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2002 DIGILAW 850 (PNJ)

Ashok Anand v. Union Of India

2002-08-28

ADARSH KUMAR GOEL

body2002
Judgment Adarsh Kumar Goel, J. 1. This order will dispose of Criminal Misc. No. 8854-M of 1994 and Criminal Misc. No. 8855-M of 1994, as the common questions of law and facts are involved in these petitions. However, the facts are being taken from Criminal Misc. No. 8854-M of 1994. 2. The CBI through Shri J.K. Tayade, DSP recorded FIR No. 14/SCB/93 dated 29.5.1993 against the petitioner and five others to the effect that 155.04p tonnes of Polysters Filamine Yarn and 120-9775 tonnes of Polysters Fibre were imported by M/s. Jasmine Imports against advance Licences mentioned in the FIR, which were issued subject to the condition that the importer would manufacture readymade garments and export its end products within six months from the date of first consignment, but the importer sold the stock in local market without fulfilling the export obligation. It is further noted that the firm was a dummy firm, which was floated and financed by the accused persons. 3. Learned counsel for the petitioner raised the following contentions : (1) Section 6 of the Import and Export (Control) Act, 1957 was not a cognizable offence and cognizance by the Court was barred except on a complaint in writing by an authorised person. (2) After the alleged violation in the year 1984, the Import and Export (Control) Act, had been repealed by the Foreign Trade Developme nt and Regulation Act, 1992 and under Section 20 of the latter Act, which is a saving clause alleged offence was not saved; (3) Sections 420 and 120-B of the Indian Penal Code were not made out. Learned counsel for the respondent opposed the said contentions and submitted that under Section 155(4) Cr.P.C., the FIR could proceed with regard to cognizable as well as non-cognizable offences since cognizable offence are also involved. The saving clause under Section 20 of the latter Act would save the alleged offences. The ingredients of alleged offence under Section 420 and 120-B IPC were made out. 4. Learned counsel for the petitioner submitted that the saving clause under Section 20 of the Foreign Trade (Development and Regulation) Act, 1992 (For short, 1992 Act) did not save the offence in question, which is alleged to have committed prior to the 1992 Act, since the FIR had not been registered till then, which was registered after coming into force the aforesaid Act. He submitted that repeal of the old Act on the date of registration of the FIR debarred the registration of the FIR in view of change of legislative policy when violation of Imports and Exports (Control) Act, 1947 (for short, 1947 Act,) was no longer an offence. Reliance is placed on a judgement of the Supreme Court in M/s. Rayala Corporation (P) Ltd. and another v. The Director of Enforcement New Delhi AIR 1970 SC 494 para 12. Learned counsel for the petitioner also referred to Income Tax Officer v. M/s. Jindal Enterprises (Regd. 1 2001(2) RCR (Criminal) 843 (P&H). Arvind Katoch v. State of Punjab : 2001(4) RCR (Criminal) 608 (P&H) : [2001(4) All India Criminal Law Reporter 182 (Pb. & Hry.)] Central Brueau of Investigation v. State of Rajasthan and others. 1996 Crl. L.J. 3480 (SC); Dr. Radhey Shyam Aggarwal v. State 2001(2) RCR (Criminal 304 Sagar Suri v. State of U.P. JT 2000(1) SC 360 : [2000(1) All India Criminal Law Reporter 855 (SC)]; Such Lata v. M/s. Swastika Agro Industrial Corporation. 2001(4) RCR (Criminal) 253 (P&H) : [2001(4) All India Criminal Law Reporter 288 (Pb. & Hry.)]; State of Kerala v. P. Sugathan : 2000 (4) RCR (Criminal) 369 (SC) [2000(4) All India Criminal Law Reporter 659 (SC)]; State of Haryana and others v. Bhaian lal and others - AIR 1992 SC 604 : [199](1) All India Criminal Law Reporter 68 (SC)] and Navinchandra N. Maiithia v. State of Maharashtra. 2000(7) SCC 640 [2000(4) All India Criminal Law Reporter 392 (SC)]. 5. Learned counsel for the CBI submitted that in violation of the 1947 Act, the petitioner had imported goods and availed exemption to the extent of Rs. 69 lacs, which was permissible only if the petitioner discharged his export obligation, as the object of the policy was to give impetus to the export and by action of the petitioner, loss of Rs.69 lacs was caused to the respondent and even if there was no offence under the 1992 Act, offence under Section 420 IPC was clearly committed, on account of which proceedings could not be quashed. It was submitted that it cannot be said on the reading of the FIR that no offence whatsoever is disclosed. It was submitted that the investigation was going on and if the investigation is permitted, the petitioner will have his remedy before the Court, where final report is filed. It was submitted that it cannot be said on the reading of the FIR that no offence whatsoever is disclosed. It was submitted that the investigation was going on and if the investigation is permitted, the petitioner will have his remedy before the Court, where final report is filed. 6. Learned counsel for the respondent also submitted that the petitioners grievance will also be taken note of by the investigating agency and at this stage, this petition was premature. 7. After hearing counsel for the parties, I find merit in the objections taken by the counsel for the CBI. Though counsel for the respondent also raised an objection about the jurisdiction of this Court on the ground that the offence was committed at Bombay where import was made and therefore, the FIR was lodged at Bombay, learned counsel for the petitioner submitted that this Court had jurisdiction, as part of cause of action accrued in the jurisdiction of this Court. Counsel for the petitioner relied on a judgment of the Supreme Court in Navinchandra N. Maiithias case (supra) and submitted that if substantial part of cause of action had accrued in the jurisdiction of one High Court, the jurisdiction of that Court cannot be lost merely because a negligible part of cause of action accrued outside the jurisdiction. I need not go into this question, as after hearing counsel for the parties on merits, I am of the view that the proceedings are not liable to be quashed at this stage. 8. In M/s. Rayala Corporations case (supra), while interpreting a notification amending Rule 132A(2) of the Defence of India Rules, 1962, which used the expression "things done or omitted to be done" the Apex Court held that no prosecution could be instituted, as the expression things done referred to initiation of prosecution. In M/s. Jindal Enterprisess case (supra), a Single Bench of this Court quashed proceedings initiated after amendment of Section 276-DD of the Income Tax Act, 1961 in respect of offence already committed. In Arvind Katochs case (supra), it was observed that the provisions of the Code of Criminal Procedure were not applicable and there was a special law on this subject. In Central Bureau of Investigations case (supra), it was observed that when special provisions had been enacted under FERA, Code of Criminal Procedure was not applicable regarding investigation. In Dr. In Arvind Katochs case (supra), it was observed that the provisions of the Code of Criminal Procedure were not applicable and there was a special law on this subject. In Central Bureau of Investigations case (supra), it was observed that when special provisions had been enacted under FERA, Code of Criminal Procedure was not applicable regarding investigation. In Dr. Radhey Shyam Aggarwals case (supra), the same view, as in M/s. Jindal Enterprisess case (supra), was taken. In G. Sagar Suris case (supra), the Apex Court laid down a principle of quashing when no case was made out. In Sneh Latas case (supra), proceedings under Sections 406/420 IPC were quashed. In P. Sugathans case (supra), question of criminal conspiracy was considered. In Bhajan Lal case (supra), principle of quashing of FIR was laid down. 9. Section 20(2) of the Foreign Trade (Development and Regulation) Act, 1992 is as under : "The repeal of the Imports and Exports (Control) Act, 1947 shall, however, not affect : (a) the previous operation of the Act so repealed or anything duly done or suffered thereunder; or (b) any right, privilege, obligation or liability acquired, accrued or incurred under the Act so repealed; or (c) any penalty, confiscation or punishment incurred in respect of any contravention under the Act, so repealed; or (d) any proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, confiscation or punishment as aforesaid, and any such proceeding or remedy may be instituted, continued or enforced, and any such penalty, confiscation or punishment may be imposed or made as if that Act had not been repealed." Compared to the language of Rule 132-A (2) of the Defence of India Rules, 1962, the scope of saving clause is much wider. The said Rule is reproduced below for ready reference : "In the Defence of India Rules, 1962, Rule 132-A (relating to probation of dealings in foreign exchange) shall be omitted except as respects things done or omitted to be done under that Rule." In view of this, the judgments cited by learned counsel for the petitioner are distinguishable. 10 In my view, it cannot be said that no offence whatsoever has been committed, when the petitioner is alleged to have imported goods under a policy and incurred obligation by availing of concessions in duty to the tune of Rs. 69 Lacs. 10 In my view, it cannot be said that no offence whatsoever has been committed, when the petitioner is alleged to have imported goods under a policy and incurred obligation by availing of concessions in duty to the tune of Rs. 69 Lacs. Failure to fulfil the export obligation cannot be said to be not inviting any criminal liability whatsoever, as alleged by counsel for the petitioner. 11. For the above reasons, both the petitions are dismissed.