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TMI Blog2015 (5) TMI 1033X X X X Extracts X X X X X X X X Extracts X X X X ..... h provision is there which does speak about the compounding of the offence as is there under the Central Excise Act and Custom Act. Under the circumstances, the offences under the Foreign Exchange Regulation Act, 1973 punishment of which extend to a period of seven years, cannot be taken to be bailable, rather in terms of the provision as referred to above and also in view of the Second part of Schedule I to Cr.P.C are held as nonbailable. - Cr. M.P. No. 1605 of 2014 - - - Dated:- 22-5-2015 - MR. R.R. PRASAD, J For the Petitioner : Mr. Anil Kumar, Sr. Advocate, Mr. Ashutosh Kr. Singh, Advocate For the Respondent : M/s. A.K.Das, Jyoti Nayan, Advocates ORDER The question, which does arise in this case is as to whether offences, punishment of which extend to seven years, under the Foreign Exchange Regulation Act, 1973 (in short FERA), being noncognizable in terms of Section 62 of the Act, are bailable or nonbailable? 2. Before adverting to the submissions, advanced on behalf of the parties, the facts giving rise to this case, needs to be taken notice of. 3. The case seems to be offshoot of fodder scam cases, which, under the direction of the Patna H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appearing for the petitioner submits that the object of FERA, 1973, is to consolidate and amend the law regulating certain payments dealing in foreign exchange and security transaction indirectly affecting the foreign exchange and the import and export of currency for the conservation of the foreign exchange resources of the Country and the proper utilization thereof in the interest of the economic development of the Country and, thereby, the main object of the legislature is to have proper regulation of the foreign exchange. Though the provision is there also for prosecution but that appears to be a secondary object of the legislature and, as such, the offences in terms of the provisions as contained in Section 62 of FERA Act, has been made noncognizable though punishment for some of the offences in terms of the provisions contained in Section 56 of the Act, extend to seven years but the Act is silent as to whether offence would be bailable or nonbailable? In absence of such provision being there under the said Act, one would be guided by first schedule of the Code indicating therein that most of the offences with certain exceptions under the Indian Penal Code kept in the category ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r which is made bailable by any other law for the time being in force whereas 'nonbailable' offence means any other offence. The Second Part of the Schedule I is with respect to the offences other than IPC, being cognizable or noncognizable; bailable or nonbailable. One of the categories of second part of Schedule I does stipulate that if the offence is punishable with imprisonment for three years and upwards but not morethan seven years, it would be cognizable and nonbailable and, thereby, even if the offences under the Act, have been declared as noncognizable it, in terms of Second Part of the Schedule, would be nonbailable. Further, it was submitted that the decision rendered in the case of Om Prakash Others (supra), would not be applicable in this case as the provisions either under the Central Excise Act, 1944 or Custom Act, 1962, are not in paramateria of the provision as is there under the FERA, rather the provisions relating to arrest, powers of the police or the authority are quite different and, thereby, the decision rendered in the case of Om Prakash Others (Supra), would not be applicable. 11. Thus, the contention, which has been made on behalf of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntral Excise Officer not below the rank of Inspector of Central Excise may, with the prior approval of the Commissioner of Central Excise, arrest any person whom he has reason to believe to be liable to punishment under this Act or the rules made thereunder. 18. Searches and arrests how to be made . - All searches made under this Act or any rules made thereunder and all arrests made under this Act shall be carried out in accordance with the provisions of the Code of Criminal Procedure, 1898 (5 of 1898), relating respectively to searches and arrests made under that Code. 19. Disposal of persons arrested. - Every person arrested under this Act shall be forwarded without delay to the nearest Central Excise Officer empowered to send persons so arrested to a Magistrate, or, if there is no such Central Excise Officer within a reasonable distance, to the officerincharge of the nearest police station. 20. Procedure to be followed by officerincharge of police station. - The officerincharge of a police station to whom any person is forwarded under section 19 shall either admit him to bail to appear before the Magistrate having jurisdiction, or in default of bail f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 28. Having considered the various provisions of the Central Excise Act, 1944 and the Code of Criminal Procedure, which have been made applicable to the 1944 Act, we are of the view that the offences under the 1944 Act cannot be equated with offences under the Indian Penal Code which have been made noncognizable and nonbailable. In fact, in the Code itself exceptions have been carved out in respect of serious offences directed against the security of the country, which though noncognizable have been made nonbailable. 29. However, Subsection (2) of Section ( A makes provision for compounding of all offences under Chapter II. Significantly, Chapter II of the 1944 Act deals with levy and collection of duty and offences under the said Act have been specified in Section 9, which provides that whoever commits any of the offences set out in Section 9, would be punishable in the manner indicated under Subsection 91) itself. What is even more significant is that Section 20 of the 1944 Act, which has been extracted hereinabove, provides that the OfficerinCharge of a police station to whom any person is forwarded under Section 19, shall (emphasis supplied) either admit him to bail to ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to a magistrate. (3) Where any officer of Enforcement has arrested any person under subsection (1), he shall, for the purpose of releasing such person on bail or otherwise, have the same powers and be subject to the same provisions as the officerincharge of a police station has, and is subject to, under the 1[Code of Criminal Procedure, 1973 (2 of 1974)]. 45 Power of police officer and other officers to enter, search, etc. ( 1) Notwithstanding anything contained in the 1[Code of Criminal Procedure, 1973 (2 of 1974), any police officer not below the rank of a Deputy Superintendent] of Police, or any other officer of the Central Government or a State Government authorised by the Central Government in this behalf may enter any public place and search and arrest without warrant any person found therein who is reasonably suspected or having committed or of committing or of being about to commit a contravention of the provisions of subsection (1) of section 8. Explanation. For the purposes of this subsection, the expression public place includes any public conveyance, any hotel, any shop or any other place intended for use by, or accessible to the public. ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. (3) Where a person having been convicted of an offence under this Act, [not being an offence under section 13 or clause (a) of subsection (1) of 2[section 18 or section 18A] or clause (a) of subsection (1) of section 19 or subsection (2) of section 44 or section 57 or section 58], is again convicted of offence under this Act [not being an offence under section 13 or clause (a) of subsection (1) of 1[section 18 or section 18A] or clause (a) of subsection (1) of section 19 or subsection (2) of section 44 or section 57 or section 58], the court by which such person is convicted may, in addition to any sentence which may be imposed on him under this section, by order, direct that that person shall not carry on such business as the court may specify, being a business which is likely to facilitate the commission of such offence for such period not exceeding three years, as may be specified by the court in the order. (4) For the purposes of subsections (1) and (2), the following shall not be considered as adequate and special r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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