Madras High Court
K.M. Mohamed Yousuf Sulaikha Ummal vs Asstt. Director on 11 December, 1990
Equivalent citations: 1992(39)ECC82, 1991(56)ELT324(MAD)
ORDER
1. The petitioner is accused in E.O.C.C. No. 4 of 1987 on the file of the Additional Chief Metropolitan Magistrate (Economic Offences-I), Egmore, Madras-8.
2. The premises of the petitioner was searched on 2-10-1985 by the personnel belonging to the Enforcement Directorate and during the course of such search certain incriminating materials were collected and seized, culminating in the initiation of adjudicatory proceedings by the Deputy Director, Enforcement Directorate, Southern Zone, Madras-6 who in his order No. DD/MAS/182/86 dated 12-6-1986, holding the petitioner guilty of contravening the provisions of Section 9(1)(b) of the Foreign Exchange Regulation Act, 1973 (for short 'FERA'), levied a penalty of Rs. 5,000/- on her besides confiscating the sum of Rs. 15,000/- seized from her premises on the date of search with a direction for payment of penalty within forty five days from the date of receipt of the same.
3. The order in fact had been communicated to and received by the petitioner on 27-9-1986. Aggrieved by the order, the petitioner exercised her option of preferring the appeal before the Foreign Exchange Regulation Appellate Board and in fact field the appeal on 10-11-1986 along with an application for dispensing with the deposit of the penalty amount. The Board, by its letter dated 8-12-1986, intimated the petitioner that her appeal had been registered as Appeal No. 626 of 1986 and requested her to quote the said appeal number in future correspondence to enable prompt and timely action.
4. The Assistant Director, Enforcement Directorate, Southern Zone, Madras-6 - the respondent herein field a complaint on 16-12-1986 for the alleged contravention under Section 57 of the FERA for non-payment of penalty within the specified time, which is now pending as EOCC as aforesaid.
5. The present action invoking the inherent jurisdiction of this Court has been resorted to quash the criminal proceedings initiated against the petitioner.
6. Learned Counsel appearing for the petitioner would submit that the prosecution, as launched, is premature, inasmuch as the petitioner had exercised her option of preferring the appeal in strict with the provisions of Section 52(2) of the FERA as well as Rule 6A of the Adjudication Proceedings and Appeal Rules, 1974 (for short 'the Rules').
7. Learned Special Public Prosecutor appearing for the Department would however repeal such a submission.
8. In amplification of his submission, what learned Counsel for the petitioner would submit is that under Section 52(2) of the FERA, there are two condition precedents to be fulfilled, once an option for preferring the appeal is exercised. The two conditions are :-
(1) Penalty should have to be deposited; and (2) The appeal had to be filed within forty five days from the date of receipt of the order.
9. There is no manner of doubt whatever that the appeal had been preferred on 10-11-1986, as referred to earlier, which is very well within the period of forty five days, as the order relating to the adjudicatory proceedings had been communicated on 27-9-1986.
10. No doubt true it is that the penalty amount had not been deposited. It is not as if, learned Counsel would contend, that in all eventualities and situations, penalty amount should have to be deposited for the entertainment of the appeal. There should be situations wherein the aggrieved person might not be in a position to find fluid cash resources to make the deposit at the time of the preference of the appeal. In order to meet such a contingency and to provide an opportunity to such a person, a provision had been incorporated under Rule 6A of the Rules for dispensing with such deposit, provided an application had been filed therefor, giving reasons for such dispensation. The petitioner exactly came within the purview of Rule 6A and consequently, she had filed the requisite application under that Rule, when preferring the appeal.
11. From the fact that the appeal had been entertained by the Board, learned Counsel for the petitioner would say, that it is to be inferred by way of implication that the pre-requisite of the deposit of the penalty amount has been dispensed with by the Board and by virtue of such dispensation, it is to be construed that there was no failure on the part of the petitioner to obey the direction of the adjudicating authority, in the sense of not remitting the penalty amount within the period specified by it. As a consequence, he would urge, that the prosecution, being premature, is liable to be quashed.
12. Such a submission, in the absence of any deeming provision, in the FERA and the Rules cannot at all be acceded to, unless and until there is a specific order by the Board dispensing with deposit of the penalty amount. The fact that the appeal had been entertained by assigning a specified number is not by itself sufficient to indicate even by way of implication that the deposit of the penalty amount had been dispensed with and the appeal had been taken on file and if at all, in the circumstances it would indicate that a number had been assigned to the appeal for the purpose of conveniently referring the same in future correspondence.
13. In the absence of any order dispensing with the deposit of the penalty amount by the Board, the contravention amounting to an offence under Section 56 of the FERA gets fruitioned by the elapse of forty five days from the date of receipt of the adjudication order, which in fact happened in this case, as already adverted to, on 11-11-1986. In this view of the matter, the petitioner has to undergo the ordeal of trial before the Court below.
14. The petition, as such, deserves to be dismissed and is hereby dismissed.