ENFORCEMENT DIRECTORATE Vs. M SAMBA SIVA RAO

JUDGEMENT

(1.) All these appeals are directed against a common judgment of a learned single Judge of Delhi High Court and a common question of law arises and as such they are heard together and are being disposed of by this common judgment. The question for consideration in all these appeals is whether refusal on the part of a person, who is summoned under S. 40 of the Foreign Exchange Regulation Act, 1973 (hereinafter referred to as 'the Act') to comply with the directions under the summons, would attract the provisions of S. 56 of the Act The High Court by the impugned judgment came to the conclusion that the provisions of S. 56 of the Act will not get attracted for violations of the directions under S. 40 of the Act and, accordingly, the complaints filed for such violation and cognizance taken in the complaint cases have been quashed.

(2.) Mr. Mukul Rohtagi, the learned Additional Solicitor General, contended that the power having been conferred on the officers of the Enforcement Directorate to summon any person, whose attendance is necessary, either to give evidence or to produce a document, in course of any investigation or proceeding under the Act and the Act itself having made it binding on the person summoned to attend, as provided in sub-sec. (3) of S. 40, the refusal on the part of the person summoned to carry out the obligation under the statute, should be seriously viewed and must be held to be a contravention of the provisions of the Act, making such contravention punishable under S. 56 of the Act, and the High Court was in error in quashing the complaints filed.

(3.) Mr. R. K. Handoo, the learned counsel appearing for the accused respondents in some of the appeals as well as Mr. A. K. Ganguly, the learned senior counsel, appearing for the accused in some of the appeals, however contended that the orders/directions, violation of which is punishable under S. 56 of the Act are those statutory orders or directions and the summons issued under S. 40 has no statutory character and, therefore, the said violation by the person summoned, cannot be made punishable under S. 56 of the Act. It was also further contended that the 'offence' not being defined under the Act, one will have to examine the definition of 'offence' in General Clauses Act and on such an examination, it would appear that the impugned violation cannot be held to be an 'offence' and, therefore, cannot be made punishable under S. 56 of the Act, and the High Court, therefore was fully justified in quashing the complaints filed. For better appreciation of the contentions raised, it would be necessary to extract the provisions of S. 40 and S. 56 of the Act in extenso: