TaxTMI 
TaxTMI 
2009 (3) TMI 570
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....U.K. Sterling pounds 1,220 and certain other incriminating documents were found and seized. It was alleged that Petitioner No. 1 who was at the relevant time working as Joint Secretary and Legal Adviser, Ministry of Commerce, Udyog Bhawan, New Delhi had visited abroad in May 1984 and had acquired Japanese Yen 2,94,100 and Hong Kong $ 15,490 for purchases made abroad. It was stated in the complaint that under section 8(1) FERA no person resident in India other than an authorized dealer in foreign exchange could acquire foreign exchange except with the special permission of the Reserve Bank of India ('RBI'). Since the acquisition of the aforementioned foreign currency by the petitioners contravened the provisions of section 8(1) FERA, they were liable to be proceeded against under section 56 FERA. Accordingly on 9-2-1987 the aforementioned complaints were filed against the petitioners. 3. According to the petitioners the total value of the foreign exchange seized from the premises was around Rs. 49,000 in terms of the rupee exchange value. In respect of the search and seizure by the CBI, a charge sheet was filed by it against the petitioners on 27-6-1986 for the offence under sect....
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.... and take cognizance of the offence under the FERA. 6. Petitioner No. 1 who appeared in person relied on certain circulars of the department to urge that since the value of the foreign exchange recovered in this case was less than Rs. 2.5 lakhs, the Enforcement Directorate ought not to be prosecuting these complaints. On the basis of the above submission the following order was passed by this Court on 2-11-2006 : "Learned counsel for the respondent submits that the petitioner had earlier also filed Crl. M.M. No. 1479/2002 seeking quashing of the proceedings, which petition was dismissed vide order dated 10-5-2002 and, therefore, second petition of the same nature is not maintainable. However, it is pointed out by the petitioner, who appears in-person, that on earlier occasion the petition was filed on the ground that when second complaint on the same allegations was not maintainable. His primary argument now is that even as per the department's own circular, if the value of foreign exchange is less than Rs. 2.50 lakhs, the prosecution is not to be normally launched. In the present case, he submits that the value of the foreign exchange was Rs. 49,000 only. It is also pointed ....
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....nd further that the Adjudicating Authority had levied penalty against Shri S.K. Bahadur and Smt. Bahadur which have not been paid till now. As regards, prosecution being filed even before finalization of ATFE appeal, there does not appear to be any infirmity in this respect. 3. The Competent Authority has informed that this is not a fit case for withdrawal, in the light of the facts brought out above." 9. On 28-1-2008 after perusing the said affidavit dated 2-3-2007, this Court passed the following order : "1. This is an application seeking impleadment of Central Bureau of Investigation (CBI) as a party in the present case. 2. After going through the record in the present case, this Court does not find it necessary to implead the CBI since this is a matter concerning exclusively the Directorate of Enforcement which is prosecuting the petitioner for the offence under the Foreign Exchange Regulation Act (FERA). The application is dismissed. Crl. M.C. No. 6648-49/2006 3. The affidavit dated 2-3-2007 on behalf of the Directorate of Enforcement states that although the value of the foreign exchange involved is small, since the prosecution under the FERA is linked with ....
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....t on 13-3-2008. 9. Order be given dasti to learned counsel for the parties." 10. Pursuant to the aforementioned order further affidavit was filed by the Directorate of Enforcement on 24-3-2008. In paras 5 to 8 of the said affidavit it was stated as under : "5. That the Adjudicating Officer vide order dated 31-12-1986 had imposed a penalty of Rs. 2 lakhs and Rs. 25,000 on Shri S.K. Bahadur and Smt. Asha Bhatnagar respectively for contravention of the provisions of section 8 (1) of Foreign Exchange Regulation Act, 1973 and the said penalties have not been paid till date. The petitioner has filed an appeal before the then FERA Board now the Appellate Tribunal for Foreign Exchange against the said adjudication order dated 31-12-1986 and the same is pending. 6. That the respondent had filed complaints against the petitioners under section 56 of FERA, 1973 in the Court of ACMM on 9-2-1987 and the same have been coming up periodically before the ACMM Court. 7. It is respectfully submitted that the prosecution in the Court of ACMM and the appellate proceedings in the Appellate Tribunal have not attained finality only due to dilatory tactics adopted by Shri S.K. Bahadur, the ....
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....lar Order No. 6/78. The petitioner also referred to the Circular Technical No. 1/92 dated 5-5-1992 whereunder prosecution under section 56 FERA is to be considered only where the amount of seized foreign exchange is "equivalent to Rs. 2.5 lakhs or more." It is submitted that the guidelines of 5-2-1987 and 5-5-1992 cannot be overridden by the general policy of the Government concerning the filing of cases under the FERA in the sunset period between 1-6-2000 to 31-5-2002. It is submitted that the criteria set by the above Circulars for prosecuting cases ought to be adhered to by the Government particularly when the said Circulars have not been superseded or withdrawn. 13. In reply it is pointed out by Mr. P.P. Malhotra, the learned ASG appearing for the respondent that even earlier the petitioner had filed a petition seeking similar relief which was dismissed by this Court. It is then submitted that in the matter of withdrawal of cases filed during the sunset period between 1-6-2000 to 31-5-2002 the competent authority followed the general policy in respect of withdrawal only of such cases which were neither group cases nor linked cases. The said policy would in any event not appl....
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....use (a) of sub-section (1) of section 18, section 18A, clause (a) of sub-section (1) of section 19, sub-section (2) of section 44 and sections 57 and 58, or of any rule, direction or order made thereunder, he shall, upon conviction by a Court, be punishable,- (i)in the case of an offence the amount or value involved in which exceeds one lakh of rupees, with imprisonment for a term which shall not be less than six months, but which may extent to seven years and with fine: Provided that the court may, for any adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months; (ii )in any other case, with imprisonment for a term which may extend to three years or with fine or with both." 17. It requires to be noticed straightway that under section 56(1) FERA there is a gradation of the offences depending on their gravity. Where the value of foreign exchange involved exceeds Rs. 1 lakh then the imprisonment is not less than six months and may extend to seven years and a fine. In all other cases the imprisonment is for a term which may extend for a period of three years and a fine or both. This is indicative of ....
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.... dates produced does not persuade the court to hold that it is the petitioners alone who are responsible for the delay in the progress of the two complaint cases. Further it is not in dispute that despite there being no stay of the criminal proceedings the learned MM decided not to proceed with the complaints for the reasons stated in the orders. If the CBI felt that such adjournments were not justified then it should have sought appropriate remedies for that purpose. For reasons best known to the CBI it did not file any application for expediting the criminal complaints against the petitioners. 20. The PC Act case and the adjudication proceeding are in any event pending. Therefore it is not as if with the quashing of the complaint cases for the offences under the FERA, all other proceedings against the petitioners would come to a close. The factors that weigh with this Court are that petitioner No. 1 is 79 years old and petitioner No. 2 is 80 years old. They have been facing ordeal of the pendency of the two criminal complaint cases for nearly 22 years now. Charge is yet to be framed. It is anybody's guess as to how many more years the trial of the case would take. This court i....