April J4

SUPREME COURT REPORTS [196i}

STATE. BY NILRATAN SIRCAR, ENFORCEMENT

OFFICER

LAf91HMI NARAIN RAM NIWAS (M. HIDAYATULLAH AND RAGBUBAll DAYAL, JJ.)

Criminal Trial-Doculnents seized-Period JJTOVided by statute for retention of seized documents-Whether can be extended by Magistrate-Power of Magistrate in respect of retention of documents-Seizure made under special Act-Prot!isioas of Code relating to search whether applicable-Foreign E:l:-

change Regulation Act, 1947, sub-". (3) of s. 19, s. 19-A-Code of; Criminal Procedure, 1898 (Act V of 1898), ss. 5(2), 96, 98. 101, 102, 103.

On May 14, 1959, a number of documents were seized from the possession of the respondent by the Enforcement Officer in execution of a search warrant. The search warrant was issued by the Chief Presidency Magistrate under sub-s. (3) of s. 19 of the Foreign Exchange Regulation Act, 1947. The Dire<>- tor of Enforcement with the permission of the Chief Presidency Magistrate retained those seized documents far a period exceeding four months. On October 5, 1959, the respondent filed an application before the Chief Presidency Magistrate in which he claimed the return of the seized documents on the basis of the provision of s. 19-A of the Foreign Exchange ReguJation Act. On this applic.:tion the Chief Presidency Magistrate directed the return of all the documents to the respondent except those mentioned at items 2 and 7 of the search list. The respondent went up in revision against this order for the continued retention of the two documents, and the High Court allowed the revision and ordered the return of these documents also to the respondent. Against this order appeal was filed in this Court.

Held': (i) The Magistrate has no jurisdiction over the articles seized in execution of the search warrant issued under s. 19(3) of the Foreign Exchange Regulation Act and that he cannot permit the retention of such documents by the Director of Enforcement after the expiry of the period he is entitiE<l to keep them in accordance with the provisions of s. 19-A 0£ the Act. The Enforcement Officer has a right under s. 19-A to retain the articles seized for a period not exceeding four months and it is not necessary for him to obtain permission from the Magistrate for retaining the seized documents within the stlFtutory period. Therefore, the Magistrate issuing the search warrant has nothing to do with the retention or disJ>osal of the documents seized in execution of the search warrant either during the statutory period of four months or after the expiry of that period. Mohammad Serajuddin v. R. C. Mishm, (1962] 1 Supp.

S.C.R. 545, distinguished.

(ii) In view of the specific provision for the issue of a search warrant under sub-s. (3) of s. 19 of the Foreign Exchange Regulation Act, the provisions of ss. 96, 98 and Form No. 8 of Schedule V of the Code would not be applicable to the search

warrants issued under sub-s. (3) of s. 19. The provisions of ss. 101, 102, 103 of the Code will apply to searches under sub-s. (3) of s. 19 of the Act as there is no specific provision in the Act with respect to the conduct of the search.

{iii) The provisions of s. 5(2) of the Code will not apply 1964 to an investigation conducted under the Act because the Act is , . a special Acll and it provides under s.19-A for the necessary in- tale, by N•lratan vestigation into the alleged suspected commission of an offence Si rear' 0;":{orcemtnl

under the Act, by the DirectOr of Enforcement. ,

v. r

(iv) No express provision is necessary in the statute for the return of documents after the expiry of the statutory period.

Provisions .are necessary for retaining documents of others and not for returning them to persons entitled. Therefore the docu ments seized have to be returned to the person from whose

possession they had been seized after the expiry of the statutory period.

(v) Under s.19-A of the Act the Director of Enforcement can justifiably retain with himself the documents seized till the final disposal of the proceedings taken under s.23 of the Act if the proceedings had commenced before the period of four months, during which he could keep the documents. In the present case he could not h1'.ve retained those documents beyond four months because no such p110ceeding had been commenced within 4 months.

In the present case proceedings under s.23 did start prior to the ocder for the return of documents. On the facts of this case it was held that the direction of the Magistrate in regard to the retention of documents was en order giving effect to the spirit behind the provision of s. 19-A.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 83 of 196 I. Appeal from the judgment and order dated June 20. 1960. of the Calcutta High Court in Criminal Revision No. 1525 of 1959. ,.

H. R. Khanna. K. L. Hathi and R. N. Sachthey, for the appellant.

G. S. Pathak, R Datta. J. B. Dadacha11ji, 0. C. Mathur and Ravinder Narain, for the respondent.

April 14. 1964. The judgment of the Court was delivered by

Lakshmi Narain

RamNiwaa

RAGIRJBAll DAYAL, J.-This appeal, on certificate grant-.Ragh!War Dayal, J ed by the Calcutta High Court. is directed against an order of the High Court dated June 20. 1960 reversing the Order of the Chief Presidency Magistrate directing return of certain documents to the respondent. and has arisen in the following circumstances: On April 6. 1959. the Chief Presidency Magistrate, Calcuna. owered the issue of search warrants on the application of the Enforcement Ollicer. Enforcement Directnrate, Ministry of Finance. under sub-s. (3) of s. 19 of the Foreign Exchange Regulation Act. 1947 (Act VII of 1947). The search warrant was issued on May 6, 1959. It required the production of documents seiz.ed. before the Magistrate. In execution of the search warrant. a, number of documents were seized from the possession of the respondent on May 14. 1959. The

Sltrte, by 1iilratJin Sircar, Enforcement

Officer

Laksloni Jtarain

Rani .. Yiuw

llagh11bar Duya.1, J.

Enforcement Officer reported that day that a certaiJ room could not be searched and therefore further action on the search warrant was to be taken. He also noted in his application, for the Chief Presidency Magistrate's information:

"that the seized documents as per enclosed Seizure Memo have been kept with us. for scrutiny and those will be retained till the completion of the enquiry or the adjudication proceeding~ as the case may be and a report will be submitted lo Your Honour tpereafter."

On May 28, 1959, the Enforcement Officer applied to the Chief Presidency Magistrate for permission for the retention of the seized documents for a period of two months for the submission of further report in the matter. The Chief Presidency Magistrate granted the necessary permis; ion.

Similar permission was again granted on applications, by tl1e Chief Presidency Magistrate, on July 28 and September 28, )959.

On October 5, 1959, the respondent applied to the Chief Presidency Magistrate for an order of return of the said documents as the statutory period of 4 months during which the Director of Enforcement could keep the documents had expired, and no proceedings had been commenced against him under s. 23 of the Act. The claim for the return of the docun11mts was based on the provisions of s. 19-A. On October 20, 1959 the Chief Presidency Magistrate ordered the return of the seized files to the respondent. He, however, modified this order the same day, when his attention was drawn to his earlier order dated September 28, 1959 permitting the Enforcement Officer to retain the documents till November 28, 1959. He directed the matter to be heard nn October 26, 1959 and on that day, in view of the Investigating Officer being on leave, adjourned the matter for decision to November 10, 1959.

In his application presented on November 10, 1959 the Enforcement Officer stated that the Director of Enforcement had started adjudication proceedings against the respondent for alleged violation of s. 4(1) of the Act and had issued notice to him to show cause and that in connection with the adjudication proceedings seized files items Nos. 2 and 7 of the Seizure Memo would be required and that he had no objection to the return of the remaining seized files though they might have some distant bearings on those proceedings.

The Chief Presidency Magistrate ordered, on.November 10; 1959, the return of all the documents except those mentioned at items 2 and 7 of the search list. The respondent went up in revision against this order for the continued retention

of the two documents, and the High Court allowed the revi- 1964 sion and ordered the return bf these documents also to the Stai., by Nilratan respondent. It is against this order that this appeal has been Bircar, Enforcem•n• Iii d Officer e . v.

We may first refer to the relevant provisions of ss. 19 Lashmi f.arain. and 19-A of the Act, and later to certain provisions of the am l>i•-1 Code of Criminal Prbcedure, hereinafter called the Code, to R01Jh"h;; Dayal, J. appreciate the contention for the parties.

"19(]). The Central Government may, at any time by notification in the Official Gazette, direct owners, subject to such exceptions, if any, as may be specified in the notification, of such foreign exchange br foreign securities as may be so specified, to make a return thereof to the Reserve Bank within such period, and giving such particulars, as may be so specified.

(2) Where for the purposes of this Act the Central Government or the Reserve Bank considers it necessary or expedient to obtain and examine any informatibn, book or other document in the possession of any person or which in the opinion of the Central Government or the Reserve Bank it is possible for such person to bbtain and furnish, the Central Government or, as the case may be, the Reserve Bank may, by order in writing, require any such person (whose name shall be specified in the order) to furnish, or to obtain and furnish, to the Central Government or the Reserve Bank or any person specified in the brder with such information, book or other document.

(3) If on a representation in writing, made by a person authorised in this behalf by the Central Government br the Reserve Bank, a District Magistrate, Sub-Divisional Magistrale, Presidency Magistrate or Magistrate of the first class, has reason to believe that a contravention of any of the provisions of this A, ct has been, or is being or is about to )le, committed in any place, or that a person to whom an order under sub-section

(2) of this section has.been tir might be addressed, will not or would no' produce the information, book or other document, or where such information, book or other document is not known to the Magistrate to be in the possession of any person,

or where th.e Ma.gistate considers .that the purposes

o~ any mvestigatton or prbceedmg under this Act w 11! be served by a general search or inspection,

State, b.11 .i.V ilratan Sircar, Enforcement

Ojficer

Lalc&hmi Narain

RamNiwas

Raghubar Dayal, J.

he may issue a search warrant and the person to whom such warrant is directed may search er inspect in accordance therewith and seize any book or other document, and the provisions of the Code of Criminal Procedure, 1898 relating to searches under that Code shall, so far as the same are applicable, apply to searches under this sub-section:

Provided that such warrant shall not be issued to any police officer below the rank of sub-inspec:or.

Explanation.-In this sub-section, 'place' includes a house, building, tent. vehicle, vessel or aircraft.

• • • • 19-A. Where in pursuance of an order made under sub-section (2) of section 19 or of a search warrant issued under sub-section (3) of the said section, any book or other document is furnished or seized, and the Director of Enforcement has reasons to believe that the said document would be evidence of the contravention of any of the provisions of this Act or of any rule, direction or order made thereunder, and that it would be necessary to retain the document in his custody, he may so retain the said document for a period not exceeding four months or if, before the expiry of the said period of four nfonths, any proceedings under section 23 : -

(a) have been commenced before him, until the disposal of those proceedings, including, the proceedings before the Appellate Board, if any, or

(b) have been commenced before a Court, until the dbcument has been filed in that Court." Chapter VII of the Code provides for processes to compel the production of documents etc. Section 94 empowers the Court to issue a summons to a person in pbssession of the document or whose production is considered necessary or desirable for the purpose of any investigation, inquiry, trial or other prbceeding under the Code to produce the same before it. In certain circumstances mentioned in s. 96 it may issue a search warrant, for conducling the search for such documents or articles as are mentioned in s. 94. The combined effect of the two sections is that the articles seized in execution of the search warrant have to be produced before the Magistrate and the Magistrate thereafter passes suitable orders abbut the custody or return of those documents. Form 8, Schedule V, of the Code gives the form of the search warrant and contains a direction that the articles seized cbe produced forthwith before the Court. Sections 98 and 99-A deal with search

7 S.C.R.

SUPRE::.VIE COURT REPORTS 729

warrants in special circumstances and ss. IO 1 to 103 come under the general provisions relating to searches. s"''' b•t Nilratan Sircar, Enforcemen.f The appellant's main contentions are: Officer I. The provisions of s. 19-A limit the period for retain- L k h v: "arai· . hd "d" . f h t"''""" .• mg t e ocuments seize m execution o a searc warran Ram Niwas issued under s. 19 to 4 months by the Director of Enforce- - ment but does not limit the power of the Court issuing the Raglrubar Dayal, 1• search warrant to pass any orders for the retention of the seized documents or with respect to the disposal of those documents.

2. In the absence of any prescribed procedure for the issue of a search warrant under s. 19, the provisions of ss. 96, 98 and Form 8 of Schedule V of the Code would be applicable to the search warrants issued under s. 19.

3. lihe Court has inherent power to pass proper orders with respect to the retention of the documents seized for the purposes of investigation and proceedings following it.

The respondent contends: I. Section 19 and 19-A are special provisions which provide for special procedure for investigation of the several offences created by the statute and were enacted in order to remove certain difficulties in investigation which led to the keeping of documents of citizens unduly long and thus causing them inconvenience and harassment, and to relieve the Magistrate of his repeatedly dealing with police reports for permission to retain the documents and that therefore when s. 19-A fixes the maximum duration for the retention of the documents by the Director of Enforcement at 4 months and thus prohibits further detention except in certain circumstances by the officer concerned, the Magistrate cannot allow the Director of Enforcement to keep the documents beyond four months.

2. There is no provision in the Act empowering the Court to extend the period for the detention of documents and any such power in the Magistrate will defeat the very object of the Act.

3. The provisions of the Code relating to searches under the Code apply so far as the same be applicable to searches under sub-s. (3) of s. 19 of the Act and therefore the provision of the Code giving jurisdiction to the Magistrate over the property seized in execution of a search warrant issued by him will not fully apply to property seized in execution of the search warrant issued under sub-s. (3) of s. 19.

The first question to determine is whether Magistrate issuing the search warrant has control over the disposal of the articles seized in execution of the warrant. The provisions of the Code relating to searches apply to search warrants issued under sub-s. (3) 'of s. 19 but only in so far as they bi.!

I964 applicable. The provisions dealing with the circumstances State, by Nilratan in which, and the authorities by which, search warrants can Sircar, Enforament be issued cannot apply, in view of the specific provision for

0~'." the issue of a search warrant under the Act in sub-s. (3) of Lakshmi Narain s. 19. Sect10ns 96, 98 and Form 8 of Schedule V, do not Ram NiWM therefore operate in connection with searches under sub-s. 19. - It is therefore the provisions which deal with what is done Raghubar Dayal, J. after the issue of a search warrant which have been made applicable to searches under the Act and such provisions therefore would be the provisions relating to the mode of conducting searches. The object of the aforesaid provision in sub-s. (3) of s. 19 is to provide how the searches are to be conducted as it deals with the issue of search warrant in sub-s. (3) of s. 19. It is only with respect to the intervening stage, that is the stage of actual search that no specific provision is made in the Act. We are therefore of opinion that the provisions relating to searches under the Code which apply to searches under sub-s. (3) of s. 19 are the provisions relating to the conduct of searches and that these provisions are ss. IOI,

102 and 103 of the Code. What is to be done with the articles seized does not strictly come within the expression 'searches'.

It is dealt with in s. 19-A. It is therefore not correct for the appellant to say that the Magistrate can exercise his powers under the Code . in connection with property seized under sub-s. (3) of s. 19 of the Act.

It follows that any further reference to the Magistrate, as made by the Enforcement Officer in this case, for permission to retain the documents seized was not necessary. The Enforcement Officer has a right under s. 19-A to retain the articles seized in accordance with its provision. What course

is to be adopted by the person aggrieved when the Enforcement Officer contravenes the provisions of s. 19-A, is a different matter. The fact that such a contingency may arise does not mean that it is the Magistrate issuing the search warrant who is to be approached and who is competent to deal with the grievance. Any way, such a contingency is insufficient to warrant the finding that the Magistrate issuing the warrant has control and possession over the documents seized and that therefore he can pass any orders with respect to their disposal. He has no such power, in any case, till the period mentioned in s. 19-A has expired. There is no provision in the Act which gives him any power to deal with the situation arising after the expiry of that period.

One should, however, presume that the Director of Enforcement will not by his order act against the provisions of s. 19.

Section l 9A deals with the ci.stody oi documents which come into the possession of t.he Director of Enforcement in two ways. Documents are furnished to the Director of Enforcement in pursuance of an order made under subs. (2) •

7 S.C.R.

SUPREl\IE COURT REPORTS 731

of s. 19 under the directions of the Central Government or 1964 the Rserve Bank. No Magistrate as .such has i.urisdiction over State. by Nilratan the cl1sposal of such documents which come mto the posses- Sircar, ){nforcemen~ sion of the Director of Enforcement in pursuance bf orders Officer under sub-s. (2} of s. 19. The Director of Enforcement also Laksh:,; Narain gets possession of documents in execution of search warrants Ram ll'i"a' under sub-s. (3) of s. 19. The provisions with respect to his R h b n

1 J retaining in his possession the documents which come in his ag " ar aya' • possession are the same, whether they come so one way or the other. It follows that, in the latter case too, the Magistrate issuing the search warrant has nothing to do with the retention or disposal of the documents seized in execution of the search warrant.

It was also urged for the appellant that the provisions of s. 5(2) of the Code apply to the present case in matters which are not provided by the Act. This contention too has no basis. Section 5 provides that all offences under any law other than the Indian Penal Code shall be investigated, inquired into, tried and otherwise dealt with according to the provisions contained in the Code of Criminal Procedure, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into,

trving: or otherwise dealing with such offences. The Act is a special Act and it provides under s. 19-A for the necessary investigation into the alleged suspected-commission of an offence under the Act, by the Director of Enforcement. The provisions of the Code of Criminal Procedure therefore will not apply to such investigation by him, assuming that the expression 'investigation' includes the retaining of lhc documents for the purposes of the investigation.

Reliance has also been placed for the appellant on the case reported as Mohammatl Seraiuddin v. R. C. Mishra(') in support of the contention that the Magistrate retains control over the disposal of the articles seized in connection with the search warrant issued by him. In that case the Court was considering the question of the disposal of the documents seized in execution of a search warrant under s. 172 of the Sea Customs Act. The provisions of that section are different from those of sub-s. (3) of s. 19 of the Act. A search warrant issued by a Magistrate under s. 172 of the Sea Customs Act has the same effect as a search warrant i>sued under the Code of Criminal Procedure and thus assumes the character . of a search warrant issued under the Code of Criminal Pro-

. cedure. The same is not the case with respect to the search warrant issued under sub-s: (3) of s. 19. Further, there is no section corresponding to s. 19-A of the Act in the Sea Customs Act. This case, therefore, is not of help to the appellant.

(') (1962] 1 Suppl. S.C.R. 545.

SUPRE:IIE COURT REPORTS [1004]

1964 In this view of the matter, the order of the Magistrate

81 " b N'l 1 with respect to the disposal of the documents was beyol)d

Sira:, J.10:/,':.::, his jurisdiction and the High Court was right in setting aside

Officer his order directing the retaining of certain documents by the

Lokshm"i.Narain Director of Enforcement , Ram :qiwas The question however remains whether the crder of the

Baghubar Dayal, J. High Court. directing the return of the two documents to the respondent 1s a correct order.

It has been urged for the appellant that there is no provision under s. 19-A or any other section of the Act that the documents be returned to the party from whose custody they were seized, without an order from the Ma!!istrate and that therefore no order for their return can be - made by any authority. No such express provision is necessary. Documents seized have to be returned if the Jaw pro'lides that they are not to be retained after a certain period of time. Such a direction under the statute is sufficient justification and authority for the person in possession of the documents to return them to the person from whose possession they had been seized. Provisions are necessary for retaining documents of others and not for returning them to the persons entitled.

Section 19-A authorises the Director o[ Enforcement to retain a document for a period of not exceeding 4 months. or, if before the expiry of the said period of 4 months, any proceedings under s. 23(i) have been commence.:! before him. until the disposal of those proceedings, including the proceedings before the Appellate Board, if any, or (ii) if such proceedings have been commenced before a Court. until the document has been Ii led in that Court. This means that the Director of Enforcement can justifiably retain with himself the document seized till the final disposal of the proceedings taken under s. 23 of the Act if the proceedings had commenced before the period of 4 months, during which he could keep the documents. In the present case such proceedings had not been commenced within the period of 4 months of the Director of Enforcement getting possession of the documents. He could not have therefore, on his own. retained those documents after the expiry of the fourth month. He could have taken legal steps for the retention of those documents. He did not keep those documents with himself on his own. He had been obtaining the permission of the Chief Presidency Magistrate for retaining the documents from the time of their seizure under the impression that the Magistrate -:ould legally order the retention of the documents, presumably as the warrant had directed the production of documents seized, before him.

Proceedings under s. 23 did start prior to the order for the return of the documents. Considering the real intention

I .

of s. 19-A tn be that the Director of Enforcement can retain 1964

the doct!ments seized till the final disposal of proceedings State., b;; Nilratan

under s. 23 of the Act. the Magistrate's order, even if he had Sircar, 0 Enf0"""'"' not the authority to pass orders for the retention of the docu- 'ff!,'." ments by the Director of Enforcement, till the final disposal Lakshmi Narain of the proceedings under s. 23, was an order giving effect Ram N•WM to the spirit behind the provisions of s. 19-A. The order of Raghu1mr Dayal, J. the High Court directing the return of the documents to the respondent therefore appears to us to be unjustified in the special circumstances of the case.

It is not necessary for us to consider in this case what legal steps the Director of Enforcement could take for retaining p<>ssession (If the 'documents seized on the expiry of the 4 months' period in case his investigation in connection with those documents is not complete within that period.

One of the methods possibly can be his applying to the Central Government to make an order under sub-s. (2) of s. 19 directing the owner of those documents to furnish them to the Director of Enforcement. Such an order will be legal justification for the Director of Enforcement to retain in

possession any of the documents which notionally he would be deemed to have returned to the owner on the expiry of the four months and to have got fresh possession over those doct•ments not by virtue of a search warrant but by virtue of ;;:1 order of the Central Government under sub-s. (2) of s. 19.

We therefore hold that the Magistrate has no jurisdiction over the articles seized in execution of the search warrant issued under s. 19(3) of the Act and that he cannot permit the retention of such documents by the Director of Enforcement after the expiry of the period he is entitled to keep them in accordance with the provisions of s. 19-A. In the special circumstances of the case, we allow the appeal, set aside the order of the High Court and order that the docurbents men-

!ioned at items Nos. 2 and. 7 of the Seizure Memo can be retained by the Director of Enforcement till the final conclusion of the pnx--eedings commenced under s. 23 of the Act.

Appeal allowed.