2006 (2) TMI 272 - SC - FEMA

Section 68 applies broadly to contraventions; companies liable under Sections 50 and 56; imprisonment only for responsible officers

STANDARD CHARTERED BANK Versus DIRECTORATE OF ENFORCEMENT

The SC modified the HC's decision, holding that Section 68 applies broadly to contraventions of the Act and is not confined to criminal prosecutions under ... Constitutional validity of Sections 50, 51, 56 and 68 of the FERA - Scope and applicability of Section 68 - liability of company officers - Whether in a case where an offence was punishable with a mandatory sentence of imprisonment, a company incorporated under the Companies Act, can be prosecuted, as the sentence of imprisonment cannot be imposed on the company? Held that:- Merely because the expression ‘punished’ is used, it does not mean that it is confined to a prosecution under Section 56 of the Act, since the element that attracts the imposition of penalty and the prosecution is the same, namely, the contravention of any of the provisions of the Act. Moreover, there is nothing in the Act which, confines the expression ‘punished’ only to a punishment for a criminal prosecution. An imposition of a penalty can also be a punishment. The second part of the reasoning appears to be self-contradictory. If a person includes a company, there is no reason to confine Section 68 to a prosecution only, because the company as a person is liable to be proceeded against under Section 50 and Section 56 of the Act, though in a criminal prosecution the punishment by way of imprisonment can be imposed only on the officer or officers of the company referred to in Section 68 of the Act. Section 68 only indicates the manner in which a contravention by a company can be dealt with and it does not show that it is confined in its operation only to prosecutions against a company. It is a general provision relating to a contravening company, which is to be proceeded against whether it be under Section 50 or under Section 56 of the Act. The fact that a fine alone can be imposed on a company in a prosecution under Section 56 of the Act, cannot enable us to confine the operation of Section 68 to criminal prosecutions alone under the Act. We see no reason to whittle down the scope of Section 68 of the Act. It is true that the entire penalty that may be imposed on adjudication, is capable of being recovered from the company itself. But that does not mean that it cannot be recovered from the officer incharge of the company or those who connived at or were instrumental in the contravention of the provisions of the Act by the company. Once the ingredient of the offence is contravention of the provisions of the Act and the consequences flowing from the contravention is to make that person including a company liable for penalty as well as for prosecution, there does not appear to be any justification in confining the scope of the Section 68 only to prosecutions under Section 56 of the Act. We have earlier indicated that use of the expression ‘offence’ in the marginal heading of Section 68 is not indicative of the expression ‘being confined to a criminal offence alone’ because an offence in the context of the Act is really a contravention of any of the provisions of the Act referred to in Section 50 and in Section 56 of the Act. Hence, the decision of the High Court calls for modification as regards the scope and applicability of Section 68 of the Act. The appeals filed by the Union of India are liable to be allowed to that extent. Issues Involved:1. Constitutionality of Sections 50, 51, 56, and 68 of the Foreign Exchange Regulation Act (FERA).2. Applicability of Section 68 of FERA to adjudication proceedings.3. Simultaneity of adjudication and prosecution under FERA.4. Validity of notices issued under Section 61 of FERA.5. Scope and interpretation of Section 68 of FERA regarding liability of company officers.6. Inclusion of FERA in the Ninth Schedule of the Constitution and its implications.Issue-wise Detailed Analysis:1. Constitutionality of Sections 50, 51, 56, and 68 of FERA:The appellant bank and its officers challenged the constitutional validity of Sections 50, 51, 56, and 68 of FERA, claiming they violated Articles 14 and 21 of the Constitution of India. The High Court of Bombay rejected this challenge, and the Supreme Court upheld this decision, noting that FERA is included in the Ninth Schedule of the Constitution. This inclusion under Article 31B protects FERA from being declared void on grounds of inconsistency with Part III of the Constitution, which includes Articles 14 and 21. Therefore, the challenge to these sections based on alleged violations of Articles 14 and 21 was dismissed.2. Applicability of Section 68 of FERA to Adjudication Proceedings:The High Court of Bombay held that Section 68(1) of FERA, which pertains to the liability of company officers for offences committed by the company, is applicable only to prosecutions and not to adjudication proceedings. The Supreme Court modified this decision, stating that Section 68 is not confined to prosecutions under Section 56 but also applies to adjudication proceedings under Section 50. The Court reasoned that the term 'offence' in Section 68 includes any contravention of the Act, whether it leads to a penalty or prosecution.3. Simultaneity of Adjudication and Prosecution under FERA:The appellants argued that penal proceedings should not be initiated simultaneously with adjudication proceedings under FERA. The Supreme Court rejected this argument, affirming that adjudication and prosecution are independent processes. The Court noted that Section 56 of FERA allows for prosecution 'without prejudice to any award of penalty,' indicating that both proceedings can occur simultaneously. The Court upheld the Full Bench decision of the Calcutta High Court, which stated that a complaint under Section 56 is not premature if initiated before the conclusion of adjudication under Section 51.4. Validity of Notices Issued under Section 61 of FERA:The appellants challenged the notices issued under Section 61 of FERA, arguing that they were not merely formalities and should contain relevant materials. The Supreme Court held that the notices under Section 61 are valid as they provide an opportunity for the appellants to show that they had the necessary permission for the transactions in question. The Court emphasized that these notices are preliminary and do not decide anything against the appellants. The appellants can present their defenses during the subsequent criminal proceedings.5. Scope and Interpretation of Section 68 of FERA Regarding Liability of Company Officers:The appellants contended that Section 68(1) of FERA, which presumes the liability of company officers for offences committed by the company, violated Articles 14 and 21 of the Constitution. The Supreme Court dismissed this contention, stating that the section is not arbitrary or discriminatory. The Court explained that Section 68(1) applies to individuals responsible for the conduct of the company's business, and these individuals have the opportunity to prove their lack of knowledge or due diligence. The Court also clarified that Section 68(2) applies to other officers who consented to or connived in the contravention.6. Inclusion of FERA in the Ninth Schedule of the Constitution and Its Implications:The inclusion of FERA in the Ninth Schedule of the Constitution under Article 31B protects it from being challenged on the grounds of violating fundamental rights in Part III of the Constitution. The Supreme Court noted that this inclusion means that even if the provisions of FERA are found to violate Articles 14 or 21, they cannot be struck down. The Court also highlighted that the legislative intent behind FERA is to protect the economic interests of the country, justifying the stringent provisions of the Act.Conclusion:The Supreme Court dismissed the appeals challenging the constitutional validity of FERA's provisions and upheld the simultaneous initiation of adjudication and prosecution proceedings. The Court also broadened the applicability of Section 68 to include both adjudication and prosecution, emphasizing the legislative intent to address contraventions comprehensively. The inclusion of FERA in the Ninth Schedule was a significant factor in protecting the Act from constitutional challenges.