ABDUL KADER MAHOMED JHAVERI Vs. GOVERNMENT OF UNION OF INDIA

JUDGEMENT

(1.) This petition under Article 226 of the Constitution moved by the petitioner party in person raises a short question for our consideration. The question is as to whether the authorities functioning under the Foreign Exchange Regulation Act 1973 (the Act for short) have any power or authority to seize the passport of the petitioner who is alleged to have committed breach of the provisions of sec. 29 of the Act.

(2.) In order to appreciate this question the factual metrix leading to the present proceedings will have to be noted at the outset. The petitioner contends that he is a foreign national and a citizen of Republic of South Africa. That he entered India somewhere in October 1981 on the passport issued by the Republic of South Africa. That the erstwhile passport issued by the Republic of South Africa on the basis of which he came to India has expired in the meantime and that a new passport No. J-1141089 has been issued by the Republic of South Africa and which is at present current and operative. The petitioner contends that the respondent-authorities who are functioning under the provisions of the Act have initiated proceedings against him for breach of the provisions of sec. 29 of the Act on the allegation that he is not a citizen of India but is a resident in India and that he carries on in India business activity contemplated by sec. 29(1)(a) of the Act and that the same has been done without obtaining permission of the Reserve Bank under sec 28 of the Act. It is therefore contended that the petitioner has committed breach of the provisions of see. 29(1) of the Act and therefore is liable to be penalised as laid down by sec. 50 of the Act and for that purpose adjudication proceedings under sec. 51 of the Act have been initiated against him. Pending these adjudication proceedings the petitioners present passport has been seized by the respondents. The order of seizure has been brought on record of this case by way of amendment. That order is dated 31-7-1986. It recites that whereas the South African passport bearing No. J-1141089 dated 14-8-1984 issued at Johannesburg to Shri Abdul Kadar Mohd. Jhaveri (the petitioner herein) now residing at 52 Sarani Kamdar Society Sarkhej Ahmedabad was taken over by the Enforcement Directorate from him as per summons No. 1/3/242/A/85 dated 3/02/1986 issued under sec. 40 of the Foreign Exchange Regulation Act 1973 requiring him to remain present in the office of the said Directorate on 5-2-1986 and therefore the aforesaid passport of the petitioner is seized in exercise of the power conferred on the said authority under sec. 38 of the Act as the said passport is considered relevant to the proceedings initiated against the petitioner under the provisions of the Act.

(3.) The petitioner has vehemently contended that the aforesaid order of seizure is null and void and without jurisdiction. That the enforcement officer exercising power under the Act has no authority to seize the petitioners passport and therefore the respondents should be directed to forthwith return the passport to the petitioner. .. ... ... ... ... ... ... ...