; Babubhai and Company v. State of Gujrat reported in : [1985]3SCR614 (paragraph 7); Suman Gupta v. State of Jammu St. Kashmir reported in : [1983]3SCR985 ; Air India v. Nargesh Merza reported in : (1981)IILLJ314SC : B.B. Rqjwanshi v. State of U.P. and Ors. reported in : (1988)IILLJ238SC ; Maneka Gandhi v. Union of India AIR 1978 SC page 1997 (para 56, 57, 115. 119 and 120); Nandini Satpati v. P.L. Dani reported in : 1978CriLJ968 and K. Singh v. State of U.P. reported in : [1966]2SCR457 . The aforesaid decisions of the Supreme Court in our view do not really help the petitioner in as much as in each of such decisions under the facts and circumstances of that particular case the impugned action of the authorities was found to be arbitrary and violative of Article 14 of the Constitution or the power conferred upon the concerned authority Was found to be uncontrolled and unguided and hence violative of Article 14 of the Constitution.
65. In the case of Suman Gupta v. State of Jammu & Kashmir (supra) the Supreme Court was considering the power of the State Government to select candidates for admission to medical college which was held to be uncontrolled and unlimited and without any guideline under the facts and circumstances of that particular case. In the case of Air India v. Nargesh Merza the Supreme Court held that the power of authorities to retire an employee at 35 instead of 45 suffers from excess delegation having no guideline which thus made the power uncontrolled. In the case of B.B. Rajwanshi reported in : (1988)IILLJ238SC , the Supreme Court struck down the power of the State Govt. to remand an Award back to the tribunal for reconsideration as there was no guideline as to when such power could be exercised. In the case of State of Punjab v. Khan Chand again the Supreme Court struck down Section 2 of East Punjab Moveable Properties (Requisition) Act being violative of Articles 14 and 19 of the Constitution as it was held the same conferred uncontrolled power to the State Govt. for authorisation of an officer to requisition any moveable properties. Again in Mishras case Sub-section (6) of Section 144 of the Code of Criminal Procedure was struck down on the ground that such power was uncontrolled and unguided. In the instant case this Court has already held that the power under Section 40 and 37 are not uncontrolled or unguided.
66. In the case of Babubhai & Co. the Supreme Court was considering the challenge to Section 54 of the Bombay Town Planning Act 1954 which empowers the appropriate authority to summarily evict the occupants of land covered by the final town planning scheme notified by the State Government. It was held by the Supreme Court that absence of provision of appeal or revision to a superior authority ' to rectify an adverse order passed by an authority shall not make the power so conferred unreasonable and arbitrary or invalid, but such absence will be one of the factors to be considered along with several others before coming to the conclusion that such power is arbitrary or unreasonable.
67. The aforesaid decision however cannot be applicable in the instant case because of the reasons that the same was rendered entirely under a different circumstances by the Supreme Court when it was considering the question of the power of the authority to evict a person from the land occupied by' him whereas in the instant case we are concerned with Section 33(2) and Section 40(2) of FERA which are not only economic legislation, but deals with power to call for information issue summons for investigation or enquiry for carrying out the purpose of FERA. That apart such power under FERA is not conferred upon a petty officer but such power can be exercised by an officer who must be at least of gazetted rank.
68. It is also to be borne in mind that it is well settled that a judicial decision is an authority for the proposition which it actually decides in the case and it is not an authority for a proposition which logically follows from such decision. In this connection the decision . of the Supreme Court in the case of Krishna Kumar v. Union of India reported in : (1991)ILLJ191SC may be referred to where the Supreme Court has explained the meaning and implication of the doctrine of precedence, laying down the principles therein when a court will be bound by previous decision. In this connection the relevant observation of the Supreme Court in the said case is worth quoting:
The doctrine of precedent, that is being bound by a previous decision, is limited to the decision itself and as to what is necessarily involved in it. It does not mean that this Court is bound by the various reasons given in support of it, especially when they contain 'propositions wider than the case itself required'. This was what Lord Selborne said in Caledonian Railway Co. v. Walker's Trustees and Lord Halbury in Quinn v. Leathern. Sir Frederick Pollock has also said: 'Judicial authority belongs not to the exact words used in this or that judgment, nor even to all the reasons given, but only to the principles accepted and applied as necessary grounds of the decision.''
'In other words, the enunciation of the reason or principle upon which a question before a court has been decided is alone binding as a precedent. The ratio decidendi is the underlying principle, namely, the general reasons or the general grounds upon which the decision is based on the text or abstract from the specific peculiarities of the particular case which gives rise to the decision. The ratio decidendi has to be ascertained by an analysis of the facts of the case and the process of reasoning involving the major premise consisting of a pre-existing rule of law, either statutory or judge-made, and a minor premise consisting of the material facts of the case under immediate consideration. If it is not clear, it is not the duty of the court to spell it out with difficulty in order to be bound by it. In the words of Halsbury (4th Edn., Vol. 26, para 573)
'The concrete decision alone is binding between the parties to it. but it is the abstract ratio decidendi, as ascertained on a consideration of the judgment in relation to the subject matter of the decision, which alone has the force of law and which when it is clear it is not part of a tribunal's duty to spell out with difficulty a ratio decidendi in order to be bound by it, and it is always dangerous to take one or two observations out of a long judgment and treat them as if they gave the ratio decidendi of the case. If more reasons than one are given by a tribunal for its judgment, all are taken as forming the ratio decidendi.
69. It has also been held by the Supreme Court in the case of Commissioner of Income Tax v. Sun Engineering Co. Ltd. reported in : [1992]198ITR297(SC) following an earlier Constitutional bench of the Supreme Court in the case of Madhav Rao v. Union of India reported in : [1971]3SCR9 a decision takes its colour from the question involved in the case and the context it was rendered.
70. The decision in the case of Maneka Gandhi dealt with an entirely different situation, namely, impounding of passport of the petitioner therein on the alleged ground of public interest in exercise of power under Section 10(3)(c) of the Passport Act and the court ultimately held that such power was not ultra vires Articles 14 and 19 of the Constitution as right to go abroad is not a fundamental right. In the case of Nandini Satpati the Supreme Court was again considering an investigation under the Code of Criminal Procedure and held, inter alia, that the Act directing a woman to appear in a police station was clearly violated the provisions of the Code of Criminal Procedure.
71. For the reasons stated above we are of the view that the petitioners have failed to satisfy that the 39th amendment of the Constitution of India incorporating the FERA into Ninth Schedule of the Constitution destroys the basic structure or essential feature of the Constitution or the provision of Section 37(2) and 40(1) of FERA are violative of Articles 14 and 19 of the Constitution.
72. This now takes us to the next challenge of the petitioner against the impugned notices issued under Section 33(2) and summons issued under Section 40(2) of FERA.
73. Mr. Saktinath Mukherjee the Id. Counsel also appearing for the petitioner has addressed us on this aspect of the challenge of the petitioner and has submitted, inter alia, that notices issued under Section 33(2) and summons issued under Section 40(2) are not at all for carrying out for purpose of the Act or investigation connected therewith, but the respondents are really seeking to make a roving and fishing enquiry.
74. As pointed out hereinbefore the Supreme Court in the aforesaid case of Barium Chemicals v. Union of India (supra) has clearly held that satisfaction as to the necessity of calling for information under Section 33(2) of FERA is subject to judicial review. In the said case the Supreme Court has explained the meaning of the word 'considers it necessary' as contained in Section 19(2) of the Foreign Exchange Regulation Act 1947. The decision of the Supreme Court in the said case squarely applies in the present case also in view of the fact the language of the aforesaid Section 19(2) of the said Act is part materia with Section 33(2) of FERA. Khanna. J, speaking for the court in paragraph 15 of the said judgment held thus:
The words 'considers it necessary' postulate that the authority concerned has thought over the matter deliberately and with care and it has been found necessary as a result of such thinking to pass the order. The dictionary meaning of the word 'consider' is 'to view attentively, to survey, examine, inspect (arch), to look attentively to contemplate mentally, to think over, mediatate on, give heed to, take note of, to think deliberately, bethink oneself, to reflect' (vide Shorter Oxford Dictionary). According to Words and Phrases--Permanent Edn: Vol. 8-A to 'consider' is to fix the mind upon with a view to careful examination; to ponder; study; meditate upon, think or reflect with care. It is, therefore, manifest that careful thinking or due application of the mind regarding the necessity to obtain and examine the documents in question is sine qua non for the making of the order. If the impugned order were to show that there has been no careful thinking or proper application of the mind as to the necessity of obtaining and examining the documents specified in the order, the essential requisite to the making of the order would be held to be nonexistent.'
'A necessary corollary of what has been observed above is that mind has to be applied with regard to the necessity to obtain and examine all the documents mentioned in the order. An application of the mind with regard to the necessity to obtain and examine only a few of the many documents mentioned in the order, while there has been no such application of mind in respect of the remaining documents, would not be sufficient compliance with the requirements of the statute. If, however, there has been consideration of the matter regarding the necessity to obtain and examine all the documents and an order is passed thereafter, the Court would stay its hand in the matter and would not substitute its own opinion for that of the authority concerned regarding the necessity to obtain the documents in question.
75. It will thus appear from the above mentioned observation that the application of the mind regarding the necessity to obtain requisite information and documents is the sine qua non for making of such order.
76. It has been submitted by Mr. Mukherjee that it will appear from such order and summons issued by the respondents and the affidavit filed by them disclosing the materials on the basis of which such notices and summons were issued, that there has been no proper application of mind to such materials at all as to the necessity of calling for such information and issuing summons in as much as on such materials as disclosed no reasonable man can be of the view that it was necessary to call for such information and issue and such summon for the purpose of the Act.
77. It may be noted in this -connection that the respondents did not ultimately produce the records on the basis of which they considered necessary to issue notice under Section 33(2) and the summons under Section 40 of the Act, but in the affidavits they disclosed such materials.
78. On careful consideration of the materials disclosed by the respondents in their affidavit on the basis of which it was considered necessary to call for the requisite information under Section 33(2) of the Act and also to issue summons under Section 40. we are unable to accept the contention of the petitioner that condition precedent to pass such order and issue such summons has not been fulfilled or there has been no application of mind as to the necessity of calling for such information and issuing summons.
79. In the case of Dr. Tapati Sengupta the respondents in their . affidavit-in-opposition to the writ application affirmed on 17th March, 1997 has stated, inter alia, in paragraph 2(a) of the said affidavit that the department came across certain documents on the basis whereof a prima facie opinion was formed to the effect that the petitioner violated the provision under the Foreign Exchange Regulation Act and thereafter issued a notice on 29th November, 1996 under Section 33(2) of the Act calling for the information indicated therein. It has further been stated in paragraph 2(d) of the said affidavit that on 3rd December, 1996 the investigating officer examined one Balaram Chowdhury who deposed, inter alia, that Panorama Electronic Pvt. Ltd. sponsored foreign trips of the petitioner and her husband in May 1995 and accordingly by a summons dated 29th November, 1996 the petitioner was directed to produce the passport and pass book of her bank accounts in India and abroad. It has been further stated in paragraph 2(e) and (f) of the said affidavit that the petitioner by a letter dated 10th December, 1996 intimated the respondents that she has no foreign accounts either in her name or in the name of her husband and the details of the bank account maintained by her daughter had already been furnished by her . daughter; as the petitioner furnished the particulars relating to bank accounts only pursuant to the order dated 29th November, 1996, by a further order dated 17th December. 1996, she was asked to furnish the number of foreign trips with date and purpose of visits, name of travelling agents etc. and she was further asked to submit xerox copies of all her passports. It is the further case of the respondent in the said affidavit that the passport submitted by the petitioner revealed that an earlier passport was also issued to her and by an order dated 31st January, 1997 she was called upon to furnish the details of her foreign visits between 1984 to 1989 as also the source of funds.
80. In paragraph 6.1 of the affidavit filed by the respondent which was affirmed on 21st of April, 1997, it has been further stated that at the time of issuance of the summons dated 3rd December, 1996, under Section 40 of the Act and issuing of the notice dated 29th November, 1996. under Section 33(2) of the Act. the materials in possession of the department were as follows:--
The documents sent by Income Tax Department under Section 138 of the Income Tax Act after the seizure conducted by the Income Tax Department on 9/10 October, 1996.
Document found consequent upon the seizure effected by the officers of the respondent on 14.11.96 at the residence of Ajit Kumar Sengupta.
Statement of Ajit Kumar Sengupta dated 14.11.96 that in the year 1995, he had made foreign visits four times.
Statement of Amgana Sengupta dated 14.11.96 in which she had stated that she went to United Kingdom during the year 1990 for her studies and during her stay abroad she opened two bank accounts viz. account No. 20767360 and account No. 50055441 (Capital Advantage Account) with Barclays Bank, London and she came back to India on 31.7.1996.
81. It has further been stated in paragraph 6.2 of the said affidavit that in view of the aforesaid materials the officers of the respondents considered it necessary to conduct investigation in relation to Shri Ajit Kumar Sengupta, his wife Dr. Tapati Sengupta and his daughter Amgana Sengupta to find out whether the provision of Foreign Exchange Regulation Act have been violated and for the purpose of finding out whether there was any link with other members of family , in securing foreign currency.
82. It may be placed on record, that subsequently at the time of hearing, the respondents disclosed the aforesaid documents which was received by them from the Income Tax Department, namely the passport of the writ petitioner Dr. Tapati Sengupta.
83. After consideration of such materials on the basis of which such summons and notices were issued, we are of the view that on application of mind on such materials the concerned officer of the respondents certainly reasonably and legally could have considered it necessary to call for such information and to issue summon for carrying out the purpose of the Act and for investigation and enquiry in respect thereof.
84. As pointed out hereinbefore it will appear from the preamble of the Act as also the scheme of the Act that the purpose of the Act, inter alia, is conservation of the foreign exchange resources of the country and the proper utilisation thereof in the interest of the economic development of the country and to prevent misuse of such foreign exchange. Section 8 of FERA puts a restriction in dealing in foreign exchange and prohibits any person other than an authorised dealer in India and any person resident in India other than authorised dealer from purchasing or lending or exchanging with any person not being an authorised dealer any foreign exchange. Sub-section (2) of said section prohibits any person- including authorised dealer or a money changer to enter into any transaction which provides for conversion of Indian currency into foreign currency or vise versa at the rate of exchange other than the rates authorised by the Reserve Bank of India except with the previous general or special permission. Section 9 of the Act. which puts restrictions on payments prohibits any person in India or resident in India to make any payment to or for the credit of the any person outside India and receive otherwise than through authorised dealer any payment by order or on behalf of a person resident outside India. Section 9 puts restriction on import and export of certain currency and bullion, Section 16 lays down the duty of a person entitled to receive foreign exchange Section 6 and 7 lays down who are the authorised dealers in foreign exchange and money changer Section 30 puts an obligation on Airlines, travel agent etc. to obtain license from the Reserve Bank of India in case of such a travel agent book passage for foreign travel.
85. Such being, inter alia, the purposes of the Act, on the basis of passport of the writ petitioner from which obviously it appeared that the writ petitioner undertook foreign travels on large number of occasions, the concerned respondent reasonably could have asked for such information and even summon the petitioner for the purpose of the Act, namely, for the purpose of holding an enquiry and an investigation whether there is any violation of FERA.
86. It has been submitted by the 1d. Counsel for the petitioners that on the basis of mere passport one cannot certainly prima facie form the opinion as to the violation of the provision of FERA. But the condition under which informations can be called for under Section 33(2) of the Act and summons can be issued under Section 40 as indicated in the said provision of the Act itself will indicate that formation of such prima facie opinion is not the condition precedent for calling for such information and issuing summons, but such information can be called for and summon can be issued even before formation of such opinion when it is considered necessary to do so for the purpose of the Act, namely, for the purpose of holding an enquiry and investigation for finding out whether there is any such violation, even on suspicion.
87. The term investigation although not defined under FERA has to be understood in its common parlance and the same, therefore, obviously would also mean ascertainment of the facts and circumstances of the case for the purpose of finding out whether there has been any violation of the provision of FERA. To borrow the language of Chief Justice M.P. Thakkar of the Gujrat High Court in the case of N.H. Dave, Inspector of Customs v. Md. Akhtar, which has been quoted with approval by the Supreme Court in the aforesaid case of Directorate of Enforcement v. Dipak Mahqjan (supra) 'an investigation means search for material and facts in order to find out whether or not an offence has been committed'. Such an investigation may not only commence on an. information of the commission of offence or violation of the provision of FERA, the same may also commence if the concerned officer has reason to suspect the commission of offence under FERA or violation of the provision of FERA, just as a police officer under the provision of Section 157 of the Code of Criminal Procedure will start investigation if he has reason to suspect the commission of an offence from information received or otherwise.
88. Such passport was admittedly of the year 1989 which obviously indicated that the writ petitioner undertook between 4th October, 1989 and 16th June, 1996 as many as 13 foreign trips out of which in the year 1995 alone she undertook foreign trips for four times (same will appear from her own statement made in her reply dated 24th of December, 1996 to the notice issued under Section 33(2) of FERA by the respondents and obviously all such foreign trips were reflected in the said passport) and if the concerned officer having found that the Principal of a College undertook foreign trips so many times and considered it necessary to call for the information and issued summons for the purpose of holding an enquiry and investigation to find out whether there is any violation of FERA neither such action can be said to be an arbitrary exercise of such power nor such notice and summons can be said to be extraneous to the purpose of the Act nor the same does indicate absence of application of mind.
89. Besides if the respondents also considered it necessary to issue summons and to call for information for such enquiry and investigation for the purpose of finding out whether there is any link with other members of the family in securing foreign currency after obtaining the statement from the daughter Ms. Amgana Sengupta that she went to UK in 1990 and she opened two bank accounts there and stayed in England till middle of July 1996 and the statement of one Balaram Chowdhury that he sponsored the foreign trips of the writ petitioner and her husband in 1995 the same also cannot be said to be arbitrary exercise of power nor such notice and summons can said to be extraneous to the purpose of FERA or based on non-application of mind.
90. The language of Sub-section (2) of Section 33 makes it clear that the power of the appropriate authority to call for information from a person is not confined only in such case when it is considered necessary for investigation and enquiry to find out whether there is a violation of the Act by such person himself. Under the aforesaid provision such information or document can be called for even from a person who although himself might not have violated any provision of the Act of FERA, but may very well be in possession of information or document in respect of violation of FERA by another person and consequently even such a person can also be summoned for the purpose of giving evidence under Section 40.
91. It has been sought to be argued that the query in the notice dated 27th November. 1996 under Section 33(2) of FERA as to the sources of funds is wholly extraneous to the purpose of the Act in as much as though FERA may be concerned with the source from where the foreign exchange has been purchased cannot be concerned at all with source of the fund, namely, wherefrom the money has been obtained to purchase the foreign exchange.
92. Such source of fund, however, may also be a relevant query for the purpose of such investigation and enquiry in as much as if the income of the person which one can earn in his or her occupation cannot enable him or her to undertake foreign trips, frequently, there may be an inference of acquisition of foreign exchange from unauthorised source.
93. But even assuming such query to be extraneous to such investigation, all other questions being extremely relevant for the purpose of carrying on such enquiry and investigation for the purpose of the Act one extraneous query will not vitiate the notices or the investigations.
94. That apart it is pertinent to note that in course of hearing in terms of interim order passed by this Court the petitioner replied to such notices and the respondents ultimately in their notice dated 12th March, 1997 under Section 33(2) of the Act while asking for the details of her foreign visits between 1984 to 1989 also called for information from the petitioners relating to source of foreign exchange only.
95. The petitioners have also relied on the decision of the Supreme Court in the case of Barium Chemicals Ltd. v. Co. Law Board reported in : [1967]1SCR898 (hereinafter referred to as the first Barium Chemicals case) and in the case of Rotas Industries reported in : [1969]3SCR108 . None of such decisions, however, is applicable in the instant case. In the first Barium Chemicals case the Supreme Court was concerned with the interpretation of the provision contained in Section 237 of the Companies Act which is not pari materia with Section 33 of FERA or Section 19 of the Foreign Exchange Regulation Act 1947. The purpose of Section 237 of the Companies Act and Section 37 of FERA are completely different from each other and a decision on Section 237 of the Companies Act cannot be treated as a binding precedent while interpreting the provision of Section 33 of FERA, in view of the judgment of the Supreme Court in the aforesaid case of Kishen Kumar. Under the relevant provisions of Section 237 of the Companies Act the Central Government was empowered to appoint one or more competent person as inspector to investigate if in the opinion of the Central Government there are circumstances suggesting that the business of the Company was conducted with intent to defraud its creditors etc. or there are circumstances suggesting the existence of other situation as indicated in Clause (ii) and (iii) of Section 237(b) of the Companies Act. For the same reason the decision in the case of Rotas Industries which also dealt with interpretation of the provision of Section 237 of the Companies Act will not be applicable. On the contrary the Supreme Court in the subsequent Barium Chemicals case having interpreted the provision of Section 19 of the Foreign Exchange Regulation Act, 1947, which is pari materia with Section 33 of FERA, where the Supreme Court interpreted the meaning of the expression 'when it considers necessary', will be fully applicable in the present case.
96. It has been rightly contended by the Ld. Additional Solicitor General that in view of the decision of the Supreme Court in the second Barium Chemicals case it is not at all necessary for the court to consider the aforesaid decisions of the Supreme Court which were rendered while interpreting the provision of Section 237 of the Companies Act nor it would be safe to rely on such decision as it has also been held by the Supreme Court in the case of General Manager v. Pawan Kumar reported in : (1976)IILLJ266SC that one additional or different facts may make a world of difference between conclusion in two cases even when the same principles are applicable in each case to similar facts.
97. Grievances have also been made by the petitioner that the respondents have continued to ask the same question even though some times the petitioner pointed out to the respondents in her reply that she is not in possession of any informations or particulars in respect thereof.
98. It is not necessary for this Court at this stage to go into such question in view of the fact Sub-section (2) of Section 33 itself makes it clear that a person, from whom the information is called for, is liable to supply such information or document which are in possession of the said person or which it is possible for such person to obtain or furnish. Similarly a person is liable to produce such documents, when summoned to do so under Section 40, which are in the possession or under the control of the person so summoned and not otherwise. At the same time he is bound to tell the truth while giving the informations.
99. It is, therefore, for the petitioners when so summoned or when information are called for from them, to supply such information and documents and to give evidence in accordance with law.
100. We take also the same view in the case of Ms. Amgana Sengupta, the stand of the respondents for issuing the notice under Section 33(2) of FERA calling for information and issuing summons under Section 40 being the same.
101. Admittedly the petitioner Ms. Amgana Sengupta went to abroad in the year 1990 and remained there till middle of 1996 and maintained two foreign bank accounts. Under such circumstances the action of the respondent in issuing the summon dated 16th October, 1996 and 14th November, 1996, inter alia, asking her to produce her passport and passport/transcription of such bank accounts certainly cannot said to be extraneous to the purpose of the Act.
102. Each of the petitioner has also challenged the impugned action of the respondent in calling for such information and in issuing summons on the allegation of mala fide.
103. It has been sought to be alleged that at the behest of the income tax authorities such action has been resorted to by the respondents for the purpose of humiliating Sri Ajit Kumar Sengupta and his family members. In her writ petition Dr. Tapati Sengupta has specifically pleaded that one Kalayan Roy an officer of the income tax department who was once lecturer of her college was inimical to the writ petitioner and to humiliate the writ petitioner and her husband, supplied documents to the respondents.
104. The said Kalayan Roy has not even been impleaded as a respondent and therefore we take no cognizance of such allegation of mala fide. The allegation that the enquiry and investigation were sought to be carried out at the behest of the Income Tax Authorities who wrongfully supplied documents to the respondents which they seized when they raided the residence of the petitioner and her husband, have been denied by the respondents specifically.
105. It does not also appear to us any illegality has been committed in the event such documents which were seized by the Income Tax Authorities while raiding the residence of the petitioners and their husband/father were remitted to the respondents. If such documents are also required to be examined vis-a-vis FERA, under Section 132 of the Income Tax Act it was open to the Income Tax Authorities to remit such documents to the respondents.
106. But even assuming that the Income Tax Authorities illegally forwarded certain documents seized by them to the respondents on the basis of which the notices under Section 33(2) of the Act and summons under Section 40 of the Act were issued the same cannot make the investigation bad. In the case of Puran Mai v. Directorate of Inspection reported in 1974(93) Income Tax Report page 505 it was held by Supreme Court that even though the search and seizure may be in contravention of Section 132 of the Income Tax Act, still the material obtained thereby is liable to be used subject to law before the Income Tax Authority against the person from whose custody it was seized. In the case of Pratap Singh v. Directorate of Enforcement reported in : 1986CriLJ824 it was held by the Supreme Court that the relevant evidence not to be excluded merely on the ground that it was obtained by an illegal search and seizure. Same view has been taken by the Supreme Court in the case of Puspa Davi v. Wadhvan reported in 1988 SCC 259 where it has been held that if evidence is relevant, the court is not concerned with the method by which it was obtained.
107. It is to be placed on record that pursuant to leave granted by the Ld. Single Judge of this Hon'ble Court who heard the writ petition first, a supplementary affidavit has been filed by Dr. Tapati Sengupta. In the aforesaid supplementary affidavit affirmed on 7th February, 1997, Dr. Seugupta has stated in details particulars of the alleged misbehaviour, harassment and physical and mental torture allegedly perpetuated by the respondents specially respondent No.3 upon her husband Sri Ajit Kumar Sengupta while examining them. Such allegations, however, have been denied by the respondent specifically in their affidavit where it has been sought to be contended that such allegation have been made by way of after thought. It is, however, not at all necessary for us in the present case to go into the question whether Sri Ajit Kumar Sengupta a retired Judge of this Hon'ble Court and the Allahabad High Court was really subjected to said mental or physical torture as alleged as the same is not in issue in the instant cases and therefore beyond the scope of enquiry of the present writ proceeding particularly when Sri Sengupta is not one of the writ petitioners before us and has not challenged the same before us.
108. All the challenge of the writ petitioners, therefore, fail and the writ petitions are liable to be dismissed.
109. It is to be placed on record that in course of hearing it has been brought to our notice by an application made by the respondents affirmed on 17th June, 1997 that the respondents being aggrieved by the interim order which was granted by the Learned Single Judge while first hearing the writ application, to the effect that the writ petitioner can be interrogated at her residence with sufficient prior notice and such interrogation should not exceed 4 hours at a time between .10 a.m. to 4 p.m. , the respondents preferred special leave petition before the Hon'ble Supreme Court whereupon the Hon'ble Supreme Court has dismissed the petition granting liberty to the respondents to approach this Court and pursuant to such liberty the respondents have made their application praying for modifying such interim order permitting the respondents to interrogate the writ petitioner in the manner as it has been directed by the Supreme Court in the case of husband of the petitioner by an order dated 21st of April, 1997. It has been stated in the said application the respondents being aggrieved by the order of another Division Bench of this Hon'ble Court, imposing certain conditions for interrogating the husband of the petitioner Sri Ajit Kumar Sengupta while granting him bail, filed a special leave petition before the Hon'ble Supreme Court which was allowed by an order dated 21st April, 1997 by directing that the Enforcement Directorate Officers shall be free to examine Sri Sengupta at the venue at which other such investigation are conducted, but examination on any particular date should not exceed 5 hours during day time and the service of a stenographer be made available during the course of examination.
110. As the main matter was being heard and was on the verge of conclusion it was directed by us by an order dated 12th June, 1997 that the application will be heard with the main matter and, in the event there is a delay in disposal of main matter such application will be taken up for consideration.
111. The petitioners have expressed their apprehension that if they are allowed to be interrogated by the respondents at their office, they may be subjected to physical and mental torture for the purpose of extracting statements from them which will suit the purpose of the respondents.
112. In the writ petitions and in supplementary affidavits particulars of such torture allegedly perpetuated upon Ms. Amgana Sengupta and her father, have been furnished, which however, have been denied by the respondents.
113. In view of the decision of the Supreme Court, however, in the case of Pool Pandi v. Superintendent, Cenlral Excise (supra) as referred to above, wherein the right of the respondents to interrogate the concerned person in their office have been upheld, and in view of the fact that the Hon'ble Supreme Court in the case of Sri Ajit Kumar Sengupta has permitted his interrogation by the respondents at their office, we are of the view such right of the respondents to interrogate the petitioners in their office cannot be interfered with and consequentially the interim order which was granted earlier directing the respondents to interrogate the petitioners at their residence cannot subsist any further and is liable to be vacated.
114. This, however, should not be interpreted as giving license to the officers of the Enforcement Directorate including the present respondent to subject any of the petitioners or for the matter of that any person who may be summoned under Section 40 of FERA to torture, physical or mental, for extracting statements of their choice from such persons. It is necessary for all concerned to remember that the Supreme Court although upheld the necessity of interrogating persons summoned under Section 40 of FERA at the office of the FERA authorities in the interest of investigation for the purpose of the Act in the aforesaid case of Pool Pandi, in the case of D.K. Basu v. State of West Bengal reported in : 1997CriLJ743 in a public interest litigation while considering the issue of custody death has taken Judicial notice of the factum of perpetuation of both physical and mental torture during investigation or detention of person by the police as also by the authorities under different various special Acts including FERA and depricated such practice, as the same is violative of the right of the concerned persons as guaranteed under Article 21 of the Constitution and also violative of declaration of human rights.
115. As held by the Supreme Court in the said case (para 22), any form of torture or cruel inhuman or degrading treatment would fall inhibition of Article 21 of the Constitution, whether it occurs during investigation, interrogation or otherwise; if the functionaries of the Government become law breakers it is bound to breed contempt for law and would encourage lawlessness and every man would have the tendency to become law unto himself thereby leading to anarchism. It has been further held that the right guaranteed under Article 21 of the Constitution cannot be denied even to convicts or detenues and persons in custody. 'The expression life or 'personal liberty' has been held to include the right to live with human dignity and the same, therefore, will include within itself a guarantee against torture and assault by the State or its functionaries.' In paragraph 31 of the said judgment the Supreme Court acknowledged the fact that there are instances of torture and death in custody of the authorities of the special Act including FERA and referred to its earlier decisions in In Re. of Death of Sawinder Grower reported in 1995 (Suppl) (4) SCC 450. In the said case the Supreme Court after taking the view that a balance has to be struck between the rights of an individual and the interest of the State, was of the view that a detenue or a person under arrest cannot be tortured or subjected to the 3rd degree methods. It is indeed useful to remember the observation of the Supreme Court in this connection in paragraph 34 of the judgment . which is quoted hereunder:--
There can be no gain saying that freedom of an individual must yield to the security of the State. The right of preventive detention of individuals in the interest of security of the State in various situations prescribed under different statutes has been upheld by the Courts. The right to interrogate the detenues, culprits or arrestees in the interest of the nation, must take precedence over an individual's right to personal liberty. The latin maxim salus populi est suprema lex (the safety of the people is the supreme law) and salus republicae est suprema lex (safety of the State is the Supreme law) co-exist and are not only important and relevant but lie at the heart of the doctrine that the welfare of an individual must yield to that of the community. The action of the State, however, must be 'right, just and fair'. Using any form of torture for extracting any kind of information would neither be 'right nor just nor fair' and, therefore, would be impermissible, being offensive to Article 21. Such a crime-suspect must be interrogated, indeed subjected to sustained and scientific interrogation--determined in accordance with the provisions of law. He cannot, however, be tortured or subjected to 3rd degree methods or eliminated with a view to elicit information, extract confession or drive knowledge about his accomplices, weapons etc. His Constitutional right cannot be abridged except in the manner permitted by law, though in the very nature of things there would be qualitative difference in the method of interrogation of such a person as compared to an ordinary criminal....
116. In the event of perpetuation of any torture, therefore, it will always be open to the petitioners to take appropriate action in law.
117. For the reasons stated above the writ applications fail and the same are hereby dismissed. All interim orders granted either by the Learned Single Judge or by Division Bench stand vacated. The respondents will be at liberty to call for requisite and necessary information and documents for the purpose of holding investigation and enquiry relating to the purpose of the Act and also to issue summons for the aforesaid purpose in accordance with law. All pending applications are disposed of accordingly.
118. It is made clear that the respondent will be at liberty to examine each of the petitioners at their office, but in view of the fact each of the petitioners is a lady, such examination shall always be done during day time and during office hours always in the presence of a lady officer, which should not exceed 5 hours on any particular day and adequate facilities for toilet and drinking water shall be given and the service of a stenographer should be made available during the course of examination.
119. There will be no order as to costs.
Satyabrata Sinha, J.
1. I have had the advantage of going through the draft judgment prepared by learned Brother Banerjea, J. and although I agree with the said judgment but in view of the importance of the question involved I would like to pass a short separate order.
2. The petitioner Tapati Sengupta by a summon dated 29.11.96 purported to have been issued under Section 33(2) of the Foreign Exchange Regulation Act, 1973 was, inter alia, asked to disclose her source of funds. The said notice was replied by a letter dated 10th December, 1996.
3. By a summon dated 3.12.96 she was asked to furnish her Pass Book in India and abroad although in her letter dated 19th December, 1996 she categorically stated that she or her husband do not have any Bank Account in any foreign country. Again on 17.12.96 a notice purported to be in terms of Sub-section (2) of Section 33 of the Foreign Exchange Regulation Act. was served on her asking her to furnish the information stated in the schedule appended thereto which reads thus :
1. No of foreign visits with date, purpose of visits, name of Travel Agents from whom the Air Tickets were purchased amount of foreign exchange drawn and from whom, source of funds and mode of payments during the period from 1984 to till date.
2. Xerox copies of all her passports.
To that notice she had replied by a letter dated 24.12.96 wherein it was stated :
I do not have any recollection about my visits between 1984 and 1989. My personal papers are with the Income-Tax authorities. So I cannot even verify the details. I can only revert on this subject after my papers are released by the Income-tax authorities.
My only available passport is my current passport. No other passport of mine is available. Xerox copy of the whole passport is attached.
She has also appended a copy of the passport. Yet again on 31.1.97 she was served another notice, the-schedule whereof reads thus:--
1. Obtain and furnish the details of her foreign visits between 1984 to 1989.
2. Source of funds.
It apears that on 20th February, 1997 she was asked to furnish the details again which appears to have issued in terms of order dated 11.2.97 passed by this bench.
On 26th February, 1997 she without prejudice to her rights and contentions in the writ application replied as follows:--
In the meanwhile, as far as serial No. 1 of the order dated 31st January, 1997 is concerned, so far as I can recollect, I had been to London/Europe in May 1987; to Poland in August 1988 to attend the International Law Conference organised by the International Law Association and to London/Europe in October, 1989.
On serial No. 2 of the abovementioned order, I am yet to receive a fresh notice from you in accordance with the order dated 11.2.1997 passed by the Hon'ble Division Bench.
On 12.3.97 another notice had been issued purported under Sub-section (2) of Section 33, the schedule whereof reads thus:
1. Details other foreign visits between 1984 to 1989.
(i) Date of visit.
(ii) Place of visit.
(iii) No. of days stayed in each place during her visit abroad.
(iv) Foreign exchange taken/spent.
(v) Source of foreign exchange.
2. Full name and address of Sumit Sengupta of New York who had sponsored her foreign trip during the year, 1992 and the local address of the said Sumit Sengupta.
The petitioner did not reply to the said queries stating that the writ application had already been taken up for hearing and stated that she would revert to the subject later. However, on 25th March, 1997 she stated:
Further to my letter dated 21st March, 1997 I have to state that I have drawn your attention more than once to the fact that I have in my possession only one Passport since 11.8.1989 which is my current Passport, a xerox copy of which has already been lying with you. I do NOT have any earlier passport at all.
In my letters dated 24.12.1996 and 26.2.1997 addressed to you, . I had stated that I had been to London/Europe in May 1987; to Poland in August 1988 and to London/Europe in October, 1989. As I do not have in my possession any Passport for the period prior to August, 1989, all the particulars as asked for by you in your purported order under reference cannot be furnished.
I may only add that as far as I can recollect, I obtained about 520 dollars during my visit to London/Europe in 1987. As far as my memory goes, my trip to poland in 1988 was sponsored by one of our family friends who is a permanent resident of England.
I have no further independent recollection of the other particulars regarding my foreign trips between 1984-89, as asked for by you in your letter under reference.
Furthermore, I may take it that you are fully aware of contents and purport of the order dated 11th February, 1997 passed by the Division Bench of the Hon'ble High Court in my pending writ petition.
To the best of my recollection, the address in the United State of Mr. Sumit Sengupta at the material point of time was BPO 21673, Piscataway, N.Y. 08855. U.S.A.
Despite the same the Enforcement Director issued a letter dated 4.4.97 stating:
In this connection, you are directed to furnish full names and addresses of the persons/Organizations who had sponsored your foreign visits during 1987, 1988 and 1989. within 3 (three) days of receipt of this Directive.
To which a reply was stated by the petitioner in terms of her letter dated 10th April, 1997 which is to the following effect:
It is not possible for me to furnish immediately the information asked for by your purported order under reference excepting that, in 1988 my visit was sponsored as far as I recollect, by Mr. and Mrs. L.N. Agarwalla of 30, Upper Berkeley Street, London, WI.
4. The aforementioned events would clearly go to show that despite answers given by the petitioner to the queries made, the same query had been made again and again. This conduct on the part of the Directorate of Enforcement was necessary to be highlighted keeping in view the submissions made by the learned Additional Solicitor General that by reason of Section 33(2) and Section 40 of the Act no unbriddled or arbitrary power had been conferred upon the respondents and such power must be exercised only for the purpose of eliciting informations as is required for making an investigation in terms of Section 8 and 9 of the Act. It has also to be borne in mind that despite liberty given to the respondents to interrogate the petitioner at her residence in terms of this Court's order dated 11th December, 1996 no attempt was made in that regard and the said order was questioned before the Supreme Court of India.
5. All these facts are being highlighted to show that the respondents failed to show any urgency in the matter. The respondents on their own showing had no urgency to make proper investigation. We, would, therefore, hope that in future the questionaries would disclose proper application of mind and once a query is answered the same would not be repeated unless any explanation or clarifications are needed. It must be emphasised that a roving enquiry is not permitted under the said Act.
6. The respondents should bear in mind that according to themselves, on the basis of the materials which had been procured by them the respondents have already arrived at a conclusion that a prima facie case had been made out as against the petitioner which was sufficient to prosecute her under the said Act. Such a conclusion has been arrived presumably on the basis of the materials supplied by the petitioner as also the materials collected during search of the premises belonging to her husband and upon his interrogation as also interrogation of the other petitioner Sm. Amgana Sengupta which admittedly lasted for several hours (in the case of Sri Ajit Sengupta admittedly for more than 12 hours continuously).
7. There cannot be any doubt whatsoever that the respondents have the requisite power to interrogate any person from whom some informations can be collected during investigation but there cannot also be any doubt whatsoever that although the said Act is within the protective umbrella of Ninth Schedule of the Constitution of India, the action on the part of the officers must be reasonable and bona fide. Arbitrariness and unreasonableness are antithesis to Article 14 of the Constitution of India. I may also place on record that despite assurance given by the learned Additional Solicitor General that the entire record shall be placed before us for our perusal, the respondents did not do so for reasons best known to them. It is, therefore, not correct as has been alleged by the petitioners in their written submissions that certain documents had been shown to the court behind their back although they had a right to inspect the same. In this view of the matter, this Court has not adverted to the questions as to the right of the petitioners to get information thereabout, although the learned Counsels addressed us on the said question at some length. There cannot be any doubt whatsoever that any action on the part of the respondents in terms of Section 33(2) or Section 40 of the Act would be subject to judicial review and in such a proceeding they are under obligation to show that materials exist for exercise of their power there under.
8. One of the questions which arises for consideration as to whether Sections 33(2) and 40 are ultra vires the Constitution of India.
9. Mr. Kapoor had taken great pains to show that the said provisions do not contain any guidelines and uncontrolled, uncanalised and arbitrary powers had been conferred upon the concerned authorities who may include a mere gazetted officer and, thus, there is every likelihood of such power being brazenly abused and in that view of the matter it is violative of Articles 14, 19 and 21 of the Constitution of India. Faced up with the situation that the said Act is under the protective umbrella of Article 3IB of the Constitution of India the learned Counsel sought to contend that the same violated the basic structure of the Constitution. However, it appears that no such ground was taken in the writ application. The learned Counsel had placed strong reliance on Waman Rao v. Union of India reported in : AIR1981SC271 . Maharao Sahib Shri Bhim Singhji v. Union of India reported in : AIR1981SC234 and Minerva Mills v. Union of India reported in : [1981]1SCR206 .
10. It may be true that in view of Keshava Nanda Bharati v. State of Kerala reported in : AIR1973SC1461 which was decided on 24.4.1973 and the said Act having come into force on 19th September, 1973, the vires thereof could be challenged if it violated the basic structure of the Constitution of India. But it is difficult to accept the contention that violation of any and every fundamental right would be destructive of basic feature of the Constitution.
11. The question as to whether the fundamental right itself is a basic structure of Constitution of India has been considered by a division bench of this Court in Paschim Banga Bhumijibi Krishak Samity v. State of West Bengal reported in 1996 (II) CHN 212 upon considering Minerva Mills Ltd. and Ors. v. Union of India reported in : [1981]1SCR206 and Waman Rao and Ors. v. Union of India reported in : AIR1981SC271 , wherein it was held:--
In view of the aforementiond observation and in view of my findings aforementioned it is not necessary to consider as to whether the Constitutional Amendments are valid or not. But. in our opinion, it does not mean although an Act may be under the protective umbrella of Article 31C, but a provision thereof may not still be held to be unconstitutional, being destructive of basic structure of the Constitution or other provision of statute. It has to be borne in mind that the Constitution operates as a higher law and thus, any Act transgressing any provisions thereof would be unconstitutional.
12. In this context, however, we must notice the decision of the Supreme Court in Maharao Saheb Shri Bhim Singhji v. Union of India reported in : AIR1981SC234 wherein the Apex Court was considering the constitutionality of Urban Land Ceiling (Regulation) Act which was also under the protective umbrella of Articles 31A, 31B and 31C of the Constitution. Despite the same, Section 27(1) of the Act was held to be ultra vires, Chandrachud, J. (As His Lordship then was) speaking for himself as also on behalf of Bhagawati, J. (As His Lordship then was) did not assign any reason in support of the said finding. Krishna Ayer, J. however, sought to dissect Article 14 of the Constitution of India, stating:--
Peripheral inequality is inevitable when large scale equalisation processed are put into action. If all the Judges of the Supreme Court in solemn session sit and deliberate for half a year to produce a legislation for reducing glaring economic inequality their genius will let them down if the essay is to avoid even peripheral inequalities. Every large cause claims some martyr, as sociologists will know. Therefore, what is a betrayal of the basic feature is not a mere violation of Article 14 but a shocking, unconscionable travesty of the quintessence of equal justice. If a legislation does go that far it shakes the democratic foundation and must suffer the death penalty.
13. Tulzapurkar, J. held the entire Act as unconstitutional. The learned Judge held that there having not been sufficient guidelines for exercise of power under Section 27(1) of the Act, the same is violative of Article 14 of the Constitution of India and as such the requirement of permission contained therein will have to be struck down as being unconstitutional.
14. Sen, J. declared Section 27(1) of the Urban Ceiling Act as unconstitutional on 2 counts i.e. both under Articles 14 and 19 holding:--
In my judgment, there is no justification at all for the freezing of transactions by way of sale, mortgage, gift or lease of vacant land or building for a period exceeding ten years, or otherwise, for a period of ten years from the date of commencement of the Act, even though such vacant land with or without building thereon falls within the ceiling limits. In Excel Wear v. Union of India : (1978)IILLJ527SC , the court held that the right to carry on a business guaranteed under Article 19(1)(g) carries with it the right not to carry on business. It must logically follow, as a necessary corrollary, that the right to acquire, hold and dispose of property guaranteed to a citizen under Article 19(1)(f) carries with it the right not to hold any property. It is difficult to appreciate how could a citizen be compelled to own property against his will.
15. It is, therefore, evident that although an Act in its entirety may not be held to be ultra vires as destructive of the basic feature of the Constitution, having its protection under Article 31B of the Constitution but one or more of the provisions may be held to be unconstitutional as violative of basic feature of the Constitution. Section 27(1) of the Urban Land Ceiling and (Regulation) Act apparently was declared unconstitutional as although the buildings or structures do not vest in terms of Section 3 thereof but despite the same, restriction on transfer was sought to be imposed thereby.
16. Thus, in that case the Act was found so much discriminatory and to such an extent so as to violate the basic structure of the Constitution.
17. No such case has been made out in the instant case. Once it is held that Section 33(2) and Section 40 of the said Act do not violate the basic structure, the question of the said provision being declared unconstitutional would not arise. Furthermore the impugned provisions contain in built safeguards and any action on the part of the authorities concerned would be subject to judicial review. The very fact that no person below the rank of a Gazetted Officer can exercise powers under the Act goes to show that the chances of abuse of the power is less, although on that account alone, vires of a statute cannot be upheld.
18. The other question which arises for consideration is as to whether the conditions precedent for exercise of power under Section 40 and 33(2) had been followed.
19. The meaning of the word 'Considers it necessary' came up for consideration in the Barium Chemicals Ltd. v. A.J. Rana reported in : [1972]2SCR752 (Second Barium), wherein the Apex Court in no uncertain terms held that 'careful thinking or due application of the mind regarding the necessity to obtain and examine the documents in question is sine qua non for the making of the order. If the impugned order were to show that there has been no careful thinking or proper application of the mind as to the necessity of obtaining and examining the documents specified in the order, the essential requisite to the making of the order would be held to be non-existent. The aforementioned decision clearly goes to show that any action taken by an authority in terms of the said Act would be subject to judicial review. The court in a given situation thus, can come to the conclusion as to whether the said statutory requirements are satisfied or not.'
20. In the instant case we may notice that the said grounds were not specifically taken in the writ petition but were urged in course of arguments.
21. The respondents stated that Tapati Sengupta visited foreign countries at least 15 times prior to 1996 and, thus, information sought for from 1984 cannot be said to be wholly unjustified requiring interference by this Court. She has also clearly stated that she had made a number of foreign tours and, thus, an investigation as regard question of foreign currency which might have been spent by her cannot be said to be wholly unjustified.
22. So far as Amgana Sengupta is concerned, admittedly, she had bank accounts in foreign countries where she had been residing for about six years. In that view of the matter also I am of the view that there existed some materials for issuing the impugned notices.
23. This Court in exercise of its power of judicial review can interfere with an administrative action, inter alia, on the ground of illegality, irrationality (Wednesbury Unreasonableness) and procedural irregularity. See Tata Cellular v. Union of India reported in 1994(6) SCC 651.
24. In Pooran Mal v. Director of Inspection reported in : [1974]93ITR505(SC) , it is stated:--
Eventhough a search and seizure may be in contravention of Section 132 of the Income Tax Act, still the material obtained thereby is liable to be used subject to law before the income tax authority against the person from whose custody it is seized and, therefore, no writ of prohibition in restraint of such use can be granted.
25. Furthermore, it is also evident from the decision of the Apex Court in Pratap Singh v. Director of Enforcement, reported in : 1986CriLJ824 and Puspa Devi v. M.L. Wadhvan, reported in 1988 SCC 259 that this Court is not concerned with sufficiency of evidence. This Court can only interfere if there exists no evidence at all.
26. The Act in question deals with economic offences, thus, different procedures have been adopted in dealing with the persons against whom allegations relating to violation of the provision of the said Act exist. As regard the right of the petitioners under Code of Criminal Procedure is concerned I am of the view that at this stage the said question does not arise.
27. In Coal Mines Officers Association of India and Ors. v. Union of India and Ors., reported in : AIR1996Cal28 , I had noticed:--
In State of Bombay v. Kathi Kalu Oghad, reported in : 1961CriLJ856 , upon which strong reliance has been placed by Mr. Mukherjee, the majority pointed out that the protection under. Clause 3 of Article 20 of the Constitution of India is not available in respect of the documentary evidence. Kathi Kalu's case {supra) was referred to a larger Bench as it was held that some of the propositions laid down in Sharma's case may have been too widely stated and, therefore, requires to be restated with more particularity. It was held:--
'To be a witness' may be equivalent to 'furnishing evidence' in the sense of making oral or written statements but not in the larger sense of the expression so as to include giving of thumb impression or impression of palm or foot or fingers or specimen writing or exposing a part of the body by the accused person for purposes of identification.
The learned Judges observed:--
Self-incrimination must mean conveying information based upon the personal knowledge of the person giving the information and cannot include merely the mechanical process of producing documents in court which may throw light on any of the points in controversy, but which do not contain any statement of the accused based on his personal knowledge.It was further observed:--In order that a testimony by an accused person may be said to have been self-incriminatory the compulsion of which comes within the prohibition of the constitutional provision, it must be of such a character that it itself should have the tendency of incriminating the accused, if not also of actually doing so. In other words, it should be a statement which makes the case against the accused person at least probable, considered by itself.
28. In Tukaram G. Gaokar v. R.N. Shukla, reported in : 1968CriLJ1234 , the Supreme. Court while considering the matter under Sea Customs Act. 1878 held that accused is entitled at his option to enter witness box in his own defence in such proceeding. There is no compulsion against him and such initiation of proceedings cannot violate constitutional protection under Article 20(3). The Supreme Court having held that the appellant before it was a person accused of an offence, observed that it was not possible at that stage to say that he is compelled to be a witness against himself. There is no compulsion on him to enter the witness box. He may if he chooses, not appear as a witness in the proceedings under Sections 111 and 112. The Supreme Court noticed that an accused can give a statement even in a criminal trial under Section 342-A of the Criminal Procedure Code. He, therefore, cannot deny to give information regarding the matters which tend to incriminate him in proceedings against him under the Act. The Supreme Court in the aforementioned case refused to stay the summons.
29. This aspect of the matter has also been considered by the Supreme Court in Nandini Satpati v. P.L. Dani, reported in : 1978CriLJ968 . In the aforementioned decision the Supreme Court was considering a prosecution under Section 179 of the Indian Penal Code for refusing to answer questions put to the appellant by the police officers in exercise of their jurisdiction under Article 161 of the Code of Criminal Procedure. The Supreme Court observed:--
Not all relevant answers are criminatory; not all criminatory answers are confessions. Tendency to expose to a criminal charge is wider than actual exposure to such charge. The spirit of the American rulings and the substance of this Court's observations justify this 'wheels within wheels' conceptualization of self-accusatory statements. The orbit of relevancy is large. Every fact which has a nexus to any part of a case is relevant, but such nexus with the case does not make it noxious to the accused. Relevance may co-exist with innocence and constitutional censure is attracted only when inference of innocence exists, and an incriminatory inference is not enough for confession. Only if without more, the answer establishes quit, does it amount to confession. An illustration will explicate our proposition.
30. The apex court referring to a decision in Hoffman v. United States, reported in 341 US 479 (1951) held:--
Merely because he fancied that by such answer he would incriminate himself he could not claim the privilege of silence. It must appear to the court that the implications of the question, in the setting in which it is asked, make it evident that a responsive answer or an explanation or why it cannot be answered might be dangerous because infurious disclosure could result. The apprehension of incrimination from the answer sought must be substantial and real as distinguished from danger of remote possibilities or fanciful flow of inference. Two things need emphasis. The setting of the particular case, the context and the environment i.e., the totality of circumstances, must inform the perspective of the court adjudging the incriminatory injury, and where reasonable doubt exists, the benefit must go in favour of the right to silence by a liberal construction of the article.
31. The Supreme Court referred with approval of its decision in Kathi Kalu's case (supra) and stated:--
In order that a testimony by an accused person may be said to have been self-incriminatory, the compulsion of which comes within the prohibition of the constitutional provisions, it must be of such a character that by, itself it should have the tendency of incriminating the accused, if not also of actually doing so. In other words, it should be a statement which makes the case against the accused person at least probable, considered by itself.
(Emphasis added)
32. The Supreme Court held:--
The conspectus of circumstances persuades us to exercise our power under Article 226 read with Article 136 and Section 401 of Cr. P.C to make the following direction. We are satisfied that many of the questions put by the police are not self-incriminatory, remote apprehensions being wholly irrelevant. To answer is citizen's duty; failure is asking for conviction. The appellant shall undertake to answer all questions put to her which do not materially incriminate her in the pending or imminent investigation or prosecution. If the claims immunity regarding any questions she will, without disclosing details, briefly state in which case or offence in the offing makes her reasonably apprehend self-incrimination by her refused answers. If, after the whole examination is over, the officer concerned reasonably regards any refusal to answer to be a wilful violation under pretext of immunity from self-incrimination, he will be free to prosecute the alleged offender after studying the refusal to answer in the light of the principles we have set out. Section 179 IPC should not be unsheated too promiscuously and teasingly to tense lay people into, vague consternation and covert compulsion although the proper office of Section 179 IPC is perfectly within the constitutional limits of Article 20(3).
33. Thus, in view of the observations aforementioned summoning of the petitioner be itself cannot be said to be bad in law. There cannot, however, be any doubt that it would open to the petitioner to answer a question if the same is considered to be self incriminatory. These observations are being made keeping in view the unequivocal statement made in the affidavit-in-opposition that a prima facie case has been made out against the petitioner--Dr. Tapati Sengupta and as such of all practical purposes she, although, not yet formally changed, stands in the category of an accused. It appears from the notices that she had not been summoned as a witness in the case against her husband but in a separate case involving herself. 34
However, we cannot loose sight of the fact that the conduct of the respondent while interrogating Sri Ajit Sengupta and Sm. Amgana Sengupta prima facie appear to be unreasonable as they admittedly were subjected to interrogate for long hours. For the purpose of disposal of this case, it is not necessary to go in details about the other allegations made in the writ application.
35. In D.K. Basu. v. State of West Bengal reported in : 1997CriLJ743 , the apex court has, inter alia, found that death of a person has taken place while in custody of the authorities under the said Act. The authorities dealing with the economic offences are not expected to behave like ordinary police men. If an accused/prisoner has the protection of Article 21 while in custody there cannot be any reason as to why the same protection would not be afforded to a witness. In fact a witness should be treated by the concerned authorities with more respect. The petitioners of this case are highly respected persons and they should be dealt with as such. In fact every civilised society should be governed by rule of law and not by rule of men.
36. In PUCL v. Union of India and Anr. reported in : AIR1997SC568 , the Supreme Court issued certain directions even in a case of telephone tapping. It was held that right to privacy would include telephone conversation in the privacy of home or office.
37. Thus, whenever a witness is tortured or inhuman behaviour is caused, he would be entitled to the protection under Article 21 of the Constitution.
38. Such a right of a person irrespective of the fact as to whether he/she is a witness or accused has got to be construed also in the light of the Human Rights. Section 2(a) of the Protection of Human Rights Act, 1973 defines Human Rights to mean the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the international covenants and enforcible by Courts in India. Thus, international charters and covenants have also become part of the human right.
39. Furthermore, women in our society deserve special protection irrespective of the fact as to whether the provisions of the Code of Criminal Procedure apply in the present case or not. It has to be remembered that our Constitution contains provisions giving special protections to women and other weaker section of the society. Several statutes had also to be enacted by the legislature in that regard. Powers conferred upon the authorities, thus, must be exercised fairly and reasonably. Any abuse of power by public offices have been framed upon by the Apex Court and in fact they are also liable to personal fine. The concerned officers in view of the various decisions of the Apex Court are personally liable for their actions.
40. In Jolty George v. Bank of Cochin, reported in AIR 1980 SC 471, the Supreme Court read down the proviso to Section 51 of the Civil Procedure Code by importing the International Covenants on Civil and Political rights.
41. It is in this situation although we do not find that the impugned notices require interference at this stage by this Court, we would direct the respondents to issue notices upon the petitioners strictly within the four concerns of Sections 8 and 9 of the said Act and further treat the petitioners with all dignities they deserve not only in terms of Article 21 of the Constitution of India but also in terms of the provision of Protection of Human Rights Act. The petitioners would, therefore, also be granted all facilities for enforcement of their constitutional and statutory rights, in the light of the decision in D.K. Basu {supra) if any occasion arises there for, which would include giving information to the concerned authorities, relatives or lawyers. There cannot be any doubt whatsoever that if in course of interrogation, the petitioners or any of them is arrested, they/she would be entitled to exercise all their rights as has been propounded by the Apex Court from time to time.
42. It appears that an allegation of the petitioner Amgana Sengupta was that she and her father had been compelled to record the statements in their own hands. The said allegations have not been controverted. Such a practice is unknown in law. The respondents should not take recourse to such a practice in future, existing, if any.
43. So far as the decision cited by the learned lawyers for the petitioner are concerned, the same have rightly been held by my learned Brother to have no application to the fact of this case.
44. The law on the subject is absolutely clear. A decision is an authority for what it decides and not what can logically be deduced there from. A decision is also not an authority where it is not an authority on the point which have not been argued,
45. In A.R. Antulay v. R.S. Nayak and Anr. 1988(1) SCC 602; a Constitution Bench of the Supreme Court held that if a judgment which has been rendered by the Supreme Court ignoring a provision of law, the same must be held to have been rendered per incuriam and is not binding upon another Bench.
46. In Municipal Corporation of Delhi v. Gurnam Kaur, 1988(1) SC 101.:--
Quotability as 'law' applies to the principle of a case its ratio decidendi The only thing in a judge's decision binding as an authority upon a subsequent judge is the principle upon which the case was decided. Statements which are not part of the ratio decidendi are distinguished as obiter dicta and are not authoritative. The tasks of finding the principle is fraught with difficulty because without an investigation into the facts as in the present case, it could not be assumed whether a similar direction must or ought to be made as a measure of social justice. That being so, the direction made by this Court in Jamna Das case could not be treated to be a precedent. The High Court failed to realise that the direction in Jamna Das case was made not only with the consent of the parties but there was an interplay of various factors and the court was moved by compassion to evolve a situation to mitigate hardship which was acceptable by all the parties concerned. The court no doubt made incidental observation to the: Directive Principles of State Policy enshrined in Article 38(2) of the Constitution and said:
47. Article 38(2) of the Constitution mandates the State to strive to minimise amongst others the inequalities in facilities and opportunities amongst individuals. One who tries to survive by one's own labour has to be encouraged because for want of opportunity destitution may disturb the conscience of the society. Here are persons carrying on some paltry trade in an open space in the scorching heat of Delhi, sun freezing cold or torrential rain. They are being denied continuance at the place under the spacious pleas that they constitute an obstruction to easy access to hospital. A little more space in the access to the hospital may be welcomed but not at the cost of someone being derived of his very source of livelihood so as to swell the rank of the fast growing unemployed. As far as possible, this should be avoided which we propose to do by this order.
48. This indeed was a very noble sentiment but incapable of being implemented in a fast growing city like the metropolitan city of Delhi where public streets are overcrowded and the pavement squatterers create a hazard to the vehicular traffic and cause obstruction to the pedestrians on the pavement.
49. Pronouncements of law which are not part of the ratio decidendi are classed as obiter dicta and are not authoritative with all respect to the learned Judge who passed the order in Jamna Das case and to the learned Judge who agreed with him, we cannot concede that this Court is bound to follow it. It was delivered without argument, without reference to the relevant provisions of the Act conferring express power on the Municipal Corporation to direct removal of encroachment from any public streets and without any citation of authority. Accordingly we do not propose to upheld the decisions of the High Court because it seems to us that it is wrong in principle and cannot be justified by the terms of the relevant provisions. A decision should be treated as given per incuriam when it is given in ignorance of the terms of a statute or of a rule having the force of a statute. So far as the order shows, no argument was addressed to the court on the question whether or not any direction could properly be made compelling the Municipal Corporation to construct a stall at the pitching site of a pavement squatter. Prof. Fitzgerald, editor of the Salmond on Jurisprudence 12th edn. explains the concept of sub silentio at page 153 in these words :
A decision is passed sub-silentio in the technical sense that has come to be attached to the phrase when the particular point of law involved in the decision is not perceived by the court or present to its mind. This Court may consciously decide in favour of one party because of point A which it considers and pronounces upon. It may be shown, however, that logically the court should not have decided in favour of the particular party unless it also decided point B in his favour; but point B was not argued or considered by the court. In such circumstances, although point B was logically involved in the facts and although the case had a specific outcome the decision is not an authority on point B. Point B is said to pass sub silentio.
50. This aspect of the matter has also been considered in Md. Jainul Ansari v. Md. Khalil reported in (1992) 2 PLJR 378.Furthermore, it is a trite law that a point not argued shall not be treated to be a precedent. Reference in this connection may be made to Mittal Engineering Works (P) Ltd. v. Collector of Central Excise, Meerut reported in (1977) 1 SCC 203 wherein it has been held :
Learned Counsel for the Revenue submitted that if even a weighbridge was excisable, as held in the case of Name Tulaman ., so was a mono vertical crystalliser. The only argument on behalf of Name Tulaman . Was that it was liable to excise duty in respect of the indicating system that it manufactured and not the whole weighbridge. The contention that weighbridges were not goods within the meaning of the Act was not raised and no evidence in that behalf was brought on record. We cannot assume that weigh-bridges stand on the same footing as mono vertical cristallisers in that regard and hold that because weighbridge were held to be exigible to excise duty so must mono vertical crystallisers. A decision cannot be relied upon in support of a proposition that it did not decide.