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FEMA - Supreme Court - Case Laws
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- 2008 (5) TMI 10 - SUPREME COURT
FEMA - Constitutional validity of Section 18(2) and (18(3) of the FERA - Held that A legal provision does not become unconstitutional only because it provides for a reverse burden. - Commercial expediency or auditing of books of accounts cannot be a ground for questioning the constitutional validity of an Act. If the Parliamentary Act is valid and constitutional, the same cannot be declared ultra vires only because the appellant faces some difficulty in writing off the bad debts.
- 2006 (11) TMI 642 - SUPREME COURT
Whether order of detention dated 21-7-2005 passed against the detenu under S.3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 ("the COFEPOSA Act")cannot be sustained?
- 2006 (8) TMI 605 - SUPREME COURT
Whether order of detention passed under Section 3(1) of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 on January 27, 2006 valid?
- 2006 (8) TMI 521 - SUPREME COURT
Detention order passed on 12.2.1997 under Section 3(1) of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 challenged - Held that:- Appeal dismissed. Where a person himself evades service of detention order, it is not open to him to contend that in view of the long period which has elapsed between the offending activities and the actual arrest and detention, the vital link had snapped and there was no ground for actually detaining him. An otherwise valid detention order cannot be rendered invalid on account of the own act of the detenu of evading arrest and making himself scarce. The contention thus raised has absolutely no merit and has to be rejected.
- 2006 (7) TMI 594 - SUPREME COURT
Dismissal of habeas corpus petition filed by one Rizwana Ziyath seeking release of her husband, the present appellant Ibrahim Nazeer ('detenu') who was detained and kept in custody in the Central Prison of Chennai under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 Held that:- Whether prayer for bail would be accepted depends on circumstances of each case and no hard and fast rule can be applied. The only requirement is that the detaining authority should be aware that the detenu is already in custody and is likely to be released on bail. The conclusion that the detenu may be released on bail cannot be ipsi-dixit of the detaining authority. On the basis of materials before him, the detaining authority came to the conclusion that there is likelihood of detenu being released on bail. That is his subje....... + More
- 2006 (2) TMI 272 - SUPREME COURT
Whether in a case where an offence was punishable with a mandatory sentence of imprisonment, a company incorporated under the Companies Act, can be prosecuted, as the sentence of imprisonment cannot be imposed on the company? Held that:- Merely because the expression ‘punished’ is used, it does not mean that it is confined to a prosecution under Section 56 of the Act, since the element that attracts the imposition of penalty and the prosecution is the same, namely, the contravention of any of the provisions of the Act. Moreover, there is nothing in the Act which, confines the expression ‘punished’ only to a punishment for a criminal prosecution. An imposition of a penalty can also be a punishment. The second part of the reasoning appears to be self-contradictory. If a person includes a company, there is no reason to confine Section 68 to ....... + More
- 2004 (2) TMI 653 - SUPREME COURT
Whether order dated 31.8.1995 passed by the Competent Authority under Section 7 of the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (in short ’the SAFEMA’) against respondent nos. 1 and 2 was not sustainable in law? Whether the order of detention could be challenged subsequent to the disposal of the earlier writ petition on the ground that it had become unfructuous? Held that:- SAFEMA applies when the revocation is based on the report of the Advisory Board. As the factual position noted above goes to show, the revocation was only in terms of Section 11(1)(b) of COFEPOSA. Such revocation when is done by the Central Government as in this case is really unrelated to a report of the Advisory Board. On the factual position, none of the three situations indicated in the first sub-clause of the said proviso are ....... + More
- 2003 (7) TMI 650 - SUPREME COURT
Whether the notice issued by the competent authority satisfies the requirement of Section 6? Held that:- Kesar Devi has never been assessed to tax nor has she ever filed her return of income. Kesar Devi is the holder of house property D-48, Bapu Nagar, Jaipur. Kesar Devi, in her statement on 22.7.1976 before Sh. S.P. Gupta, Inspector, Jaipur has stated that she purchased the plot of land D-48, Bapu Nagar, about 13 years back and immediately thereafter constructed a house on this plot.When specifically questioned about evidence in respect of the assertions made by her regarding the source of investment in the plot or the construction of the house, she in no unequivocal terms, admitted that she had no evidence. Kesar Devi is reported to have had no known sources of income. The source of investment in the house, therefore, remains unproved. ....... + More
- 2003 (1) TMI 657 - SUPREME COURT
Why forfeiture of one-tenth property of the appellant shall not be effected? Held that:- As going through the reasons recorded by the Competent Authority alongwith the show cause notice no averments found to the effect that the property acquired by the appellant is a benami property of her son or the same was illegally acquired from her son. The contents of the said notices, even if taken at their face value do not disclose any reason warranting action against the appellant. No allegation whatsoever has been made to this effect that there exists any link or nexus between the property sought to be forfeited and the illegally acquired money of the detenu(s). As the condition precedent for initiation of the proceeding under SAFEMA did not exist, the impugned orders of forfeiture cannot be sustained. In that view of the matter, the appeals deserves to be allowed.
- 2000 (9) TMI 1040 - SUPREME COURT
... ... ..... cement of the retraction made by Sowkath All would not have affected the conclusion as petitioner's confession stood unsullied, cannot be accepted by us. The detaining authority had relied on different materials and it was a cumulative effect from those materials which led him to his subjective satisfaction. What is enumerated in Section 5A of the COFEPOSA Act cannot, therefore, be applied on the fact situation in this case. 10. In this context it is to be mentioned that the detention order passed against Sowkath Ali was quashed by this Court when he challenged that detention order under Article 32 of the Constitution vide A. Sowkath Ali v. Union of India . 11. We are therefore unable to sustain the detention order passed against this petitioner and accordingly we quash the same. We order petitioner to be set at liberty if his further detention is attributable only to the detention order challenged in the writ petition. 12. Accordingly, this writ petition is disposed of.
- 2000 (9) TMI 1000 - SUPREME COURT
Whether the circumstances of suspicion exist warranting the restraint on a person? Held that:- Appeal allowed. When the period of detention itself had expired 13 years earlier, then this Court came to the conclusion as aforesaid. Husband of the respondent evaded arrest as is obvious and obtained an interim order from the High Court which was in force till the disposal of the writ petition and thereafter on quashing of the detention order question of detention made did not arise now. Therefore, we do not think that it would be appropriate to state that merely by passage of time the nexus between the object for which the husband of the respondent is sought to be detained and the circumstances in which he was ordered to be detained has snapped. However, we make it clear that if those circumstances did not exist, then it would be appropriate ....... + More
- 2000 (5) TMI 586 - SUPREME COURT
Whether refusal on the part of a person, who is summoned under Section 40 of the Foreign Exchange Regulation Act, 1973 to comply with the directions under the summons, would attract the provisions of Section 56 of the Act? Held that:- The ultimate conclusion of the learned Single Judge of the Delhi High Court in the impugned Judgment that the Union of India can prosecute the accused for offences under the provisions of Section 174 or any other relevant provision under Chapter 10 of the IPC relating to contempts of the lawful authority of public servants, is not sustainable in law. As has been stated earlier, bearing in mind the purpose for which an officer of Enforcement Directorate have been empowered to summon persons, either to give evidence or to produce a document and the provisions of the Act, making the persons summoned, bound to s....... + More
- 2000 (3) TMI 1070 - SUPREME COURT
Detenu challenging the order of detention passed against him on 2.8.99 under the COFEPOSA Held that:- The detention order in respect of the present petitioner should be based principally on the facts centerd on what he had done in collaboration with his co-traveler. The detaining authority cannot be said to be totally ignorant of the fact that Radhakrishnan Prabhakaran was also detained under a separate order, for, the aforesaid detention order against Radhakrishnan Prabhakaran was passed by the same detaining authority just six days prior to the impugned detention order. the grievance regarding delay in disposing of the representation made by the detenu to the Central Government is not valid in the circumstances of this case. Writ Petition is accordingly dismissed. It is needless to say that the parole benefit which petitioner is enjoying by virtue of the order passed by this Court will stand terminated forthwith.
- 1999 (3) TMI 633 - SUPREME COURT
... ... ..... hen the packet was recovered from the car being intercepted. He has taken a plea that it was handed over to him at Bombay to be carried to Kasaragod and somebody would come to take it from him at Kasaragod. Such a plea, on the face of it, cannot be rejected ipso facto. ( 4. ) IN the absence of any positive material to indicate as to how he can be said to have acquired the foreign exchange in question and in view of the aforesaid plea of the respondent, even applying the provisions of S.19J of the Act would not help the Department in establishing that in the facts and circumstances of the case, the respondent must be held to have otherwise acquired the foreign exchange in question in violation of the provisions of S.4(1) of the Act. In the aforesaid premises, we are not inclined to interfere with the impugned orders passed by the Board and affirmed by the High Court. The appeal is, accordingly, dismissed. The amount of penalty, if deposited, may be refunded to the respondent.
- 1998 (7) TMI 680 - SUPREME COURT
Order of detention revoked - Held that:- Since, the validity of the order of detention had been put in issue through a writ petition and the High Court returned no findings on the merits of the case, the petitioner was entitled to question the order of detention while assailing the proceedings initiated under SAFEMA against her. To deny her that right on the ground that after twenty years the challenge to the order of detention could not be received was unjust and improper. Since, there had been no adjudication on the merits of the order of detention by the High Court, though the order had been challenged, the High Court ought to have gone into the question of validity of the order of detention, since the existence of such an order was the sine-qua-non for initiating proceedings under SAFEMA. The order of detention had been challenged and that challenge was not unsuccessful on merits. Appeal allowed - remand the writ petition to the High Court to be disposed of on merits.
- 1998 (5) TMI 398 - SUPREME COURT
... ... ..... ry himself had made no effort to find out from the Police authority as to why they were not able to apprehend him and yet they were not successful in finding him out. There is also no material to show that the detaining authority had made any serious attempt during this whole period of delay to find out if the detention order remains unexplained. The unreasonable delay in executing the order creates a serious doubt regarding the genuineness of the detaining authority as regards the immediate necessity of detaining the petitioner in order to prevent from carrying on the prejudicial activity referred to in the grounds of detention. We are of the opinion that the order of detention was passed by the detaining authority not in lawful exercise of the power vested in him. We, therefore, allow this petition, set aside and quash the order of detention and direct that the petitioner be set at liberty forthwith unless his presence is required in jail in connection with any other case.
- 1998 (4) TMI 530 - SUPREME COURT
Whether the order of detention passed against the first respondent Amritlal Chandmal Jain ("Amritlal") under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short `COFEPOSA') was illegal? Held that:- When there is challenge to the legality of detention in writ of habeas corpus the challenge is in effect to the legality and validity of the grounds on which the order of detention is made. It is not that to challenge the legality and validity of the grounds on which order of detention is passed the detenu has to file a separate writ petition seeking a writ of certiorari. Once the detenu is released during pendency of his writ petition has become infructuous and that the grounds on which the order of detention become invalid. But then if the Court refuses corpus when detenu is relea....... + More
- 1998 (1) TMI 529 - SUPREME COURT
... ... ..... ry of the said time schedule. But such a concession from the respondent may not help the Directorate because of the statutory limitation contained in Section 41 of FERA. Since the period fixed for return of the seized documents would have expired for no lapse on the part of the officials of the Directorate, we are of the considered opinion that public interest should not suffer by non utilization of the seized documents for interrogating the respondent. We therefore extend the said period for a further period of six months commencing from 4-1-1998. We make it clear that the Directorates shall abide b y this extended time and no further extension shall be made by them except with the leave of this Court. Subject to the aforesaid to the aforesaid observations we allow the appeal filed by the Directorate and dismiss the appeal filed by the respondent. We set aside the order of the learned single judge of the High Court and restore the order passed by the learned Sessions Judge.
- 1997 (11) TMI 100 - SUPREME COURT
Whether the provisions of the SAFEMA apply to the sale transaction entered into between the widow of Talab Haji Hussein, COFEPOSA detenu and the purchaser, predecessor-in-interest of the appellants? Whether the purchaser was a bona fide purchaser for value without notice? Whether the forfeiture of purchaser's flat in Dharam Jyoti Building by the authorities can be treated as double forfeiture on the basis of the same tainted money of the COFEPOSA convict only because the subsequent property purchased by the purchaser's vendor in Shivasthan Co-operative Society has also been forfeited to the Government under the SAFEMA? Whether the transaction in favour of the purchaser could be cleared on principles analogous to section 9 of the SAFEMA by imposing fine in lieu of forfeiture on the peculiar facts of this case? Held that:- The transaction o....... + More
- 1996 (5) TMI 413 - SUPREME COURT
Whether the Government is bound by the previous policy or whether it can revise its policy in view of the changed potential foreign markets and the need for earning foreign exchange? Held that:- Grant of licence depends upon the policy prevailing as on the date of the grant of the licence. The Court, therefore, would not bind the Government with a policy which was existing on the date of application as per previous policy. A prior decision would not bind the Government for all times to come. When the Government are satisfied that change in the policy was necessary in the public interest, it would be entitled to revise the policy and lay down new policy. The Court, therefore, would prefer to allow free play to the Government to evolve fiscal policy in the public interest and to act upon the same. Equally, the Government is left free to det....... + More