AI Drafter 
TaxTMI 
TaxTMI 
2014 (10) TMI 527
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....assed by the Regional Passport Officer was one whereby the passport of the appellant was revoked. The order dated 31.10.2011 was passed by the respondent No. 2 (Chief Passport Officer) in an appeal under Section 11 of the Passports Act, 1967 (hereinafter referred to as 'The Passports Act') which had been preferred by the appellant from the revocation order passed by the respondent No.3 on 03.03.2011. By virtue of the order dated 31.10.2011, the appellant's appeal was rejected by the respondent No.2. 3. The facts giving rise to the present appeal need to be set out. An investigation was being conducted against inter alia the appellant under the provisions of the Foreign Exchange Management Act, 1999 (hereinafter referred to as 'FEMA'). In connection with the said investigation a summons had been issued to the appellant by the Assistant Director, Directorate of Enforcement, in purported exercise of his powers under Section 37(1) and 37(3) of FEMA read with Section 131(1) of the Income-tax Act, 1961 and Section 30 of the Code of Civil Procedure, 1908. The said summons was as under:- "Government of India DIRECTORATE OF ENFORCEMENT Tel: 22886182 23-24, 2nd f....
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....f your above-mentioned Summons. In compliance thereof, I wish to state as under. 2. I apologize for not being in a position to appear before you, in person, on 10.08.2010 at 11.00 hours. This is because, of serious security concerns. There is a threat perception to my life and I have been advised to stay outside the country until this threat perception alters. Please therefore excuse my absence. My General Counsel and Constituted Attorney, Mr. Mehmood Abdi will attend on my behalf and provide all necessary information and assistance in the meantime. 3. As required in your Summons, I am submitting the following documents which may be placed on record: - a. Photocopy of. my Passport for your record (Annexure "1" to this letter); b. Details of all my Bank Accounts in India (Annexure "2" to this letter). I do not have any foreign Bank Accounts; c. Photocopies of all Invitations to Tender (I.T.T.) floated by the B.C.C.I. in connection with the I.P.L. (Tab "1" of the Compilation of Documents submitted along with this letter); d. Photocopies of all agreements executed by B.C.C.I. in connection with the I.P.L. which are available with me (Tab "2" of the Compilation of Doc....
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....t of his appearance on the date mentioned above, he would be liable to action under Section 13 of FEMA and / or Section 32 of the Code of Civil Procedure, 1908. At this juncture, it is sufficient to note that the summonses were issued in respect of an investigation being conducted under FEMA. Both the summonses required the appearance of the appellant in person "to tender evidence in respect of various agreements executed by BCCI/IPL, along with documents mentioned therein". Both the summonses had been replied to in detail and the documents sought for had been supplied by the appellant to the extent available with him as would be evident from the replies dated 07.08.2010 and 07.09.2010. However, the appellant did not appear before the Assistant Director, Directorate of Enforcement on the dates specified in the summonses for the alleged reasons of personal security as indicated in the reply dated 07.08.2010. 5. Thereafter, a complaint was filed by the Assistant Director, Directorate of Enforcement before the Deputy Director of Enforcement, Mumbai which was the Adjudicating Authority in the matter of investigations against the appellant. The complaint was filed under Section 16(3)....
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....tered Accountant duly authorised by you to explain and produce such documents or evidence as may be useful for or relevant to the subject matter of enquiry before me. 6. In case you fail, neglect or refuse to appear before me on the appointed day, the adjudication proceedings shall proceed against you ex-parte." 6. That complaint dated 16.09.2010 has not yet been adjudicated and proceedings are going on under FEMA. In the meanwhile, a letter dated 04.10.2010 was received by the Regional Passport Office, Mumbai from the Directorate of Enforcement indicating that the complaint dated 16.09.2010 under section 13 of FEMA had been filed against the appellant and that a show cause notice had also been issued to the appellant on 20.09.2010 for non-compliance of the summonses issued by the Enforcement Directorate. On the basis of this letter the Regional Passport Officer, Mumbai issued a show cause notice dated 15.10.2010 requiring the appellant to explain as to why action should not be initiated under Section 10(3)(c) of the Passports Act, 1967. That show cause notice dated 13.10.2010 was issued to the appellant at the address given in the Passport Application - Anand 41, Gandhi Gram....
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....torate of Enforcement and also giving extension of time. Hearing was also granted to the Advocates on 18.11.2010 and finally on 26.11.2010. Written submissions were also submitted thereafter on behalf of the appellant. All this culminated in the order dated 03.03.2011 passed by the respondent No. 3 whereby the appellant's passport No. Z-1784222 dated 30.07.2008 issued by the Regional Passport Office, Mumbai was revoked under Section 10(3)(c) of the Passports Act "in the interests of general public". The relevant findings of the respondent No. 3 and the conclusion are as under:- "The public interest which is inherent in the present case is (a)investigations into a multi-crore scam, (b) diversion of foreign exchange and violation of foreign exchange regulations, (c) loss of revenue (d) repeated SUMMONS issued by the Directorate of Enforcement, which have been consistently flouted. The statutory authorities investigating into the above Illegal affair have decided that for the purpose of discharging their statutory functions the presence of Shri Lalit Kumar Modi is necessary. However, Shri Lalit Kumar Modi is deliberately absenting himself. The fact that he is deliberately absen....
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....ppellant as also the opportunity of furnishing written submissions; 3. The appellant appeared to have committed contravention of provisions of FEMA to the extent of hundreds of crores of rupees and to have taken personal benefits by acquiring huge sums of money which was suspected to have been parked outside India; 4. That Cricket was most popular sport in India and there was a huge public sentiment attached to it. Therefore, it was in public interest that the present case was properly investigated for which "interrogation" of the appellant in person was considered necessary. Consequently, the case fell under section 10(3)(c) of the Passports Act; 5. The issue of threat to the personal security of the appellant was only an action intended to avoid the process of law for non-compliance of the legal process. Whenever the need arose, protection was given by the Mumbai Police; 6. The alternative suggested for questioning the appellant though video conferencing was not a meaningful one inasmuch as the appellant was required to be confronted with documents. The modality of interrogation is to be decided primarily by the investigating agency and, therefore, the Directorate of ....
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....ellant to be valid in law and, consequently, he dismissed the writ petition. 13. Mr Parag Tripathi, the learned Senior Counsel, appearing on behalf of the appellant submitted that Section 10(3)(c), under which provision the appellant's passport has been revoked, requires application of mind of the authority concerned. This is inherent in the expression, "in the interest of general public" appearing in Section 10(3)(c) of the Passports Act. The passport Officer while considering the applicability of Section 10(3)(c) of the Passports Act has to apply his own mind and he carries out a quasi judicial function. As such, he cannot act under the dictation of some other persons. He submitted that in the present case, the respondent No. 3 revoked the passport of the appellant without any application of mind and purely on the dictates of the Directorate of Enforcement as would be evident from the sequence of events. Therefore, the revocation order was clearly contrary to law and was liable to be set aside. 14. Mr Tripathi next submitted that the appellant did not appear in person in response to the summonses dated 02.08.2010 and 24.08.2010 but, he fully cooperated and gave all the ....
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....nisation of cricket. Nor has he been able to travel to other countries outside U.K. in order to meet his business obligations. He submitted that since, the revocation of the passport is illegal, the same has seriously affected the above mentioned fundamental rights. 18. Mr Tripathi also submitted that one of the complaints filed under FEMA includes allegations against the bank and its employees but the bank has been deleted inasmuch as no show cause notice has been issued to the bank or its Manager. Apparently, the bank has not been issued the show cause notice because the bank stated that it was the mistake. He submitted that under Section 10 of FEMA the bank was the authorised dealer and if the violation is condoned in respect of the bank, then the matter even in so far as the appellant is concerned would be over. 19. He further submitted that the order dated 03.03.2011 whereby the respondent No. 3 revoked the passport of the appellant was bad for another reason. The reason being that the said order dated 03.03.2011 refers to diversion of Foreign Exchange, violation of Foreign Exchange Regulation and loss of revenues which were neither referred to nor the subject matter of ....
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.... in concluding that the power to require the physical presence of an accused was not only applicable in respect of a witness but also in respect of a noticee / a person under investigation. For these reasons, he submitted that the impugned judgment dated 16.01.2013 passed by the learned single Judge also needed to be set aside and the passport of the appellant required to be restored. 21. On the other hand, Mr Rajeeve Mehra, the learned ASG, appearing on behalf of the respondents submitted that no interference with the impugned judgment as also to the orders passed by the respondent No.2 and 3 was called for. He submitted that the Directorate of Enforcement had issued summonses to the appellant to appear in person to tender evidence and that under Section 37 of FEMA personal appearance was required. He also referred to Sections 30 and 32 of the Code of Civil Procedure, 1908 and Section 131(1) of the Income-tax Act, 1961. Despite the said summonses being issued to the appellant, he did not appear before the Directorate of Enforcement. As a result, a complaint under Section 16(3) of FEMA was filed on 16.09.2010 for non-compliance of the summonses. Thereafter, the Enforcement Direc....
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....011 as also the findings of the Chief Passport Officer (respondent No.2) in the appellate order dated 31.10.2011 and the conclusions of the learned single Judge in the impugned order dated 16.01.2013. Mr Mehra submitted that all these findings were well founded and point in the direction that the revocation of the passport of the appellant was called for in the interest of the general public. Consequently, the revocation of the appellants passport under Section 10(3)(c) of the Passports Act was valid in law. He submitted that the appeal be dismissed. 24. In rejoinder Mr Parag Tripathi submitted that it must be noticed that no summons remained outstanding against the appellant inasmuch as the summonses dated 02.08.2010 and 24.08.2010 had been issued in the course of investigations with regard to FEMA violations by inter alia the appellant. The investigations have fructified into several complaints including the complaint dated 13.07.2011 pursuant to which a show cause notice dated 20.07.2011 has also been issued asking inter alia the appellant to show cause as to why adjudication proceedings as contemplated under Section 16 of FEMA should not be held. The summons dated 02.08.2010....
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....he civil prison, and unless the Adjudicating Authority, for reasons in writing, is satisfied - (a) that the defaulter, with the object or effect of obstructing the recovery of penalty, has after the issue of notice by the Adjudicating Authority, dishonestly transferred, concealed, or removed any part of his property, or (b) that the defaulter has, or has had since the issuing of notice by the Adjudicating Authority, the means to pay the arrears or some substantial part thereof and refuses or neglects or has refused or neglected to pay the same. (3) Notwithstanding anything contained in sub-section (1), a warrant for the arrest of the defaulter may be issued by the Adjudicating Authority if the Adjudicating Authority is satisfied, by affidavit or otherwise, that with the object or effect of delaying the execution of the certificate the defaulter is likely to abscond or leave the local limits of the jurisdiction of the Adjudicating Authority. (4) Where appearance is not made pursuant to a notice issued and served under sub-section (1), the Adjudicating Authority may issue a warrant for the arrest of the defaulter. (5) A warrant of arrest issued by the Adjudicating Auth....
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...., up to six months: Provided that he shall be released from such detention on the amount mentioned in the warrant for his detention being paid to the officer-in-charge of the civil prison. (12) A defaulter released from detention under this section shall not, merely by reason of his release, be discharged from his liability for the arrears, but he shall not be liable to be arrested under the certificate in excution of which he was detained in the civil prison. (13) A detention order may be executed at any place in India in the manner provided for the execution of warrant of arrest under the Code of Criminal Procedure, 1973 (2 of 1974)." "Section 16. Appointment of Adjudicating Authority.- (1) For the purpose of adjudication under section 13, the Central Government may, by an order published in the Official Gazette, appoint as many officers of the Central Government as it may think fit, as the Adjudicating Authorities for holding an inquiry in the manner prescribed after giving the person alleged to have committed contravention under section 13, against whom a complaint has been made under sub-section (3) (hereinafter in this section referred to as the said person) a ....
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....y to the Government of India to investigate any contravention referred to in section 13. (3) The officers referred to in sub-section (1) shall exercise the like powers which are conferred on income-tax authorities under the Income-tax Act, 1961 (43 of 1961) and shall exercise such powers, subject to such limitations laid down under that Act." The Foreign Exchange Management (Adjudication Proceedings and Appeal) Rules, 2000:- "Rule 4 - Holding of inquiry.- (1) For the purpose of adjudicating under section 13 of the Act whether any person has committed any contravention as specified in that section of the Act, the Adjudicating Authority shall, issue a notice to such person requiring him to show cause within such period as may be specified in the notice (being not less than ten days from the date of service thereof) why an inquiry should not be held against him. (2) Every notice under sub-rule (1) to any such person shall indicate the nature of contravention alleged to have been committed by him. (3) After considering the cause, if any, shown by such person, the Adjudicating Authority is of the opinion that an inquiry should be held, he shall issue a notice fixing a ....
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....opy of the order made under sub-rule (8) of the rule 4 shall be supplied free of charge to the person against whom the order is made and all other copies of proceedings shall be supplied to him on payment of copying fee @ Rs. 2 per page. (12) The copying fee referred to in sub-rule (11) shall be paid in cash or in the form of demand draft in favour of the Adjudicating Authority." The Foreign Exchange Regulation Act, 1973:- "Section 35. Power to arrest.- (1) If any officer of Enforcement authorised in this behalf by the Central Government, by general or special order, has reason to believe that any person in India or within the Indian customs waters has been guilty of an offence punishable under this Act, he may arrest such person and shall, as soon as may be, inform him of the grounds for such arrest. (2) Every person arrested under sub-section (1) shall, without unnecessary delay, be taken to a magistrate. (3) Where any officer of Enforcement has arrested any person under sub-section (1), he shall, for the purpose of releasing such person on bail or otherwise, have the same powers and be subject to the same provisions as the officer-in-charge of a police station has....
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.... (a) of sub-section (1) of section 19 or sub-section (2) of section 44 or section 57 or section 58 is again convicted of an offence under this Act not being an offence under section 13 or clause (a) of sub-section (1) of section 18 or section 18A or clause (a) of sub-section (1) of section 19 or sub-section (2) of section 44 or section 57 or section 58, he shall be punishable for the second and for every subsequent offence with imprisonment for a term which shall not be less than six months but which may extend 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. (3) Where a person having been convicted of an offence under this Act, not being an offence under section 13 or clause (a) of sub-section (1) of section 18 or section 18A or clause (a) of sub-section (1) of section 19 or sub-section (2) of section 44 or section 57 or section 58, is again convicted of offence under this Act not being an offence under section 13 or clause (a) of sub-section (1) of section 18 or section 18A or clause (a) of sub-section (1) of section 19 or sub....
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....ich are conferred on Income-tax Authorities under the Income-tax Act, 1961 and they shall exercise such powers, subject o such limitations laid down under the Income-tax Act, 1961. At this juncture it would be necessary to refer to Section 131(1) of the Income-tax Act, 1961 which deals with the power regarding discovery, production of evidence, etc. The said provision reads as under:- "Power regarding discovery, production of evidence, etc. 131. (1) The Assessing Officer, Deputy Commissioner (Appeals), Joint Commissioner, Commissioner (Appeals), and Chief Commissioner or Commissioner and the Dispute Resolution Panel referred to in clause (a) of sub-section (15) of section 144C shall, for the purposes of this Act, have the same powers as are vested in a court under the Code of Civil Procedure, 1908 (5 of 1908), when trying a suit in respect of the following matters, namely:- (a) discovery and inspection; (b) enforcing the attendance of any person, including any officer of a banking company and examining him on oath; (c) compelling the production of books of account and other documents; and (d) issuing commissions. xxxx xxxx xxxx xxxx" From the above it is eviden....
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.... backdrop that the summonses dated 02.08.2010 and 24.08.2010 were issued by the Directorate of Enforcement. Those summonses were specifically issued to the appellant to appear before the Assistant Director, Directorate of Enforcement, in person to "tender evidence" in respect of various agreements executed by the BCCI-IPL, along with the documents mentioned in the said summonses to which we have already adverted earlier in this judgment. It is, therefore, clear that the requirement of the presence of the appellant was for tendering evidence as well as documents and it was not for the purposes of interrogation or examination which were powers available under FERA but not under FEMA. 27. Coming now to the other provisions of FEMA, Section 13 provides for penalties. If there is any contravention of the provisions of FEMA or any Rule, Regulation, Notification, Direction or Order in exercise of the powers under FEMA, Section 13 clearly stipulates that when any person is guilty of such contravention, upon adjudication, he shall be liable to penalty upto three times the sum involved in such contravention where the amount is quantifiable or upto Rs. 2 lakhs where the amount is not quant....
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....fore the Adjudicating Authority. 29. We have already noted that Section 16(1) of FEMA requires the Adjudicating Authority to hold an inquiry, in the "manner prescribed". The manner prescribed for holding an inquiry is in terms of Rule 4 of Foreign Exchange Management (Adjudication Proceedings and Appeal) Rules, 2000. Rule 4(3) is in consonance with Section 16(4) of FEMA inasmuch as where the Adjudicating Authority is of the opinion that an inquiry should be held, he is required to issue a notice fixing a date for the appearance of the person against whom the complaint has been filed to appear either personally or through his legal practitioner or a chartered accountant duly authorised by him. It is evident that even in the adjudication process stipulated under Section 16 of FEMA read with Rule 4 of the Foreign Exchange Management (Adjudication Proceedings and Appeal) Rules, 2000, the personal appearance of the persons against whom the complaint has been made is not necessary as he may be represented by a legal practitioner or a chartered accountant duly authorised by him. 30. Another point that needs to be noticed with regard to Rule 4 of the said Rules is that there are two ....
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....t stage. In fact, nothing has been brought to our notice to indicate that the Adjudicating Authority has formed any opinion that an inquiry should be held and that an inquiry has in fact been held. In any event, it is an admitted position that no adjudication order imposing a penalty pursuant to the complaint dated 16.09.2010 has been passed by the Adjudicating Authority under FEMA as yet. 32. The only other provision of FEMA which requires consideration is Section 14 thereof. It provides for the enforcement of the orders of Adjudicating Authority. That stage, as we have pointed out above, has not arisen as yet because no orders have been passed by the Adjudicating Authority under FEMA. However, it is important to note that it is only on non-compliance of the orders passed by the Adjudicating Authority with regard to payment of penalty, that the person who is in default is liable to civil imprisonment. That stage has not yet arisen and, therefore, the question of arrest and imprisonment of the appellant does not arise at this stage. 33. We now come to the relevant provisions of the Passports Act. They are as under:- "Section 3. Passport or travel document for departure fro....
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....er of the passport or travel document are pending before a criminal court in India; (f) if any of the conditions of the passport or travel document has been contravened; (g) if the holder of the passport or travel document has failed to comply with a notice under sub-section (1) requiring him to deliver up the same; (h) if it is brought to the notice of the passport authority that a warrant or summons for the appearance, or a warrant for the arrest, of the holder of the passport or travel document has been issued by a court under any law for the time being in force or if an order prohibiting the departure from India of the holder of the passport or other travel document has been made by any such court and the passport authority is satisfied that a warrant or summons has been so issued or an order has been so made. (4) The passport authority may also revoke a passport or travel document on the application of the holder thereof. (5) Where the passport authority makes an order varying or cancelling the endorsements on, or varying the conditions of, a passport or travel document under sub-section (1) or an order impounding or revoking a passport or travel document under ....
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....ia and other persons and for matters incidental or ancillary thereto. The prime focus of the Passports Act, therefore, appears to be that no citizen of India should depart from or attempt to depart from India without any valid passport or other travel document issued under the Passports Act. 35. In Maneka Gandhi v. Union Of India: (1978) 1 SCC 248 the Supreme Court, per P.N. Bhagwati, J (for himself, Untwalia and Fazal Ali, JJ), while upholding the validity of Section 10(3)(c) of the Passport Act held:- "35. But that does not mean that an order made under Section 10(3)(c) may not violate Article 19(1)(a) or (g). " ...even where a statutory provision empowering an authority to take action is constitutionally valid, action taken under it may offend a fundamental right and in that event, though the statutory provision is valid, the action may be void. Therefore, even though Section 10(3)(c) is valid, the question would always remain whether an order made under it is invalid as contravening a fundamental right. The direct and inevitable effect of an order impounding a passport may, in a given case, be to abridge or take away freedom of speech and expression or the right to car....
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....ssion, occupation or business then the order could be protected by Article 19(6) of the Constitution. And, if the order made under Section 10(3)(c) restricted a citizen's freedom of speech and expression then, the order could be protected by Article 19(2) under the category of "interests of the general public" only if it was in the interests of "public order, decency or morality". The Supreme Court had observed as follows (in para 35):- "...Now, passport can be impounded under Section 10(3)(c) if the Passport Authority deems it necessary so to do in the interests of the sovereignty and integrity of India, the security of India, friendly relations of India with any foreign country or in the interests of the general public. The first three categories are the same as those in Article 19(2) and each of them, though separately mentioned, is a species within the broad genus of "interests of the general public". The expression "interests of the general public" is a wide expression which covers within its broad sweep all kinds of interests of the general public including interests of the sovereignty and integrity of India, security of India and friendly relations of India with forei....
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.... must be remembered that the revocation of the appellant's passport was based on the letter dated 04.10.2010 received by the Regional Passport Officer from the Directorate of Enforcement to the effect that a complaint dated 16.09.2010 under Section 13 of FEMA had been filed against the appellant and that a show cause notice had been issued against the appellant by the Directorate of Enforcement on 20.09.2010 for non-compliance of summonses issued by them. We may recall that complaint dated 16.09.2010 which had been filed under Section16(3) of FEMA specifically recorded as under:- "It is, therefore, in view of above facts, clear that the above mentioned person is deliberately, and intentionally avoiding the summons, in order to stall the investigation and therefore it is prayed that a penalty as may be deemed fit be imposed on Shri Lalit Kumar Modi. That the above mentioned person, has contravened the provisions of Section 37 of the Foreign Exchange Management Act, 1999 read with Section 131(1) and 272-A(1) of the Income-tax Act, 1961 and thereby rendered himself liable to be proceeded against under Section 13(1) of FEMA, 1999". xxxx xxxx xxxx xxxx "That it is prayed....
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....ase against the appellant was properly investigated for which the "interrogation" of the appellant was considered necessary. This kind of 'public interest' does not fall in the categories of "public order, decency or morality" and, therefore, cannot be used as a shield against invalidity which would naturally follow on account of a restriction on the freedom of speech and expression. 41. We also agree with the submission by Mr Parag Tripathi that the show cause notice dated 15.10.2010 issued by the Regional Passport Office had reference only to the non-compliance with the summonses which had been issued by the Enforcement Directorate. There was no mention in the show cause notice and, in our view, there could have been no such mention as that was the subject matter of investigation under FEMA, with regard to the alleged diversion of Foreign Exchange and alleged violation of Foreign Exchange Regulations or the alleged loss of revenue. Furthermore, even the appellate authority (respondent No. 2), in our view, could not have returned findings with regard to the appellant appearing to have committed contraventions of the provisions of FEMA to the extent of hundreds of crores....
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.... void. Now, even if an order impounding a passport is made in the interests of public order, decency or morality, the restriction imposed by it may be so wide, excessive or disproportionate to the mischief or evil sought to be averted that it may be considered unreasonable and in that event, if the direct and inevitable consequence of the Order is to abridge or take away freedom of speech and expression, it would be violative of Article 19(1)(a) and would not be protected by Article 19(2) and the same would be position where the order is in the interests of the general public but it impinges directly and inevitably on the freedom to carry on a profession, in which case it would contravene Article 19(1)(g) without being saved by the provision enacted in Article 19(6)." In this context also, the revocation order is far too wide, excessive and/or disproportionate to the 'mischief' or 'evil' of non-compliance of summons issued by the Directorate of Enforcement. In such a circumstance, the order cannot be saved by either Article 19(2) or Article 19(6). 45. Furthermore, the object of the summons was to provide evidence and documents as stated above. All that had bee....