Report No. 47
15.36-I. Foreign Exchange Act-Interception of postal articles.-
There is another question connected with the powers of search under the Foreign Exchange Regulation Act. It relates to postal and telegraphic articles. A point has been made that the collection of important intelligence relating to illegal transactions involving foreign exchange would be facilitated if powers to intercept postal articles were available to senior officers.
15.36J. An examination of analogous provisions, in other Acts furnishes two kinds of provisions, on the subject. First, there are provisions conferring a power to intercept and detain articles in the course of transmission by post or telegraph. Secondly, there are provisions under which the competent officer can require the postal or telegraph authorities to deliver, to the specified officer, postal and telegraphic articles (meant for particular persons).
15.36K. In this connection, two sections of the Code of Criminal Procedure are quoted below1:-
"94. Summons to produce document or other thing.-(1) Whenever any Court or in any place beyond the limits of the towns of Calcutta and Bombay any officer in charge of a police-station considers that the production of any document or other thing is necessary or desirable for the purpose of any investigation, inquiry, trial or other proceeding under this Code by or before such Court or officer, such Court may issue a summons or such officer a written order, to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it, or to produce it, at the time and place stated in the summons or order.
(2) Any person required under this section merely to produce a document or other thing shall be deemed to have complied with the requisition if he causes such document or thing to be produced instead of attending personally to produce the same.
(3) Nothing in this section shall be deemed to affect the Indian Evidence Act, 1872 (1 of 1872) sections 123 and 124, or to apply to a letter, postcard, telegram or other document or any parcel or thing in the custody of the Postal or Telegraph authorities.
95. Procedure as to letters and telegrams.-(1) If any document, parcel or thing in such custody is, in the opinion of any District Magistrate, Chief Presidency Magistrate, High Court or Court of Session, wanted for the purpose of any investigation, inquiry, trial or other proceeding under this Code, such Magistrate or Court may require the Postal or Telegraph authorities as the case may be, to deliver such document, parcel or thing to such person as such Magistrate or Court directs.
(2) If any such document, parcel or thing is, in the opinion of any other Magistrate, or of any Commissioner of Police or District Superintendent of Police, wanted for any such purpose, he may require the Postal or Telegraph Department, as the case may be, to cause search to be made for and to detain such document, parcel or thing pending the orders of such District Magistrate, Chief Presidency Magistrate of Court."
1. Sections 94-95, Code of Criminal Procedure, 1898.
15.36L. The Post Office Act has a number of provisions authorising interception. It is sufficient to quote one1.
"25. Power to intercept notified goods during transmission by post.-Where a notification has been published under section 19 of the Sea Customs Act, 1878, in respect of any goods of any specified description or where the import or export into or from India of goods of any specified description has been prohibited or restricted by or under any other enactment for the time being in force, any officer of the Post Office empowered in this behalf by the Central Government may search or cause search to be made, for any such goods in course of transmission by post, and shall deliver all postal articles reasonably believed or found to contain such goods to such officer as the Central Government may appoint in this behalf and such goods may be disposed of in such manner as the Central Government may direct. In carrying out any such search, such officer of the Post Office may open or unfasten, or cause to be opened or unfastened, any newspaper or any book, pattern or sample packet in course of transmission by post."
1. Section 25, Post Office Act, 1898.
15.36M. The interception of articles whose import or export is prohibited is thus covered by section 25, Post Office Act, quoted above. But it does not, unlike the Cr. P.C.1, give power to direct delivery of postal articles. Moreover, the power thereunder does not vest in the Enforcement Officers acting under the Foreign Exchange Act. If, therefore, it is considered necessary that the Enforcement Officers should have the initiative and that the power should extend to directing delivery, then a comprehensive and self-contained provision in the Foreign Exchange Act would be needed.
1. Section 95, Criminal Procedure Code (quoted supra).
15.36N. We are, clearly, of the view that in the interests of effective enforcement of this important Act, it is desirable to confer this power on appropriate authority. We proceed to discuss below a few salient features of the power that could be conferred.
15.360. Any law-maker proposing a power of interception has, in order to create a picture of his proposal, necessarily to go into a few salient features, such as-
(a) the situation in which the power will be exercisable;
(b) the authority who will exercise the power, and the question of subjective or objective satisfaction of that authority;
(c) the duration for which the interception will operate; (d the other conditions governing the exercise of the power; and (e) the further disposition of the intercepted article.
These features have to be considered even where there is no question of fundamental rights.
15.36P. Further, in view of the fact that the power to intercept letters and telegraphic messages may conceivably raise questions of interference with the freedom of speech and expression, it is advisable as a matter of abundant of caution to ensure that the restrictions are reasonable and in the interest of one of the considerations specified in Article 19(2).
15.36Q. It may be noted that section 25, Post Office Act, 18981, is connected with the restrictions under the Import and Export (Control) Act, 1947 or under section 11, Customs Act, 1962 or under similar laws. The last sentence of section 25 does authorise the opening of many postal articles, but not letters. Hence, in practice, its coming into conflict with the freedom of speech is not likely. So far as the right to hold etc. property is concerned, most of these other Acts would fall within the ambit of the words, 'in the interest of general public' used in Article 19(6) of the Constitution. In case the restrictions imposed in those other Acts are themselves held to be void, then section 25 of the Post Office Act will be void in relation to those restrictions.
1. Section 25, Post Office Act is quoted supra.
15.36R. But we are now dealing with a power with a wider ambit.
Since constitutional questions are bound to be raised, Article 19(2) of the Constitution has to be considered. Interception of letters or telegrams at the instance of executive officers could be constitutionally justified with reference to Article 19(2), if it amounts to 'incitement to an offence'. (There are other permissible heads of restriction in Article 19(2); but they are not very appropriate for the present purpose).
15.36S. As far as the reasonableness of the restriction is concerned, a number of points have to be borne in mind in connection with search, interception and similar powers. Chief amongst these are-
(1) nexus between the purpose and object of the section, and the exercise of the power thereunder;
(2) indication as to when and in what circumstances the power is to be exercised;
(3) indication in respect of which persons and whose premises the power in question is to be exercised;
(4) principles, which, according to the Legislature, afford a guidance for exercising the power by the executive;
(5) opportunity to the persons affected or likely to be affected, to contest the exercise of the power;
(6) provision to enable the aggrieved party to make a representation;
(7) provision for notice before the power is exercised1;
(8) provision for the return of articles seized, time limit set for any such return, and other connected safeguards.
1. In the present case, Nos. (5),(6) and (7) would be impracticable.
15.36T. Bearing these considerations in mind, we think that while it is desirable in the interest of prompt and effective investigation that the power to intercept postal and telegraphic articles should be conferred, certain safeguards are necessary, having regard to the constitutional provision and also having regard to the need to avoid undue harassment. The safeguards which we contemplate will be apparent from the very tentative draft which we give below.
15.36U. Accordingly, we recommend that the following provision1 be inserted in the Foreign Exchange Act:-
"(1) If any document, parcel or thing in the custody of the Postal or Telegraph authorities is, in the opinion of the Director of Enforcement or any officer not below the rank of Assistant Director authorised by him, wanted for the purpose of any investigation, inquiry or other proceeding under this Act in respect of an offence relating to foreign exchange the value whereof exceeds rupees one lakh or for the detection of any such offence, such officer may-
(a) require the Postal or Telegraph authorities, as the case may be, to deliver such document, parcel or thing to such person as such officer directs, or
(b) intercept, detain, open and examine any such document, parcel or thing, pending a requisition by him under clause (a).
(2) If the document consists of any message received for transmission by telegraph by the telegraph authorities, such officer may require the telegraph authorities not to transmit the message to the person to whom it is addressed, pending an order under sub-section (1).
(3) If any such document, parcel or thing is, in the opinion of any other Enforcement officer, wanted for any such purpose, he may require the Postal or Telegraph Department, as the case may be, to cause search to be made for and to detain such document, parcel or thing pending the orders of any such officer as is mentioned in sub-section (1).
(4) The provisions of this section shall not apply in relation to any letter or telegram unless the letter or telegram amounts to incitement to commit an offence under this Act or constitutes evidence of such incitement.
(5) No document, parcel or thing shall be retained in the custody of such officer for a period exceeding fifteen days (excluding holidays) unless he has obtained the approval of the Director."
1. This is a very tentative draft.
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