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2013 (1) TMI 392 - HC - FEMAFailure to comply with the summons issued u/s 37 - investigations being carried out against him for violation of the provisions section 13 of the FEMA - action of revocation of passport of the petitioner under section 10(3)(c) of the Passports Act, 1967 - Held that - The DOE investigation had revealed that the petitioner as the Chairman of the Governing Council of the IPL of the Board of Control for Cricket in India (in short BCCI), had committed gross irregularities in the conduct of the IPL tournaments, leading to fraudulent activities in violation of FEMA, had led to the siphoning of funds to the extent of hundreds of crores of rupees, which apparently he was suspected to have parked outside India. In response to the first summon, issued on 02.08.2010, as replied by petitioner vide communication dated 07.08.2010, delivered on 09.08.2010, that there was an apprehension of threat to the petitioner s life. The concerned authority not being convinced, sought further details, from the petitioner vide communication dated 13.08.2010. It is at this stage that the petitioner referred to the threat assessment made by the Mumbai Police, with regard to the petitioner s safety, and the provision made for his security, while he was in Mumbai. The concerned authority, not being persuaded, by the material supplied and the reasons put forth, issued a second summon to the petitioner under Section 37 on 24.08.2010, requiring the petitioner to appear before him, on 07.09.2010. Admittedly, the petitioner did not appear before the concerned authority, and trotted out the same reasons, i.e., threat to his life. It is at this stage that a complaint under Section 16(3) of the FEMA was filed, on 16.09.2010. Notice in this complaint was issued on 20.09.2010. The DOE, in the background issued a communication to the APO as received by him on 05.10.2010, to take action for revocation of the petitioner s passport under Section 10(3)(c) of the Passports Act who in turn sought an explanation as to why, action ought not to be initiated under Section 10(3)(c) of the Passports Act. Admittedly, the petitioner did not present himself either in response to the summons issued by the DOE nor in response to the show cause notice dated 15.10.2010. Replies were filed, however, on behalf of the petitioner on 12.10.2010, followed by several other communications demanding the material on the basis on which the passport authorities were proceeding to take action in the matter. Thus by virtue of the impugned order, the passport authority, came to the conclusion that the reply did not answer the main charge made against the petitioner, which is, his failure to present himself in person, in response to the summons issued under Section 37 of FEMA. The copies of the summons issued under Section 37 of FEMA, and the complaint filed under Section 16(1) of FEMA were admittedly available with the petitioner. Therefore, the action of the RPO under the Passport Act, which invested upon him, amongst others, the power to impound/ revoke the passport, was clearly within the scope of the show cause notice dated 15.10.2010. Briefly perusing the provisions of clauses (a) to (h) of Sub-Section 3 of Section 10 of the Passport Act provides for various eventualities under which a passport authority has been invested with the power to impound or cause to be impounded or revoke a passport or a travel document. Some of these powers pertain to circumstances which require either direct determination by the passport authorities of the fact situation and / or require the passport authority to seek or receive inputs from other statutory authorities with regard to the eventuality referred to the clause in issue. Therefore, having regard to the fact that the APO received information on 04.10.2010, which was actionable, provided the necessary jurisdictional facts to exercise power under Section 10(3)(c) of the Passports Act. Section 131 of the Income Tax Act, which is a precursor to Section 132 of the Income Tax Act, empowers an Income Tax Officer, and thus by implication an officer of the DOE, to enforce the attendance of the persons who have violated the provisions of the Income Tax Act, and by necessary implication the provisions of FEMA, and are therefore necessarily the noticees in the said proceedings. The statute quite clearly, thus empowers the officers of the DOE exercising powers under Section 37 to take recourse to the provisions of Section 32 of the CPC, even against the noticee, like the petitioner, and not just the witnesses - The right to have interminable hearings, as demanded by the petitioner, cannot be a ground to lay challenge to the impugned order on the ground of breach of principles of natural justice. Argument that show cause notice was issued by one authority i.e., the APO while the impugned order dated 03.03.2011 was passed by the another i.e., the RPO hence breached the principles of natural justice is misconceived as it is seen that against item no. 7A(a) of Schedule I the RPO (Mumbai) is also described as a passport authority alongwith the APO. Therefore, it is not as if the RPO does not have the necessary power invested in him in Section 10(3)(c) of the Act. This is not a case where a hearing was held by the APO and the impugned order was passed by the RPO. This is a case where show cause notices were issued by the APO, while hearing in the matter was held by a superior officer, i.e., the RPO. Therefore, this argument is also not tenable. Argument that the relevant material which formed the basis for issuing the show cause notice was not supplied is also not quite correct as APO vide letter dated 01.11.2010, admittedly had given extracts of the material, which was supplied by the DOE to him. The receipt of the said letter is not denied by the petitioner. It is also not denied by the petitioner that he was made available the complaint filed by the DOE under Section 16(3) of FEMA. The petitioner was well aware of the charge against him and the material which formed the basis of the charge, and therefore, cannot be heard to plead that he had not been supplied with the requisite material to answer the charge. Argument of no right was given to cross-examine officers of DOE, is also untenable as that there is no inalienable right to cross-examine, it is not unknown to law that proceedings can be decided based on documents, especially documents which form the basis of the decision are not in dispute. And while the petitioner chooses to keep himself from his investigators, he seeks to subject his investigators to cross-examination, a request if granted would really turn the situation on its head. Thus as the petitioner has refused to surrender the passport, therefore, in the absence of the passport being available with the authorities concerned, the only order which could have been passed in the given circumstances was of revocation. For the reasons given hereinabove, no merit in the petition - Writ dismissed.
Issues Involved:
1. Jurisdiction of the High Court to entertain the writ petition. 2. Validity of the revocation of the petitioner's passport under Section 10(3)(c) of the Passports Act. 3. Compliance with principles of natural justice. 4. Adequacy of the material and the basis for the impugned orders. 5. Proportionality and necessity of the revocation of the passport. 6. Relevance of the pending complaint under Section 16(3) of FEMA. Issue-wise Detailed Analysis: 1. Jurisdiction of the High Court: The respondents raised a preliminary objection regarding the jurisdiction of the Delhi High Court, arguing that the petitioner was a resident of Mumbai, and the impugned order by the RPO was passed in Mumbai. The petitioner countered that the CPO's order was passed in Delhi, which conferred jurisdiction to the Delhi High Court. The court held that while it could have employed the principle of forum non conveniens, it chose to hear the petition given the prolonged period the petitioner had been seeking a decision. 2. Validity of the Revocation of the Petitioner's Passport: The core issue was whether the revocation of the petitioner's passport was valid and in accordance with the law. The court examined whether the necessary jurisdictional facts were present to enable the RPO to exercise the power of revocation and whether the RPO had exercised his powers in the interest of general public. The court concluded that the RPO had actionable material from the DOE, which provided the necessary jurisdictional facts to exercise power under Section 10(3)(c) of the Passports Act. 3. Compliance with Principles of Natural Justice: The petitioner argued that the principles of natural justice were breached as the proceedings were abruptly terminated, the show cause notices were issued by the APO while the impugned order was passed by the RPO, the material on which the show cause notice was issued was not supplied, and no opportunity was granted to cross-examine the officers of DOE. The court found that lengthy hearings were held, and the petitioner was given adequate opportunity to present his case. The court also noted that the RPO had the necessary power to pass the impugned order and that the petitioner was aware of the material forming the basis of the charge against him. 4. Adequacy of the Material and the Basis for the Impugned Orders: The petitioner contended that the passport authorities had acted on the dictation of the DOE without independently assessing the allegations. The court held that the passport authority was within its rights to act on actionable material provided by other statutory authorities, such as the DOE. The court found no merit in the argument that the passport authorities had abdicated their power. 5. Proportionality and Necessity of the Revocation of the Passport: The petitioner argued that the revocation of his passport was a draconian measure and that he had offered to cooperate with the DOE through alternative means such as video-link or a commissioner. The court held that the petitioner could not choose the manner in which he would tender evidence and that the statutory authorities should have the opportunity to confront the petitioner in a face-to-face examination. The court found that the revocation of the passport was justified given the circumstances. 6. Relevance of the Pending Complaint under Section 16(3) of FEMA: The petitioner argued that the pending complaint under Section 16(3) of FEMA should have been factored in by the passport authorities. The court held that the petitioner's refusal to appear in response to the summons issued by the DOE led to the filing of the complaint. The court found that the pendency of the complaint did not influence the decision of the passport authorities. Conclusion: The court dismissed the writ petition, finding no merit in the petitioner's arguments. The court held that the revocation of the petitioner's passport was valid, in accordance with law, and in the interest of general public. The court also rejected the arguments regarding the breach of principles of natural justice and the jurisdiction of the Delhi High Court.
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