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TMI Blog2007 (4) TMI 377X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner, the said firm was duped into exporting said goods to certain company in Hongkong by one Shri Ashok Ramchandani who told the petitioner that he was importer having business interests in Hongkong and Philippines and that the payments would be received in India within 90 days of the dispatch. When the remittance was not realised the petitioner even tried to take the goods back. In that process, to his utter dismay, he found that the address of the buyers supplied by Shri Ashok Ramchandani were not correct and the buyer was a fake entity with no real existence. The firm became defaulter only because it could not secure the receipt of full value for the goods exported from the country within the prescribed period of time. This was taken by the respondent department as violation of section 18(2) of the FERA. The Enforcement Officer (respondent No. 3), therefore, filed a complaint against the petitioner under section 56 of the FERA in the Court of Special Judge (Economic Offences), Jaipur and that Court has taken cognizance against the petitioner as well as others on 31-5-2002. 3. Case now set up by the petitioner is that apart from the various provisions of FERA providing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecede the own evidence of the prosecution. This is so because the accused is not expected to prove his innocence but the burden of proving guilt of the accused beyond reasonable doubt lies on the prosecution. If at this stage, the petitioner is compelled to disclose his defence and reveal the material he wants to rely on in criminal case, there is every likelihood of his defence being prejudiced because it shall then give an opportunity to the prosecution to fill up the lacunae in their case so as to improve its version to fasten the criminal liability on the petitioner. In order to buttress his arguments, Shri S.S. Hora, learned counsel for the petitioner, relied on the judgments of the Hon ble Supreme Court in Kendriya Vidyalaya Sangathan v. T. Srinivas AIR 2004 SC 4127, Capt. M. Paul Anthony v. Bharat Gold Mines Ltd. AIR 1999 SC 1416 and Tata Oil Mills Co. Ltd. v. Workmen AIR 1965 SC 155. 6. Shri S.S. Hora, learned counsel for the petitioner further argued that the FERA has now been repealed by the Foreign Exchange Management Act, 1999 (for short "the FEMA"). Section 8 of the FEMA provides that save as otherwise provided in that Act, where any amount of foreign e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... can take judicial notice of the fact that the provisions in FEMA are far less striker as compared to those in FEMA, there being lessor penalty in the latter and in this connection he relied upon the judgment of the Hon ble Supreme Court in Dale Carrington Invt. (P.) Ltd. v. P.K. Prathapan [2005] 1 SCC 212 and argued on the authority of the said case that requirement of the FERA in any case, when FEMA replaced it, would stand diluted. 7. On the other hand, Shri Kamlakar Sharma, learned Assistant Solicitor General appearing for respondents opposed the writ petition and argued that the proceedings before the departmental authorities are only adjudicatory in nature and so far as the criminal liability of the petitioner is concerned, they shall be decided by the Court of competent jurisdiction where complaint under section 56 of the FERA has been filed. Present writ petition which has been filed merely against the show cause is not maintainable because the authority issuing such notice has not been shown to be lacking in authority. The writ petition is, therefore, liable to be dismissed as misconceived. Pendency of criminal case, is not a bar to the initiation of departmental ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pletion of the criminal trial because continuation of the former would require the petitioner to disclose his defence in the latter which in all probability is likely to prejudice his defence in criminal trial. According to him, since the prosecution in the criminal trial is required to record its evidence prior to recording of evidence by the defence, compelling the petitioner to participate in the adjudicatory proceedings would essentially require him to disclose his defence which would then be available to the departmental authorities and accordingly they shall be prepared beforehand to fill up the lacunae and improve the prosecution case during trial. Reliance in this connection was placed on the judgments of the Hon ble Supreme Court in Tata Oil Mills Co. Ltd. s case ( supra ), Cap. M. Paul Anthony s case ( supra ), and Kendriya Vidhyalay Sangthan s case ( supra ). Apart from the fact that all these judgments pertain to disciplinary proceedings against the employees by their respective employers, the fact remains even those judgments have not conclusively laid down the law of universal application that disciplinary proceedings in every case shall have to be necessarily s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... considering the scope of the confiscation proceedings vis-a-vis the criminal trial, observed that "confiscation of the essential commodity, etc., is not in lieu of punishment but can be in addition to the penal consequences." It was held that "any person who contravenes any order made under section 3 becomes liable to penal action under section 7 and the property in respect of which the order has been contravened becomes liable to forfeiture." 11. Coming now to the argument of double jeopardy, such argument was also raised before the Hon ble Supreme Court in Collector of Customs Central Excise, Bhubneshwar, District Puri v. Paradip Port Trust [1990] 4 SCC 250. Their Lordships in the judgment repelled the argument holding thus : "10.From the foregoing provisions, we find that for the same transaction, act or occurrence in an appropriate case, there may be prosecution and punishment under Chapter XVI and confiscation of goods and conveyances and also imposition of penalty not exceeding one thousand rupees for contravention of any of the provisions of the Act or abetment of any such contravention and for failure to comply with any provisions of the Act with which it was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urces of the country and the proper utilisation thereof in economic development of the country. When interpreting such a law, in the absence of any provision in that regard in the Act itself, we see no reason to restrict the scope of any of the provisions of the Act, especially in the context of the presence of the "without prejudice" clause in section 56 of the Act dealing with offences and prosecutions. We find substance in the contention of the learned Additional Solicitor General that the Act subserves a twin purpose. One, to ensure that no economic loss is caused by the alleged contravention by the imposition of an appropriate penalty after an adjudication under section 51 of the Act and two, to ensure that the tendency to violate is curbed by imposing an appropriate punishment after a due prosecution in terms of section 56 of the Act. The contention that as a matter of construction since the provisions could not be attacked as violative of rights under Part III of the Constitution we should interpret the provisions of the Act and hold that an adjudication has to precede a prosecution cannot be accepted as we see nothing in the provisions of the Act justifying such a construct ..... X X X X Extracts X X X X X X X X Extracts X X X X
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