Home Case Index All Cases FEMA FEMA + HC FEMA - 2013 (2) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2013 (2) TMI 39 - HC - FEMABreach of principles of natural justice - non providing of cross-examine of the persons whose statements have been supplied - petitioners were charged with contravention of the provisions of Section 42 of the FEMA - Held that:- Neither the provisions of FEMA i.e., Section 16 which requires a reasonable opportunity to be given to the party against whom a complaint is instituted or the Adjudication Rules, in particular Rule 4 (5), oblige the adjudicating authority to grant as of right the opportunity to the noticees to cross-examine the persons who may have given statements explaining a transaction. The provisions of Section 16 of the FEMA and Rule 4 of the Adjudication Rules do not explicitly advert to this aspect, therefore, much would depend on the discretion of the adjudicating authority as he progress with the enquiry. See M/s. Kanungo and Company Vs. Collector of Customs and Others [1972 (2) TMI 35 - SUPREME COURT OF INDIA] On a fair reading of the statute and the Rules suggests that there is no duty of disclosure of all the documents in possession of the Adjudicating Authority before forming an opinion that an inquiry is required to be held into the alleged contraventions by a noticee. Even the principles of natural justice and concept of fairness do not require the statute and the Rules to be so read. Any other interpretation may result in defeat of the very object of the Act. Concept of fairness is not a one way street. The principles of natural justice are not intended to operate as roadblocks to obstruct statutory inquiries. Duty of adequate disclosure is only an additional procedural safeguard in order to ensure the attainment of the fairness and it has its own limitations. The extent of its applicability depends upon the statutory framework.Thus at this stage, it cannot be stated that mere denial of the request for cross-examination has led to breach of principles of natural justice and thus, warranting an intercession by this court under Article 226 of the Constitution of India.
|