Gujarat High Court
Abdul Kader Mahomed Jhaveri vs Union Of India And Ors. on 29 August, 1986
Equivalent citations: AIR1987GUJ176, 1987(14)ECC81, (1987)1GLR537, AIR 1987 GUJARAT 176, 1987 LAB. I. C. 234, 1987 (1) 28 GUJLR 537, (1987) 14 ECC 81, 1987 BLJR 383, 1986 SCC (SUPP) 661, 1987 (1) CURLR 15, 1987 54 FACLR 332, 1987 (1) CURCC 197, 1987 2 ATC 915, (1987) 28 GUJ LR 537, 1986 4 SUPREME 321, 1986 JT 1090, (1987) GUJ LH 97, (1987) 1 LAB LN 81, (1987) 1 SCJ 331, (1987) 4 SERVLR 169, 1987 (1) UJ (SC) 77, 1987 UJ(SC) 1 77
JUDGMENT Majmudar, J.
1. This petition under Art. 226 of the Constitution moved by the petition ex-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 S. 29 of the Act.
2. In order to appreciate this question, the factual matrix 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 S. 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 S. 29(1)(a) of the Act and that the same has been done without obtaining permission of the Reserve Bank under S. 28 of the Act. It is, therefore, contended that the petitioner has committed breach of the provisions of S. 290) of the Act and therefore is liable to be-penalised as laid down by S. 50 of the Act and for that purpose, adjudication proceedings under S. 51 of the Act have been initiated against him. Pending these adjudication proceedings, the petitioner's 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, Saran Ikamdar Society, Sarkhej, Ahmedabad was taken over by the Enforcement - Director I ate from him as p6r summons No. 1/3/242/A/85 dated 3rd Febraury, 1986 issued under S. 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 S. 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 the power under Act has no authority to seize the petitioner's passport and, therefore, the respondents should be directed to forthwith return the passport to the petitioner.
4. x x x x x x x x
5. In the background of the aforesaid facts situation and in the light of the rival contentions of the parties, we now proceed to deal with the question posed for our consideration. We may in the first instance, refer to the relevant provisions of the Act having bearing on this question. Section 290) of the Act provides for the procedure for a foreigner who is residing in India and who intends to carry on any business activity in India. He has to obtain general or special permission of the Reserve Bank of India in that connection and if he fails to do so, he becomes liable to be proceeded against under the Act. One liability which he would incur is that provided by S. 50 of the Act which lays down that if any person contravenes any of the provisions of the Act, other than S. 3, Clause (a) of sub-section (1) of S. 18 and Clause (a) of sub-section (1) of S. 19 or of any rule, direction or order made thereunder, he shall be liable to such penalty not exceeding five times the amount or value involved in any such contravention or Rs. 5,000/- whichever is more, as may be adjudged by 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. Section 51 lays down the. procedure in connection with penalty adjudication contemplated by S. 50 and enjoins upon the adjudicating officer to hold inquiry in the prescribed manner after giving to the person an opportunity for making representation in that connection and provides that if he, on such inquiry, is satisfied that the concerned person has committed the contravention, he may impose such penalty as he thinks fit in accordance with the provisions of that section. The penalty order as passed under S. 50 read with S. 51 is appealable under S. 52(1) to the Appellate Board. Such appeal obviously can be filed by the person against whom penalty order is passed. Further appeal lies under S. 54 to the High Court on the question of law from any decision or order of the Appellate Board under sub-section (3) or sub-section (4) of S. 52. It is obvious that the appeal would lie against the Appellate Board's decision at the instance of the party aggrieved and at that stage, even the adjudicating authority may feel aggrieved by the appellate board's order if the appellate board allows the appeal of the person against whom penalty is imposed by the adjudicating officer. It can equally be filed by the person against whom the penalty order is imposed by the adjudicating officer and whose appeal gets dismissed by the appellate board. Even apart from these adjudicating proceedings, prosecution is also contemplated for infraction of any of the provision of the Act including infraction of S. 290) and this is provided by S. 56 of the Act. In the background of these statutory provisions, we have to see as to whether pending the adjudication proceedings against the petitioner, the adjudicating officer has power to seize the passport of the petitioner. The impugned order of seizure of the petitioner's passport has been passed by the competent authority under S. 38 of the Act. It reads as under :-
"Without prejudice to the provisions of S. 34 or S. 30 or S. 37, if any officer of Enforcement authorised in this behalf by the Central Government, by general or special order, has reason to believe that any document or thing will be useful for, or relevant to, any investigation or proceeding under this Act or in respect of which a contravention of any of the provisions of this Act or of any rule, direction or order thereunder has taken place, he may seize such document or thing".
It is the contention of the respondents that the petitioner's passport had to be seized as the competent authority had reason to believe that the passport is relevant to the inquiry proceedings under S. 51 read with S. 50 of the Act which are being continued against the petitioner for infraction of S. 29(1). Thus, the only sheet-anchor of the respondents for supporting the impugned order of seizure is S. 38 of the Act. The petitioner vehemently contended that S. 38 cannot apply to the facts of the present case for number of reasons.
6. He firstly submitted that the competent authority functioning under the Act must have reason to believe that the petitioner's passport will be relevant for the proceedings in question. That the impugned order nowhere recites that the competent authority had such reason to believe and, therefore, the order is null and void as the aforesaid condition precedent is not satisfied. It was next alternatively contended that even assuming that reason to believe can be spelt out from What is stated in the order of the competent authority. even then, the petitioner's passport is neither a document nor a thing as contemplated by S. 38 and on this ground also, the impugned order cannot be sustained. It was next contended in the alternative that in any case, even assuming that the petitioner's passport can be treated to be a document or a thing as contemplated by S, 38, even then, it has no relevance to the adjudication proceedings under S. 51 for the alleged infraction of S. 29 by the petitioner and, therefore, also the impugned order of seizure is totally ultra vires the provisions of the Act.
7. It was lastly contended by the petitioner that if it is held that S. 38 can be validly pressed in service by the competent authority, the seizure of the petitioner's passport cannot be permitted to continue indefinitely and it cannot be for an indefinite period of time, say months or years, as that would amount to illegal deprivation of the petitioner's right to move out of India on the basis of that passport and would amount to illegal restriction on the petitioner's movements out of India and that such indefinite seizure of the petitioner's passport would become totally unreasonable and illegal in that eventuality.
8. We shall deal with the aforesaid contentions of the petitioner seratim.
9. We may note that the first three contentions of the petitioner raised in the alternative touch upon the question whether the respondents were justified in invoking powers under S. 38 of the Act. The last contention is an independent contention which will have to be examined after all the three contentions centering round S. 38 are examined.
10. So far as the first contention of the petitioner is concerned, it must be noted that the impugned order of seizure of the petitioner's passport does not recite that the adjudicating officer has reason to believe that the petitioner's passport is relevant to the proceedings under the Act. Instead, the words used are "the said passport is considered relevant to the proceedings initiated against him under the Act". However, in our view, merely because words' reason to believe' are not expressly mentioned in the order, it cannot be said that the condition precedent to the exercise of the power under S. 38 is not complied with in the present case as the impugned order itself recites that the adjudicating officer being the competent authority has considered the said passport to be relevant to the proceedings initiated against the petitioner under the Act. It goes without saying that considered opinion of the competent authority cannot be in vacuum unless the authority concerned has reason to so believe on the facts of the case. Consequently, the first ground of attack as mounted by the petitioner against the impugned order is found to be devoid of any substance. It must be held that the respondent authority having reason to believe that the petitioner's passport is relevant to the proceedings initiated against him under the Act, has passed the impugned order.
11. That takes us to the second ground of attack put forward by the petitioner. He submitted that the passport issued by the Republic of South Africa to the petitioner and which is seized by the respondents is neither a document nor a thing. In our view, this contention is also devoid of any substance. It is difficult to take the view that the passport is not a document or in any case, a 'thing'. The terms 'document' and 'thing' are not defined by the Act. We must, therefore, refer to the ordinary dictionary meanings of these terms. In Concise Oxford Dictionary (7th Edition) reprinted in 1985, the term 'document' has been defined thus : -
"a thing esp. title deed, writing, or inscription".
Thus, any writing would be a document. Similarly, the term 'thing' has been defined thus "whatever is or may be thought about or perceived (including in opposition to person) as animate object."
It is, therefore, obvious that any writing which is perceptible to the eyes would be both document and in any case, a thing. Consequently, the petitioner's passport which is made the subject-matter of seizure under S. 38 cannot but be said to be both -document and a thing or at least a thing which is capable of being perceived. The second contention, therefore, also is found to, be devoid of any substance on merits.
12. That takes us to the third contention of the petitioner which was very hotly debated before us. The petitioner vehemently submitted that if it is the case of the respondents that the petitioner's passport is relevant to the proceedings under S. 51, it is to be seen as to what is the type of the proceedings which is initiated against him. He submitted that the only infraction of the Act which is alleged against the petitioner p. infraction of S. 29(1) on the ground that he being a resident-foreigner has indulged in business in India without general or special permission of the Reserve Bank. He submitted that for proving this allegation, the respondents may be required to show he was a foreign national who had entered into Indian territory on the basis of the foreign passport and they will have to further show that he had carried on any business in India as contemplated by S. 29(1) of the Act without general or special permission of the Reserve Bank. Whether the business was carried on by him in India or not or whether it was upon general or special permission of the Reserve Bank or not, will be questions for proof of which his foreign passport would be totally irrelevant. He, however, rightly conceded that question whether he was a foreign national who had entered into Indian territory and who had resided in India may involve a question whether he had entered the Indian territory armed with foreign passport and to that extent his foreign passport may become relevant. However, on the facts of the present case, it is not at all relevant for the pending in-quiry against him under S. 51 read with S. 50 of the Act for the simple reason that he nowhere disputes that he had so entered into the Indian territory. He has stated on oath in the present proceedings before us and has filed an affidavit to that effect in support this petition wherein he, . has stated that the petitioner is a citizen of Republic of South Africa and he holds passport No. J-1140089 of that country. Presently, he resides with his second wife Zzebunisa in Ahmedabad and is amenable to the jurisdiction of the High Court of Gujarat at Ahmedabad. Placing strong reliance on this affidavit, it was submitted by the petitioner that he nowhere disputes that he had entered the Indian territory on the basis of a foreign passport issued by the Republic of South Africa nor does he dispute that he is a foreign national having citizenship of South Africa. As he admits this position, his passport becomes totally irrelevant for the inquiry under S. 51 of the Act for infraction of S. 29 of the Act. He submitted that what is admitted need not be proved in any proceedings. He further stated that he is prepared to state on oath before this Court that neither in the pending proceedings under S. 51 nor in any other proceedings before the appellate authorities, if any, under the Act nor in any criminal proceedings if at all filed on the basis of his having committed infraction of S. 29(1), of the Act, he would ever submit to the contrary. He submitted that on these statements being made by him on oath, the passport which is seized by the respondents does not remain any longer relevant for the inquiry and, therefore, it is required to be returned to him forthwith. So far as this contention of the petitioner is concerned, it requires a closure scrutiny. It is true that when the proceedings for adjudication under S. 51 read with S. 50 of the Act are initiated for the alleged infraction of S. 29(1)(a), the following issues become relevant for decision; that the person concerned who is said to have committed breach of S. 29(1)(a) is either (i) a person resident outside India whether a citizen of India or not; (ii) if such a person is not a citizen of India but resident in India and (iii) such person has carried on in India any business or has established in India any branch office or other place of business for carrying on any activity of a trading, commercial or industrial nature; (iv) and that the concerned person has done so without obtaining special or general permission of the Reserve Bank of India. So far as the facts of the present case are concerned, it is not the contention of the respondents that the petitioner is a resident outside India. It is agreed' on both the sides that the petitioner is residing at Ahmedabad at the address mentioned in the petition. Consequently, the infraction of S. 290)(a) which is alleged against the petitioner is to the effect that he being a foreigner who is residing in India has carried on business without obtaining general or special permission of the Reserve Bank of India and only on this short ground, proceedings under S. 51 are initiated against him. The phrase 'resident in India' has been defined by S. 2(p) of the Act. Relevant part -of the said definition on the facts of the present case is sub-clause (iii) of Clause (p) of S. 2 of the Act. It reads as under --
(p) 'person resident in India' means-
x x x x
(iii) a person not being a citizen of India, who has come to, or stays in, India in either case -
(a) for or on taking up employment in India; or
(b) for carrying on in India a business or vocation in India, or
(c) for staying with his or her spouse, such spouse being a person resident in India, or
(d) for any other purpose, in such circumstances as would indicate his intention to stay in India for an uncertain period."
The case of the respondents is t ' hat the petitioner who is not a citizen of India and who is national of South Africa has come to stay in India and is staying with his spouse in Ahmedabad. In fact, the petitioner himself has stated in the petition and in the supporting affidavit to that effect. Now, the question is when the petitioner admits these facts, does his passport remain any more relevant to the inquiry in question. The petitioner vehemently submitted that when he has admitted all these facts, where is the need for the authority to still look, into the passport at the time of the inquiry ? Mr. Qureshi for the respondents in this connection submitted that usually, what is admitted need not be proved in any proceedings as laid down by S. 58 of the Evidence Act. However, he pressed in service the proviso to the said section. We, therefore, deem it fit to reproduce the said section with the proviso at this stage : -
"No fact need be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings;
Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions".
Mr. Qureshi submitted that when the proceedings are being conducted before the adjudicating officer under S. 51 of the Act and when the question arises before him in these proceedings whether the petitioner's passport has remained relevant in view of his admission that he has entered Indian territory on South African passport, discretion will still. remain with the adjudicating officer under the proviso to S. 58 of the Evidence Act to require the facts admitted to be proved otherwise than by such admission, meaning thereby, the passport may still be required to be seen by the authority notwithstanding the admission of the petitioner about the said fact. Mr. Qureshi also submitted that the petitioner might have stated so in his affidavit supporting the petition but the possibility cannot be ignored of his future retraction of that admission of his and in case he retracts such admission, the original passport held by him would remain relevant all the same at feast if and when such an eventuality happens and which cannot be ruled out. It was further contended by Mr. Qureshi that relevance of the passport, therefore, will have to be judged not only in the light of what the petitioner admits before us in the present proceedings but on the possibility of what might happen during the pendency of the proceedings before the competent authority and the competent authority cannot predict at this stage that the petitioner will never restyle from the present stand taken by him and the admission made by him. He further submitted that even if the petitioner states before us that he will not retract his admission in all the future proceedings or even in the criminal proceedings that might be initiated against him for breach of S. 29(1) of the Act, nothing prevents him from resoling from the same and if he does so, there will be no legal sanction to pin him down to his earlier admission. In short, it was contended that lot of complications might arise if on his mere admission at this stage, the passport is held not relevant for the purpose of inquiry. We find considerable substance in the aforesaid apprehension voiced by the learned Advocate for the respondents. Proviso to S. 58 of the Evidence Act clearly indicates that the authority concerned before whom the admitted facts are pressed in service may in his discretion, on the facts and circumstances of the case, require the facts to be proved otherwise than by admission. Even otherwise, on the facts and circumstances of the case and when infraction of S. 29(1)(a) of the Act is alleged against the petitioner who claims to be a foreign national, if the petitioner I s passport is sought to be seized on the basis that it is relevant for the inquiry, it would be too hazardous to hold at this stage that it would not remain relevant during the succeeding stages of the inquiry, only because the petitioner admits before us in the present proceedings that he has entered-into-1ndian territory on a foreign passport and that he is a foreign national.
13. It must, therefore, be held that (luring the pendency of the inquiry under S. 51 read with S. 50 of the Act for the alleged infraction of S. 29(1) by the petitioner, the petitioner's passport will remain relevant. Its relevance naturally will be to the extent of showing that he is a resident-foreigner who has entered India on a foreign passport and who is holding a foreign passport. His foreign passport will be the best piece of evidence to prove this fact, his admission to that effect notwithstanding. The third contention of Mr. Jhaveri, the party-in-person for challenging the impugned order under S. 38 has also, therefore, to be repelled. Section 38, in our view, gives ample jurisdiction and power to the respondents to pass orders of seizure of passports which are found relevant for the inquiry or investigation pending against the concerned persons who are alleged to have infrind the relevant provisions of the Act or rules or directions issued thereunder. The impugned order is found to be failing squarely within the ambit of S. 38 of the Act and cannot be said to be ultra vires the said provisions as alleged by the petitioner.
14. That takes us to the last contention of the petitioner which was pressed in service as an alternative contention. In order to appreciate this contention, it must be kept in view that once the provisions of S. 38 of the Act are validly pressed in service by the competent authority for seizing the passport, as in the present case, how long the seizure and consequential custody of the passport will continue with the competent authority seizing the document, becomes at- once a germane question. It cannot be that seizure and consequential custody can be of indefinite duration. Section 38 indicates that the concerned document or the thing seized under S. 38 should be relevant to the investigation or proceedings under the Act or in connection therewith any infraction of the Act or rules or Order should have been committed. It stands to reason that the custody of the seized document or thing as a relevant or useful document or thing at least would be conterminous with the concerned investigation or proceedings during the pendency of which such seizure is effected on the ground that the seized article is useful or relevant pending such investigation or proceedings. In the present case, the seizure of the passport is being upheld under S. 38 read with Ss. 51, 50 and 290) of the Act. The competent authority has seized the passport on the ground that it is relevant for the adjudication proceedings pending before it in connection with the alleged infraction of S. 290) of the Act by the petitioner. Therefore, the said seizure cannot continue indefinitely beyond the currency of the adjudication proceedings. In this connection, we must have a look at S. 41 of the Act. The said section deals with custody of documents etc. which are either produced before the competent authority or seized by them in exercise of their power under- various provisions of the Act and when such documents are believed to be furnishing evidence of contravention of my of the provisions of the Act or the rules. In case of such types of documents which furnish direct evidence of contravention of the Act or the Rules, consequential custody flowing from the seizure of such documents is permitted to be retained by the authority seizing the documents for a period not exceeding one year or if before the expiry of the said period of one year any proceedings (i) under S. 51 have been commenced, until the disposal of those proceedings including the proceedings, if any, before the appellate board and the High Court or (ii) under S. 56 have been commenced before a Court, until the document has been filed in the Court. Section 41, therefore, clearly lays down the legislative intention that in cases of seized documents which are themselves evidence of contravention of the provisions of the Act and the rules, maximum period of custody of such documents with the authority seizing the documents is limited to one year or till the expiry of the adjudication proceedings under S. 51 and till they reach their final culmination through all the hierarchy of proceedings up to the High Court, or if there are any criminal proceedings, till the document is filed in the competent Court. It, therefore, stands to reason that if the documents are evidence of contravention of the provisions of the Act or the rules, fixed period is provided for their custody with the authority seizing the documents. Therefore, of' necessity, the period of custody of' those documents which are riot themselves any evidence of infraction of the Act or the rules but are merely relevant or useful for any such inquiry or proceedings under the Act and which are seized under S. 38, cannot be as large as contemplated by S. 41. It is obvious that S. 41 does not apply to those documents which are seized under S. 38. However, that does not mean that power to retain custody of seized documents under S. 38 as relevant or useful documents can be exercised for any indefinite period which may go even beyond what is contemplated for more drastic types of documents dealt with by S. 41. As we have already seen above, S. 38 nowhere contemplates the period during which custody of the seized article as relevant or useful for investigation or inquiry can be retained by the authority seizing the document. But implicit in the section is the indication of legislative intention that custody of such document would remain so long as the document would remain relevant or useful to the investigation or proceedings, meaning thereby, that the custody would become conterminous with the conclusion of the concerned investigation or proceedings. However, the petitioner vehemently submitted that the adjudicating authority may take months and years for finishing such proceedings and in the meantime, if the passport is permitted to be kept in the custody of the seizing, authority, irreparable injury will be caused to the petitioner and he may not be able to go out of the country for indefinite period and if that happens, exercise of power under S. 38 would become unreasonable. So far as the aforesaid contention of the petitioner is concerned, there is lot of substance therein. We may in this connection refer to the observations of the majority judgment of the Supreme Court in the case of Maneka Gandhi v. Union of India, (1978) 1 SCC 248: (AIR 1978 SC 597), Bhagwati, J. (as he then was) speaking for the majority has made the following pertinent observations in connection with impounding of passport and its effect on the holder of the passport : -
"We may observe that if the impugned ,order impounding the passport of the petitioner were violative of her right to freedom of speech and expression or her right to carry on her profession as a journalist, it would not be saved by Art. 19(2) or Art. 19(6), because the impounding of the passport for an indefinite length of time would clearly constitute an unreasonable restriction. The Union contended that though the period for which the impugned order was to operate was not specified in so many terms, it was clear that it was intended to be conterminous with the duration of the commission of inquiry, since the reason for impounding was that the presence of the petitioner was likely to be required in connection with the proceedings before the Commission of Inquiry and the term of the Commission of Inquiry being limited up to Dec. 31, 1977, the impounding of the passport could not continue beyond that date and hence it would not be said that the impugned order was to operate for an indefinite period of time. Now, it is true that the passport of the petitioner was impounded on the ground that her presence was likely to be required in connection with the proceeding before the Commission of Inquiry and the initial time limit fixed for the Commission of Inquiry to submit its report was Dec. 31, 1977, but the time limit could always be extended by the Government and the experience of several Commissions of Inquiry set up in this country over the last twenty five years shows that hardly any Commission of Inquiry has been able to complete its report within the originally appointed time. Whatever might have been the expectation in regard to the duration of the Commission of Inquiry headed by Mr. Justice Shah at the time when the impugned order was made, it is now clear that it has not been possible for it to complete its labours by December 31, 1977 which was the time limit originally fixed and in fact its term has been extended up to May 31, 1978. The period for which the passport is impounded cannot, in the circumstances be said to be definite and certain and it may extend to an indefinite point of time. This would clearly make the impugned order unreasonable and the learned Attorney General appearing on behalf of the Central Government, therefore, made a statement that in case the decision to impound the passport of the petitioner is confirmed by the Central Government after hearing the petitioner, "the duration of the impounding will not exceed a period of six months from the date of the decision that may be taken on the petitioner's representation". It must be said in fairness to the Central Government that this was a very reasonable stand to adopt, because in a democratic society governed by the rule of law, it is expected of the Government that it should act not only constitutionally and legally but also fairly and justly towards the citizen. We hope and trust that in future also whenever the passport of any person is impounded under S. 10(3)(c), the impounding would be for a specified period of time which is not unreasonably long, even though no contravention of any fundamental right may be involved."
It is true that the aforesaid observations have been made in connection with impounding of passport of an Indian citizen. However, the test of unreasonableness of the exercise of power of impounding a passport as laid down by the Supreme Court in the aforesaid decision can well be kept in view while deciding the present contention of the petitioner. To see that power of seizure under S. 38 may not become unreasonable on account of prolonged and indefinite continuous seizure and consequential custody of the seized passport on the ground that it is relevant for the inquiry proper directions have to be issued to the respondent about release of the passport to the -petitioner at proper time. The petitioner's apprehension that adjudication proceedings may be indefinitely delayed over years, can be taken care of by directing the respondents to finish pending adjudicating proceedings at the earliest. When this is done, exercise of power under S. 38 on the facts of the case would not become unreasonable and the apprehension of the petitioner that his passport would indefinitely remain seized also would not survive. In our view, interest of justice would be served if the respondents are directed to complete the adjudication proceedings under S. 51 during the currency of which the petitioner's passport has been seized as a relevant document under S. 38, within a period of eight weeks and to be more precise on or before 4th November, 1986 and if they are further directed to communicate the result of the adjudication proceedings within one week of 4th November. 1986. This direction to the respondents will meet the grievance of the petitioner that adjudication proceedings may be indefinitely delayed by the respondents. However, we may add a rider that the respondents will be required to observe this time scheme for completion of the inquiry under S. 51 provided in the meantime the petitioner fully co-operates in the inquiry, properly files his reply and joins issues and sees to it that the proceedings are completed, within the time schedule as prescribed above and further that no injunction or stay against the proceedings is obtained against the respondents from any competent Court. Given all that, if till 4th November, 1986, the petitioner fully co-operates with the inquiry, the respondents shall be bound t6 complete the said inquiry within that time. If as a result of the adjudication proceedings, the petitioner is found not to have infracted S. 29(1) of the Act, then on the completion of the inquiry and on the communication of the result thereof to the petitioner the respondents shall forthwith release the passport to the petitioner. If on the other hand, the result of the inquiry is adverse to the petitioner and if any penalty is imposed on the petitioner, then in that eventuality, the moment the petitioner pays up that penalty amount, the passport will be forthwith released to him. The petitioner in that eventuality, may pay the penalty without prejudice to his rights and contentions which he may agitate in appeal, if any, before the appellate Board as provided by S. 52 of the Act. Mr. Qureshi for the respondents, in this connection, voiced an apprehension that even if the petitioner pays up the penalty, if at all the order goes against him and is restored the passport, and thereafter if he goes in appeal and argues that the original passport does not indicate what the authorities have mentioned in the order, need to look at the original passport may arise for the appellate Board and in the meantime, if the petitioner leaves India on his foreign passport the appellate Board may not be able to look at the said passport. This apprehension is more imaginary than real. If the petitioner goes in appeal against the adverse adjudication order and raises a contention about the true contents of the original passport, it will be for him to establish the same by reproducing the passport before the appellate Board for its scrutiny; otherwise, his own contention in appeal would fail and he himself would suffer. There will also not arise any occasion for the departmental authorities to suffer adversely as the fine imposed by the adjudicating officer would have already been paid by the petitioner before the passport is restored to him. Therefore, the apprehension that the, petitioner would recreate his passport in appeal against any adverse order of adjudicating authority is not well founded and is merely on imaginary apprehension. It has, to be ke0pt .in view that as per S. 50 of the Act, in cases of infraction 6f S. 29, maximum penalty which can be imposed will be Rs. 5,000/- as there would be no question of imposing penalty not exceeding five times the amount or value involved in any alleged contravention as infraction of S. 290) cannot be measured in terms of money as already seen earlier. Consequently, Rs. 5,000/- would be the maximum penalty which can be imposed under S. 50, in case the adjudication proceedings go against the petitioner and when such penalty amount if at all, imposed against the petitioner is paid up, there would remain no occasion for the respondents to insist for retaining custody of the seized passport. Its relevance would automatically come to an end with the termination of the adjudication proceedings one way or the other, as observed above.
[Paras 15 and 16 omitted -Ed. ]
17. Order accordingly.