WP(C) 375/2014 and CM No.748/2014 (stay)

1. This is a writ petition which is directed against the memorandum bearing no.T-4/53-D/95 (SCN) dated 14.11.1995 (hereinafter referred to as SCN) issued by the Special Director, Enforcement Directorate, New Delhi. The petitioner seeks quashing of the said SCN.

1.1 The heart of the challenge is in the assertion by the petitioner that even though more than 19 years have elapsed since, the proceedings were initiated against him by the Enforcement Director and yet they have not reached culmination. Thus, in effect, the challenge by the petitioner is raised and confined to one singular ground, which is unexplained delay, which he says, is not attributable to him.

2. In order to appreciate the contours of the challenge laid by the petitioner, it would be relevant to notice the following broad facts :-

2.1 It appears that based on information received by the Enforcement Directorate (in short the E.D.), a raid was conducted at D-43, Minto Road, Rouse Avenue, New Delhi on 18.05.1995. The petitioner was apparently found in the premises which was searched by the officers of the E.D., in exercise of powers under Section 37 of the Foreign Exchange Regulation Act, 1973 (in short FERA).

2.2 At the time of search, a sum of Rs.7 lakhs and certain documents were seized and recovered from the petitioner by the officers of the E.D. A statement purportedly made by the petitioner was also recorded.

2.3 The petitioner was served with a SCN. In the SCN, broadly, the allegation made against the petitioner, was that, in his statement he had accepted the fact that he was receiving and distributing moneys at the behest of one Mr. Haji, a resident of Dubai; for which, he was, receiving commission at the rate of Rs.200/- per one lakh rupees. This activity, as per the statement of the petitioner made to respondents, and as, recorded in the SCN, was on since, middle of April, 1995.

2.4 There was also a reference to certain codes which evidently the petitioner had used in the transaction between himself and Mr. Haji. Reference was also made to certain persons who had received the money, and therefore, inter alia, apart from the petitioner, notice to show cause was issued not to only those, who had received the money but also to the petitioner, as to why adjudication proceedings should not be held against them under Section 50 and 51 of FERA.

2.5 Against the petitioner, it was alleged that he had violated the provisions of Section 9 (1)(b) and 9(1)(d) of FERA, whereas against those who had received money, it was alleged that they had contravened provisions of section 9(1)(b) of FERA.

2.6 The petitioner was also called to show cause why the sum of Rs.7 lakhs seized from “his premises”, should not be confiscated under section 63 of FERA.

2.7 The SCN, had appended to it a list of relied upon documents, including, the panchnama dated 18.05.1995; statements of the petitioner and other persons (Amarjit Singh, Sunil Bhatia and Hari Mohan) who had received the money; panchnama dated 05.06.1995 drawn up at the residence of one, Mr. H.K. Das and documents seized therefrom; and the statement of Sh. H.K. Das Sharma and that of Smt. Avtar Kaur.

2.8 The petitioner, was arrested on 18.05.1995. On being produced before the court by the E.D., on 19.05.1995, he was remanded to judicial custody till 02.06.1995.

2.9 The petitioner, thereafter, moved for bail which was granted to him.

3. It is also an admitted position that the petitioner retracted his statement made before the E.D. on 29.05.1995 as, according to him, it was taken under coercion.

3.1 It is the case of the petitioner that he received the aforementioned SCN at his residence in Ajmer in Rajasthan, only on, 17.07.1997 i.e., after nearly one year and eight months.

3.2 It appears that, immediately thereafter, on 13.08.1997, the petitioner acknowledging the receipt of the SCN sought copies of relied upon documents as they did not accompany the SCN.

3.3 Having receiving no response to h