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2008 DIGILAW 863 (BOM)

Avinash Bhosale v. Union of India

2008-06-24

SWATANTER KUMAR, V.M.KANADE

body2008
Judgment :- P.C. 1. We have perused the order dated 4th March, 2008 passed by the Supreme Court in Special Leave to Appeal (Crl) No. 1564/2008. 2. This is an application filed by the petitioner being Criminal Application No.103/2008 in Criminal Writ Petition No.2432/2007 wherein the petitioner made a prayer that he be permitted to travel abroad during the vacation period. However, that could not materialize and resultantly, the .application has been rendered infructuous and is disposed of. In the main petition, the petitioner has stated that the passport of the petitioner has been seized and is not now being returned by the respondent. The petitioner being citizen of India has definitely right to travel abroad and respondent should be permitted to return/release the passport which was seized on 27th December, 2007. It is averred by the petitioner that suspension of the respondent primarily is in relation to certain financial transactions which are alleged to have been conducted by the petitioner in an unauthorized manner. It is averred that proceedings under FEMA were initiated against the petitioner on 5th March, 2008 and they have been culminated into passing a final order of adjudication on 21st April, 2008 and it is this amount of penalty imposed to the extent of Rs.2,84,000/- which has already been paid by the petitioner and thus, departmental proceedings have come to an end. It is further averred that under the Customs Act, the proceedings have been initiated against the petitioner and they have already resulted in compounding before the competent jurisdiction who by order dated 15th February, 2008 has permitted compounding of the offence and the petitioner has paid the compounding fee as directed by the Court and agreed by the department. It is also stated that two Show Cause Notices under the Customs Act have been issued to the petitioner and the adjudication proceedings thereupon have already been completed. Fine/penalties have been paid. Under these circumstance, it is stated that pendency of proceedings by the respondent under Section 37 of the Foreign Exchange Management Act, does not justify detention of the passport as complete investigation has already been conducted. 3. However, according to the learned Additional Solicitor General, it is averred that the petitioner is not fully co-operating. Fine/penalties have been paid. Under these circumstance, it is stated that pendency of proceedings by the respondent under Section 37 of the Foreign Exchange Management Act, does not justify detention of the passport as complete investigation has already been conducted. 3. However, according to the learned Additional Solicitor General, it is averred that the petitioner is not fully co-operating. Secondly, the proceedings under 37 of the Act which further empowers the department to exercise their inherent powers under the provisions of the Customs Act, they have seized the passport and therefore, because of the non-cooperative attitude of the petitioner, they do not wish to return the passport at this stage. While file is still pending, an order of detention has been extended for a period of three weeks with effect from 20th June, 2008. 4. A list has been indicated before us which shows that the petitioner is not furnishing certain details in regard to his accounts with effect from the period 1997 to 2000 and the details of the credit card account. According to the petitioner, his statement has been recorded on different dates by the respondent department and furthermore, the petitioner has also issued letter of authority to the respondent to make detailed enquiry in relation to accounts held by the petitioner in Dubai during the period from 1997 to 2000. It is further stated that the details of account and credit cards held by the petitioner with effect from 2002 onwards have already been furnished to the department. The petitioner has further stated that he is willing to go with the respondent officers to Dubai and assist them for any enquiry which they wish to make. 5. During the hearing of the writ petition, we had passed an order on 10th June, 2008 which reads as under:- ."The Associate Solicitor General appearing for respondents -Union of India, upon instructions from the Officers who are present in Court, submits that they will complete their inquiry by 20th June, 2008 and if no material is found against the petitioner the passport will be returned to him on that date. In view of this, matter is adjourned to 23rd June, 2008." 6. However, now it is stated on behalf of the respondent that they do not intend to make statement and the enquiry is still in process, therefore, the passport should not be returned. 7. In view of this, matter is adjourned to 23rd June, 2008." 6. However, now it is stated on behalf of the respondent that they do not intend to make statement and the enquiry is still in process, therefore, the passport should not be returned. 7. We do not find any merit in this contention. Firstly, non-co-operation for furnishing details allegedly is a serious matter. Secondly, the petitioner has admittedly, furnished the details of the account as well as credit card with effect from 2000. Prior thereto, he was staying at Dubai and has given letter of authority in relation to bank accounts to the respondent and have no hesitation in giving any further authority for making enquiry taking details from Dubai Banks in relation to the credit card. Further, Despite opportunity having been granted, no material has been brought before us which can demonstrate that there are any serious allegations of violation against the petitioner. Even the orders passed by the authorities would not justify holding of passport. 8. During the course of hearing, copy of the order dated 21st April, 2008 is also brought to our notice. Show Cause Notice was issued under the provisions of FEMA 1977 and other provisions of the Foreign Exchange Management Regulation, contravention of which was alleged. This order puts an end to the investigation/enquiry in relation to this and in terms of the final order. Four penalties totalling to Rs. Rs.2,84,000/- were imposed on the petitioner which admittedly have been paid by the petitioner. This order puts an end to the investigation/enquiry in relation to this and in terms of the final order. Four penalties totalling to Rs. Rs.2,84,000/- were imposed on the petitioner which admittedly have been paid by the petitioner. At this stage, we do not wish to dispose of this writ petition finally, however, pass the following interim directions:- 1) The passport of the petitioner detained by the respondent authority shall be returned to the petitioner subject to compliance of the following conditions:- a) The petitioner shall furnish complete details of bank account and credit cards held by him in Dubai and any other foreign country during the period from 1997 to 2000 or any subsequent period when that foreign accounts were closed and for any reasons whatsoever, he is unable to get the details, he upon declaration by way of an affidavit, give details of his bank accounts and credit cards and also furnish a letter of authority in favour of officer of the respondent to make all enquiries and take statement of account and other documents from the bank/credit card details from the relevant authorities of his bank. This shall be done within two weeks. b) The petitioner shall furnish statement of his bank accounts/credit cards in India after a period from 2000 onwards if he has not already furnished, within the same time. Thus, upon furnishing all these documents in terms of this order, the passport will be returned to the petitioner. 9. These directions are without prejudice to the rights and contentions of the parties and in no way, hamper the enquiry being conducted by the respondent. 10. S.O. to 5th August, 2008.