A. Abdul Samath vs Union of India and another

Abdul Hadi, J.—This writ petition seeks to quash the show-cause notice dated December 29, 1993, issued by the first respondent u/s 51 of

the Foreign Exchange Regulation Act, 1973 (hereinafter referred to as ""the Act""), calling upon the petitioner to show cause as to why enquiry

should not be held under the said section and why confiscation of the foreign currencies seized from the petitioner should not be made. As per the

impugned notice the abovesaid foreign currencies seized are :

(a) US $ 1,92,493,

(b) Saudi Riyals 5,44,000,

(c) Qatar Riyals 12,000,

(d) UAE Dinar 70,500, and

(e) Singapore $ 11.

The show-cause notice is thus for adjudication u/s 51 against the contravention of the provisions of the Act said to have been committed by the

petitioner for determining the quantum of penalty levied u/s 50 of the Act.

Learned senior counsel for the petitioner made only three submissions before me. Even with reference to the first submission, when I brought to

his notice the recent judgment of Kanakaraj J. in K.M.A. Abdul Kabeer Vs. Special Directory, Enforcement Directorate and another, and told

him that the said judgment is directly against him with reference to his abovesaid first submission, he after going through the said judgment, fairly

represented that he is not pressing the said submission. Just for the sake of completion, I may also mention that the said submission that the

impugned notice has been issued only by one S. S. Renjhan, Special Director of the Enforcement Directorate and that he has no authority under

the Act to issue such a notice, he being only a Special Director and not the authority referred to in section 50 of the Act, viz., ""the Director of

Enforcement or any other officer of enforcement not below the rank of an Assistant Director of Enforcement specially empowered in this behalf by

order of the Central Government"". In this regard, I concur with the view taken by Kanakaraj J. in the above referred to order dated April 21,

1994 (see K.M.A. Abdul Kabeer Vs. Special Directory, Enforcement Directorate and another, . Apart from the reasoning contained in the said

order, I may also state that there is also no specific allegation in the affidavit in support of this writ petition, expressly stating that the abovesaid

Special Director is below the rank of the Assistant Director.

Then, coming to the next submission, it is as follows : The abovesaid S. S. Renjhan, the Special Director, has not signed the show-cause notice

as the adjudicating officer. This contention is also raised in paragraph (c) of the grounds mentioned in the supporting affidavit. I am unable to

accept this contention also. When the impugned notice itself states why adjudication proceedings as contemplated u/s 51 of the Act should not be

held against the petitioner for the contraventions in question, it goes without saying that the Special Director has issued the said show-cause notice

only as adjudicating officer. The term ""Adjudicating Officer"" is also defined under rule 2(b) of the Adjudication Proceedings and Appeal Rules,

1974, as ""director or any officer empowered to adjudicate cases u/s 50"". Section 3 of the Act, while mentioning specifically certain classes of

officers of enforcement in clauses (a) to (d) therein, mentions in clause (e) thereof as follows : ""such other class of officers of enforcement as may

be appointed for the purposes of this Act."" The above referred judgment of Kanakaraj J. also mentions that it was brought to his notice that a

specific notification dated September 22, 1989, published in the Gazette of India, specifically authorised the Special Director to be an officer of

enforcement for the purpose of enforcing the provisions of the Act and to exercise the power u/s 50 of the Act and the said notification purports to

be in the exercise of power conferred by section 4(1) read with section 3(e) of the Act. While so, there is no difficulty in coming to the conclusion

that the above said Renjhan, the Special Director is the adjudicating officer.

The third submission of learned senior counsel is that a similar writ petition has been admitted and interim orders have been granted by this

court, on the above-said points raised and I should also admit this writ petition. The said writ petition is Writ Petition No. 3487 of 1994. But, first

of all I must state that the said writ petition was admitted by Lakshmanan J. on or about March 2, 1994, that is, before the above referred final

order dated April 21, 1994, in the above referred Writ Petition No. 1280 of 1994 which also, inter alia, raised the above said first submission. No

doubt, Writ Petition No. 3487 of 1994 was admitted and interim stay was granted for four weeks in W. M. P. No. 5621 of 1994. Learned

counsel also relied on the observations made in the said W. M. P. order. But, in the said W. M. P. order, Lakshmanan J., after setting out the

arguments made by learned counsel in extenso, finally only concludes, without any specific discussion, thus : ""A case is made out for grant of stay. .

. Hence, there will be interim stay for four weeks.."" In the above circumstances, the said order in W. M. P. can have no weight in deciding the

question before me, viz., whether the present writ petition deserves admission. No doubt, the said interim order passed in the above-said W. M.

P. was extended beyond four weeks and until further orders by Kanakaraj J. by his order dated March 1, 1994. It is significant that this order

dated March 1, 1994, is also very much before his own above-referred to final order dated April 21, 1994, in W. P. No. 1280 of 1994. All these

apart, it cannot be said that simply because on a similar point, a writ petition has been admitted by one learned judge of this court, propriety

demands that a subsequent writ petition, even assuming on the same point, should necessarily be admitted on that score alone.

For all these reasons, this writ petition is liable to be dismissed in limine.

Further, in view of the fact that this writ petition, as mentioned above, is against the above said show-cause notice, calling upon the petitioner to

show within 15 days'' time why enquiry should not be held, etc., I may also add, particularly when the supporting affidavit does not at all speak of

any reply having been given to the said show-cause notice by the petitioner, that no writ petition could normally be entertained at this stage. In this

regard, I may also point out that in State of Uttar Pradesh Vs. Brahm Datt Sharma and Another, , the Supreme Court also observed as follows (at

page 948) :

When a show-cause notice is issued to a Government servant under a statutory provision calling upon him to show cause, ordinarily the

Government servant must place his case before the authority concerned by showing cause and the courts should be reluctant to interfere with the

notice at that stage unless the notice is shown to have been issued palpably without any authority of law. The purpose of issuing show-cause notice

is to afford opportunity of hearing to the Government servant and once cause is shown it is open to the Government to consider the matter in the

light of the facts and submissions placed by the Government servant and only thereafter a final decision in the matter could be taken. Interference

by the court before that stage would be premature.

In the result, the writ petition is not admitted, but dismissed.