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2001 DIGILAW 1221 (PNJ)

Jaswinder Kaur @ Baby v. State Of Punjab

2001-10-31

K.C.GUPTA

body2001
Judgment K.C.Gupta, J. 1. This is a petition filed by Smt. Jaswinder Kaur @ Baby under Section 482 Cr.P.C. for quashing FIR No. 25 dated 1.2.2001 registered under Sections 411, 414 IPC read with Sections 3B and 3C of Foreign Exchange Management Act at Police Station Division No. 6, Jalandhar, against her. 2. Briefly stated, the facts are that a secret information was received that the petitioner, after converting the foreign currency into Indian currency, distributed Hawala money by illegal way which caused damaged to the Indian economy. It was next alleged that if a Naka was held, then the petitioner could be apprehended with Hawala money. On the basis of the secret information, case was registered under Sections 411 and 414 IPC read with Sections 3B and 3C of the Foreign Exchange Management Act (for short, "the Act"). The petitioner was apprehended from a vehicle and Indian currency of Rs. 2.75 lacs was recovered from the vehicle. 3. Counsel for the petitioner contended that there is no allegation that the petitioner had kept in her possession stolen amount or she had assisted any person in concealment of stolen property and as such, according to counsel for the petitioner, no case was made out under Sections 411 and 414 IPC. Sections 411 and 414 of IPC are reproduced below :- "411. Dishonestly receiving stolen property - whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. 414. Assisting in concealment of stolen property - Whoever voluntarily assists in concealing or disposing of or making away with property which he knows or has reason to believe to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years or with fine or with both." 4. Therefore, first of all, the amount recovered from the petitioner is not a stolen property and secondly, no complaint has been lodged anywhere that the petitioner had committed theft of any property. There is also no allegation that the petitioner had assisted any person in concealment of the stolen property. Thus, no offence under Sections 411 and 414 IPC is made out. 5. There is also no allegation that the petitioner had assisted any person in concealment of the stolen property. Thus, no offence under Sections 411 and 414 IPC is made out. 5. Now it is to be further seen whether any offence under Sections 3A and 3B of the Act is made out. Sections 3B and 3C read as under :- "3. Dealing in Foreign exchange, etc. - (a) xx xx xx xx (b) make any payment to or for the credit of any person resident outside India in any manner; (c) receive otherwise through an authorised person, any payment by order or on behalf of any person resident outside India in any manner; Explanation. - For the purpose of this clause, where any person in, or resident in, India receives any payment by order or on behalf of any person (including on authorised person) without a corresponding inward remittance from any place outside India, then, such person shall be deemed to have received such payment otherwise than through an authorised person." 6. It is not the case that the petitioner had made any payment to or for the credit of any person resident of India in any manner and further had received otherwise through an authorised person, any payment by order or on behalf of any other person resident outside India in any manner. The penalties for violation of the aforesaid provisions have been described in section 13, which reads as under :- "13. Penalties. - (1) If any person contravenes, any provision of this Act, or contravenes any rule, regulation, notification, direction or order issued in exercise of the powers under this Act, or contravenes any condition subject to which an authorisation is issued by the Reserve Bank, he shall, upon adjudication, be liable to a penalty up to thrice the sum involved in such contravention where such amount is quantifiable, or up to two lakh rupees where the amount is not quantifiable, and where such contravention is a continuing one, further penalty which may extend to five thousand rupees for every day after the first day during which the contravention continues. (2) Any Adjudicating Authority adjudicating any contravention under sub- section (1), may, if he thinks fit in addition to any penalty which he may impose for such contravention direct that any currency, security or any other money or property in respect of which the contravention has taken place shall be confiscated to the Central Government and further direct that the foreign exchange holdings, if any, of the persons committing the contraventions or any part thereof, shall be brought back into India or shall be retained outside India in accordance with the directions made in this behalf. Explanation. - For the purpose of this sub-section, "Property" in respect of whcih contravention has taken place, shall include - (a) deposits in a bank, where the said property is converted into such deposits; (b) Indian currency, where the said property is converted into that currency; and (c) any other property which has resulted out of the conversion of that property." 7. Therefore, no imprisonment is provided and only penalty upto thrice the sum involved is provided. However, under Section 14, for the enforcement of the order of adjudicating authority under Section 13, a person can be detained in civil imprisonment. There is a power to compound the contravention under Section 15 of the Act. The Criminal Procedure Code is not applicable because the Act provides the procedure and punishment for the offences committed under Section 3B and 3C of the Act. Section 5 of the Code of Criminal Procedure states that the Criminal Procedure Code is not applicable when there is a specific provision in the Act. 8. The case of the petitioner is that she had taken the money of Rs. 2,75,000/- from the Court of Judicial Magistrate Ist Class, Garhshankar on Sapurdari as Rs. 8 lacs were looted from her and FIR was registered vide No. 25/2000, under Section 382 IPC of Police Station Garhshankar. Thus, prima- facie, the police had mis-used the power and only departmental proceedings could be initiated under the Act. Hence, the registration of the FIR is illegal and as such, the same is quashed under Section 482 Cr.P.C. Petition allowed.