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FEMA - Case Laws
Showing 561 to 580 of 1378 Records
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2012 (4) TMI 561
Issues Involved:
1. Validity of penalties imposed for contravention of Section 9(1)(a) and Section 9(1)(e) of FERA, 1973.
2. Reliance on retracted statements and unauthenticated documents.
3. Applicability of procedural provisions of FEMA, 1999 to cases under FERA, 1973.
4. Inherent power of the Tribunal to review its own orders.
Summary:
Issue 1: Validity of penalties imposed for contravention of Section 9(1)(a) and Section 9(1)(e) of FERA, 1973
The Tribunal reviewed penalties imposed on the appellants for contravention of Section 9(1)(a) and Section 9(1)(e) of FERA, 1973. The Tribunal concluded that the penalties imposed on Mody Brothers and Anil Mody for violation of Section 9(1)(a) and 9(1)(e) were set aside due to lack of evidence. However, the penalty of Rs. 15,00,000/- on the appellant for violation of Section 9(1)(a) was maintained, while the penalty of Rs. 20,000/- for violation of Section 9(1)(e) was set aside.
Issue 2: Reliance on retracted statements and unauthenticated documents
The appellant argued that the impugned order relied on a retracted statement and unauthenticated handwritten documents. The Tribunal noted that the handwritten letter dated 24-5-1994, which was critical in concluding the violation, was not authenticated by a handwriting expert and was recovered from the premises of Shri Anil Mody, not the appellant. The Tribunal acknowledged that the reliance on such unauthenticated documents was erroneous.
Issue 3: Applicability of procedural provisions of FEMA, 1999 to cases under FERA, 1973
The Tribunal clarified that the procedural provisions of FEMA, 1999 cannot be imported into FERA, 1973 cases. The Tribunal emphasized that FERA, 1973 is a self-contained code and the adjudication proceedings must be governed by the provisions of FERA, 1973, even though the Tribunal is constituted under FEMA, 1999. Section 49(4) of FEMA, 1999 clearly saves the provisions of the repealed FERA, 1973 for offences committed under it.
Issue 4: Inherent power of the Tribunal to review its own orders
The Tribunal examined whether it has the inherent power to review its own orders. It was concluded that the Tribunal is allowed to correct clerical errors u/s 65 of FERA, 1973 but cannot modify the contents of an order unless an apparent error is demonstrated on the face of the order. The Tribunal referenced several Supreme Court judgments to emphasize that a review is not an appeal in disguise and is limited to correcting patent errors.
Conclusion:
The Tribunal rejected the review petition, stating that there is no provision in FERA, 1973 enabling the Tribunal to review its own order passed on merits. The petition for rehearing and recalling the order dated 21-2-2011 was dismissed as neither maintainable in facts nor in law.
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2012 (4) TMI 258
Under-invoicing and Hawala transactions petition for stopping the investigation initiated by the Enforcement Directorate petitioner alleges of documents being forged and fabricated - Held that:- Enforcement Directorate is fully entitled to investigate in such matters. Mere complaint of petitioner regarding alleged forgery and fabrication is no ground to stay the investigation by the Enforcement Directorate petition dismissed.
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2012 (3) TMI 453
Re-export the goods to avoid demurrage charges which it is incurring on daily basis - Held that:- Since as per the impugned order dated 23.03.2012, the petitioner is required to furnish a suitable security to the satisfaction of Development Commissioner (VSEZ), we are of the opinion that the petitioner should approach the aforesaid authority and offer this security bond. It is found that the assets of the petitioner are worth ₹ 125/- crores as claimed by the petitioner and after taking into account the liability to the bank as well as SEZ, the security of the said assets in the form of bond is adequate, we are confident that Development Commissioner (VSEZ) shall accept the Financial Security offered in the aforesaid manner and subject to the procedure / legal requirements for accepting the security deposit.
The petitioner may approach the Development Commissioner (VSEZ) today itself for this purpose and the Development Commissioner (VSEZ) shall take a decision immediately.
As far as the other prayers in the petition are concerned, the same are not pressed at this stage since these issues are still to be adjudicated upon by the Appellate Authority.
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2012 (2) TMI 471
Issues involved:
Violation of Section 18(2) and 18(3) of the Foreign Exchange Regulation Act (FERA), 1973.
Summary:
The Adjudication Order was passed against M/s. Rupani Exports for not realizing the full export proceeds amounting to £11,400 for the shipment of leather gents jackets to M/s. Worthgear Ltd., London, U.K. The enforcement officers conducted searches and seized relevant documents. M/s. Rupani Exports and its partners were charged under Section 18(2) & 18(3) of FER Act, 1973. Despite being given an opportunity to respond, no reply was filed by M/s. Rupani Exports. The Adjudicating Authority found that the company had not made efforts to realize the outstanding amount and imposed penalties. The appellants raised objections, including lack of basis for proceedings and coercion in obtaining statements. The respondent defended the order citing compliance with FER Act provisions.
The Adjudicating Authority provided an opportunity for the appellants to explain the non-realization of the outstanding amount. The Authority accepted the submission of receipt of £2,400 and gave a fair chance to present evidence. The provisions of Section 18(2) and 18(3) of FER Act, 1973 were analyzed, emphasizing the obligation to repatriate export proceeds and the presumption of non-compliance if payments are delayed. The appellants failed to provide evidence of waivers or extensions, leading to the conclusion that they had not realized the outstanding amount. Consequently, the appeal was dismissed, directing the appellants to deposit the penalty amount within seven days.
In conclusion, the judgment upheld the penalties imposed on M/s. Rupani Exports and its partners for non-realization of export proceeds, emphasizing the importance of compliance with FER Act provisions and the obligation to make reasonable efforts to repatriate export proceeds within the prescribed period.
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2012 (2) TMI 400
FERA Act, 1973 violation of the provisions of Sections 8(3) and 8(4) of the Act by four companies - whether banks and their respective employees can be held guilty of abetting Companies for such violation fresh LC opened even on failure to file BE for prior import - remittance of substantial amounts of foreign exchange against large number of confirmed L/Cs failure to scrutinse defective import documents Third bench of Tribunal held in negative Held that:- The order passed by the Third Member, besides being cryptic, does not take note of all the materials which were on the record of the adjudication proceedings. Therefore, impugned order of the Tribunal based on the decision rendered by the third Member on the points of difference, should be set aside and the appeals be remanded back for hearing afresh Decided in favor of assessee.
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2012 (2) TMI 268
FERA 1973 - Release of foreign exchange in violation of the instructions of the RBI resulting in a violation of the relevant provisions of the FERA 1973 - allegation against the Appellants is a failure to discharge their responsibilities under the law and to ensure legal compliance - Section 68(1) & 68(2) Held that:-The burden of establishing a defence in terms of the proviso to subsection (1) of Section 68 lies upon the person against whom the contravention is established under the substantive part of the provision. Having failed to establish their burden, the absence of connivance cannot come to the aid of the Appellants. Hence, no substantial question of law would arise in these appeals. The Appeals are accordingly dismissed.
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2012 (2) TMI 177
Condonation of delay of 570 days appeal filed against order passed by Appellate Tribunal constituted under the FEMA, 1999 appeal filed to Appellate Tribunal against an order of adjudication passed on 30.10.2003 by the Special Director of Enforcement, after the repeal of the FERA, 1973 Held that:- An appeal against the order of the Appellate Tribunal would be governed by the provisions of Section 35 of the FEMA, 1999. This Court does not have any jurisdiction to condone a delay in excess of sixty days beyond the period of sixty days prescribed for the filing of an appeal Decided against the petitioner.
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2012 (1) TMI 198
Issues Involved:
1. Maintainability of writ petition for payment of interest.
2. Entitlement to interest on the seized amount.
3. Claim for interest post-refund of the principal amount.
Summary:
1. Maintainability of Writ Petition for Payment of Interest:
The learned Single Judge dismissed the writ petition relying on precedents, stating that a writ petition claiming only payment of interest is not maintainable. However, the court noted that the Apex Court in Godavari Sugar Mills Ltd. Vs. State of Maharashtra (2011) 2 SCC 439 clarified that while normally a writ petition for enforcing a civil liability is not entertained, the High Court can order payment of money in enforcement of statutory functions. The court found the present case fit for exercising discretion under Article 226 of the Constitution of India, as the facts were undisputed and the seizure was without authority of law.
2. Entitlement to Interest on the Seized Amount:
The court held that the seizure of Rs. 4,50,000/- was without authority of law and the respondent had a duty to refund the amount along with any accretion thereon. The principle of restitution was invoked, and it was noted that the respondent had earned interest of Rs. 4,42,500/- on the seized amount. The court emphasized that allowing the respondent to retain the benefits accrued from the wrongful seizure would amount to unjust enrichment. The court directed the respondents to pay Rs. 4,42,500/- to the appellant within eight weeks, failing which the amount would incur interest at the rate of 10% per annum.
3. Claim for Interest Post-Refund of the Principal Amount:
The court differentiated the claim for interest post 1st December 2009 on the amount of Rs. 4,42,500/-. It was held that this claim could not be adjudicated in writ proceedings and required a civil suit. Rule 8 of the Foreign Exchange Management (Encashment of Draft, Cheque, Instrument and Payment of Interest) Rules, 2000, which provides for interest at 6% per annum on the principal amount, was found inapplicable to the claim for interest on the interest amount. The court upheld the learned Single Judge's dismissal of the writ petition regarding this claim, granting liberty to the appellant to institute a suit for the same.
Conclusion:
The appeal was allowed to the extent of directing the respondents to pay Rs. 4,42,500/- to the appellant within eight weeks, with a 10% per annum interest penalty for non-compliance. The claim for interest post 1st December 2009 was dismissed, with liberty to the appellant to pursue a civil suit. The court also awarded costs of Rs. 20,000/- to the appellant.
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2011 (12) TMI 699
Issues involved: Appeal against order of Appellate Tribunal for Foreign Exchange imposing penalties for violation of provisions of Foreign Exchange Management Act, 1999 and Regulations.
Question of Law:
1. Whether permission granted under FERA, 1973 remains valid after enactment of FEMA in 1999?
2. Validity of permission issued by RBI under old regulations after repeal of FERA.
3. Whether permission issued under old Act is saved u/s 49 of FEMA?
4. Whether repatriation is necessary?
5. Validity of certificate issued by KPMG.
Summary:
The case involved an appeal against an order imposing penalties for violations of the Foreign Exchange Management Act, 1999 and related Regulations. The Adjudicating Officer found violations of Section 6(3)(a) of FEMA read with relevant clauses of the Regulations, and imposed penalties on the Company and its Director. The Tribunal set aside the decision, prompting the Revenue to raise questions of law regarding the validity of permissions granted under the old FERA, the necessity of repatriation, and the acceptance of a certificate from KPMG.
Upon hearing arguments, the Court found that the Tribunal failed to consider the findings of the Adjudicating Officer on each charge independently. As the First Appellate Authority, the Tribunal should have exhaustively considered these findings before making a determination. The Reserve Bank had granted permission for setting up a subsidiary in Mauritius, leading to subsequent investments in other countries. The Adjudicating Officer found most charges proved, except for one, and imposed penalties accordingly.
The Tribunal's decision focused on the continued validity of the RBI permission post-FEMA enactment, neglecting other charges. The Court noted the lack of consideration for the Adjudicating Officer's findings and remanded the case for a fresh decision. The Court refrained from expressing opinions on the questions of law raised, leaving them to be decided by the Appellate Tribunal. The case was disposed of without costs, with one charge excluded from further proceedings.
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2011 (12) TMI 655
Issues involved: Appeal against dismissal of writ petition challenging revocation of approval for GSM based Cellular Telephone Services due to lack of security clearance.
Summary:
1. The appellants appealed against the dismissal of their writ petition challenging the revocation of approval for GSM based Cellular Telephone Services due to lack of security clearance. Original files were produced for perusal, and additional documents were filed by the appellants.
2. The writ petition challenged the FIPB's revocation of approval for GSM services due to lack of security clearance. Relief was sought for reconsideration of the security clearance refusal.
3. The Single Judge provided a detailed judgment on the facts of the case.
4. The Single Judge found the decision to revoke security clearance based on secret sources to be satisfactory and not subject to interference. The Judge also rejected the appellants' plea for disclosure of information, citing the need to protect the sources of information.
5. The Single Judge held that lack of security clearance was a valid reason for revocation of FIPB approval. The decision-making process for foreign investments involves confidential information, and unless mala fide intent is proven, the decision stands.
6. The Court affirmed the Single Judge's findings, stating that no mala fides or victimization were evident in the decision-making process. The expertise of government agencies in security matters was acknowledged, and judicial interference was deemed inappropriate.
7. The Court found the appellants' arguments regarding developments since 2005 and structural changes to be irrelevant to the revocation decision.
8. The appellants' request for further inquiry based on additional documents was denied, as the existing intelligence inputs were deemed sufficient by the Court.
9. The appeal was dismissed for lack of merit.
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2011 (12) TMI 260
Import of Toyota Lexus Car - Department: Illegal purchase - Appellant: gifted by father-in-law, no reasonable opportunity provided, not asked for documents, notice barred by limitation - Notice issued under FERA - Held That:- Section 49(3) of FEMA has replaced FERA,the two years period was to expire on 31.5.2000, notice not effected by period of limitation. The act do not contemplate any time however period of 5 days can be considered as reasonable specially when appellant replied during such period. On ground of documents when the appellant was required to show whether he got any permission for such transaction, there would not have been any hesitation for the appellant to submit the same and it cannot be said. Decided against assessee.
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2011 (11) TMI 766
Issues Involved:
1. Validity of the "reasons to believe" recorded by the competent authority u/s 6 of SAFEMA.
2. Nexus between the alleged smuggling activity and the acquisition of properties.
3. Burden of proof u/s 8 of SAFEMA.
Summary:
1. Validity of the "reasons to believe" recorded by the competent authority u/s 6 of SAFEMA:
The petitioner challenged the order dated 28-11-1994 passed u/s 7(1) and 7(3) of SAFEMA, the appellate Tribunal order dated 8-3-1996, and the rectification order dated 8-5-1996 u/s 20 of SAFEMA. The competent authority issued a notice dated 10-5-1978 u/s 6 of SAFEMA, stating that the properties listed in the schedule were acquired illegally. The "reasons to believe" were based on information from the Commissioner of Income Tax, which showed discrepancies in the petitioner's income tax returns and assessments. The competent authority concluded that the source of investments in properties and assets was not explained or proved, thus falling under sec. 3(1)(c)(iii) of SAFEMA.
2. Nexus between the alleged smuggling activity and the acquisition of properties:
The petitioner argued that the "reasons to believe" did not establish any nexus between the alleged smuggling activity and the acquisition of properties. The petitioner had never been convicted for any offense, and no source material connected the alleged smuggling activity to the funds used to acquire the properties. The respondent contended that the nexus need not be established for the detenu's own property, only for benami properties held in the name of others. The court referred to precedents, including Fatima Mohd. Amin (2003) and P.P. Abdulla (2007), which emphasized the need for a clear link between illegal activities and the properties sought to be forfeited.
3. Burden of proof u/s 8 of SAFEMA:
The respondent argued that u/s 8 of SAFEMA, the burden of proving that the properties were not illegally acquired lay on the petitioner. The petitioner failed to explain the source of income for the properties. However, the court noted that the "reasons to believe" did not establish a nexus between the income from alleged smuggling activities and the acquisition of properties. The court cited Shanti Devi v. Union of India (1998), which held that the burden of proof u/s 8 comes into play only when a nexus is established between the property and the illegal activity.
Conclusion:
The court found that the "reasons to believe" recorded by the competent authority were insufficient to establish a nexus between the alleged smuggling activity and the acquisition of properties. Consequently, the notice issued u/s 6(1) of SAFEMA was not valid, and the orders passed by the competent authority and the appellate Tribunal were quashed. The parties were left to bear their respective costs.
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2011 (11) TMI 62
Condonation of delay - the benefit of Section 14 of the Limitation Act cannot be extended to the appellants.- After having made a prayer that the writ petitions filed by them be treated as appeals under Section 35, two of the appellants filed applications for recall of that order. No doubt, the learned Single Judge accepted their prayer and the Division Bench confirmed the order of the learned Single Judge but the manner in which the appellants prosecuted the writ petitions before the Delhi High Court leaves no room for doubt that they had done so with the sole object of delaying compliance of the direction given by the Appellate Tribunal and, by no stretch of imagination, it can be said that they were bona fide prosecuting remedy before a wrong forum. Rather, there was total absence of good faith, which is sine qua non for invoking Section 14 of the Limitation Act. Regarding undue hardship - instead of coming clean, they tried to paint a gloomy picture about their financial position, which the Appellate Tribunal rightly refused to accept. If what was stated in the applications filed by the appellants and affidavit dated 10.10.2008 is correct, then the appellants must be in a state of begging which not even a man of ordinary prudence will be prepared to accept. To us, it is clear that the appellants deliberately concealed the facts relating to their financial condition. Therefore, the Appellate Tribunal did not commit any error by refusing to entertain their prayer for total exemption.
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2011 (9) TMI 428
Compounding - Foreign Exchange from NRO for Equity Subscription - Amount received in names of director instead of sending the amount towards credit to the companys account - Held That:- Facts of each case to be seen before compounding .There is a public interest element in the enactment of regulatory statutes such as the FEMA. Whether compounding of a breach would compromise the public interest involved in the enforcement of law has to be considered in the facts of each case. With regard to the sensitivity nature of the contravention the matter will have to be further investigated by the Directorate of Enforcement
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2011 (7) TMI 1312
Issues Involved:
1. Cancellation of admission for post-graduate course in N.R.I. category.
2. Definition and eligibility of 'Non-Resident Indian' (N.R.I.) under the Income Tax Act.
3. Application of the doctrine of promissory estoppel.
4. Compliance with the guidelines laid down by the Supreme Court regarding N.R.I. quota admissions.
Detailed Analysis:
1. Cancellation of Admission for Post-Graduate Course in N.R.I. Category:
The petitioner, a student, challenged the cancellation of her admission to a post-graduate course in General Medicine under the N.R.I. category for the academic year 2011-2012. The respondent college initially accepted her application and granted provisional admission. However, the admission was later canceled on the grounds that her stay abroad on a visitor's visa did not qualify her as an N.R.I.
2. Definition and Eligibility of 'Non-Resident Indian' (N.R.I.) Under the Income Tax Act:
The petitioner argued that her stay outside India for 186 days qualified her as an N.R.I. under Section 6 of the Income Tax Act, 1961. The court examined the definitions under Sections 2(30), 2(42), and 6 of the Income Tax Act. It concluded that simply staying outside India for 182 days or more does not automatically qualify one as an N.R.I. The court emphasized that the petitioner's stay on a visitor's visa did not meet the criteria for N.R.I. status as per the relevant provisions and the intent behind the N.R.I. quota.
3. Application of the Doctrine of Promissory Estoppel:
The petitioner contended that the cancellation of her admission violated the principle of promissory estoppel, arguing that she had altered her position based on the respondent's promise of admission. The court refuted this, stating that promissory estoppel requires clear and positive intention and equity from the petitioner. It was noted that the provisional nature of the admission and the subsequent discovery of the petitioner's ineligibility justified the cancellation. The court held that enforcing the doctrine in this case would perpetuate an illegality.
4. Compliance with the Guidelines Laid Down by the Supreme Court Regarding N.R.I. Quota Admissions:
The respondent argued that the cancellation was in line with the Supreme Court's guidelines in P.A. Inamdar and Ors. v. State of Maharashtra and Ors., which emphasized that N.R.I. quota seats should be utilized bona fide by NRIs and their children or wards. The court agreed, underscoring that the petitioner's admission under the N.R.I. quota was not justified as neither she nor her parents were NRIs. The court highlighted the need for strict adherence to the guidelines to prevent misuse of the N.R.I. quota.
Conclusion:
The court concluded that the petitioner did not meet the eligibility criteria for N.R.I. status and that the respondent's decision to cancel the admission was justified. The petition was rejected, with the court emphasizing the importance of adhering to statutory definitions and Supreme Court guidelines to maintain the integrity of the N.R.I. quota admissions. The court also noted that it could not interfere with the internal administrative decisions of educational institutions unless there was a clear violation of statutory provisions or arbitrariness.
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2011 (7) TMI 1291
Issues Involved:
The judgment involves the challenge to the acquittal of the Respondent for the charge u/s 56(1) of Foreign Exchange Regulation Act 1973 (FERA) by the Special Court for Economic Offences, Bangalore.
Issue 1: Service of Summons under FERA
The Appellant, an Assistant Director in Enforcement Directorate, issued summons to the Respondent under Section 40 of FERA for investigation. The summons were affixed on the premises as the Respondent was not available. The Appellant alleged that the Respondent contravened Clause 40(3) of FERA, punishable u/s 56(1)(ii) of FERA. The Trial Court acquitted the Respondent, leading to the appeal.
Issue 2: Legal Interpretation of FERA Provisions
The Appellant argued that the Respondent disobeyed the summons issued u/s 40(3) of FERA, which constitutes an offence u/s 56(1) of FERA. However, the High Court analyzed the provisions of FERA, emphasizing that disobedience of summons is distinct from contravention of FERA provisions. The Court referred to a Kerala High Court decision supporting this interpretation.
Judgment Summary:
The High Court examined the provisions of FERA related to issuing summons and serving them under Rule 3 of Foreign Exchange Regulation Rules, 1974. The Court noted that the Appellant followed the prescribed procedure for substituted service by affixing the summons on the premises where the Respondent last resided. The Appellant alleged that the Respondent contravened FERA provisions, leading to the charge u/s 56(1)(ii) of FERA.
Upon analysis, the Court concluded that disobedience of summons is not equivalent to contravention of FERA provisions. The Court highlighted that the disobedience of summons does not constitute an offence under FERA. Referring to a Kerala High Court decision, the Court emphasized the distinction between disobeying a summons and contravening FERA provisions. Consequently, the Court upheld the Trial Court's acquittal of the Respondent, stating that the Appellant failed to establish grounds for interference. Therefore, the appeal was dismissed.
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2011 (7) TMI 861
Whether an Appellant who files an appeal before the High Court under Section 35 of the Foreign Exchange Management Act, 1999 can seek an exclusion of time under Section 14 of the Limitation Act, 1963 - it is evident that Section 35 of the FEMA makes a special provision to the effect that an appeal before the High Court can be filed within a period of sixty days from the date of the communication of the decision or order of the Appellate Tribunal - Where the conditions which are spelt out in Section 14 of the Limitation Act are fulfilled, an exclusion of the period provided for therein, would be warranted in determining as to whether the appeal under Section 35 of the FEMA is within limitation - Held that: the appeal has been filed within the maximum period of 120 days. Sufficient ground for condoning the delay of sixty days within the meaning of the proviso to Section 35 has been made out in the Civil Application - Delay is condoned
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2011 (5) TMI 1097
The Supreme Court of India in 2011 (5) TMI 1097 - SC Order, with judges Mr. Markandey Katju and Mrs. Gyan Sudha Misra, condoned delay and granted leave for tagging with Civil Appeal arising out of SLP (C.) No. 8442/2010.
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2011 (5) TMI 994
Issues Involved:
1. Non-application of mind by the detaining authority.
2. Inordinate and unexplained delay in the execution of the detention order.
Detailed Analysis:
Non-application of Mind by the Detaining Authority:
The first ground for challenging the detention order was the non-application of mind by the detaining authority. The petitioner's counsel highlighted Paragraph 19 of the grounds of detention, which stated, "I am aware that Shri Mosarraf Hossain i.e. you have not sent any retraction in respect of your statement recorded by Directorate of Revenue Intelligence officials of Kolkata Zone." The counsel argued that no statement under Section 108 of the Customs Act, 1962, was recorded by the DRI officials, and thus, there was no question of retraction. This plea was specifically mentioned in the representation dated 12.11.2010, which was rejected without reference to this plea on 08.12.2010. This demonstrated non-application of mind by the detaining authority, warranting the setting aside of the detention order.
In response, the respondents' counsel argued that the reference to retraction was a typographical error, referring to a statement by a co-detenue, Mohibur Rehman. The counsel cited the Supreme Court's decision in *Kirti Kumar Nirula v. State of Maharashtra* to argue that minor typographical errors should be ignored. However, the court found that the detaining authority made a positive and incorrect statement about the detenue's statement and its retraction, which was significant in the decision-making process. This constituted non-application of mind, making the detention order liable to be set aside.
Inordinate and Unexplained Delay in the Execution of the Detention Order:
The second ground was the delay of 63 days in executing the detention order, issued on 30.08.2010 but served on 01.11.2010. The petitioner's counsel argued that the detenue had been regularly attending the DRI office, as evidenced by diary entries, yet the detention order was not served during this period. The counsel cited the Supreme Court's decision in *A. Mohammad Farook v. Jt. Secy to G.O.I.* and this court's decision in *Saud Nihal Siddique v. Union of India*, which held that unexplained delays in executing detention orders vitiate the orders.
The respondents' counsel argued that the detaining authority was distinct from the sponsoring authority (DRI) and was unaware of the detenue's regular attendance at the DRI office. However, the court found that the detaining authority was aware of the interim bail order dated 18.08.2010, which required the detenue to report weekly to the DRI. This was evident from Paragraph 12 of the grounds of detention and the list of relied upon documents. The respondents failed to satisfactorily explain the delay, leading the court to conclude that the unexplained delay of 63 days rendered the detention order invalid.
Conclusion:
The court held that the petitioner succeeded on both grounds. The non-application of mind by the detaining authority and the unexplained delay in executing the detention order both warranted the quashing of the detention order. Consequently, the writ petition was allowed, and the detention order dated 30.08.2010 and the confirmation order dated 20.01.2011 were quashed. The respondents were directed to set the detenue at liberty forthwith.
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2011 (5) TMI 16
Condonation of delay - Section 35 of FEMA - Any person aggrieved by any decision or order of the Appellate Tribunal may file an appeal to the High Court within sixty days from the date of communication of the decision or order of the Appellate Tribunal on any question of law arising out of such order - Provided that the High Court may, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the said period, allow it to be filed within a further period not exceeding sixty days. " Held that: Applicant filed the appeal beyond time by 291 days - Therefore, this Court cannot condone the delay of 291 days in filing the appeal - Thus, the Civil Application is dismissed with no order as to costs.
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