1969 (10) TMI 88 - SC - Indian Laws

Summary

Issues Involved:
1. Validity of charges under Section 120-B IPC and various sections of the Foreign Exchange Regulation Act (FERA).
2. Legality of the alleged conspiracy and its continuity post-amendment of the FERA.
3. Procedural compliance by the Director of Enforcement under FERA.
4. Applicability of Section 21(1) of FERA vis-`a-vis Section 120-B IPC.
5. Sufficiency of evidence and allegations to constitute an offence under Section 120-B IPC.

Issue-wise Detailed Analysis:

1. Validity of Charges under Section 120-B IPC and Various Sections of FERA:
The Director of Enforcement filed a complaint against the accused under Section 120-B IPC and various sections of FERA. The complaint alleged that the accused conspired to acquire foreign exchange illicitly and retain it abroad, thereby contravening Sections 4(3), 5(1)(e), and 9 of FERA. The Supreme Court examined whether the complaint sufficiently established the elements of conspiracy under Section 120-B IPC, which requires an agreement between two or more persons to commit an illegal act or a legal act by illegal means. The Court noted that the alleged agreement involved over-invoicing and retaining foreign exchange abroad, which became an offence after the amendment of FERA on April 1, 1965.

2. Legality of the Alleged Conspiracy and its Continuity Post-Amendment of FERA:
The Court observed that at the time of the initial agreement in August 1963, acquiring foreign exchange abroad was not an offence under FERA or the Defence of India Rules. However, the alleged conspiracy continued even after the acquisition of foreign exchange became illegal post-amendment of FERA. The Court held that the continuity of the agreement and the subsequent acts committed in furtherance of the conspiracy could attract charges under Section 120-B IPC.

3. Procedural Compliance by the Director of Enforcement under FERA:
The judgment emphasized the procedural requirements under Section 23(1) of FERA, which mandates that the Director of Enforcement must initiate adjudication proceedings, conduct an inquiry, and form an opinion that the penalty would be inadequate before filing a complaint in court. The Court noted that the Director of Enforcement had not followed this procedure, rendering the complaint premature and procedurally defective.

4. Applicability of Section 21(1) of FERA vis-`a-vis Section 120-B IPC:
The Court analyzed whether Section 21(1) of FERA, which prohibits agreements that evade the provisions of the Act, could cover the alleged conspiracy. It concluded that Section 21(1) addresses agreements that directly or indirectly evade FERA's provisions but does not specifically address criminal conspiracy as defined under Section 120-B IPC. Therefore, the alleged conspiracy could still be prosecuted under Section 120-B IPC, provided the procedural requirements under FERA were met.

5. Sufficiency of Evidence and Allegations to Constitute an Offence under Section 120-B IPC:
The Court examined the sufficiency of the allegations in the complaint to establish a prima facie case of conspiracy. It noted that the allegations involved over-invoicing, retaining foreign exchange abroad, and the accused's role in facilitating these acts. The Court held that these allegations, if proven, could constitute an offence under Section 120-B IPC. However, it emphasized that the facts required to establish the offence must be proved at trial in accordance with the law.

Separate Judgments:
- Majority Judgment: The majority dismissed the appeals, holding that the allegations, if proven, could constitute an offence under Section 120-B IPC. However, it cautioned that the procedural requirements under FERA must be followed before filing a complaint.
- Dissenting Judgment (Mitter, J. and Hegde, J.): The dissenting judges allowed the appeals, quashing the complaint. They emphasized that the Director of Enforcement had not followed the procedural requirements under FERA, and the complaint was filed with a collateral purpose to justify the unlawful detention of one of the accused.

Conclusion:
The Supreme Court's judgment highlighted the importance of procedural compliance under FERA before prosecuting offences under Section 120-B IPC. While the allegations in the complaint could constitute a conspiracy, the Director of Enforcement must follow the statutory procedure to ensure the validity of the complaint. The majority dismissed the appeals, while the dissenting judges quashed the complaint due to procedural defects and ulterior motives.