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2001 DIGILAW 499 (CAL)

Radheshyam Kejriwal v. State of West Bengal

2001-08-10

Malay Kumar Basu

body2001
JUDGMENT Malay Kumar Basu, J. : The is a revisional application directed against the order dated 2nd September, 1997 passed by the ld. Metropolitan Magistrate, 9th Court, Calcutta in complaint case No. 965/95 whereunder a prayer of the petitioner being an accused for quashing the said proceedings under section 56 of the Foreign Exchange Regulation Act was rejected. 2. The relevant facts leading to the filing of this petition may be summarised as follows. The residential premises of the petitioner, a businessman, was searched by the officer of the Enforcement Directorate on 22nd May, 1992 and certain documents were seized therefrom. Thereafter on 7th May, 1993 a showcause-notice was served against him by the Enforcement Directorate directing him to show-cause why he should not be proceeded against for contravening the provisions of section 9(1)(f)(i) and section 8(2) of the Foreign Exchange Regulation Act, 1973. The petitioner gave a reply to this notice showing cause. On 23rd May, 1992 he was arrested under section 35 of the said Act and, later, on that very date was enlarged on bail. On 29th December, 1994 the respondents served an opportunity-notice on hirri as required under section 61 of the FERA. Thereafter an adjudication proceeding in respect of the said show-cause notice bearing No. T-4/2-C/93 dated 7th May, 1993 was instituted before the Special Director, Enforcement Directorate, FERA, New Delhi and the Presiding Officer after hearing both the parties and considering the submission on behalf of both passed his order dated 18th November, 1996 holding that the Enforcement Directorate had failed to make out a prima facie case in support of the charges of violation of provisions of sections 9(1)(f)(i) and 8(2) of the FERA, 1973 against the petitioner and passed an order directing the aforementioned departmental proceeding to be dropped. In the meantime, on 26th July, 1995, the respondents filed a complaint in the Court of the Chief Metropolitan Magistrate, Calcutta against the petitioner on the same cause of action which was taken cognizance of by the ld. Magistrate. According to the petitioner and the complaint containing the selfsame allegation as were made in the aforementioned show cause notice and such allegations having already been dwelt upon by the departmental authority, there cannot be any triable issue against him by the court. The same issues having already been adjudicated upon by the prosecuting agency. The petitioner's contention continues, the ld. The same issues having already been adjudicated upon by the prosecuting agency. The petitioner's contention continues, the ld. Magistrate ought to have dropped the complaint. But the ld. Magistrate having not done so, the continuation of the proceeding has resulted in abuse of the process of the Court. The Court below ought to have taken into consideration the fact that the said adjudication-order having not been disputed or appealed against by the prosecuting agency, the proceeding was liable to be dropped. 3. Being aggrieved by and dissatisfied with the impugned order of the ld. Magistrate not dropping the proceeding and directing continuance of the same, the petitioner has preferred the present revisional application challenging the order as illegal, improper and liable to be set aside. 4. The respondent No.2, the Enforcement Officer, Enforcement Directorate, FERA, Govt. of India, has strongly contested the application. 5. Mr. Ghosh appearing for the petitioner has contended that when the departmental authority has not found any substance in these very allegations which have been levelled in the complaint, then it can be well presumed that the same departmental authority which is no other than the prosecuting agency will be confined within the same framework of the materials which they relied on while conducting the departmental proceeding and it cannot be assumed by any stretch of imagination that they will have any new materials to offer while conducting the prosecution before the Court on behalf of the Directorate. In support of this contention Mr. Ghosh cites a number of decisions the facts of which, according to him, relates to similar exigencies under certain other Acts. They are as follows. (1) 33 I.T.R. (SC) 909, (2) (1999) 108 ELT 16 (SC), G. L. Didwania vs. Income Tax Officer, (3) 1987 (30) ELT 900 (Del), S. K. Sinha vs. S.K. Shingal and Anr., (4) (1988) 1 SCC 695, Chandan and Anr. vs. State of Rajasthan, (5) (1996) 9 SCC 1 , P.S. Rajya vs. State of Bihar, (6) 1993 Cr.L.J. 365, Willi Lemback vs. Rajan Mathur and Anr., (7) 1994(73) ELT 269 (Del.) Harbhajan Kaur vs. Union of India, (8) 1990 (48) ELT 330 (Bom.), Adam Jusab Sameja vs. Asstt. Collector of Customs, (9) 1987 (30) ELT 903 (Bom.), B. Arunkumar and Co. vs. Union of India and Ors. 6. Let us see what principles have been enunciated in such rulings. Collector of Customs, (9) 1987 (30) ELT 903 (Bom.), B. Arunkumar and Co. vs. Union of India and Ors. 6. Let us see what principles have been enunciated in such rulings. In 1994 (73) ELT 269 (Del.) when a tribunal finds an accused person under the Customs Act innocent and exonerates him of the charge of smuggling, criminal prosecution, under sections 132 and 135 of the Customs Act, 1962 on the same set of facts and evidence is not maintainable and is liable to be quashed under section 482 of the Cr. P.C. Then in 1987 (30) E.L.T. 900 (Del.) it has been held that where under the Customs Act adjudication proceedings were enunciated against the petitioner and the collector of customs imposed a fine of RS.1lakh which on final appeal before the tribunal was set aside, then on the same set of facts and evidence the department cannot foist criminal liability upon a person about whom it accepted the decision, since a decision by the Tribunal in the proper sense of the word is a decision of the departmental authority drawn on the basis of a set of facts and evidence and since the department did not feel aggrieved by the finding of the tribunal it must be treated as accepted as final and correct and they must feel contended with it. It has been further held that if the department had no good case for the purpose of adjudication, it cannot claim to have a good case for the purposes of criminal prosecution, particularly when the prosecution is also based on the same set of facts and evidence and it will be again unjust to require the petitioner to go through the entire process of prosecution in the circumstances of the case and that would virtually amount to persecution and abuse of the process of the Court. In 1999 (108) ELT 16 (SC) it has been held by the Apex Court that where a tribunal which is the final fact finding authority under the Income Tax Act has decided a question of fact namely, alleged concealment of income under Income Tax Act in favour of the assessee, a criminal proceeding initiated against him on the same charge cannot be sustained and the same are liable to be quashed. Then, in (1996) 9 SCC 1 the Apex Court has held that where the charge of acquisition of assets disproportionate to income was not found proved in a departmental proceeding and the appellant was exonerated in the light of a report of the Central Vigilance Commission concurred by the Union Public Service Commission, criminal prosecution against him under section 5(2) read with section 5(1)(e) of the Prevention of Corruption Act, 1947 on the same charge and fact is liable to be quashed. Mr. Ghosh also relies upon the decision of Madhau Rao Scindhia's case reported in (1988) 1 SCC 695 where the Apex Court took the view that where a case against the accused does not show any prospect of success on the very face of it, regard being had to the special feature of the case and the Court in its foresight comes to understand that it is bound to fail in the ultimate analysis, then to avoid unnecessary wastage and prevent the abuse of the process of the Court it should quash such a proceeding under section 482 of the Code. According to Mr. Ghosh, although the aforementioned decisions relate to cases under the Income Tax Act or the Customs Act, the principle should be equally applicable to any case under the Foreign Exchange Regulation Act also, if the circumstances appear to be identical. According to Mr. Ghosh if the contents of the complaint lodged against the petitioner are compared with the contents of the show-cause notice then it would be found that they are exactly the same. From the report of the departmental authority it is revealed that there has been no evidence in support of the allegations and the charges against him have not been proved by any cogent materials and, therefore, under such circumstances it can not by any means be assumed that the said departmental authority being the prosecuting agency against the petitioner in respect of the said criminal case will give any different kind of evidence in support of the same allegations. In short, according to Mr. Ghosh, the ratio of the decisions cited by him is that the person at whose instance a prosecution has been initiated having himself found the same to be without substance cannot be said to give a different version in the case of criminal prosecution launched on the same set of facts. 7. In short, according to Mr. Ghosh, the ratio of the decisions cited by him is that the person at whose instance a prosecution has been initiated having himself found the same to be without substance cannot be said to give a different version in the case of criminal prosecution launched on the same set of facts. 7. As against this, the contention of Mr. Roy Chowdhury, ld. Counsel for the respondent has been that what is applicable in respect of the cases under the Income Tax Act or The Customs Act, is not attracted to the cases under the Foreign Exchange Regulation Law. According to him the Foreign Exchange Regulation Act contains a number of special features which have made it distinguishable from the other criminal laws. He then points out that one of such special features is that under this Act the guilt of the accused is presumed unless and until he proves his innocence. This is reverse to the line of approach which all other criminal laws have adopted. The angle of vision with which a criminal Court addresses the criminal justice system is entirely different from that of a Tribunal or an adjudicatory proceeding. According to Mr. Roy Chowdhury, while the latter is to ascertain whether there has been any violation of any provision of the FERA and, if so, to impose a penalty, the duty of the former is to determine whether there has been commission of any offence and the two testing processes are so divergent that there remains enormous scope for the emergence of gaps between the two so much so that one cannot be a substitute for the other. Mr. Roy Chowdhury points out that in respect of the procedure to be followed in the investigation of a FERA case and an ordinary criminal case there is a gulf of difference. He draws my attention to the provisions of section 40 of the Act whereunder any gazetted officer of Enforcement can summon any person or direct him to give evidence or produce document during the course of investigation and such recorded evidence may be straightway produced before the Court and admitted as evidence there. According to Mr. He draws my attention to the provisions of section 40 of the Act whereunder any gazetted officer of Enforcement can summon any person or direct him to give evidence or produce document during the course of investigation and such recorded evidence may be straightway produced before the Court and admitted as evidence there. According to Mr. Roy Chowdhury, the mental frame and training which a Court of law has cannot be expected in the adjudicating machinery of the department and on the very same materials it is quite possible that the Court may well take a diametrically opposite view with regard to the question of proof of the guilt of the accused. At any rate, a Court cannot be made secondary or cannot be subordinated to a Tribunal in so far as the question of coming to a finding on the basis of the evidence in respect of the charges levelled against the accused is concerned. This is particularly so in view of the fact that the adjudicating authority has not been given any power to decide whether any offence has been committed a function which is within the exclusive domain of the criminal court and there is no question of overlapping between the two. In other words, Mr. Roy Chowdhury continues, the two are quite independent of each other and each may come to its own findings and it may be quite possible that the two would arrive at two different findings on the same set of materials in view of the divergence in the procedural law and in the approach and outlook of the two. Mr. Roy Chowdhury further contends that an adjudicating authority being not a criminal Court cannot dwell upon the question as to whether any offence has been committed by the accused person and it can only remain satisfied with an enquiry as to whether there has been any violation of any order or any provision of the Act attracting penal action and in doing so the adjudicating authority has to follow the procedural rules of civil law but not the provisions of the Criminal Procedure Code. They cannot look into any document beyond what is annexed to the show-cause notice while a Court is not confined to any such limited framework and its hands are long enough in the matter of taking into consideration any materials found to be relevant. 8. They cannot look into any document beyond what is annexed to the show-cause notice while a Court is not confined to any such limited framework and its hands are long enough in the matter of taking into consideration any materials found to be relevant. 8. The second branch of Mr. Roy Chowdhury's argument consists in the point urged by him with equal vehemence that this Court cannot at this stage look into anything other than the complaint as it stands and cannot quash the same on the basis of the annexures which have been filed by the accused petitioner along with the complaint. In support of this argument he has cited two Division Bench judgments of the Apex Court -One reported in AIR 1991 SC 1260 (State of Bihar vs. P.P. Sharma) and the other reported in AIR 1991 SC 1308 (State of Bihar vs. Raj Narayan Singh). In the former it has been held that the Annexures to the writ petition challenging criminal proceedings against the accused were neither part of the police report, nor were relied upon by the Investigating Officer and these documents were produced before the High Court along with the writ petitions and by treating those Annexures and affidavits as evidence and thereby converting itself into a trial Court the High Court cannot declare the accused to be innocent and quash the proceeding. It has been further held that the appreciation of evidence is the function of the criminal courts and the High Court under the circumstances could not have assumed jurisdiction and put an end to the process of investigation and trial provided under the law. In the latter (AIR 199i SC 1308) it has been held by their Lordships that where in a criminal trial, evidence was yet to be taken and the documents which had been relied upon by the High Court could very well be tested or clarified by evidence when the prosecution had its opportunity of placing the case through witnesses in Court, it will be prejudging the question by the High Court without affording reasonable opportunity to the prosecution to substantiate the allegations, if it quashes the complaint and the criminal trial on the basis of certain documents filed by the petitioner accused. Their Lordships further expressed the view that the High Court had no justification to interfere with the prosecution at such a preliminary stage when the police had already submitted the chargesheet and cognizance had already been taken. In the present case, according to Mr. Roy Chowdhury, the Enforcement Officer who has investigated into the case is a different agency from that of the adjudicating officer and the 'Annexures' forming no part of the police report cannot be looked into by the Court at this preliminary stage without giving an opportunity to the prosecution to controvert or at least to have their say on the same which can be available only at the time of trial and before that without affording such a chance to the prosecution this Court cannot embark on appreciating or evaluating the contents of such documents relied upon by the accused unilaterally thereby prejudging the whole issue. 9. Giving careful thought and consideration I find that the above contentions of Mr. Roy Chowdhury are full of force. So far as the first branch of his argument is concerned it is difficult to adopt a different view. It should be borne in our mind that since after the new Act of 1973 came into force, the twin systems of adjudication by the Department and prosecution in Court have been provided for all sorts of violations of the provisions of this Act. The departmental adjudication and imposition of penalty etc. as covered by sections 50 and 50(1) and the prosecution in courts as covered by section 56 of the Act can now go hand-in-hand and there is no question of double jeopardy emanating from simultaneous operation of these two systems. It may be recalled here that in a case under the Customs Act reported in AIR 1953 SC 325 (Maqbul Hossain vs. State of Bombay) the question was considered whether adjudication and separate prosecution for the same offence would amount to double jeopardy from which protection is available under Article 20(2) of the Constitution and Their Lordships were of the view that the principle of double jeopardy will not come into play when the proceedings were before a Tribunal which entertained departmental or administrative enquiry even though set up by a statute and where such tribunal is not required to proceed on legal evidence given on oath. In two other judgments (Thomas Dona vs. State of Punjab) and (Leo Rayfrey vs. State of Punjab) reported in 1983 ECR 1678-D (SC) and AIR 1959 SC 375 respectively the Apex Court by majority judgment held that unless the three essential conditions laid down in clause (2) of Article 20, (namely, prosecution in Court, punishment and same offence) are fulfilled, the protection does not become effective. Therefore, the contention of Mr. Ghosh is unacceptable that in the adjudication proceedings being held by the department concerned the allegations against the petitioner having not been found established the prosecution against him before a Court of law cannot have any legs to stand upon, since the same departmental authority which held the enquiry against him and found no materials for establishing his guilt cannot be expected to lodge the prosecution on the self-same allegations against that person before a Court and cannot be expected to take a different stand on the self-same materials as available against him on the record. As we have noted above, the Enforcement Officer who has investigated into the case is a different agency from that of the adjudicating officer and, what is more important, it cannot be taken for granted that the Court will take the same view on the materials on record which have prompted the departmental authority to find the allegations not substantiated. As it has been already pointed out, the procedure according to which the trial of such an accused by the Court is held has some special features and the two testing processes are so divergent that there is ample scope for the two parallel authorities to hold even diametrically opposite views so far as the question of proof of the charge against the accused is concerned. The host of decisions relied upon by Mr. Ghosh and discussed above in respect of his above contention cannot be attracted to our present case for the simple reason that none of those judicial pronouncements are relating to a case under the Foreign Exchange Regulation Act the provisions of which cannot be equated with those of the Income Tax Act or Customs Act. As has been found from the above discussion, the FERA contains certain special provisions and features which have given it a distinction so far as the principles of criminal jurisprudence are concerned. As has been found from the above discussion, the FERA contains certain special provisions and features which have given it a distinction so far as the principles of criminal jurisprudence are concerned. In short, the argument appears to be without any substance that since the departmental authority on an enquiry did not find any case to be made out against the accused from the materials on record it must be supposed that the same departmental authority cannot under any circumstance be expected to provide any materials which may prompt the Court to come to a finding of guilt. The fate of the prosecution before a Criminal Court is determined on its own merits in accordance with the law uninhibited by any findings. of the Tribunal. The judgment of the Apex Court relied upon by Mr. Roy Chowdhury in this connection reported in AIR 1994 SC 1775 (Directorate of Enforcement vs. Dipak Mahajan and Anr.) deserves mention here. According to this decision the compass in which a criminal Court may have to discharge its functions is vast enough encompassing an arena in which it may have to go behind the words and enactments to give effect to the legislative intention particularly in the context of the scope and object of the Foreign Exchange Regulation Act vital of which being economic development of the country and augmentation of revenue. In other words, the outlook and approach which a Court of law may have to adopt in the matter of trial of an accused under the Foreign Exchange Regulation Laws is quite different from those of a domestic tribunal or departmental adjudicatory authority and there is no scope for taking the view that when the latter has not found the charges against the accused proved from the materials before it the Court also is bound to arrive at the same conclusion. 10. So far as the second line of argument of Mr. Roy Chowdhury's is concerned also, I do not find any solid reason for discarding it. 10. So far as the second line of argument of Mr. Roy Chowdhury's is concerned also, I do not find any solid reason for discarding it. There is no denying the fact that if the complaint or, for that matter, a criminal proceeding started against the accused is quashed at this stage on the basis of certain documents filed by the accused without affording an opportunity to the prosecution to have its say on the contents of such documents which are yet to be adduced as evidence then that will be simple prejudging of the entire issue to be decided by the Court upon holding trial, a course which cannot be permissible under the settled position of law. The principles enunciated by the Apex Court in a large number of its decisions, two of which have been cited by Mr. Roy Chowdhury and discussed above (AIR 1991 SC pages 1260 and 1308), is that the appreciation of evidence is the function of the criminal Courts and the High Court could not have assumed jurisdiction and put an end to the process of investigation and trial provided under the law by treating the annexures and affidavits as evidence and by converting itself into a Trial Court and declaring the accused to be innocent. 11. In view of the entire discussion made above, the contentions of Mr. Ghosh are found to be without any merit and I am unable to accept the prayer of the petitioner to quash the proceedings. In the result, the impugned order of the learned Metropolitan Magistrate does not call for any interference and the revisional application be dismissed. Revisional application dismissed.