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TMI Blog2019 (4) TMI 1088X X X X Extracts X X X X X X X X Extracts X X X X ..... ith certain documents and, therefore, his presence was necessary. The petitioner had voluntarily agreed to appear by teleconferencing and also make all arrangements for the same, however, that was not accepted. In this regard, the Division Bench of this Court in Lalit Kumar Modi [ 2014 (10) TMI 527 - DELHI HIGH COURT] had observed that FEMA did not entail custodial interrogation and, therefore, a request for an alternate mode of examination by video conferencing ought not to be shrugged aside This Court is of the view that the controversy involved in the present petition is covered by the decision of the Division Bench in Lalit Kumar Modi [ 2014 (10) TMI 527 - DELHI HIGH COURT] and the petitioner s passport could not be suspended in public interest. In terms of Section 10(1)(e) of the Passports Act, a passport can be cancelled in cases where offence alleged to have been committed by the holder of passport is pending before a criminal court in India. Further, in terms of Section 10(3)(h) of the Passports Act, a passport can be cancelled if a warrant or summons for the appearance, or a warrant for the arrest, of the holder of the passport has been issued by a Court und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h as it is not based on any relevant material and is completely contrary to the records. The petitioner further contends that he is an NRI and, thus, not covered by the provisions of FEMA. The respondents, on the other hand, contend that Section 3 of the FEMA covers resident, non-resident and foreignnationals and various Regulations of FEMA are also applicable to the NRIs and Person Resident Outside India. 5. The limited controversy which falls for consideration of this Court is whether the action of the respondents to impound the passport of the petitioner is sustainable in law. Factual Background 6. Pursuant to an order dated 26.03.2007 passed by the Supreme Court in a writ petition filed by the petitioner (being W.P.(C) 531/2006 captioned Junaid Iqbal Memon v. Union of India Ors.), a passport was issued to the petitioner. 7. Pursuant to the investigation conducted by the ED under the provisions of FEMA, ED issued certain directives by way of letters dated 10.04.2015to the petitioner calling upon him to furnish information in relation to four companies M/s Vantage Enterprises Pvt. Ltd, M/s Rock Stone Reality Hotels Pvt. Ltd., M/s Relators Hotels Projects P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (the Foreign Secretary, Ministry of External Affairs, Government of India) requesting to revoke the passport of the petitioner. In response, respondent no.2 sent a letter dated 21.08.2015 to the ED stating that necessary action has been initiated by this Ministry in this regard. CGI, Dubai has suspended the passport of Sheri Memon w.e.f 20/08/2015 for a period of 4 weeks which will be followed by a Show Cause Notice for impounding/revocation of his passport . 13. Thereafter, the petitioner sent a letter dated 21.09.2015 furnishing the details/documents as sought by the ED. The petitioner was further called upon to appear personally before the ED on 01.10.2015. The petitioner failed to appear personally and on 28.09.2015, the authorized representative of the petitioner appeared before the ED and sought for advancement of the scheduled proceedings for 01.10.2015 to 28.09.2015. The next date for the petitioner s appearance was fixed on 05.10.2015 but the petitioner again failed to appear in person on the said date. Consequently, fresh summons dated 05.10.2015 were issued to the petitioner calling upon him to appear in person on 19.10.2015. 14. In the meanwhile, the Consulate G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the present case, would result in the concerned officer making a complaint to the adjudicating authority under Section 16 of the FEMA. On such complaint being made, the adjudicating authority would hold such enquiry under sub-section (1) of Section 16 of FEMA. It is material to note that even at that stage, the person accused has the option to either appear in person or by taking the assistance of a legal practitioner or a chartered accountant of his choice for presenting his case before the adjudicating authority by virtue of sub-section (4) of Section 16 of FEMA. 20. In view of the aforesaid Scheme, the Division Bench had repelled the contention that a passport could be suspended or revoked under Section 10(3)(c) of the Passports Act on account of nonappearance before the investigation proceedings under FEMA. 21. The Court had also noticed that provisions of FEMA do not entail custodial interrogation and, therefore, an alternative mode of examination under video conferencing was an option available to the ED. 22. In the present case, the petitioner is a non-resident Indian and contends that the provisions of FEMA are inapplicable. Notwithstanding the aforesaid conten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssport is pending before a criminal court in India. Further, in terms of Section 10(3)(h) of the Passports Act, a passport can be cancelled if a warrant or summons for the appearance, or a warrant for the arrest, of the holder of the passport has been issued by a Court under any law for the time being in force. 27. It is also contended on behalf of Mr. Mahajan that subsequent to the decision in Lalit Kumar Modi (supra), the provisions of Section 13 of FEMA had been amended and in terms of Sub-section 1(B) of Section 13, prosecution could be initiated by filing a criminal complaint for violation under sub-section 1(A) of Section 13 and in terms of Sub-section 1(C) of Section 13, the delinquent could also be imprisoned for a term extending to five years. In view of this Court, the said amendments do not dilute the precedent value of the said decision. This is so because the criminal prosecution as contemplated under Section 13(1C) of FEMA can be commenced by filing a criminal complaint. Plainly, if such a complaint is filed and summons are issued by a competent court, the passport facilities provided to the accused could be withdrawn by virtue of Section 10(3)(h) of the Passports ..... X X X X Extracts X X X X X X X X Extracts X X X X
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