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TMI Blog2019 (9) TMI 162X X X X Extracts X X X X X X X X Extracts X X X X ..... There is a principle and/or policy for guidance of exercise of discretion by the Government in the matter of selection of an investigative agency and there is no arbitrary, vague and uncontrolled power with the Government so as to enable it to discriminate between persons or things similarly situated. Accordingly, this Court is of the view that Petitioner s reliance upon State of Punjab vs. Khan Chand [ 1973 (12) TMI 91 - SUPREME COURT] is misconceived. Also as the Notification dated 27th October, 2011 is neither an interpretation nor an understanding of Section 43 of FCRA but a convention/practice/policy to be followed by the Union of India while implementing Section 43, this Court is of the view that judgment of the Apex Court Bhuwalka Steel Industries Ltd. vs. Bombay Iron and Steel Labour Board Anr. [ 2009 (12) TMI 697 - SUPREME COURT] is inapplicable to the present case. Consequently, the Notification dated 27th October, 2011 as well as the consistent practice followed by the Central Government lay down a principle and/or policy in the matter of appointment/selection of an investigative agency under Section 43 of FCRA and saves it from attack on the ground that it vio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of rape or outraging modesty of a woman. Even under FCRA for instance, it is possible that an inspection ordered by Central Government may reveal that foreign funds received by an organisation certified by the Central Government had been used to fund terror activities in the country and in such circumstances, no one can say that investigation under Chapter VIII offences as well as IPC and other terror acts cannot be transferred to specialised agencies like CBI midstream . In fact, the officer appointed by the Central Government under Section 23 of FCRA would neither have the wherewithal nor the expertise to carry out such an investigation. Consequently, to submit that once the Central Government has chosen the route of empowering and authorising a particular officer/authority to conduct inquiry under Sections 23 to 26 and 42 of the FCRA, then it is only that authority which can investigate and file a criminal complaint, if so warranted, is untenable in law. The argument that the power of arrest has been given to officers under Customs Act, Central Excise Act, PMLA etc. and not under FCRA is fallacious as in Customs Act, Central Excise Act, PMLA Acts, the power is give ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said plea will have to be decided after the investigation is over and that too by the appropriate court. Further, this cannot be a ground to challenge the constitutional validity of the provisions of FCRA. Upon perusal of RC 9/2013, ECIR 10/2017 and RC 36/2017, this Court is of the opinion that while RC 9/2013 and ECIR 10/2017 have been registered in relation to undue pecuniary advantage given to Airbus Industry which has caused corresponding loss to the Government, impugned RC 36/2017 relates to violation of FCRA provisions as well as the offences committed under IPC in the process of committing violations under FCRA by the petitioners. In fact, the primary allegation in RC 9/2013 and ECIR 10/2017 is that the concessions obtained by the Empowered Group of Ministers (for short EGOM ) regarding setting up of training centre for US$ 75 million and creation of Maintenance, Repair and Overall facility (for short MRO ) for US$ 100 million were deliberately not made part of the final agreement signed by Indian Airlines with Airbus Industries. Accordingly, RC 36/2017 has nothing to do with pecuniary advantage given to Airbus Industry by the public servants by abusing their offici ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), any offence punishable under this Act may also be investigated into by such authority as the Central Government may specify in this behalf and the authority so specified shall have all the powers which an officer-in-charge of a police station has while making an investigation into a cognizable offence. B) Rule 22 of FCRR:- 22. Returns by the Investigating Agency to the Central Government. - The Central Bureau of Investigation or any other Government investigating agency that conducts any investigation under the Act shall furnish reports to the Central Government, on a quarterly basis, indicating the status of each case that was entrusted to it, including information regarding the case number, date of registration, date of filing charge sheet, court before which it has been filed, progress of trial, date of judgment and the conclusion of each case. RELEVANT FACTS 2. The relevant facts of the present cases are that Government of India, Ministry of Home Affairs, Foreigners Division (FCRA Wing), Monitoring Unit vide its letter dated 04th August, 2017 requested the CBI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amounting to ₹ 90.72 crores during FYs 2012-13 to 2015-16 and also received bank interest amounting to ₹ 6.69 crores on foreign contributions during the said period. The background of the foreign donors as well as utilization of foreign contribution is enclosed at Annexure I and the details of major beneficiaries of foreign contribution by the Association Advantage is enclosed at Annexure II. 2. Based on the news in the print media regarding the Income Tax search of M/s. Advantage India and thereafter a field inquiry, an off-site inspection of Book/records of the Association was conducted on 21.02.2017. On examination and scrutiny of the records of the Association, it was observed that the Association has not substantiated its various expenses that it has claimed to have incurred during FYs 2012-13 to 2015-16. The Ministry s inquiry has prima-facie revealed that the said Association has violated various provisions of Foreign Contribution (Regulation) Act, 2010 as per details given below:- I. On record the Association has claimed to have purchased medicines worth ₹ 26.97 Crores for various health camps from two Pharma entities i.e. M/s. Aastha Pharma a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted company, the managing director Sh. Raman Kapoor, confessed that he has booked bogus expenses and has done overpricing of the MMUs supplied to the Association. The association could not substantiate the geniuses of the expenses claimed to have incurred in regard of M/s. Accordis Health Care Private Limited. The reply of the Association is evasive and does not cover all the issues. Thus, Association has violated Section 8(1)(a) (utilization of FC for the purpose it has been received), Section 18 (intimation), Section 19 (maintenance of Accounts) and Section 33 of FCRA, 2010 (making of false statement, declaration or delivering false accounts). III. It is on record that ₹ 30,37,458/- were spent by Association for foreign travel of Sh. Deepak Talwar during the period 09.05.2015 to 23.01.2016 without due justification. The reply of Association that the travels were undertaken for the welfare of NGO is neither explained specifically nor substantiated. The same is therefore not convincing. Thus making it clear that the funds of the Association have been utilized for making payment related to other business activities and personal purposes of the founder member of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... considerable domestic contribution to the foreign contributions accounts. Mixing of foreign and domestic contribution is not permissible as per FCRA, 2010 and FCRR, 2011. The reply of the Association on this count is of evasive nature. The Association has thus violated Section 17 of FCRA, 2010. VIII. The Association has changed its registered office from 5-E, white House, 10, Bhagwan Dass Road, New Delhi to 101-102, Oriental House, Gulmohar Enclave, Commercial Complex, Yusuf Sarai, New Delhi-110048 without intimating the Ministry. Association could not produce any proof of their sending intimation to the Ministry. Association has also changed many functionaries including Chief Functionary i.e. Sh. Deepak Talwar without intimating the Ministry. The Association s contention that they have intimated the Ministry is without any documentary proof except Annual Return. The Association has thus violated Rule 17A under FCRR, 2011. IX. The Association had appointed M/s. T. Kapoor as consultant and paid an amount of ₹ 1,03,63,360/- (Rs. One Crore Three Lakh Sixty Three Thousand Three Hundred Sixty Only) during the year 2013-14 to 2015-16. However, the nature of consultancy t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of registration, date of filing charge-sheet in the court, progress of trial, date of judgment and the conclusion of each case. Encls. As above Yours faithfully, Sd/- (Santosh Sharma) Director (FC MU) Annexure I Background of the Donors:- As an initiative of Corporate Social Responsibility Airbus S.A.S., Paris, France and Advantage India had agreed and entered into an agreement dated 10.5.12 in Paris, where under Airbus S.A.S. agreed to provide a donation of 9 (nine) million Euros (payable annually in three equal installments of 3 million Euros each) to Advantage India and a similar agreement was also entered into by Advantage India with MBDA, England, U.K. where under MBDA has agreed to provide a donation of 6 (six) million Euros (payable annually in three equal instalments of 2 million Euros each) to Advantage India, the agreement was signed by on behalf of Advantage India was then association president Sh. Deepak Talwar, R/o C-17, 2nd floor, Green Park Extension, New Dehi-110016. It is pertinent to mention here that the AIRBUS which is the European leader in the aeronautic industries and MBDA which is one of the European leading M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Delhi 21.41 Service charges for providing doctor, nurses, support staff in mobile medical vans 3. M/s. Hind Pharma Chandni Chowk, New Delhi 10.91 For purchase of medicines 4. M/s Asha Pharma, Ring Road, New Delhi 16.06 For purchase of medicines 5. Payment made to M/s. Capital Print process M/s. Capital Impex, New Delhi 4.93 For printed exercise note book 6. Purchase of expensive vehicles i.e. Toyota, Duster, Regent Garage .84 7. Office rent paid to Sh. Deepak Talwar .80 Former President of the association 8. Fore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re Pvt. Ltd. (3) Sh.Deepak Talwar, M/s Advantage India (4) Sh. Sunil Khandelwal, M/s Accordis Health Care Pvt. Ltd. (5) Sh. Raman Kapoor, MD, M/s Accordis Health Care Pvt. Ltd. (6) M/s T. Kapoor Consultant and other unknown persons. 8. Reasons for delay in reporting by the complainant/informant: 9. Particulars of properties Stolen (Attach separate sheet, if necessary): 10. Total value of property stolen: 11. Inquest Report/U.D. Case No., if any: 12. First Information contents (Attach separate sheet, if required): A written complaint no. F.No.II/21022/58 (0641)/2016-FCRA (MU)//S-3 dtd. 4.8.17 lodged by Sh.Santosh Sharma Director (FC MU) was received in CBI which is annexed as attachment to column no.12. MHA has requested to conduct investigation in terms of Section 43 of FCRA, 2010. The analysis of the complaint prima facie revealed commission of offence U/s 120B, 199, 468, 471,511 r/w 417 IPC U/s 33, 35, 37 FCRA 2010 against M/s Advantage India. M/s Accordis Health Care Pvt. Ltd. Sh. Deepak Talwar, Sh. Sunil Khandelwal, Sh.Raman Kapoor and T.Ka ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gation is unsustainable as in the present cases, the authorized officer had already carried out detailed investigation. They contend that if the action of the respondents is accepted then the same would lead to absurdity as it would amount to multiple, parallel and re-investigation and prosecution in regard to same offences. They state that to somehow justify the issuance of the impugned communication dated 04th August, 2017, the respondents are erroneously interpreting the expression may also be investigated into by in Section 43. According to them, the said expression means that apart from those officers / authorities /organisations authorized by Central Government under Sections 23 to 26 and 42 of FCRA, investigation can also be done by CBI or Crime Branch officials, as the case may be, subject to the fact that authorization is issued in their favour at the very inception/first instance. In support of their submission, learned counsel for petitioners rely upon the Supreme Court s judgment in Directorate of Enforcement vs. Deepak Mahajan Anr., (1994) 3 SCC 440 wherein it has been held as under:- 113. Though an authorised officer of Enforcement or Customs is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the Code or under the special procedure, if any, prescribed under the special Acts. Therefore, the word investigation cannot be limited only to police investigation but on the other hand, the said word is with wider connotation and flexible so as to include the investigation carried on by any agency whether he be a police officer or empowered or authorised officer or a person not being a police officer under the direction of a Magistrate to make an investigation vested with the power of investigation. xxx xxx xxx 131. The submission that as there is no investigation within the terms of the Code in the field of FERA or Customs Act, Section 4(2) of the Code can have no part to play, has to be rejected for the reasons given by us while disposing of the contention What investigation means and is in the preceding part of this judgment. 6. Learned counsel for petitioners submit that the Central Government cannot pick and choose, according to their whims and fancies, the investigative agency, i.e., whether the investigation should be carried out by the officer authorised by the Central Government or the CBI under Section 43 of FCRA. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able to the attack on the ground of violation of Article 14. It is no answer to the above that the executive officers are presumed to be reasonable men who do not stand to gain in the abuse of their power and can be trusted to use discretion with discretion .. 9. It has been observed by this Court in the case of Shri Ram Krishna Dalmia v. Shri Justice S.R. Tendolkar [AIR 1958 SC 538 : (1959) SCR 279, 299 : (1959) SCJ 147] that a statute may not make any classification of the persons or things for the purpose of applying its provisions but may leave it to the discretion of the Government to select and classify persons or things to whom its provisions are to apply. In determining the question of the validity or otherwise of such a statute the Court will not strike down the law out of hand only because no classification appears on its face or because a discretion is given to the Government to make the selection or classification but will go on to examine and ascertain if the statute has laid down any principle or policy for the guidance of the exercise of discretion by the Government in the matter of the selection or classification. After such scrutiny the Court will st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Prajapati on 28-12-2006 was done in order to eliminate him as he was the key witness in the criminal conspiracy of the abduction and killing of Sohrabuddin and Kausarbi by the powerful and the influential accused persons. xxx xxx xxx xxx 21. The murder of Tulsiram Prajapati took place on 2812-2006, case was registered on 28-12-2006 and Gujarat CID commenced investigation on 22-3-2007. However, even after a lapse of 3 years, no action was taken against any of the accused. As directed by this Court, only on the investigation of Tulsiram Prajapati's case, the larger conspiracy would be established and the mandate and tasks assigned by this Court to CBI would be accomplished both in letter and spirit towards the goal of a fair trial, upholding the rule of law. If Tulsiram Prajapati's fake encounter case is not transferred to CBI for investigation, it may lead to issue estoppel or res judicata against the prosecution. xxx xxx xxx xxx 30. As pointed out by the learned counsel for the petitioner and CBI, the said judgment records that there is strong suspicion that the third person picked up with Sohrabuddin was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the third person picked up with Sohrabuddin was Tulsiram Prajapati. It was also observed that the call records of Tulsiram were not properly analysed and there was no justification for the then Investigation Officer Ms Geeta Johri to have walked out of the investigation pertaining to Tulsiram Prajapati. The Court had also directed CBI to unearth larger conspiracy regarding Sohrabuddin's murder. In such circumstances, we are of the view that those observations and directions cannot lightly be taken note of and it is the duty of CBI to go into all the details as directed by this Court. xxx xxx xxx xxx 47. If we analyse the allegations of the State and other respondents with reference to the materials placed with the stand taken by CBI, it would be difficult to accept it in its entirety. It is the definite case of CBI that the abduction of Sohrabuddin and Kausarbi and their subsequent murders as well as the murder of Tulsiram Prajapati are one series of acts, so connected together as to form the same transaction under Section 220 CrPC. As rightly pointed out by CBI, if two parts of the same transaction are investigated and prosecuted by diff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he final report under Section 173(2) CrPC. It would clearly be beyond the purview of Sections 154 and 156 CrPC, nay, a case of abuse of the statutory power of investigation in a given case. In our view a case of fresh investigation based on the second or successive FIRs, not being a counter-case, filed in connection with the same or connected cognizable offence alleged to have been committed in the course of the same transaction and in respect of which pursuant to the first FIR either investigation is under way or final report under Section 173(2) has been forwarded to the Magistrate, may be a fit case for exercise of power under Section 482 CrPC or under Articles 226/227 of the Constitution. The above referred declaration of law by this Court has never been diluted in any subsequent judicial pronouncements even while carving out exceptions. xxx xxx xxx 47. The learned ASG placed reliance on the following decisions: (i) Anju Chaudhary v. State of U.P. (ii) Babubhai v. State of Gujarat, (iii) sender Kaushik v. State of U.P., (iv) Nirmal Singh Kahlon v. State of Punjab, (v) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority specifically designated for the purpose. That being so, no one except the authority so designated, can exercise that power. Permitting exercise of the power by any other authority whether superior or inferior to the authority designated by the statute will have the effect of rewriting the provision and defeating the legislative purpose behind the same-a course that is legally impermissible. In Joint Action Committee of Air Line Pilots' Assn. of India v. DG of Civil Aviation [(2011) 5 SCC 435] this Court declared that even senior officials cannot provide any guidelines or direction to the authority under the statute to act in a particular manner. 21.2.Secondly, because exercise of the power vested in the District Superintendent of Police under Section 20-A(1) would involve application of mind by the officer concerned to the material placed before him on the basis whereof alone a decision whether or not information regarding commission of an offence under TADA should be recorded can be taken. Exercise of the power granting or refusing approval under Section 20-A(1) in its very nature casts a duty upon the officer concerned to evaluate the information and de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only , they are necessarily non-cognizable in accordance with the said two alternatives contained in the last entry of Part II of the First Schedule to Cr.P.C. They submit that irrespective of the alternative maximum term of imprisonment, each of the alleged offences under FCRA are covered by the term or punishable with fine only . They emphasise that as Section 41 of FCRA provides for composition/compounding of all the offences under FCRA, the said offences under FCRA are compoundable. Furthermore, Section 41 of FCRA is a unique provision as it allows compounding before initiating prosecution. 11. They submit that Section 43 of FCRA being an enabling provision permitting exercise of the same powers in respect of the investigation in FCRA as an officer in-charge of a police station may exercise in a cognizable offence, would not make the offences under FCRA cognizable offences or give CBI through the back door the authority to arrest. 12. They lastly submit that FCRA is a special law dealing with a special field and hence general law cannot be applied. They state that Sections 33, 35 and 37 encompass and imbibe the substance and spirit of penal provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be carried out as well as the power given to the Inspecting Officer. He states that on a report being furnished by such authorised officer to the Central Government, the action under Section 14 of FCRA, i.e., for cancellation of registration certificate can be taken. He further states that any person aggrieved by the action taken by the Central Government under Section 14 of FCRA can file a revision petition under Section 32 of FCRA. 15. He points out that the petitioner-M/s. Advantage India in the present cases has preferred a revision petition challenging the order of cancellation of registration passed by the Central Government under Section 14 of FCRA. 16. Learned standing counsel for Union of India further states that Chapter VIII of FCRA defines offences and penalties which are in addition to the action Central Government may take under Section 14 of the FCRA. In support of his submission, he relies upon Sections 33, 34, 35 36, 37 and 38 of FCRA. He submits that the notified investigative agency does not require a separate sanction under Section 40 of the FCRA for the purpose of investigation, as suggested by the petitioners. He, however, admits that Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vestigation where the amount of foreign contribution exceeds ₹ 1 crore and the State Crime Branch, if the amount is less than ₹ 1 crore, as the case may be. 19. Mr. Amit Mahajan emphasises that the scope of inspection by the officer empowered under Section 23 of FCRA and the investigation under Section 43 of FCRA is entirely different since both lead to different conclusions. According to him, while an enquiry under Section 23 leads to cancellation of registration under Section 14 of FCRA, Section 43 leads to criminal action under Section Chapter VIII of the FCRA. He submits that under Section 23 of FCRA, the role assigned to an officer or authority is of civil nature and limited only to carrying out book inspection of accounts/records as required and authorized under Chapter V of the FCRA. He further submits that the officer is authorized under Section 23 of the FCRA with power of search and seizure etc., however, he/she is not authorized to undertake any investigation into commission of offences under the FCRA, particularly when the Central Government vide notification dated 27th October, 2011 has already specified such authorities. 20. He emphasises ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isions of the Delhi Special Police Establishment Act, 1946 (hereinafter referred to as DSPE Act ). He further states that as per Section 3 of DSPE Act, the Central Government may notify in Official Gazette, offences or classes of offences which are to be investigated by CBI. Section 3 of DSPE Act is reproduced hereinbelow:- 3. Offences to be investigated by special police establishment. The Central Government may, by notification in the Official Gazette, specify the offences or classes of offences which are to be investigated by the Delhi Special Police Establishment. 25. He states that there is no dispute regarding carrying out investigation of offences committed under IPC by the CBI. He reiterates that as far as investigation under FCRA is concerned, the Central Government vide Notification dated 27th October, 2011 has authorised CBI to carry out investigation of offences committed under FCRA involving receipt of foreign contribution of an amount of ₹ 1 crore or equivalent or more. 26. He emphasises that there is no duplicity of actions taken under Chapter V, VI and Section 43 of FCRA as offences punishable under the said Act as mentioned in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mis-appropriation or mis-utilisation of foreign contribution have been committed. He points out that every registered NGO has to ensure multiple compliances under the FCRA and most of them are procedural in nature. He states that a large majority of 13,000 (Thirteen Thousand) NGOs/Associations whose certificates of registration had been cancelled are those that had not filed their mandatory annual returns. He points out that such an offence is compoundable under Section 41 of FCRA since June, 2016. 30. Mr. Amit Mahajan has also filed a short affidavit dated 22nd August, 2019, in which it has been averred that the petitioner/NGO has committed serious violations and offences under Chapter VIII of FCRA along with offences under the IPC and accordingly, the cases of the petitioners fall in a separate class and were therefore referred to the CBI for investigation. The relevant paragraphs of the affidavit dated 22 nd August, 2019 are reproduced hereinbelow:- 3. It is further submitted that there are multiple compliances that a registered NGO has to ensure under the FCRA, 2010. One of them relates to filing of Annual Returns which are in the nature of self-declaratio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tution or the impugned provision is in any manner arbitrary, unreasonable or vague. The Supreme Court in Namit Sharma vs. Union of India, (2013) 1 SCC 745 has held as under:- 11. An enacted law may be constitutional or unconstitutional. Traditionally, this Court had provided very limited grounds on which an enacted law could be declared unconstitutional. They were legislative competence, violation of Part III of the Constitution and reasonableness of the law. The first two were definite in their scope and application while the cases falling in the third category remained in a state of uncertainty. With the passage of time, the law developed and the grounds for unconstitutionality also widened. D.D. Basu in Shorter Constitution of India (14th Edn., 2009) has detailed, with reference to various judgments of this Court, the grounds on which the law could be invalidated or could not be invalidated. Reference to them can be made as follows: Grounds of unconstitutionality.- A law may be unconstitutional on a number of grounds: (i) Contravention of any fundamental right, specified in Part III of the Constitution. (Ref. Under Article 143: Special R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m or on the ground that there is a remote possibility of abuse of power. In fact, it must be presumed, unless the contrary is proved, that administration and application of a particular law would be done not with an evil eye and unequal hand . The Supreme Court in Maganlal Chhagganlal (P) Ltd. Vs. Municipal Corporation of Greater Bombay Ors., (1975) 1 SCR 1 has held as under:- The statute itself in the two classes of cases before us clearly lays down the purpose behind them, that is that premises belonging to the Corporation and the Government should be subject to speedy procedure in the matter of evicting unauthorized persons occupying them. This is a sufficient guidance for the authorities on whom the power has been conferred. With such an indication clearly given in the statutes one expects the officers concerned to avail themselves of the procedures prescribed by the Acts and not resort to the dilatory procedure of the ordinary civil court. Even normally one cannot imagine an officer having the choice of two procedures, one which enables him to get possession of the property quickly and the other which would be a prolonged one, to resort to the latter. Adminis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by Union of India, it is apparent that by virtue of established practice/convention/principle and notification dated 27th October, 2011 investigation of offences under Chapter VIII of FCRA is carried out either by CBI or crime branch officials exclusively depending upon the pecuniary value of alleged violation and not by an officer authorised by the Central Government under Section 23 of FCRA. The relevant portion of the notification dated 27th October, 2011 and said additional affidavit are reproduced hereinbelow:- A. Notification dated 27th October, 2011 MINISTRY OF HOME AFFAIRS NOTIFICATION New Delhi, the 27th October, 2011 S.O. 2446 (E). In exercise of the powers conferred by Section 43 of the Foreign Contribution (Regulation) Act, 2010 (42 of 2010), the Central Government hereby specifies that the officers not below the rank of Sub-Inspector of Police of the following organisations shall be the authorities for investigation of offences punishable under the said Act:- (i) Investigating Agencies (Crime Branch) of the State Governments, cause of action which arises in their respective States in re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... retion by the Government in the matter of selection of an investigative agency and there is no arbitrary, vague and uncontrolled power with the Government so as to enable it to discriminate between persons or things similarly situated. Accordingly, this Court is of the view that Petitioner s reliance upon State of Punjab vs. Khan Chand (supra) is misconceived. 36. Also as the Notification dated 27th October, 2011 is neither an interpretation nor an understanding of Section 43 of FCRA but a convention/practice/policy to be followed by the Union of India while implementing Section 43, this Court is of the view that judgment of the Apex Court Bhuwalka Steel Industries Ltd. vs. Bombay Iron and Steel Labour Board Anr. (supra) is inapplicable to the present case. 37. Consequently, the Notification dated 27th October, 2011 as well as the consistent practice followed by the Central Government lay down a principle and/or policy in the matter of appointment/selection of an investigative agency under Section 43 of FCRA and saves it from attack on the ground that it violates Articles 14 and 21 of the Constitution. NEGATIVE EQUALITY IS NOT A VALID LEGAL ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to grant relief to a person who is not entitled to the relief. (emphasis supplied) BOTH THE LETTERS UNDER SECTIONS 23 AND 43 WERE ISSUED BY THE SAME AUTHORITY i.e. GOVERNMENT OF INDIA, MINISTRY OF HOME AFFAIRS, FCRA WING, DIRECTOR (FC MU). CONSEQUENTLY, A DELEGATEE HAD NOT SUB-DELEGATED THE INVESTIGATION TO CBI IN THE PRESENT CASES. 40. In the present batch of cases, the matter had been referred to the CBI by the Central Government itself and not by the officer authorised by the Central Government to carry out inspection under Section 23 of FCRA. Perusal of the Authorisation letter dated 07th February 2017 issued by the Ministry of Home Affairs, FCRA Wing, signed by Director (FC MU), shows that Ms. Anjana, Under Secretary (MU), FCRA, MHA had been appointed under Section 23 FCRA to inspect accounts and records of the petitioner association i.e. M/s Advantage India. The letter specifically states that the said officer shall exercise powers under Sections 23 to 26 and 42 of FCRA only while carrying out the inspection. The relevant portion of the authorisation letter dated 07th February, 2017 issued under Section 23 of FCRA is reproduced hereinb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 42 of FCRA only. No power to investigate offences under Section 43 had been conferred upon the said officer. 43. Just because the inspecting authority has been empowered to seize the account or record and produce the same before the Court, does not mean that it has to mandatorily carry out investigation under Section 43 of FCRA also. 44. Additionally, the proceedings under Chapter V of FCRA cannot be termed as investigation as the provisions under the said Chapter pertain to inspection and seizure of accounts/records only. Under Chapter V of FCRA, no procedure for filing of a complaint/charge-sheet has been mentioned. 45. There is also nothing to suggest either in the FCRA or in the letter dated 7th February, 2017 that investigation under Chapter VIII of FCRA had to be carried out by the Inquiry Officer. 46. Even in the letter dated 04th August, 2017 while referring the matter for investigation to CBI, the Ministry of Home Affairs had opined that its inquiry had prima facie and not conclusively revealed violation of various provisions of FCRA. 47. In view of the aforesaid, since the officer authorized under Section 23 FCRA did not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e a criminal complaint, if so warranted, is untenable in law. THE ARGUMENT THAT THE POWER OF ARREST HAS BEEN GIVEN TO OFFICERS UNDER CUSTOMS ACT, CENTRAL EXCISE ACT, PMLA ETC. AND NOT UNDER FCRA IS FALLACIOUS AS IN CUSTOMS ACT, CENTRAL EXCISE ACT, PMLA ACTS, THE POWER IS GIVEN TO THE OFFICER CONDUCTING INVESTIGATION IN THE SAID ACTS WHO IS NOT A POLICE OFFICER. IN THE PRESENT CASES, THE POWER TO INVESTIGATE HAS BEEN GIVEN TO THE CBI WHICH HAS ALL THE POWERS LIKE AN OFFICER IN CHARGE OF A POLICE STATION HAS WHILE MAKING AN INVESTIGATION INTO A COGNIZABLE OFFENCE. 52. The argument that the power of arrest has been given to officers under Customs Act, Central Excise Act, PMLA etc. and not under FCRA is fallacious as in Customs Act, Central Excise Act, PMLA Acts, the power is given to the officer conducting investigation in the said Acts who is not a police officer. In the present cases, the power to investigate has been given to the CBI which has all the powers which an officer in charge of a police station has while making an investigation into a cognizable offence. This Court has no doubt that the investigative agency and the Trial Courts shall keep in mind t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Any Magistrate. 55. Further not all offences punishable with imprisonment or with fine or both are non-cognizable. For instance, Section 429 IPC which prescribes imprisonment for five years or fine or both is cognizable. The definition of cognizable offence given under Section 2(c) of Cr.P.C. reads as under:- 2. Definitions. In this Code, unless the context otherwise requires,- xxx xxx xxx (c) cognizable offence means an offence for which, and cognizable case means a case in which, a police officer may, in 812 accordance with the First Schedule or under any other law for the time being in force, arrest without warrant; 56. The impugned RC 36/2017 has been registered by CBI for offences not only under FCRA, but also under various sections of IPC like Section 468 IPC which is both cognizable and non-bailable. Consequently, as the case relates to two or more offences of which at least one is cognizable, the case by virtue of Section 155 (4) Cr.P.C. shall be deemed to be a cognizable case notwithstanding that the other offences are noncognizable. Section 155 (4) Cr.P.C. reads as under:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SHORT MRO ) FOR US$ 100 MILLION WERE DELIBERATELY NOT MADE PART OF THE FINAL AGREEMENT SIGNED BY INDIAN AIRLINES WITH AIRBUS INDUSTRIES, WHEREAS THE IMPUGNED RC 36/2017 RELATES TO VIOLATION OF FCRA PROVISIONS AS WELL AS THE OFFENCES COMMITTED UNDER IPC IN THE PROCESS OF COMMITTING VIOLATIONS UNDER FCRA BY THE PETITIONERS. CONSEQUENTLY, THE TWO FIRS CANNOT BE TERMED AS FIRS IN THE COURSE OF THE SAME TRANSACTION . 60. Upon perusal of RC 9/2013, ECIR 10/2017 and RC 36/2017, this Court is of the opinion that while RC 9/2013 and ECIR 10/2017 have been registered in relation to undue pecuniary advantage given to Airbus Industry which has caused corresponding loss to the Government, impugned RC 36/2017 relates to violation of FCRA provisions as well as the offences committed under IPC in the process of committing violations under FCRA by the petitioners. In fact, the primary allegation in RC 9/2013 and ECIR 10/2017 is that the concessions obtained by the Empowered Group of Ministers (for short EGOM ) regarding setting up of training centre for US$ 75 million and creation of Maintenance, Repair and Overall facility (for short MRO ) for US$ 100 million were deliberately not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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