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TMI Blog2015 (5) TMI 907X X X X Extracts X X X X X X X X Extracts X X X X ..... t to notice the following broad facts :- 2.1 It appears that based on information received by the Enforcement Directorate (in short the E.D.), a raid was conducted at D-43, Minto Road, Rouse Avenue, New Delhi on 18.05.1995. The petitioner was apparently found in the premises which was searched by the officers of the E.D., in exercise of powers under Section 37 of the Foreign Exchange Regulation Act, 1973 ( in short FERA). 2.2 At the time of search, a sum of Rs. 7 lakhs and certain documents were seized and recovered from the petitioner by the officers of the E.D. A statement purportedly made by the petitioner was also recorded. 2.3 The petitioner was served with a SCN. In the SCN, broadly, the allegation made against the petitioner, was that, in his statement he had accepted the fact that he was receiving and distributing moneys at the behest of one Mr. Haji, a resident of Dubai; for which, he was, receiving commission at the rate of Rs. 200/- per one lakh rupees. This activity, as per the statement of the petitioner made to respondents, and as, recorded in the SCN, was on since, middle of April, 1995. 2.4 There was also a reference to certain codes which evidently the petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other communication dated 23.10.1998, though this time, the communication was sent via his advocate. 3.5 In this communication sent by the petitioner's advocate, reference was made to the earlier communications on the subject, dated 13.08.1997 and 24.01.1998. The assertion in this communication apart from anything else was the failure on the part of E.D. to supply the relied upon documents. On the record, the petitioner has placed copies of postal receipts of all three communications i.e., communication dated 13.08.1997, 24.01.1998 and 23.10.1998. 3.6 The record shows that E.D. responded to the petitioner's communication dated 23.10.1998 for the first time on 19.11.1998. By this reply, the petitioner was told that he could inspect or obtain copies of documents at his cost, on any working day from the office of the Deputy Director, E.D., located at Delhi. 3.7 By a return letter dated 30.11.1998, the petitioner's advocate wrote to the Deputy Director, E.D. positioned in the Zonal Office, in Delhi, that intimation be given to him as to the amount and the entity in whose favour a draft had to be drawn up for supply of relied upon documents. In this letter, reference was given to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... um, the petitioner via his advocate vide letter dated 16.12.2013 wrote to the respondents that on the earlier occasion, he had asked for opportunity to cross-examine : persons who were witness to the search carried out at the Minto Road premises on 18.05.1995 and co-noticees, whose statements had been relied upon in the SCN served upon the petitioner. It was further pointed out that one of the documents supplied on 21.11.2013 (which was found at page 18 of the compilation) was completely illegible. The fact that proceedings had gone on for 18 years, which had taken a toll on the petitioner's health, resources and financial capacity, was also brought to fore. A prayer was made that the proceedings against the petitioner ought to be dropped. In the alternative it was stated that in case the respondents chose to proceed ahead, they should supply him with the copy of the document, which was found to be illegible, and also, produce the persons referred to in the said letter for cross-examination. 4.5 The record seems to show that proceedings fixed on 19.12.2013 were adjourned for two dates i.e., 20.12.2013 and 23.12.2013, on account of the counsel for the petitioner having been inflict ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ounsel, was to be utilized for the said purpose. The explanation given for his presence at Minto house premises was thus : the petitioner had on one of his trips to Delhi befriended one, Mr. Prem, who had asked him to visit his place located at Minto Road. 5.5 According to the learned counsel, the petitioner was accosted and, thereafter, arrested and implicated only for the reason that the other person, one, Mr. Prem could not be found at the Minto Road premises. 5.6 It was also Mr. Handoo's contention that in the eyes of law, the service of SCN had no relevance till such time it was accompanied by the relied upon documents. The learned counsel contended that only a part of the documents relied upon, were supplied, that too, after, nearly six years, on 17.03.2004, which enabled the petitioner to file a reply on 27.07.2004. The learned counsel went on to stress that the respondents did not reactivate the matter till 2013, save and except for an opportunity being given in December 2006, for cross-examining two official witnesses. 5.7 Mr. Handoo, thus said, that, in this process the respondents have ensured that the Sword of Damocles keeps hanging on the petitioner. The enormous ti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the learned counsel, thus was, that after the petitioner was supplied documents on 17.03.2004, the case was heard on 17.10.2005 when, upon a request made by the petitioner for cross-examination of co-noticees and the investigating officer, he was permitted cross-examination of two official witnesses on 20.12.2006. 6.5 As regards the petitioner's request for supply of the illegible fax was concerned, Mr. Jasmeet Singh stated that since the fax was available on thermal paper, the same had become illegible over a period of time. 6.6 Apart from the above, what was sought to be conveyed by the learned counsel, was that, the petitioner's story was completely unbelievable which is that, he was carrying a sum of Rs. 7 lakhs to purchase medicines when, at the relevant point in time, under the provisions of Section 40A (3) of the Income Tax Act, 1961, a person could not make purchases of goods in cash exceeding Rs. 20,000/- on any one single day. It was contended that the petitioner had failed to produce documents such as, the Sales Tax Returns, Income Tax Returns, and accounts for the period prior to 1995 to substantiate and justify that he made purchases valuing Rs. 7 lakhs on one single ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used to defend himself on account of death, dis-appearance or non-availability of witnesses. The court also factored in caveats such as : determination to answers, as to who was responsible for the delay; as every delay, does not necessarily prejudice the accused. What is important is the two observations of the court. First, that "proceedings taken by either party in good faith to vindicate their rights and interests as perceived by them, cannot be treated as delaying tactics nor can the time taken in pursuing such proceedings be counted towards delay..". Second, "inordinately long delay may be taken as presumptive proof of prejudice..". 7.2 It goes without saying as was also observed by the court that frivolous proceedings or proceedings taken out to merely delay the day of reckoning cannot be treated as proceedings taken in good faith, and that, mere fact on an application or petition, a stay is granted by a superior court is no ground to construe that the proceedings are not frivolous as very often such orders are obtained on exparte representation. In effect, it was observed by the court that while it may not be advisable or practicable to fix time limit for trial of offences ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adjudicate upon the matters which took place in the year 1980-82 and for the first time, the notices were issued after lapse of more than 12 years. 10. It is no doubt true that no period of limitation in the Statute to complete the adjudication proceeding is prescribed. But the Apex Court in the case of Government of India Vs. The Citedal Fine Pharmaceuticals Madras and Ors, 1989 (42) E.L.T. 515 (S.C.) = AIR 1989 SC 1771 was pleased to rule that in absence of any period of limitation, it is settled that every Authority is to exercise the power within a reasonable period. What would be reasonable period would depend upon the facts of each case. No hard and fast rules can be laid down in this regard as the determination of the question will depend upon the facts of each case. 11. Having taken survey of the law holding the field, the factual matrix of the case in hand, unequivocally go to show that the impugned action is sought to be taken after lapse of period of more than 12 years to adjudicate upon acts and omissions alleged to have been committed in the year 1982. No justification is placed on record to justify inaction for such a long period of 12 years for which petitioner is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of search, by this time, nine (9) years had elapsed. (vi). According to the respondents, upon receipt of the petitioner's reply dated 27.07.2004, effective proceedings were held for the first time on 17.10.2005; which was a decade after the occurrence of the alleged infraction of the law by the petitioner. (vii). On the request of the petitioner, opportunity was granted to cross-examine only the official witnesses, that too, after 14 months i.e., 20.12.2006. (viii). From there on, till 15.10.2013, which is a period of nearly 7 years, the respondents, in a manner of speech, went into a state of comatose. The proceedings were resurrected, which led to a spate of correspondence, to which I have made a reference above. 10. In this circumstances, can it be said that the petitioner was responsible for delay in conclusion of the adjudicatory process. In my view, the answer has to be in the negative. The petitioner, was entitled in law to seek copies of the relied upon documents. The fact that respondents admittedly kept them back till March 2004 clearly shows that either they lacked, for whatever reasons, the interest to prosecute the petitioner or, they had no actionable case against ..... X X X X Extracts X X X X X X X X Extracts X X X X
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