AI Drafter 
TaxTMI 
TaxTMI 
2016 (6) TMI 58
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....and 13 of the Foreign Exchange Management Act, 1999 (for short 'FEMA') on the report of one Roshan Kumar, be unsealed and the Company be allowed to restore the business of the said Branch as it was incurring heavy loss due to the said sealing. 2. The facts concerning the instant case in brief are that the informant Raushan Kumar lodged a written information with Chakia Police Station at about 7.00 p.m. on September 23, 2015 alleging therein that in the year 2014 he had given his Voter ID Card and PAN Card to one Yogesh Mishra, travel staff of the Company to prepare a passport. He received his passport in one and a half months but the Xerox of the Voter ID Card and PAN Card were not returned and the same were kept by the aforesaid Yogesh Mishra. He went to Malaysia on that passport and after remaining there for five days, came back. On September 23, 2015, he came to know that on September 17, 2015 at about 11.00 a.m., by making his forged signature, Manjeet Kumar, Ankit Pandey, Chandramohan Chaudhary and Vikas Kumar Srivastava, all staff of the Company and Indradeo Sah, the Guard of the Company have defalcated Rs. 65,840/-. Similarly, they have also defalcated Rs. 23,781/- by mak....
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....riate order be passed. Heard and perused the record. From perusal of the record and after hearing to the learned counsel it is evident that up till now there is no record which could clear that licence has been renewed and is up to date and in between the period there is serious allegation of committing of the offences as of 406/420/120B/467/468 of I.P.C. against the employees of the authority so in my view, if the office is allowed to its work after opening the seal the evidence regarding the offences might be destroyed so in my view, the application is not fit and accordingly it is rejected." (emphasis supplied) 5. The aforesaid order dated November 04, 2015 is under challenge in the present application. 6. Mr. Ansul, learned counsel appearing for the petitioners has submitted that the petitioner no.1 is the Branch Manager of the Company at Motihari, incorporated under the provision of Indian Companies Act, 1956 having its head office at Kochi, Kerala, whereas the petitioner no.2 is the Company being represented by Brajesh Kumar Srivastava (petitioner no.1), who has been appointed and authorized to represent the Company in the cases relating to its Motihar....
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....until the date on which the license is renewed or the application is rejected as the case may be. 9. He has further submitted that in pursuance of the aforesaid letter, the RBI, in exercise of its power under Section 10 of the FEMA renewed the license of the Company as an authorized dealer AD Category-II License No.01/2006 on January 04, 2016, which was valid until August 31, 2016 and will expire on September 1, 2016 unless an application for the renewal of license would be made at least one month before the date of expiry and no rejection of the same would be communicated by the RBI. He has submitted that as the operations of Branch have been completely stopped, its customers are suffering heavy losses. A few of the customers served upon the petitioners legal notices demanding return of the mortgaged articles or jewellery. The Branch is sealed and the customers are agitated and confused as to how and where they can repay the loan installments and recover their mortgaged items. 10. Advancing his argument, he has further submitted that the sealing of the premises has been done with an ill motive and is completely illegal and unjust for the reason that the Company met all statu....
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....y the accused persons and consequent thereupon on the decision of the Magistrate, the premises was locked and sealed and memo of seal was prepared in presence of witnesses and the Magistrate concerned in exercise of power under Section 102(1) of the CrPC. 14. However, Dr. Jha, learned counsel, has fairly conceded that on query by the raiding team, the office bearers of the Company showed the license for the foreign currency exchange business which was to expire on September 01, 2014, but on further query they did not show any paper to establish the claim that they had applied for further extension of license so that a reasonable inference could have been drawn that the license was valid on date of raid. He, however, admits that later on a registered letter was received by the Investigating Officer of the case on April 24, 2016 containing letters showing that the license of the Company had been extended till September 1, 2016. In view of the above submissions, Dr. Jha, learned counsel appearing for the State has submitted that the sealing of the premises cannot be held to be bad. 15. In reply, learned counsel for the petitioner has submitted that the counter affidavit filed on....
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.... Section 10 of the FEMA would make it evident that the RBI may, on an application made to it in this behalf, authorize any person to be known as authorized person to deal in foreign exchange or in foreign securities, as an authorized dealer, money changer or off-shore banking unit. For such authorization application has to be made to the RBI and the authorization shall be in writing and shall be subject to the conditions laid down therein. 22. Section 12 of the FEMA gives power to the RBI to cause an inspection to be made by any officer of the RBI specially authorized in writing by it in this behalf of the business of any authorized person as may appear to it to be necessary or expedient for the purpose of - (a) verifying the correctness of any statement, information or particulars furnished to the RBI; (b) obtaining any information or particulars which such authorized person has failed to furnish on being called upon to do so; or (c) security compliance with the provisions of this Act or of any rules, regulations, directions or orders made thereunder. 23. Under Chapter IV of the FEMA, Section 13 deals with contravention and penalties. It prescribes....
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....e, 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) a reasonable opportunity of being heard for the purpose of imposing any penalty. Sub-section (2) of Section 16 prescribes that the Central Government shall, while appointing the Adjudicating Authorities under sub-section (1), also specify in the order published in the Official Gazette, their respective jurisdictions. Sub-section (3) of Section 16 mandates that no Adjudicating Authority shall hold an enquiry under sub-section (1) except upon a complaint in writing made by any officer authorized by a general or special order by the Central Government. 27. In view of the provisions of the FEMA discussed hereinabove, it would be evident that the contravention of any of the provisions of the Act does not constitute any criminal offence. Further, the police officers have not been given any authority either to institute a complaint or register an FIR on a complaint or to investigate the same f....
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....any paper showing that company office has filed an application before the authority for renewal license so that a reasonable inference can be drawn by the Magistrate concerned that the company had a deemed license. The office was sealed at the decision of the Magistrate on the compelling situation mentioned above." 30. Though the Opposite Party No.2 has virtually conceded that the police had no authority to either seal the business premises or close the business transaction of the Company, it is deemed necessary to examine the issue further as the learned counsel for the State has tried to justify the action of the police. 31. Apart from FEMA, the only other provision under which the offences are alleged to have been committed in the FIR is IPC, which is the primary penal law of India and the procedure for trial of the offences under the IPC is governed by the CrPC. The CrPC is a comprehensive and exhaustive procedural law for collection of evidence, examination of witnesses, interrogation of accused, arrests, search and seizure, safeguards and procedures to be adopted by police and courts, bail, process of criminal trial, method of conviction and the rights of the accused fo....
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....ion 102(1) of the CrPC. 34. In this regard, it would be relevant to note that the question whether the police have power to seize immoveable property under Section 102 of the CrPC came up for consideration before a Division Bench of the Bombay High Court. However, in view of conflicting judgments of two Division Benches of the High Court, the matter was referred to the Full Bench. The Full Bench of the Bombay High Court considered the matter in detail in Sudhir Vasant Karnataki Mohideen Mohammed Sheik Dawood through its Power of Attorney Holder Mr.Rajesh Baxi Chetna Properties Pvt. Ltd. Vs. The State of Maharashtra [MANU/MH/1561/2010], wherein, an elaborate analysis of the powers of the police under Section 102 Cr.P.C. was made. The Bench gave a split judgment with the majority observing that police cannot attach immovable property under Section 102 of the CrPC. The reference was answered as under: "86. To sum up, we answer the reference thus: Q.(a) Whether the words "any property" used in Sub- section (1) of Section 102 of the Code of Criminal Procedure, 1973 would mean to include "immovable property"? Ans. We, therefore, hold that the expression "any....
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....s conferred on the court itself. Under Section 102, the power of seizure is on the police officer and it has never envisaged a situation like the one herein, where a police officer can direct attachment of immovable property. Therefore, in the absence of a specific conferment of power on the Police officer, the steps for attachment made by the Sub Registrar herein, relying upon the request made by the Police officer, cannot hold good. The said letter, even going by the wordings therein, cannot amount to an order of attachment also. Therefore, merely because there is a power for the Police officer to conduct investigation and collect details of properties of the accused or others involved in that process, it can never be treated as an order of attachment for enabling the Sub Registrar to put an endorsement in the registers." 38. Recently, in M.T. ENRICA LEXIE & Anr. VS. DORAMMA & Ors. [(2012) 6 SCC 760], the Supreme Court examined the provisions of Section 102 of the CrPC. In the said case, two Indian fishermen belonging to Kerala State were killed by firing emanating from an Italian vessel, M.T. Enrica Lexie which was en voyage from Singapore to Egypt and passing through the Ara....