J.N. Datta, J.C. - (1.)THIS is a reference by the learned Sessions Judge, under Section 438 of the Criminal P. C., with a recommendation that the order of the learned Magistrate refusing to refund to the petitioner Pakistani currency seized from him by the Police, be set aside and replaced by an order for its refund to the petitioner, and arises out of a proceeding under Section 19(3) of the Foreign Exchange Regulation Act, 1947.
(2.)THE facts, briefly stated are these: It is an admitted fact that the petitioner, Haripada Gupta, who is a refugee from East Bengal, has been dealing in foreign exchange without an authority as required by Section 3 of the Act, though he has applied for such an authority and the matter is still pending. Order 12 -5 -1958 he was proceeding to Calcutta by air with notes worth Rs. 46170/ - out of the said foreign currency for getting it exchanged into Indian currency, and at the Agartala air -port made a declaration to the Custom authorities, that he was carrying with him, this amount of foreign currency.
The Custom authorities then seized the foreign currency from the petitioner and handed it over to the Police who arrested the petitioner under Section 54, Criminal P. C., and seized the amount. The Sub -Divisional Magistrate however by his order dated 14 -6 -1958 discharged the petitioner and directed that the amount seized be refunded to him, obviously because the offence if any, was non -cognizable, which the Police were not entitled to investigate, though the learned Sub -Divisional Magistrate has not specifically said so in his order. But the memo of the Officer -in -charge of that date on which the learned Sub -Divisional Magistrate proceeded to take this action, makes that point clear. Nothing much however turns on this point in this reference.

On the same day, that is, Order 14 -6 -1958, the Officer -in -charge, Agartala Police Station, applied to the S. D. M., for a search warrant under Section 19(3) of the Act, stating in his application that he was authorised by the Deputy Director, Enforcement Directorate, Ministry of Finance, Department of Economic Affairs. Govt. of India, in that behalf, but without filing the written authority before the S. D. M.

(3.)THE learned S. D. M. that very day granted the prayer for a search warrant and issued a search warrant to the Officer -in -charge, authorising him to search for documents and foreign currency notes etc., the business premises of the petitioner.