9911796707
TMI Blog2011 (12) TMI 260X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of the appellant that the said car was gifted to him on the occasion of his marriage by the said Dr.S.Balakrishnan, who is the friend of his father-in-law. It is the contention of the Department that the investigation conducted by the officials of the Directorate General of Revenue Intelligence, Chennai by recording the statements of persons associated with Dr.S.Balakrishnan, would, undoubtedly, prove that Dr.S.Balakrishnan cannot afford to purchase such a valuable car from his income from the medical profession and that such cars were owned by wealthy people in England itself. The officers of the Directorate General of Revenue Intelligence also recorded the statement of one T.K.Chandrasekaran, 377/378, Arcot Road, Kodambakkam, Chennai-24, on 15.7.1996, who stated that his brother-in-law Dr.Balakrishnan resides in UK and had studied his MBBS in Madras and he may be drawing # 2000 per month in his present occupation as an anesthetist. He further stated that his brother-in-law Dr.Balakrishnan is working in a Government Hospital in UK and that he is a non-resident Indian and about five years back, he was using a second hand Benz in UK and that going by the financial backgroun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry of two years period from the date of repeal of FERA, only to save limitation, provided under Section 49(3) of FEMA, giving a very short period of five days time for the appellant to reply and this indicates the manner in which the Department has acted in a hurried and vindictive manner, by leaving to winds the avowed principles of natural justice and audi alteram partem, besides indicating their preconceived ideas and views. He has further argued that in spite of request by the appellant, the Department has not furnished the copy of documents, which are very essential for the appellant to make his effective representation and reply to the opportunity notice. He would further argue that Section 51 of FERA talks about 'reasonable opportunity' to be given before instituting adjudication and it does not mention the number of days within which reply and a personal hearing should be given. But, no such opportunity was ever given to the appellant and unfortunately, the learned single Judge has failed to assess these factual and legal aspects in their proper perspective, and has erroneously dismissed the writ petition, necessitating the appellant to file this writ appeal. On such argume ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nto operation w.e.f.1.6.2000. 9. Though FERA was repealed w.e.f. 31.5.2000, Section 49 of FEMA, saved the actions already initiated under FERA, besides granting a time limit of two years from the date of repealing to initiate fresh proceedings under FERA. To better understand the intention of Legislature, we shall now extract hereunder Section 49 of the FEMA: "49. Repeal and Saving: (1) The Foreign Exchange Regulation Act, 1973 (46 of 1973) is hereby repealed and the Appellate Board constituted under sub-section (1) of section 52 of the said Act (hereinafter referred to as the repealed Act) shall stand dissolved. (2) On the dissolution of the said Appellate Board, the person appointed as Chairman of the Appellate Board and every other person appointed as Member and holding office as such immediately before such date shall vacate their respective offices and no such Chairman or other person shall be entitled to claim any compensation for the premature termination of the term of his office or of any contract of service. (3) Notwithstanding anything contained in any other law for the time being in force, no court shall take cognizance of an offence under the repealed Act and no a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... present FERA proceedings have been initiated against the appellant and others on 21.5.2002, by issuing the opportunity notice, before expiry of the two years limitation period prescribed under Section 49(3) of FEMA. (FERA being repealed on 31.5.2000, the two years period was to expire on 31.5.2002). Therefore, it cannot be said that the proceedings initiated are hit by limitation. But, a strenuous argument has been advanced on the part of the appellant that only to save the limitation period, the opportunity notice has been issued to him, giving only a time of five days for him to reply. But, it is seen from the records that the appellant has submitted his reply to the opportunity notice on 27.5.2002 and only thereafter the case was filed before the concerned criminal court. 12. Section 51 of FERA contemplates 'reasonable opportunity' to be afforded to the delinquent before instituting adjudication and as has been admitted on the part of the learned senior counsel for the appellant himself, this Section does not mention the number of days of time to be given to the delinquent for submitting his reply. When that is the case, the time of five days afforded to the delinquent in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the complaint made before him. In view of the fact that sufficient opportunities will be available to the appellants to put forward their contentions before the criminal court concerned, it cannot be said that there is any merit in the challenge to the notices issued under Section 61 of FERA. The said notices are really in terms of Section 61 of FERA and their scope and ambit is also controlled by Section 61 of FERA and on receipt of those notices, it was open to the appellants to show that they had the necessary permission from the authority concerned under the Act. Of course, if they do not have such permission, apparently, in the case on hand, there was no such permission, they have necessarily to put forward their defences before the criminal court in the prosecutions that have been launched in that behalf. 11. It is argued that the issue of a notice under Section 61 is not a mere formality and that it is a real right given to a person accused of an offence to establish that the proceedings are being initiated without jurisdiction or wholly in violation of the provisions of FERA. Article 20(3) of the Constitution is referred to and it is submitted that many rights including ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
