TMI Blog2014 (10) TMI 527X X X X Extracts X X X X X X X X Extracts X X X X ..... he summonses is pending before the Adjudicating Authority under FEMA. A show cause notice was also issued by the Adjudicating Authority on 20.09.2010 wherein the appellant was required to appear in person or through legal practitioner / chartered accountant duly authorised by the appellant. This was in consonance with the stipulation contained in Section 16(4) of FEMA which clearly enables the person against whom the complaint has been made to appear either in person or take the assistance of a legal practitioner or a chartered accountant of his choice for presenting his case before the Adjudicating Authority. On the basis of the material available on record, the complaint under Section 16(3) of FEMA which was registered on 16.09.2010 has been followed by a show cause notice dated 20.09.2010 which essentially requires the appellant to show cause as to why an inquiry should not be held. The matter has not progressed beyond that 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 adjudicatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... revocation order. But, the matter does not end here because, in our view, these allegations had an impact on the decision making process of the Regional Passport Officer as well as the Chief Passport Officer inasmuch as they have both referred to the allegations to indicate that it was in 'public interest' that the passport of the appellant be revoked. In other words, the authorities under the Passports Act, while revoking the passport of the appellant, examined and were influenced by materials which were not relevant or germane and were not specified in the show cause notice dated 15.10.2010. The only 'subject-matter' of the show cause notice was the 'non-compliance of summons' issued by the Directorate of Enforcement, Mumbai. Since there is a specific procedure and there are specific statutory provisions for any default in non-compliance with summonses under FEMA itself read with relevant provisions of the Income-tax Act and the CPC, the revocation of the appellant's passport for that so-called default (which is yet to be adjudicated upon), on the ground that it was in the interests of the general public, was not lawful - Court set aside the impugned judgment dated 16.01.2013 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overnment of India DIRECTORATE OF ENFORCEMENT Tel: 22886182 23-24, 2nd floor, Mittal Chambers Nariman Point, Mumbai-400021 Fax: 22828930 T-3/81-B/2008/AD(DKS)/4137 SUMMONS To appear in person {REFER SECTION 37(1) AND (3) OF THE FOREIGN EXCHANGE MANAGEMENT ACT, 1999, READ WITH SECTION 13(1) OF THE INCOME TAX ACT, 1961 AND SECTION 30 OF THE CODE OF CIVIL PROCEDURE, 1908} ---------------------------------- To, Shri Lalit Kumar Modi 3rd Floor, Nirlon House Dr. Annie Besant Road, Worli Mumbai WHEREAS, an investigation is being conducted against you under the provisions of the Foreign Exchange Management Act, 1999 (42 of 1999). AND WHEREAS in connection with the said investigation, you are hereby summoned to appear before me in person on 10.08.2010 at 11.00 Hrs to tender evidence in respect of various agreements executed by the BCCI-IPL, alongwith the documents listed in the Schedule below. SCHEDULE 1. Passport in original for verification. 2. Details of all bank accounts in India and abroad. 3. Copies of all Invitations to Tender (ITT) floated by the BCCI in connection with IPL. 4. Copies of all Agreements executed by the BCCI in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the I.P.L. which are available with me (Tab 2 of the Compilation of Documents submitted along with this letter); e. Photocopies of all Minutes and Attendance Sheets of the I.P.L. Governing Council Meetings (Tab 3 of the Compilation of Documents submitted along With this letter); 4. Your Summons requires that I produce all e-mails/communications exchanged in connection with auction of Franchisees in 2008 and 2010; sale of commercial and Media Rights of I.P.L.-2. In this connection, I wish to point out the following: - a. At the relevant, time, e-malls/communications were, typically, sent from my email accounts with I.P.L./B.C.C.I (being lkm@iplt20.com and lkm@bcci.tv). The B.C.C.I. has however blocked my access to these accounts with the result I am not able to access them; b. Fortunately for me, I had retained copies of a large number of e-mails / communications for submitting them with my Reply to the Show Cause Notice issued by the B.C.C.I. Many of these pertain to auction of franchisees in 2008 and 2010 and sale of commercial/media rights of I.P.L-2 and are available with me; c. For your convenience I am therefore forwarding to you, my Reply and the volumino ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igations against the appellant. The complaint was filed under Section 16(3) of FEMA on 16.09.2010. As per the complaint, it was indicated that the appellant was under investigation by the Directorate for contraventions of FEMA which were punishable under Section 13 thereof. It was further indicated that in connection with the said investigation, summonses dated 02.08.2010 and 24.08.2010 had been issued requiring the presence of the appellant before the said Assistant Director for tendering evidence and for producing documents as mentioned in the said summonses. It was further stated in the complaint that the appellant did not appear before the Assistant Director on the dates stipulated and, therefore, failed to comply with the summonses. It was also averred in the complaint that the security threat as claimed by the appellant had not come in the way of his hectic schedule in connection with the IPL Tournament. Therefore, according to the complainant, it appeared that the appellant was wilfully avoiding his examination on oath under the provisions of Section 37 of FEMA. According to the complainant the failure to appear before him was without any valid reason and it amounted to non- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt at the address given in the Passport Application - Anand 41, Gandhi Gram Road, Juhu, Mumbai. However, that notice was subsequently returned undelivered on 11.11.2010. 7. In the meanwhile, another letter dated 15.10.2010 had been received from the Directorate of Enforcement giving another address of the appellant at Nirlon House, Dr. Annie Besant Road, Worli, Mumbai. Accordingly, the Regional Passport Office issued another show cause notice dated 15.10.2010 at the Nirlon House address. The said show cause notice dated 15.10.2010 is as under:- GOVERNMENT OF INDIA MINISTRY OF EXTERNAL AFFAIRS REGIONAL PASSPORT OFFICE Manish Commercial Centre, 216-A, Dr. A.B. Road, Worli, Mumbai 400030 Ref No. F7(5)10-D-4399/10-572-Pool-1 October 15, 2010 Mr. Lalit Kumar Modi 3rd Floor, Nirlon House Dr. Annie Besant Road, Worli, Mumbai, Sir, Please refer to your passport application dated 22.07.2008, on the basis of which you were issued passport bearing No. Z-1784222 dated 30.07.2008 by this office. It is informed by the Directorate of Enforcement, Mumbai that a complaint dated 16.9.2010 under section 13 of FEMA, 1999 has been filed against you and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i is deliberately absenting himself. The fact that he is deliberately absenting himself is borne out from the specious defense put forward by him. The bogey of a security threat is virtually non-existent by virtue of the fact that the Mumbai Police have offered him police protection in addition to the security agencies who are already at his continuous service. Additionally, this threat existed even prior to the time the summonses by the Directorate of Enforcement were issued. However that did not stop Shri Lalit Kumar Modi from travelling around the country. Therefore it is abundantly, clear that Shri Lalit Kumar Modi is deliberately hampering the Investigations. It is in the interest of the general public that the law of the land operates effectively and no person is allowed to subvert the legal provisions by avoiding legal processes like summons on one pretext or another. The scam in respect of the IPL has brought, the sport of cricket in particular to disrepute apart from the foreign exchange losses to the nation, (it is in the interest of the game of cricket and of the public in general that the case is property investigated for which the interrogation of Shri Lalit Kumar Modi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d primarily by the investigating agency and, therefore, the Directorate of Enforcement insistence on the physical presence of the appellant in India was justified. 10. For all the above reasons the appeal filed by the appellant was not allowed by the respondent No. 2 (Chief Passport Officer). 11. Being aggrieved by the revocation order dated 03.03.2011 as also the appellate order dated 31.10.2011, the appellant filed the said writ petition (W.P.(C) 376/2012) seeking, inter alia, a writ of certiorari quashing the said orders. A learned single Judge of this court by virtue of his judgment dated 16.01.2013 dismissed the said writ petition. According to the learned single Judge, the core issue before him was whether the revocation of the passport was valid in law. This, according to the learned single Judge, gave rise to two further issues - (i) Whether the necessary jurisdictional facts available to the Regional Passport Officer enabled him to revoke the passport? (ii) Whether the Regional Passport Officer exercised his powers in the interest of the general public? 12. Both these questions were answered in the affirmative. According to the learned single judge there w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 02.08.2010 and 24.08.2010 but, he fully cooperated and gave all the details and documents that were sought for by the Directorate of Enforcement. In this connection he submitted that the appearance of the appellant was not a must inasmuch as he was a person under investigation as distinct and different from a person from whom evidence was being sought. He further submitted that there is no provision for interrogation or arrest under FEMA or under the applicable provisions of the Income-tax Act (namely Section 131). He further submitted that even pursuant to a complaint under Section 16(3) of FEMA, the person against whom the complaint has been lodged can appear through a legal practitioner, Chartered Accountant or other authorised person. Therefore, the question of non-appearance pursuant to the summonses was not such a serious issue as to entail the revocation of the passport in the interest of general public . 15. It was further submitted by Mr Parag Tripathi that in any event the non-appearance of the appellant was not without reason. He submitted that as indicated by the various replies furnished by the appellant, there was a serious threat to his personal safety. Of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... loss of revenues which were neither referred to nor the subject matter of the show cause notice dated 15.10.2010 issued by the Regional Passport Office. It was submitted that it is settled law that material which does not form part of the show cause notice cannot be made the basis for an order passed pursuant to such a show cause notice. In this connection it was also pointed out that even the appellate order passed by the Chief Passport Officer on 31.10.2011 has returned a finding that the appellant appears 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 were suspected to have been parked outside India. It is submitted that this finding could not have been returned inasmuch as there was no such allegation contained in the show cause notice dated 15.10.2010 issued by the Regional Passport Office pursuant to which the passport of the appellant was revoked. The only allegation made in the said show cause notice dated 15.10.2010 was that a complaint dated 16.09.2010 under section 16(3) of FEMA had been filed against the appellant and a show cause notice had be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2010 for non-compliance of the summonses. Thereafter, the Enforcement Directorate sent a letter dated 04.10.2010 to the Regional Passport Office regarding the said complaint for non-compliance of summonses. On the basis of that letter, the Regional Passport Office inter alia issued the show cause notice dated 15.10.2010 for action under Section 10(3)(c) of FEMA. An opportunity of filing a written reply was afforded to the appellant and the same was availed of inasmuch as the appellant's Advocates filed several replies. Furthermore, an opportunity of hearing was also granted at least on two dates 18.11.2010 and 26.11.2010, by the respondent No. 3 to the Advocates of the appellant. After the conclusion of hearing, written submissions on behalf of the appellant were also permitted to be taken on record. Mr Mehra submitted that after following this entire process, the respondent No. 3 passed the order dated 03.03.2011 revoking the passport of the appellant. He submitted that these steps clearly indicate that there was full compliance with the principles of natural justice. 22. It was also submitted by Mr Mehra that public interest required that the appellant must make himself ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d under Section 16 of FEMA should not be held. The summons dated 02.08.2010 and 24.08.2010 were issued in connection with an investigation in respect of which the said complaint was subsequently filed on 31.07.2011. Therefore, the summonses are no longer outstanding. Consequently, the revocation of the passport of the appellant was not at all in the interest of general public. 25. We must now examine the applicable and relevant statutory provisions. The relevant provisions under FEMA:- Section-13. Penalties.- (1) If any person contravenes any provision of this Act, or contravenes any rule, regulation, notification, direction or order issued in exercise of the powers under this Act, or contravenes any condition subject to which an authorisation is issued by the Reserve Bank, he shall, upon adjudication, be liable to a penalty up to thrice the sum involved in such contravention where such amount is quantifiable, or up to two lakh rupees where the amount is not quantifiable, and where such contravention is a continuing one, further penalty which may extend to five thousand rupees for every day after the first day during which the contravention continues. (2) Any Adjudicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the defaulter. (5) A warrant of arrest issued by the Adjudicating Authority under sub-section (3) or sub-section (4) may also be executed by any other Adjudicating Authority within whose jurisdiction the defaulter may, for the time being, be found. (6) Every person arrested in pursuance of a warrant of arrest under this section shall be brought before the Adjudicating Authority issuing the warrant as soon as practicable and in any event within twenty-four hours of his arrest (exclusive of the time required for the journey): Provided that if the defaulter pays the amount entered in the warrant of arrest as due and the costs of the arrest to the officer arresting him, such officer shall at once release him. (7) When a defaulter appears before the Adjudicating Authority pursuant to a notice to show cause or is brought before the Adjudicating Authority under this section, the Adjudicating Authority shall give the defaulter an opportunity showing cause why he should not be committed to the civil prison. (8) Pending the conclusion of the inquiry, the Adjudicating Authority may, in his discretion, order the defaulter to be detained in the custody of such officer as the Adjud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section (3) (hereinafter in this section referred to as the said person) a reasonable opportunity of being heard for the purpose of imposing any penalty: Provided that where the Adjudicating Authority is of opinion that the said person is likely to abscond or is likely to evade in any manner, the payment of penalty, if levied, it may direct the said person to furnish a bond or guarantee for such amount and subject to such conditions as it may deem fit. (2) 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. (3) No Adjudicating Authority shall hold an enquiry under sub-section (1) except upon a complaint in writing made by any officer authorised by a general or special order by the Central Government. (4) The said person may appear either in person or take the assistance of a legal practitioner or a chartered accountant of his choice for presenting his case before the Adjudicating Authority. (5) Every Adjudicating Authority shall have the same powers of a civil court which are conferred on the Appellate Tribunal under sub-section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e opinion that an inquiry should be held, he shall issue a notice fixing a date for the appearance of that person either personally or through his legal practitioner or a chartered accountant duly authorised by him. (4) On the date fixed, the Adjudicating Authority shall explain to the person proceeded against or his legal practitioner or the chartered accountant, as the case may be, the contravention, alleged to have been committed by such person indicating the provisions of the Act or of rules, regulations, notifications, direction or orders or any condition subject to which an authorisation is issued by the Reserve Bank of India in respect of which contravention is alleged to have taken place. (5) The Adjudicating Authority shall, then, given an opportunity to such person to produce such documents or evidence as he may consider relevant to the inquiry and if necessary, the hearing may be adjourned to future date and in taking such evidence the Adjudicating Authority shall not be bound to observe the provisions of the Indian Evidence Act, 1872 (1 of 1872). (6) While holding an inquiry under this rule the Adjudicating Authority shall have the power to summon and enforce a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subject to the same provisions as the officer-in-charge of a police station has, and is subject to, under the Code of Criminal Procedure, 1973 (2 of 1974). Section 39. Power to examine persons.-The Director of Enforcement or any other officer of Enforcement authorised in this behalf by the Central Government, by general or special order, may, during the course of any investigation or proceeding under this Act,- (a) require any person to produce or deliver any document relevant to the investigation or proceeding; (b) examine any person acquainted with the facts and circumstances of the case. Section 50. Penalty.-If any person contravenes any of the provisions of this Act other than section 13, clause (a) of sub-section (1) of Section 18, Section 18A and clause (a) of sub Section (1) of Section 19 or of any rule, direction or order made thereunder, he shall be liable to such penalty not exceeding five times the amount or value involved in any such contravention or five thousand rupees, whichever is more as may be adjudged by the Director of Enforcement or any other officer or Enforcement not below the rank of an Assistant Director of Enforcement specially empowered in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, the court by which such person is convicted may, in addition to any sentence which may be imposed on him under this section, by order, direct that that person shall not carry on such business as the court may specify, being a business which is likely to facilitate the commission of such offence for such period not exceeding three years, as may be specified by the court in the order. (4) For the purposes of sub-sections (1) and (2), the following shall not be considered as adequate and special reasons for awarding a sentence of imprisonment for a term of less than six months, namely:- (i) the fact that the accused has been convicted for the first time of an offence under this Act; (ii) the fact that in any proceeding under this Act, other than a prosecution, the accused has been ordered to pay a penalty or the goods in relation to such proceedings have been ordered to be confiscated or any other penal action has been taken against him for the same offence; (iii) the fact that the accused was not the principal offender and was acting merel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (d) issuing commissions. xxxx xxxx xxxx xxxx From the above it is evident that the officers under the Income-tax Act have the same powers as are vested in a court under the Code of Civil Procedure, 1908 to try a suit in respect of inter alia discovery and inspection, enforcing the attendance of any person, including any officer of a bank / company and examining him on oath and compelling the production of books of accounts and other documents. This takes us to Sections 30 of the Code of Civil Procedure,1908 which reads as under:- Section 30. Power to order discovery and the like.- Subject to such conditions and limitations as may be prescribed, the court may, at any time, either of its own motion or on the application of any party, - (a) make such orders as may be necessary or reasonable in all matters relating to the delivery and answering of interrogatories, the admission of documents and facts, and the discovery, inspection, production, impounding and return of documents or other material objects producible as evidence; (b) issue summonses to persons whose attendance is required either to give evidence or to produce documents or such other objects as aforesaid; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re the amount is quantifiable or upto ₹ 2 lakhs where the amount is not quantifiable. Furthermore, where the contravention is a continuing one, further penalty may extent to ₹ 5,000/- for every day after the first date from which the contravention continues. Sub-Section (2) of Section 13 permits for confiscation of currency, security or any other money or property in respect of which the contravention has taken place in addition to the penalty that is imposed under Section 13(1) of FEMA. It is pertinent to note that the penalty under Section 13(1) is imposed only upon adjudication. Adjudication is done in the manner prescribed under Section 16 of FEMA. Section 16(1) requires the adjudication authority to hold an inquiry in the manner prescribed after giving the person alleged to have committed contravention under Section 13, against whom a complaint has been against sub-Section (3), a reasonable opportunity of being heard for the purpose of imposing any penalty. There is also a proviso to Section 16(1) which is not relevant for the purposes of this case. Section 16(3) of FEMA stipulates that no Adjudicating Authority shall hold an inquiry under sub-Section (1) except ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that needs to be noticed with regard to Rule 4 of the said Rules is that there are two stages for the holding of an inquiry. The first stage is of issuance of a show cause notice requiring the person concerned to show cause within the specified period as to why an inquiry should not be held against him. If the Adjudicating Authority is convinced with the cause shown by the person concerned and he is of the opinion that no inquiry should be held, the matter ends there. However, by virtue of Rule 4(3) of the said Rules, if the Adjudicating Authority, after considering the cause, if any, shown by the concerned person, is of the opinion that an inquiry should be held, he is required to fix a date for the appearance of that person either personally or through legal practitioner or through a chartered accountant duly authorised by him. It is true that while holding such an inquiry, which is the second stage of the adjudication process, the Adjudicating Authority has the power to summon and enforce attendance of any person acquainted with the facts and circumstances of the case to give evidence or to produce any document which in the opinion of the Adjudicating Authority may be useful for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Act. They are as under:- Section 3. Passport or travel document for departure from India.-No person shall depart from, or attempt to depart from India, unless he holds in this behalf a valid passport or travel document. Section 10. Variation, impounding and revocation of passports and travel documents.- (1) The passport authority may, having regard to the provisions of sub-section (1) of section 6 or any notification under section 19, vary or cancel the endorsements on a passport or travel document or may, with the previous approval of the Central Government, vary or cancel the conditions (other than the prescribed conditions) subject to which a passport or travel document has been issued and may, for that purpose, require the holder of a passport or a travel document, by notice in writing, to deliver up the passport or travel document to it within such time as may be specified in the notice and the holder shall comply with such notice. (2) The passport authority may, on the application of the holder of a passport or a travel document, and with the previous approval of the Central Government also vary or cancel the conditions (other than the prescribed conditions) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sub-section (1) or an order impounding or revoking a passport or travel document under sub-section (3), it shall record in writing a brief statement of the reasons for making such order and furnish to the holder of the passport or travel document on demand a copy of the same unless in any case the passport authority is of the opinion that it will not be 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 to furnish such a copy. (6) The authority to whom the passport authority is subordinate may, by order in writing, impound or cause to be impounded or revoke a passport or travel document on any ground on which it may be impounded or revoked by the passport authority and the foregoing provisions of this section shall, as far as may be, apply in relation to the impounding or revocation of a passport or travel document by such authority. (7) A court convicting the holder of a passport or travel document of any offence under this Act or the rules made thereunder may also revoke the passport or travel document: Provided that if the conviction is set asid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n case, be to abridge or take away freedom of speech and expression or the right to carry on a profession and where such is the case, the order would be invalid, unless saved by Article 19(2) or Article 19(6). (underlining added) It was further observed by the Supreme Court that:- There may be many such cases where the restriction imposed is apparently only on the right to go abroad but the direct and inevitable consequence is to interfere with the freedom of speech and expression or the right to carry on a profession. A musician may want to go abroad to sing, a dancer to dance, a visiting professor to teach and a scholar to participate in a conference or seminar. If in such a case his passport is denied or impounded, it would directly interfere with his freedom of speech and expression. ..... Examples can be multiplied, but the point of the matter is that though the right to go abroad is not a fundamental right, the denial of the right to go abroad may, in truth and in effect, restrict freedom of speech and expression or freedom to carry on a profession so as to contravene Article 19(1)(a) or 19(1)(g). In such a case, refusal or impounding of passport would be invalid u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty and integrity of India, security of India and friendly relations of India with foreign States. Therefore, when an order is made under Section 10(3)(c), which is in conformity with the terms of that provision, it would be in the interests of the general public and even if it restricts freedom to carry on a profession, it would be protected by Article 19(6). But if an order made under Section 10(3)(c) restricts freedom of speech and expression, it would not be enough that it is made in the interests of the general public. It must fall within the terms of Article 19(2) in order to earn the protection of that article. If it is made in the interests of the sovereignty and integrity of India or in the interests of the security of India or in the interests of friendly relations of India with any foreign country, it would satisfy the requirement of Article 19(2). But if it is made for any other interests of the general public save the interests of public order, decency or morality , it would not enjoy the protection of Article 19(2). There can be no doubt that the interests of public order, decency or morality are interests of the general public and they would be covered by Section 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gainst under Section 13(1) of FEMA, 1999 . xxxx xxxx xxxx xxxx That it is prayed that this complaint may be taken on record and Shri Lalit Kumar Modi be dealt with as per law. From this it is clear that the complaint under Section 16(3) was specifically for the non-compliance of summonses issued to the appellant. The procedure seeking the imposition of a penalty for non-compliance under FEMA had been put into action by the filing of the said complaint dated 16.09.2010. That has not yet fructified into an order passed by an Adjudicating Authority imposing a penalty under Section 13 of FEMA. 38. Taking, the filing of the complaint and the issuance of the show cause notice under FEMA to the appellant as a basis, the Regional Passport Office issued the show cause notice under the Passports Act to the appellant asking the appellant to show cause as to why action under Section 10(3)(c) of the Passports Act should not be initiated against him. It is thereupon that the revocation order dated 03.03.2011 was passed under the Passports Act by invoking the expression in the interests of the general public appearing in Section 10(3)(c) of the Passports Act. 39. We must examin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... committed contraventions of the provisions of FEMA to the extent of hundreds of crores of rupees and to have taken personal benefits by acquiring huge sums of money and to be suspected to have parked the same outside India. This was not for the Passport Officer to examine. The passport officer's jurisdiction, if at all, was limited to the show cause notice dated 15.10.2010 which was only in respect of non-compliance of the summonses issued by the Enforcement Directorate. The Passport Officer was not at all concerned with the merits of the alleged FEMA violations or the extent of alleged FEMA violations. That was the concern of the Adjudicating Authority under FEMA. 42. Therefore, the observations of the authorities below with regard to the allegations of FEMA violations against the appellant ought to be disregarded in the context of the revocation order. But, the matter does not end here because, in our view, these allegations had an impact on the decision making process of the Regional Passport Officer as well as the Chief Passport Officer inasmuch as they have both referred to the allegations to indicate that it was in 'public interest' that the passport of the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the summons was to provide evidence and documents as stated above. All that had been provided by the appellant and the appellant was also ready and willing to be examined through video conferencing. We must say at this juncture that FEMA does not entail custodial interrogation and, therefore, a request for an alternative mode examination under video conferencing was certainly an option available with the Directorate of Enforcement and should not have been simply shrugged aside. We say so, even if it is assumed that the appellant did not have a genuine threat to his life as claimed by him. 46. We agree with the learned Additional Solicitor General that there has been no violation of the principles of natural justice to the extent that a show cause notice dated 15.10.2010 was issued to the appellant; his replies through his Advocates were taken on record; his Advocates were heard and further written submissions after arguments were also taken on record and considered by the Regional Passport Officer before the revocation order dated 03.03.2011 was passed. But, that by itself does not make the said order lawful. This is so because, as we have pointed out above, extraneous considera ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
