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CALCUTTA HIGH COURT
SUHAS CHANDRA SEN, J.
BISHNU KRISHNA SHRESTHA
VERSUS
UNION OF INDIA
Civil Order No.4393 (W) of 1986,
Decided On : 23 -6 -1986
Foreign Exchange Regulation Act, 1973 - Section 37 - Search and seizure - Validity - Reason to believe - Documents secreted - Grounds - Disclosure - Relevancy of seized documents - Return of seized documents.
Fact of the Case:
Petitioner, a foreign national, was subjected to search and seizure proceedings under the Foreign Exchange Regulation Act, 1973 (FERA) by the Enforcement Directorate. The petitioner challenged the validity of the search warrant and the seizure of documents, contending that there was no reason to believe that any documents relevant to the investigation were secreted in his premises. The respondents, on the other hand, argued that the search was lawful and the seized documents were relevant for the investigation.
Finding of the Court:
The Court held that the search and seizure proceedings were unlawful as the Enforcement Directorate failed to establish a reason to believe that any documents relevant to the investigation were secreted in the petitioner's premises. The Court also held that the respondents could not retain the seized documents even if they were relevant for the investigation, as it would amount to condoning the unlawful search and seizure. The Court directed the respondents to return the seized documents to the petitioner.
Issues: 1. Whether the search and seizure proceedings were lawful. 2. Whether the respondents could retain the seized documents even if they were relevant for the investigation.
Ratio Decidendi: 1. The Court held that the search and seizure proceedings were unlawful as the Enforcement Directorate failed to establish a reason to believe that any documents relevant to the investigation were secreted in the petitioner's premises. The Court observed that the expression 'reason to believe' cannot be equated with subjective satisfaction of the officer concerned and that there must be some material on the basis of which the belief can be formed. 2. The Court held that the respondents could not retain the seized documents even if they were relevant for the investigation, as it would amount to condoning the unlawful search and seizure. The Court observed that a person cannot be compelled to be a witness against himself in a criminal trial and that the use of coerced evidence, including documents unlawfully seized, violates the fundamental rights of the individual.
Final Decision: The Court allowed the writ petition and directed the respondents to forthwith return the documents that were seized in course of the search carried on pursuant to the search warrant.
1. On 10th April, 1986 this writ petition was moved praying for, inter alia, quashing of a search warrant No. C-20/89 of 1986 dt. Mar. 11, 1986 issued under S. 37 of the Foreign Exchange Regulation Act in respect of premises No. 3, National Tower, 13, Louden Street, Calcutta-700 017. The allegation in the writ petition was that the search warrant was used for the purpose of making a roving enquiry and not for the purposes of the Foreign Exchange Regulation Act. It was alleged that there was no ground for issuing the search warrant.
2. This writ petition was moved upon notice and Sri S.K. Kundu appeared for the respondents. An order of status quo was passed. The flat in question was directed to be kept under seal. Directions were given for filing of the affidavits.
3. A point was taken on behalf of the respondent that the writ petition was unauthorised. The writ petitioner, Bishnu Krishn a Shrestha, was not available in Calcutta and had not signed the petition or affirmed the affidavit. In fact, it was alleged that Sri Bishnu Krishna Shrestha was absconding and the writ petition was entirely unauthorised.
4. On behalf of the writ petitioner, an assurance was given that the petitioner will be personally present in Court on the next date of hearing. The petitioner was afraid that he would be arrested as soon as he came to Court.
5. On behalf of the respondents, an assurance was also given that there was no intention of arresting the petitioner. It was stated that the respondents only wanted to search the flat. The statements made by the Advocate, appearing for the petitioner and the respondents, were, however, not recorded.
6. On 17th April, 1986 the matter again appeared in the list. The interim order dt. 10-4-1986 was vacated and a direction was given for the matter to appear on the list on 21-4-1986. The petitioner personally appeared in Court.
7. On 18-4-1986 on behalf of the petitioner, it was mentioned in Court at about 12-30 P.M. that the petitioner had been taken to the Office of the Foreign Exchange Department on the 17th evening and had been kept detained in that office contrary to the assurance given in Court. The respondents were directed to produce the petitioner in Court at 2 O'clock. At 2 O'clock the Court was informed that the petitioner had been allowed to leave the office of the Foreign Exchange Department at No. 8, Lindsey Street, Calcutta. On 21-4-1986 the matter was taken up for hearing once again. I took a serious view of the fact that even though the assurance given to Court on behalf of the petitioner had been kept, the respondents in violation of the assurance given had taken the petitioner to their office and kept him detained from 14th evening to 15th afternoon till the matter was mentioned in Court.
8. Significantly enough Sri S.K. Kundu, who appeared for the petitioner on 10-4-1986, did not appear on 21-4-1986 when the matter was taken up for hearing.
9. it was seriously argued by the respondents that the petitioner voluntarily went to the office of the respondents after the search of the premises and wanted to spend the night at that office on his own and stayed till about 12-30 P.M. on the 18th without any compulsion. It was seriously stated on behalf of the respondents that the petitioner felt shy about answering questions relating to the search and seizure proceedings in the presence of his employees and, therefore, voluntarily went to the office of the respondents. Thereafter, he felt too tired to return home and preferred to spend the night at the office of the respondents. The story on the face of it was very difficult to believe and I directed the respondents who were responsible for carrying out the interrogation to be personally present in Court. The respondents stuck to this highly improbable story. They were interrogated in Court and the interrogation has revealed a number of inconsistencies in the statements. The petitioner, however, did not pray for any action to be taken against th
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