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2001 DIGILAW 650 (DEL)

ASMITA AGARWAL v. ENFORCEMENT DIRECTORATE

2001-11-22

C.K.MAHAJAN, USHA MEHRA

body2001
USHA MEHRA ( 1 ) A very interesting point has been raised in this petition as to whether the provisions of the criminal Procedure Code would apply to an investigation carried out under Foreign Exchange Regulation Act,1973 (called the FERA ). Mr. K. K. Sud, Additional Solicitor general appearing, for the respondents, No. 1 and 2 contended that FERA is a complete Code in itself therefore, for the purposes of investigation the aid of the provisions of the Code of Criminal Procedure cann t be put in service. To support his contention he placed reliance on the decision of Supreme Court in the case of Dukhishyam benupani Vs. Arun Kumar Bajorja 1996 (1) SCC 52. In that case High Court had directed the investigation Agency not to arrest the accused and that the interrogations be conducted on the appointed dates, times and also fixed the duration thereof. The Apex Court while setting aside those directions observed that such kind of supervision on the enquiry or investigation under a statute is uncalled for and further observed that making such interference with the functions of the statutory authorities particularly when such authorities are exercising their power under the law is not permissible. Apex Court also observed that it was not he function of the court to monitor investigation so long as such investigation does not transgress any provision of law. ( 2 ) IN the case of State rep. by the CBI Vs. Anil Sharma (1997) 7 Supreme Court Cases 187, the Apex Court observed that a blanket order fully insulating a person from arrest would make his interrogation a mere ritual. In the case of Poolpandi Vs. Superintendent. Centrai Excise (1992) 60 E. L. T. 24 (S. C.) Apex Court observed that the person called for interrogation has no right to have his lawyer present during Questioning by officers under Section 107, 108 and 110 of Customs Act, 1962 and other similar statutes. Such person not equitable with an accused in a criminal case. Superintendent. Centrai Excise (1992) 60 E. L. T. 24 (S. C.) Apex Court observed that the person called for interrogation has no right to have his lawyer present during Questioning by officers under Section 107, 108 and 110 of Customs Act, 1962 and other similar statutes. Such person not equitable with an accused in a criminal case. The argument of the petitioner therein was that if a person is called away from his house and questioned in the atmosphere of the customs office without the assistance of his lawyer or his friends, his constitutional right under Article 21 is violated because a person who is used to certain comforts and convenience and he ,is asked to come by himself for answer ins questions, it amounts to mental torture. While rejecting this argument Apex Court held that he had no constitutions right to claim luxuries and company of his choice when called for interrogation because if that is allowed then the purpose of enquiry under the Customs Act and the other similar statutes will be completely Frustrated if the whims of the person in possession of useful information for the departments is allowed to prevail. ( 3 ) MR. K. K. Sud, Additional Solicitor General relying on the observation of the Constitut ion Bench in the case reported in Romesh Chandra Mehta v. State of west bengal 1969 (2) SCR 461 and Illias Vs. Collector of customs, Madras, 1983 E. L. T. 1420 (SC) contended that the provision of the FERA and the provision of the Customs act, 1962 are in para materia. The subject of both the acts is also similar. Therefore, decision of Supreme court in cases under the Custom Acts would squarely apply to the present case. He further contended that since fera is a special legislation hence provision of Code of criminal Procedure would not apply - The investigation would strictly be conducted under the provision of FERA - to support his contentions he placed reliance on the decision of Supreme Court in the case of CBI Vs. He further contended that since fera is a special legislation hence provision of Code of criminal Procedure would not apply - The investigation would strictly be conducted under the provision of FERA - to support his contentions he placed reliance on the decision of Supreme Court in the case of CBI Vs. State of rajasthan and Others JT 1996 (6) SC 313 where the Apex court observed that FERA is a special legislation relating to regulation of Foreign Exchange and that the provision of Sections 4 and 5 of Code of Criminal Procedure will not come in aid of the investigation of the offences under FERA by a member of police force like an officer of dspe in accordance of the Criminal Procedure Code. Sections 4 and 5 of the Code of Criminal Procedure according to Mr. Sud cannot be used in aid by the petitioner because the provisions under FFRA gives power to the officers of the Directorate of Enforcement or other officers duly authorised by the Central Government to search , conspirate, recover, arrest, record statements of witnesses, etc. FERA being a special law contains provisions for investigation , enquiry, search , seizure , trial and imposition of punishment for offences under fera, therefore, the provision of Section 5 of the Code of Cr iminal Procedure are not applicable. FERA provides the manner and place of inquiring into, trying or otherwise deal ing with such offences. Hence, the provisions of Code of Criminal Procedure are not applicable. In this regard he also placed reliance on the case of Enforcement Directorate and Anr. vs. M. Samba Siva rao and Ors. 2000 (5) SCC 231 . ( 4 ) REFUTING these contentions Mr. Y. P. Narula on the other hand contended that the FFRA even though a Code in itself does not contain any provision with regard to holding an enquiry against a minor or a woman. To enquire from a woman and to investigate a woman under fera, the Investigating Officer has to have recourse to the provisions of Section 160 of the Code of Criminal procedure. In the absence of there being any special procedure prescribed regarding conducting of enquiry against a minor or women the FERA has no provision as to how and where they are to be investigated. Hence the investigating Officer cannot but have recourse to Section 160 Criminal Procedure Code for recording their statements. In the absence of there being any special procedure prescribed regarding conducting of enquiry against a minor or women the FERA has no provision as to how and where they are to be investigated. Hence the investigating Officer cannot but have recourse to Section 160 Criminal Procedure Code for recording their statements. To support his contentions he placed reliance on the decision of supreme Court in the case of Directorate of enforcement v. Deepak Mahajan and another reported in AIR 1994 (SC) 1775 . ( 5 ) IN order to appreciate and decide the legal submissions made at the Bar, we may have a quick glance to the facts of this case. Briefly stated the facts which are relevant for our purpose are that the petitioner who is a journalist by profession and belongs to a respectable family got married to one Abhishek verma, respondent No. 3 hereinon 1/12/1992. She has a son from this wedlock but since 5/05/1996 on account of the cruel behaviour of her husband, she left the matrimonial home and started living with her parents. She even filed a divorce petition against Abhishek Verma, respondent No. 3 herein on the ground of cruelty. Litigation with regard to the custody, inter se, husband and wife is also going on. The husband of the petitioner, respondent No. 3 is the son of a Member of parliament. According to petitioner he wields tremendous financial and political influence. According to petitioner, respondent No. 3 got a notice issued against her on 8/05/1997 under Section 40 of the FERA thereby implicating her in some false case. In a divorce petition, she had made clear that the respondent No. 3 had been involved in number of scam cases and had been getting blank papers signed from her when she was living with him. She of her own never dealt in any foreign exchange. She never went alone to any of the foreign countries. Whenever she went she went with ther husband except in March, 1997 when she went to Singapore to help her brother and sister-in-law who had shifted from Saudi arabia to Singapore. She filed reply to the notice issued, by the respondent No. 2 on 14/05/1997. She furnished all the documents and also stated that she had no hesitation in joining the investigation. She filed reply to the notice issued, by the respondent No. 2 on 14/05/1997. She furnished all the documents and also stated that she had no hesitation in joining the investigation. She was however, never told for what purpose she was called by the respondent No. 2 though she tried to ascertain the same from the respondents. The notice was vague. It did not indicate in what case she was to be in vestigated nor the petitioner could ascertain whether the investigation qua the case was pending against her. She apprehended that her husband must have used a blank paper got signed from her in order to falsely implicate her. ( 6 ) IT is in this background she approached this court with a request that she be interrogeted as per the provision of Section 160 Criminal Procedure Code at her residence. Mr. Y. P. Narula appearing for the petitioner drew our attention to the notice issued by the respondents dated 8/05/1997 to contend that the notice is absolutely vague. Except saying produce documents no other particulars of the case furnished nor any explanation of the petitioner sought. So far as this aspect is concerned, we are hot called upon to deal with the same aspect in this writ petition. At the moment the question for consideration is should she be allowed to be investigated at her residence? Admittedly Supreme Court did observe that it is not at the whim of the person that the investigation should be done at his or her convenience nor at her whim. We are neither on convenience nor at her whim. In view of the;apprehension expressed by her against her husband and consequent fear she wants as per the provision of Section 160 Criminal Procedure Code she be interrogated at her residence. We have to see whether proviso to Section 160 of the Crl. P. C. apply in the facts of this case particularly when the FERA is silent as to where a woman has to be investigated. This was not the point/issue in Dukhishyam Benupani, Anil sharma, Poolpandi, CBI Vs. State of Rajasthan and Ors. and Enforcement Directorate and Anr. Vs. M. Samba Siva Rao and Ors. (Supra ). In all the above mentioned cases relied by Mr. This was not the point/issue in Dukhishyam Benupani, Anil sharma, Poolpandi, CBI Vs. State of Rajasthan and Ors. and Enforcement Directorate and Anr. Vs. M. Samba Siva Rao and Ors. (Supra ). In all the above mentioned cases relied by Mr. K. K. Sud, the Apex Court was considering the issue whether the High Court can in its discretionary powers under Section 226 of the Constitution of India supervise the enquiry or investigation under the Statute or could the High Court give a blanket order to arrest when any investigation is going on. Apex Court opined that High court couldn t direct that the investigation should not be carried out without the assistance of a lawyer or a friend, but that is not the case in hand in the case in hand, the direction regarding investigation at her residence as sought because of the proviso to Section 160 of the Code of Criminal Procedure. Mention 160 Criminal Procedure Code is reproduced as under :- "section 160 any police officer making j an investigation under this Chapter may, by order in writing, require the attendance before himself of any person being within the limits of his own or any adjoining station who from the information given or otherwise, appears to be acquainted, with the facts and circumstances of the case; and such person shall attend as so required provided that no male person under the age of fifteen years or woman shall be required to attend at any place other than the place in which such male person or woman resides. Bare reading of the proviso makes it clear that if the attendance of the woman is required it shall be at her residence. Admittedly the petitioner was summoned to produce documents. Reading of the summon dated 8/05/1997 under Section 40 of the FERA shows she was only to produce documents. It appears she was summoned in connection with some on going investigation. She was to anwer certain querries. ( 7 ) CONTENTION of Mr. K. K. Sud, Addl. Solicitor general, that by directing to investigate her at her residence there has been a violation of the provision of fera. We find no substances in this contention. Section 4 of the Code of Criminal Procedure deals with the trial of offence under the Indian Penal Code and other laws. ( 7 ) CONTENTION of Mr. K. K. Sud, Addl. Solicitor general, that by directing to investigate her at her residence there has been a violation of the provision of fera. We find no substances in this contention. Section 4 of the Code of Criminal Procedure deals with the trial of offence under the Indian Penal Code and other laws. Persual of Sub Section 2 of Section 4 show that all offences shall be investigated, inquired into, tried, and otherwise dealt with under the same provision and the code subject to the condition that if there is any enactment or a special Code regulating the manner or place of investigating inquiring into, trying or otherwise then the Code will not apply. But as already pointed out above FERA even though a special Code or enactment, nowhere provides as to where the investigation of woman is to be carried. Therefore, in the absence of any provision available in the special enactment, the provision of Code would apply as laid down under Section 4 (2) of the Code. In this respect reference can be made, to the decision of the Supreme Court in the case of directorate of Enforcement Vs. Deepak Mahajan and another (Supra ). In this case Apex Court held that the operation of Section 4 (2) of the Code is straightaway attributed to the areas of investigation, enquiry and trial of offences under the special laws including the fera and the customs. Section 4 is comprehensive and that Section 5 is not in derogation of Section 4 (2) of the Code. It only relates to the extent of application of the Code in the matter of territorial, and other jurisdiction but does not nullify the effect of Section 4 (2) of the Code. It has further been observed that the provision of the Code would be applicable to the extent in the absence of any contrary provision in the special act or any other special provision excluding the jurisdiction or applicability of the Code. That reading of Section 2 of the Code r/w Section 26 (B) which governs any criminal proceeding as regards the course of which an offence is to be tried and as to the procedure to be followed renders the provision of the Code applicable in the field not covered by the provision of FERA or Customs. That reading of Section 2 of the Code r/w Section 26 (B) which governs any criminal proceeding as regards the course of which an offence is to be tried and as to the procedure to be followed renders the provision of the Code applicable in the field not covered by the provision of FERA or Customs. Admittedly, Apex Court in Deepak Mahajan s case (Supra) was not dealing with the proviso of Section 160 criminal Procedure Code but was dealing with the applicability of section 167 of the Code to a case to be filed under FERA. It is not. denied that Section 160 and Sectton 167 of the code fall under the same Chapter i. e. Chapter XII under the title "information to the police and their power to investigate". It was while dealing with and interpreting section 167 Criminal Procedure Code under Chapter XII the Apex Court made the observation in Deepak Mahajan s case (Supra ). ( 8 ) THE fact of the matter is that once the special legislation or enactment like FERA is silent with regard to certain procedure like where to investigate a woman, one cannot but have to have recourse to the code. Admittedly FERA silent this respect regarding investigating a woman or a minor under the FERA, therefore, we are of the view that the provisions of section 160 of the Code would apply in the fact this case. It may, however, be made clear that the petitioners will fully co-operate with the investigating officer.