Exporter's conviction upheld under FERA Section 57 for non-realization of export proceeds, sentence modified to Rs. 3 lakh fine

Calcutta HC upheld conviction under Section 57 of FERA for non-realization of export proceeds. The petitioner was originally sentenced to 6 months imprisonment and Rs. 5,000 fine. Court rejected argument that lenient FEMA provisions should apply, holding that FERA provisions remain applicable to pre-1999 offences under sunset clause provisions. However, considering petitioner's age (75 years) and time lapse since 1996 incident, HC modified sentence to fine of Rs. 3 lakhs within three months, removing imprisonment component. Conviction upheld but sentence modified.

---

---

Issues Involved:
1. Validity of proceedings under FERA after its repeal by FEMA.
2. Applicability of lenient punishment under FEMA for offences committed under FERA.
3. Legitimacy of the conviction and sentence under Section 57 of FERA.

Summary:

Issue 1: Validity of proceedings under FERA after its repeal by FEMA
The petitioner was found guilty of violating Section 18(2) and 18(3) of the Foreign Exchange Regulation Act, 1973 (FERA) by the Assistant Director of Enforcement Directorate, Kolkata, and was penalized Rs. 1,50,000/- on 16.05.1997. Despite appealing to the FERA Appellate Board and filing a writ petition, no stay was granted. The petitioner failed to pay the penalty, leading to a conviction under Section 57 of FERA. The court noted that Section 49(4) of the Foreign Exchange Management Act, 1999 (FEMA) allows offences committed under FERA to be governed by its provisions even after its repeal, provided cognizance is taken within two years of FEMA's commencement.

Issue 2: Applicability of lenient punishment under FEMA for offences committed under FERA
The petitioner argued for leniency under FEMA, which replaced FERA and treats foreign exchange violations as civil offences. The court referred to Section 49(3) and 49(4) of FEMA, which stipulate that offences committed under FERA before its repeal should continue to be prosecuted under FERA's provisions. The court rejected the petitioner's reliance on precedents like T. Barai vs. Henry Ah Hoe, emphasizing that the offences under FERA and FEMA are not identical, and the ex post facto law providing lesser punishment does not apply.

Issue 3: Legitimacy of the conviction and sentence under Section 57 of FERA
The court upheld the conviction under Section 57 of FERA, which prescribes punishment for failure to pay penalties imposed by adjudicating officers. However, considering the petitioner's age (75 years) and the time elapsed since the offence (1996), the court modified the sentence. Instead of imprisonment, the petitioner was ordered to pay a fine of Rs. 3,00,000/- within three months.

Conclusion:
The revisional application was dismissed, and the conviction was upheld. The sentence was modified to a fine of Rs. 3,00,000/-, payable within three months. The court emphasized that the inherent powers under Section 482 Cr.P.C. are to prevent abuse of process and secure justice, not to conduct a mini-trial. The petitioner's failure to comply with the penalty payment and subsequent legal proceedings justified the conviction under FERA.

---