9911796707
TMI Blog2011 (12) TMI 260X X X X Extracts X X X X X X X X Extracts X X X X ..... change Regulation Act, 1973 (hereinafter referred to as FERA) by the third respondent, alleging that he contravened the provisions of FERA while purchasing a Toyoto Lexus car from London under a fictitious transaction, making use of the name of one Dr.S.Balakrishnan, No.3, Shelley Avenue, Manor Park, London-E126, UK, employed as an anesthetist in the National Health Service of England and said to be a friend of the father-in-law of the appellant. It was also alleged that the vehicle was illegally imported to India, by offering under-valuation of the car for the purposes of payment of import duty. 2. While it is the allegation of the respondents/Department that it is an illegal purchase made by the appellant, it is the case of the appellant that the said car was gifted to him on the occasion of his marriage by the said Dr.S.Balakrishnan, who is the friend of his father-in-law. It is the contention of the Department that the investigation conducted by the officials of the Directorate General of Revenue Intelligence, Chennai by recording the statements of persons associated with Dr.S.Balakrishnan, would, undoubtedly, prove that Dr.S.Balakrishnan cannot afford to purchase such a valu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore this Court, praying to quash the opportunity notice dated 21.5.2002. Since a learned single Judge of this Court has dismissed the said writ petition, by the order dated 13.11.2002, he has come forward to file this appeal. 5. Mr.Vijay Narayanan, learned senior counsel appearing for the appellant would argue that in the entire opportunity notice, no specific allegation has been made against the appellant, except saying, at one paragraph, that the car has been purchased for the appellant. He would further argue that FERA has been repealed w.e.f. 31.5.2000, since FEMA came into operation from 1.6.2000 and the impugned opportunity notice under Section 61(2)(ii) of FERA has been issued on 21.5.2002 i.e. just before expiry of two years period from the date of repeal of FERA, only to save limitation, provided under Section 49(3) of FEMA, giving a very short period of five days time for the appellant to reply and this indicates the manner in which the Department has acted in a hurried and vindictive manner, by leaving to winds the avowed principles of natural justice and audi alteram partem, besides indicating their preconceived ideas and views. He has further argued that in spite of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h effect from January 1, 1974 in order to 'regulate certain payments, dealings in foreign exchange and securities, transactions indirectly affecting foreign exchange and the import and export of currency, for the conservation of foreign exchange resources of the country.' FERA imposed stringent regulations on certain kinds of payments, the dealings in foreign exchange and securities and the transactions which had an indirect impact on the foreign exchange and the import and export of currency. 8. After economic liberalisation, FERA was repealed in 1999 by the Government and replaced by the Foreign Exchange Management Act (FEMA), which liberalised foreign exchange controls and restrictions on foreign investment. It came into operation w.e.f.1.6.2000. 9. Though FERA was repealed w.e.f. 31.5.2000, Section 49 of FEMA, saved the actions already initiated under FERA, besides granting a time limit of two years from the date of repealing to initiate fresh proceedings under FERA. To better understand the intention of Legislature, we shall now extract hereunder Section 49 of the FEMA: "49. Repeal and Saving: (1) The Foreign Exchange Regulation Act, 1973 (46 of 1973) is hereby repeale ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by sufficient cause from filing the appeal within the said period. (6) Save as otherwise provided in sub-section (3), the mention of particular matters in sub-sections (2), (4) and (5) shall not be held to prejudice or affect the general application of section 6 of the General Clauses Act, 1897 (10 of 1897) with regard to the effect of repeal." 10. Therefore, under sub-section (3) of this Section, no Court shall take cognizance of an offence under the repealed Act and no Adjudicating Officer shall take notice of any contravention under section 51 of the repealed Act after the expiry of a period of two years from the date of the commencement of this Act. 11. In the case on hand, the undisputed fact is that the present FERA proceedings have been initiated against the appellant and others on 21.5.2002, by issuing the opportunity notice, before expiry of the two years limitation period prescribed under Section 49(3) of FEMA. (FERA being repealed on 31.5.2000, the two years period was to expire on 31.5.2002). Therefore, it cannot be said that the proceedings initiated are hit by limitation. But, a strenuous argument has been advanced on the part of the appellant that only to sav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the provisions of FERA and since one of the ingredients of the offence is absence of permission from the authority concerned, they are intended only to give an opportunity to the appellants to show that they had the necessary permission and hence, there was no violation of the relevant provision or provisions of FERA as sought to be made out in the notice. As pointed out by the learned Additional Solicitor General, on the failure of the appellants to show that they had the requisite permission, a complaint will have to be lodged before the Magistrate concerned here it has been launched with the permission of this Court pending these appeals and the Magistrate will consider whether the process should issue on the basis of the complaint made before him. In view of the fact that sufficient opportunities will be available to the appellants to put forward their contentions before the criminal court concerned, it cannot be said that there is any merit in the challenge to the notices issued under Section 61 of FERA. The said notices are really in terms of Section 61 of FERA and their scope and ambit is also controlled by Section 61 of FERA and on receipt of those notices, it was open to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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