TaxTMI 
TaxTMI 
TaxTMI 
2008 (7) TMI 835
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....Maruti Car bearing registration No.PB37A-3173 of the white colour in the villages falling within the jurisdiction of Police Station Sadar, Goraya, Phagwara and Phillaur. The information so received was recorded and was sent for registration of case which led to lodging of FIR No.311 dated 27.04.2001 at Police Station Sadar, Jalandhar under Sections 411/414 IPC read with Sections 3(b) and 3(c) of FEMA Act, 1999. A perusal of the record reveals that a cash of total amount of Rs.11,80,000/- during nakabandi was recovered from Balhar Chand @ Billa, Balwinder Kumar, Avtar Singh @ Tari and Mohan Lal. The petitioners have relied upon the complaint (Annexure P-2) filed by S.P.Subramanian, Assistant Director of Enforcement Directorate, FEMA, Ministry of Finance, Govt. of India. In the compliant, it has been stated that the statements of Balhar Chand @ Billa, Balwinder Kumar, Avtar Singh @ Tari and Mohan Lal were recorded under Section 37 of Foreign Exchange Management Act, 1999 read with Section 131 of the Income Tax Act, 1961. Balhar Chand in his statement stated that on 27.04.2001 when he along with his cousin brother Balwinder Kumar and his friend Avtar Singh were going in a Maruti car ....
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....poor and backward people and that the money was to be used for purchasing Tata Sumo cars which they would have plied as taxis to earn livelihood and sustain their families. The charge is thus established and as such I find the noticees guilty. I would like to add here that ignorance of law is no excuse, however looking into the circumstances of the case, I also find that no racketeering is involved in this case and if the entire amount is confiscated it will cause enormous financial hardship to the families of the noticees as they will loose their chance to earn the livelihood. I therefore, take a lenient view and in exercise of the powers conferred upon me in terms of sub section (1) of section 16 of the said act, I impose a penalty of Rs.1,33,000/- each (Rupees One lac thirty three thousand only) against S/Sh. Balhar Chand @ Billa, Avtar Singh @ Tari and Balwinder Kumar. The total penalty of Rs.3,99,000/- (Rupees Three lac ninety nine thousand only) should be deducted from the seized amount of Rs.11,80,000/- and the balance amount be released to the noticees, which I feel will meet the ends of justice". After the order Annexure P-5 was passed, Deputy Director of Income Tax (Inve....
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....ng this amount to the FEMA Authorities. Similarly, the FEMA authorities also did not seek permission of the court before releasing the seized amount to the accused, with the result that the investigation which the Income Tax Department intends to initiate against the accused persons by requisitioning the amount in question under Section 132 A(i) of the Income Tax Act stood hampered. In these circumstances, it would be just and proper if the accused are directed to deposit the remaining amount released in their favour by the FEMA Authority with the S.H.O., Police Station Sadar, Jalandhar so that the same may be ordered to be released to the Income Tax Department in accordance with the request made under Section 132A(i) of the Income Tax Act. In the light of the above discussion, the application filed by the Deputy Director (Investigation)-II, Jalandhar is hereby allowed and the accused are hereby directed to deposit the amount released to them by the FEMA authorities which come to Rs.7,81,000/- with the S.H.O., P.S.Sadar, Jalandhar within a period of one month from today and the S.H.O. of P.S.Sadar, Jalandhar will not release this amount in favour of anybody without the permission ....
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....t file be sent back along with copy of the order for 16.11.2005. Present criminal revision file be consigned to the Record Room". Mr. O.P. Nagpal, learned counsel for the petitioners has contended before me that once the penalty had been imposed by the Enforcement Directorate, the order of the Court to deposit the amount was in violation of Article 20 of the Constitution of India and Section 300 of the Criminal Procedure Code as it will amount to double jeopardy. Therefore, order passed by Enforcement Directorate Annexure P-5 has attained finality and the criminal court and the Income Tax Authorities have got no jurisdiction. I am unable to accept this contention raised by the counsel for the petitioners. Enforcement Directorate, Income Tax Authorities and criminal court adjudicate in their own sphere. Accused have admitted that the amount recovered was sent by their brothers who were residing abroad. Therefore, there was a violation of provisions of FEMA Act and under Enforcement Directorate had to act and penalty imposed by him was a consequence to the act of the petitioners who had received cash amount from abroad through channels which were not permissible, but it does not a....