IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 7TH OCTOBER 2008 / 15TH ASWINA 1930 WP(C).No. 28716 of 2008(R) ---------------------------------------- PETITIONERS: ---------------------- 1. XAVIER GEORGE, AGED 36 YEARS, S/O GEORGE, BARKATH TRADING COMPANY, DOOR NO. 10-17-858,CHAMBER ROAD, BUNDER MANGALORE. 2. ABDUL WAHAB, AGED 29 YEARS, S/O. AHAMMED BAVA, BAJAL PADAPU, BAJAL, JALLIGUDDE, MANGALORE, KARNATAKA STATE. BY ADV. SRI.K.B.SURESH SRI.M.A.JOSEPH RESPONDENTS: -------------------------- 1. UNION OF INDIA , REPRESENTED BY THE SECRETARY, FINANCE, NEW DELHI. 2. DEPUTY DIRECTOR & ADJUDICATING AUTHORITY, DIRECTORATE OF ENFORCEMENT, GOVT. OF INDIA, 4TH FLOOR, THARAKKANDOM CENTRE, BANERJI ROAD, KOCHI 682 018. 3. SMT. G.S. CHANDINI, AGED ABOUT 36 YEARS, ASSISTANT DIRECTOR & COMPLAINANT/ DIRECTORATE OF ENFORCEMENT, THARAKKANDOM CENTRE, BANERJI ROAD, KOCHI 682 018. BY SRI. P.PARAMESWARAN NAIR,ASST.SOLICITOR GENERAL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.28716/2008 R APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE COMMON JUDGMENT IN WPC.NO.28391/07 & WPC.1581/2008 DTD. 18/06/2008 OF THE HON'BLE HIGH COURT OF KERALA. P2: COPY OF THE DEPOSITION OF THE 3RD RESPONDENT – SMT.G.S.CHANDINI, ASST.DIRECTOR OF ENFORCEMENT, COCHIN ZONAL OFFICE, DTD. 18/07/2008. P3: COPY OF THE STATEMENT OF SHRI.C.VELYAUDHAN, A.S.I., R.P.F., GURUVAYOOR DTD.11/08/2007. P4: COPY OF THE DEPOSITION OF SHRI.C.VELYAUDHAN, ASI, RPF, GURUVAYOOR DTD. 24/07/2008. P5: COPY OF THE DEPOSITION OF SHRI.T.T.MATHAI, H.C., ERNAKULAM SOUTH RAILWAY POLICE STATION, DTD. 31/07/2008. P6: COPY OF THE ORDER DTD. 25/08/2008 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONERS. P7: COPY OF LETTER ISSUED TO 2ND RESPONDENT DTD.1/09/2008. RESPONDENT'S ANNEXURES: ANNEXURE R1: COPY OF THE CIRCULAR TEC.NO.8/2003. ANNEXURE R2&R2(A):COPY OF THE LETTER DTD. 22/08/2008 FOLLOWED BY A REMINDER ON 2/09/2008. ANNEXURE R2(B): COPY OF LETTER DTD. 29/09/2008. /TRUE COPY/ P.A.TO JUDGE Kss R. BASANT, J. ------------------------------- W.P(C). No. 28716 OF 2008 ------------------------------- Dated this the 7th October, 2008. JUDGMENT This judgment must be read in continuation of the judgment dated 18.6.2008 in W.P(C) 28391/07. That was a writ petition filed by the first petitioner herein. On the basis of the directions issued in the said judgment adjudication proceedings has been completed and Ext.P6 order dated 25.8.2008 has been passed by the adjudicating authority under Section 13 of the Foreign Exchange Management Act, 1999. The petitioners have now come with the grievance that notwithstanding the order passed by the adjudicating authority under Section 13 wherein there is a specific direction to release the amount of Rs.5,53,070/- seized from the possession of the second petitioner (after deducting an amount of Rs.75,000/- and Rs.1,00,000/- from the total amount of Rs.7,28,070 seized) the amount is not being released by the respondents to the petitioners – to be specific the second petitioner. The petitioners are allegedly employer and employee. 2. Notice was given to the respondents. Respondents were WPC 28716/08 2 called upon to explain why in spite of the order passed under Section 13 the amount is not being released to the second petitioner. A statement has been filed and reliance appears to have been placed on Annexure R1 circular issued by the Director of Enforcement Directorate. That circular can definitely have no application when the release sought is in furtherance of an order passed by the adjudicating authority in favour of the noticee. The amount has to be released forthwith to the second petitioner. 3. Counsel for the respondent submits that under Section 19 the Central Government has the option to file an appeal and without and before exhausting that right of appeal the amount may not be directed to be paid. There is nothing to show that any appeal has already been filed. The mere possibility of an appeal I am satisfied cannot stand in the way of the second petitioner claiming release of the amount which he is entitled under law to obtain in the light of Ext.P6 order. 4. Appropriate safeguards can of course be stipulated and it can be ensured that the second petitioner gets the advantage of Ext.P6 order forthwith. 5. In the result: WPC 28716/08 3 a) this writ petition is allowed. b) the respondents are directed to forthwith release the amount of Rs.5,53,070/- as directed in Ext.P6 order to the second petitioner on condition that he executes a bond for the said amount with one surety. Issue copy today itself to both sides. Compliance shall be reported to this Court by the respondents within a period of seven days. R. BASANT JUDGE jj