Quasi-criminal FERA penalty failed where an unsigned fax and withheld original record left the alleged contravention unproved.

In quasi-criminal FERA enforcement proceedings, the department had to prove the alleged contravention with admissible and reliable evidence. The penalty could not be sustained because the main relied-upon material was an unsigned fax message whose authenticity, source, and status as original or copy were not proved, and the original record was not produced despite repeated directions. As the evidentiary foundation for the charge was incomplete, the alleged contravention was not established. The continued non-production of the original record also justified an adverse inference against the department, and the impugned penalty order was set aside.

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Issues: Whether the penalty order under the Foreign Exchange Regulation Act, 1973 could be sustained on the basis of an unsigned fax message and other unproved documents, and whether non-production of the original record justified adverse inference and setting aside of the findings.

Analysis: The proceedings being quasi-criminal in nature, the burden lay on the enforcement authorities to establish the alleged contravention by reliable evidence. The core document relied upon was an unsigned fax message said to have been seized from the premises, but the record showed that its authenticity, source, and status as original or copy were not satisfactorily proved. The original record was not produced despite repeated directions, and the material relied upon did not meet the requirements of proof for primary or secondary evidence. In these circumstances, the evidentiary foundation for the charge was incomplete. The continued non-production of the original record also justified drawing an adverse inference against the department.

Conclusion: The alleged contravention was not proved, the penalty order could not be sustained, and the appeals succeeded.

Final Conclusion: The impugned order was set aside and the appellants were relieved of the penalties imposed under FERA.

Ratio Decidendi: In quasi-criminal enforcement proceedings, the department must prove the alleged contravention by admissible and reliable evidence, and an unproved unsigned document, coupled with non-production of the original record, cannot support penal liability; adverse inference may follow from such non-production.

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