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TMI Blog2000 (5) TMI 586X X X X Extracts X X X X X X X X Extracts X X X X ..... ummoned under Section 40 of the Foreign Exchange Regulation Act, 1973 (hereinafter referred to as 'the Act') to comply with the directions under the summons, would attract the provisions of Section 56 of the Act? The High Court by the impugned judgment came to the conclusion that the provisions of Section 56 of the Act will not get attracted for violations of the directions under Section 40 of the Act and, accordingly, the complaints filed for such violation and cognizance taken in the complaint cases have been quashed. 2. Mr. Mukul Rohtagi, the learned Additional Solicitor General, contended that the power having been conferred on the officers of the Enforcement Directorate to summon any person, whose attendance is necessary, either to give evidence or to produce a document, in course of any investigation or proceeding under the Act and the Act itself having made it binding on the person summoned to attend, as provided in sub-section (3) of Section 40, the refusal on the part of the person summoned to carry out the obligation under the statute, should be seriously viewed and must be held to be a contravention of the provisions of the Act, making such contravention punishable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. - (1) Without prejudice to any award of penalty by the adjudicating officer under this Act, 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), clause (a) of sub-section (1) of Section 19, sub-section (2) of Section 44 and Section 57 and 58] or of any rule, direction or order made thereunder, he shall, upon conviction by a court, be punishable - (i) in the case of an offence the amount or value involved in which exceeds one lakh of rupees with imprisonment for a term which shall not be less than six months, but which may extend to seven years and with fine; Provided that the Court may, for any adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months; (ii) in any other case, with imprisonment for a term which may extend to three years or with fine or with both. (2) If any person convicted of an offence under this Act [not being an offence under Section 13 or clause (a) of sub-section (1) (Section 18 or Section 18A) or clause (a) of sub-section (1) of Section 19 or sub-section (2) of Section 44 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... msp;For the-purposes of sub-sections (1) and (2), the fact that an offence under this Act has caused no substantial harm to the general public or to any individual shall be an adequate and special reason for awarding a sentence of imprisonment for a term of less than six months. (6) Nothing in [the proviso to Section 188 of the Code of Criminal Procedure, 1973] shall apply to any offence punishable under this Section." The answer to the questions raised would depend upon an analysis and interpretation of the aforesaid two provisions of the Act. The Foreign Exchange Regulation Act, 1973 was enacted by the Parliament, basically for the conservation of the foreign exchange resources of the country and the proper utilisation thereof in the interest of economic development of the country. The Act having been enacted in the interest of national economy, the provisions thereof should be construed so as to make it workable and the interpretation given should be purposive and the provisions should receive a fair construction without doing any violence to the language employed by the Legislature. The provisions of Section 40 itself, which confers power on the officer of Enforcement Di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n in Criminal O.P. No. 5468 and 5629 of 1996 and was disposed of by the learned Judge of the Madras High Court by judgment dated 1-8-97. The Madras High Court also came to the conclusion that the entire Section 56 of the Act is identified and substantiated only in terms of the extent and value of the money involved in the offence, and therefore, violation or contravention of summons, issued under Section 40 of the Act un-related to the money involved in the investigation cannot be held to be punishable under Section 56. Against the aforesaid judgment of the Madras High Court, the department had preferred appeals to this Court, which were registered as Criminal Appeal Nos. 143-144/98, but the question raised was not necessary to be answered as the persons concerned appeared before the Enforcement Authorities and were arrested by the said Enforcement Authority and, therefore, this Court kept the questions of law open by its order dated 20th July, 1998. In yet another case, the question arose for consideration before the Madras High Court in Criminal O.P. No. 5718/96 and a learned Single Judge did not agree with the earlier decision of the said High Court in Criminal O.P. Nos. 5468 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s., 1996 (9) SCC 735 had not been brought to the notice of the High Court. In the aforesaid case, one of the questions for consideration before this Court was whether the provisions of Sections 4 and 5 of the Code of Criminal Procedure would come in aid of the investigation of the offence under FERA by a member of police force like an officer of DSPE in accordance with the Code of Criminal Procedure? This Court held : ".......... But FERA is a self-contained code containing comprehensive provisions of investigation, inquiry and trial for the offences under that Act. The provisions under FERA gives power to the officers of the Directorate of Enforcement or other officers duly authorised by the Central Government under FERA to search, confiscate, recover, arrest, record statements of witnesses etc. FERA contains provisions for trial of the offences under FERA and imposition of punishment for such offences. FERA, being a special law, containing provisions for investigation, enquiry, search, seizure, trial and imposition of punishment for offences under FERA, Section 5 of the Code of Criminal Procedure is not applicable in respect of offences under FERA." In view of the aforesaid aut ..... X X X X Extracts X X X X X X X X Extracts X X X X
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