Constitutional validity of Section 41 of Act, 1973 can be questioned.

SOMASUNDARAM, J.

At the parties and the facts on the basis of which the reliefs are claimed in these three writ petitions are common, they are disposed of by a common order.

2. The case of the petitioner as disclosed in the affidavit filed in support of the writ petitions is as follows :-

The petitioner is carrying on business in manufacturing and selling jewel boxes to jewellers in Madras and Kerala. On 28-8-1990 at about 10 a.m. the officer of the first respondent entered into the petitioner's premises, searched the same and seized various papers as well as a sum of Rs. 3, 55, 000/-. The petitioner was produced before the Additional Chief Metropolitan Magistrate (E.O. 1), Egmore, Madras on 2-9-1989 at 4 p.m. The petitioner was released on bail on 10-10-1990. Immediately after release he sent a telegram on 10-10-1990 demanding the return of the currency seized from his premises. The entire proceedings of the officers of the first respondent is illegal and the first respondent is illegally detaining the currency seized from his premises for the past seven months under S. 41 of Foreign Exchange Regulation Act, 1973, hereinafter called the FERA. Section 41 of the FERA imposes an unreasonable restriction on the freedom of an individual to carry on his trade, business or occupation and, therefore, it is violative of Articles 19(1)(g) and 300-A of the Constitution. Since the documents seized from the petitioner's premises are liable to be returned for non-compliance of the requirements of Section 41 of the FERA, the second respondent has no power to use the same for passing any order of detention under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, hereinafter called the COFEPOSA Act. The Indian currency of Rs. 3, 55, 000/- seized from the petitioner do not indicate any connection with the foreign exchange or violation of the FERA in any manner and, therefore, Section 41 of the FERA does not apply to the case of the petitioner. No show cause notice has been issued to the petitioner under the provisions of the FERA Act, but, however, an order of detention under COFEPOSA Act has been issued by the second respondent against the petitioner. The petitioner has not committed any offence and the proceedings initiated under the COFEPOSA Act is wholly unwarranted. Section 41 of the FERA is invalid and ultra vires of the Constitution. The respondents cannot validly retain the currency notes seized from the petitioner on 28-8-1990 and, therefore, the respondents are liable to return the same to the petitioner. On the basis of the averments referred to above the petitioner filed W.P. No. 5125 of 1991 praying for the issue of a Writ of Mandamus for directing the first respondent to return the sum of Rs. 3, 55, 000/- and other documents seized by first respondent-officers on 28-8-1990, W.P. No. 5126 of 1991 for the issue of a writ of mandamus for directing an enquiry by a Magistrate or any other independent authority with regard to the petitioner's complaint of methods of beating etc., adopted by the officers of the first respondent for extracting the statements of the petitioner and his assistant in connection with the search and seizures of the petitioner's residential premises No. 13, Akbar Sahib Street, III Floor Triplicane, Madras on 28-8-1990 by the Enforcement Officer, Enforcement Directorate, Madras and W.P. No. 5127 of 1991 for the issue of a writ of mandamus for directing respondents to forbear from arresting and detaining the petitioner under the provisions of the COFEPOSA Act, in connection with the search and seizure of the petitioner's residential premises on 28-8-1990 by the officers of the first respondent.

3. The respondents filed a common counter affidavit contending as follows :- The writ petitions are liable to be dismissed in view of the judgment of the Supreme Court dated 20-12-1990 in Criminal Appeal Nos. 440-441 of 1989 : (reported in , wherein the Supreme Court