SUMAN KAPOOR ADVOCATE Vs. UNION OF INDIA

JUDGEMENT

(1.) This writ petition was filed by the petitioner, who is a practising advocate, anc it was treated as a 'Public Interest Litigation'. On 22.9.1987 this Court, after hearing some arguments, confined the prayer in the writ petition to the following effect

(2.) The case of the petitioner is that respondent No.2 had given a letter of apology to the Government of India, which has been accepted as per the news item appearing in the issue of The Hindustan Times'dated 18.10.1986 ('Annexure-E' to the writ petition at page-37). The Court thereafter on 22.9.1987 directed the respondent No.l-Union of India and Director, Enforcement Directorate, Foreign Exchange, to file an affidavit puffing on record whether such an apology, as reported in the press, was ever tendered by respondent No.2 and if so the action taken by the Union of Indi'a. The petitioner has alleged that on 2.9.1986 more than hundred officers and man of Enforcement Directorate raided the Thapar Group of Companies and also the residences of the Directors and top Executives of the Companies at Phagwara, Delhi, Bombay and Calcutta on the allegation of serious violations of foreign exchange. Respondent No.2 was arrested on 5.9.1986 by the officials of respondent No.1 and he was produced before the Additional Chief Metropolitan Magistrate who remanded him to judicial custody till 9.9.1986. It has also been alleged in the petition that thet itioner on the same day in late night was granted. bail by the Supreme Court whilele fixing the case for hearing on 9.9.1986. However, on 9.9.1986 Supreme Court dismissed the Special Leave Petition moved by the respondent granting respondent No.2 liberty to move the Court of Sessions for bail. The learned Additional Sessions Judge dismissed the bail application of respondent No.2 on 11.9.1986. However, the High Court on 17.9.1986 granted bail to respondent No.2 while imposing number of conditions on him. It is the case of the petitioner that on 16.01.1986 respondent No. 2tendered apology to the Government of India and out of 18 charges he confessed 15 charges in his letter of apology dated 16.10.1986. The petitioner has heavily relied on the following extracts of the letter of apology, therefore, it is necessary to reproduce the extracts of letter of apology written by respondent No.2 |- ......... It is now realised that there has been a violation of the Foreign Exchange Regulation Act as far as charges listed above are concerned. The violation, however, was unintentional and there are a number of mitigating circumstances. Most of the Joint ventures in question are doing badly and were not in a position to make payments. In most cases we had sent information to RBI or Ministry of Commerce as the case may be. These circumstances in detail would be submitted at the appropriate time.......... We hereby tender unconditional apology for the above violations of the Foreign Exchange Regulation Act and assure you that htis practice will not be repeated in future. We further undertake to cooperate in adjudication proceedings, which may be instituted by the Directorate in their early disposals".

(3.) The petitioner had filed the petition contending inter alia that as an advocate practising on the Criminal Side, he was shocked that, on the basis of letter of apology, even after the voluntary confession of respondent No.2 that violation of FERA has taken place, respondent No.2 was not prosecuted whereas other offenders, who may have done similar offences in relation to violation of Foreign Exchange Regulation Act (in short "FERA") were prosecuted and punished. Mr.Suman Kapoor, appearing in person, has contended that the action of respondent No. 1 in not launching criminal prosecution against respondent No.2 and to continue the same with number of other offenders in various Courts for violation of.FERA was discriminatory and in violation of Section 14 of the Constitution of India. Petitioner has also contended that said action amounts to an act of favouritism shown by the respondent-Union of India to a wealthy and influential person whereas for similar offences hundreds of other people are prosecuted by the Directorate of Enforcement. Mr.Kapoor has further contended that there is no provision under the FERA and there is no immunity from prosecution except in terms of Section 60 of the FERA. Petitioner has also contended that the case of respondent No.2 would not fall under the parameters of Section 60 of the FERA and hence any immunity granted to respondent No.2 from prosecution was arbitrary and colourable exercise of the powers by the Union of India. Petitioner has further contended that the bail was granted to respondent No.2 by this Courtwhile laying down the condition that foreign exchange would be repatriated and till date the foreign exchange has not been repatriated by respondent No.2. Along with the petition, the petitioner has filed various copies of Newspaper, magazines, articles written on the whole episode. I do not feel the necessity of referring them as this Court is only concerned about the proposition of law raised in this petition. The petition was admitted by the Division Bench of this Court keeping in view the exercise of powers by Union in a case where allegation for flight of non-repatriation of huge amount of money in foreign exchange was alleged and purported discrimination alleged in executive actions. Petitioner has also contended that respondent No.1 was under legal duty to enforce the revenue laws including FERA uniformally and expeditiously and the failure to do so suggests conspiracy and collusion between Union and big business houses including respondent Nos.2 & 3. In these premises, petitioner has sought issuance of an appropriate writ so that the majesty and rule of law is upheld. In sum and substance, the arguments of the petitioner is that whether on the basis of a letter of apology, the Union of India can drop the prosecution in view of no provision relating to amensty in FERA. The other argument, which is advanced by the petitioner, is that as to what are the guidelines in this regard and whether the action taken by the Union of India is on the basis of said guidelines. Whether the guidelines give rooms for arbitrary and capricious action to Union of India? Petitioner has further contended that if the application, which was moved by the Enforcement Directorate for the judicial remand and custody of respondent No.2 is taken into consideration, it would show that at one stage Union of India was so serious to initiate action against respondent Nos.2 and 3. Why sudden change took place in one month not to prosecute respondent Nos,2 and 3? The excerpts from the application moved by the Enforcement Directorate before the Additional. Chief Metropolitan Magistrate is as follows |- 'That the documents prima facie indicate huge amounts of non-repatriation of export proceeds and royalties, technical and management fees etc. There is a deliberate planning for not repatriating the amount, for example, it has been deliberately planned that export proceeds worth Rs.1.43 crores and interest at the rate of 8% thereon rnay not be recovered. Besides, in the case of M/s.Karam Chand Thapar & Bros., the company has tried to project that the hotel project of the company abroad will not be remunerative as reflected in their Balance Sheet, but on the other hand, a sister concern, i.e.M/s.Ballarpur Industries Ltd. which has got the same directors has invested equivalent of US $ 1.5 million in the form of equity contribution and export of goods worth US $ 6 lacs in the hotel project. Shri Shyam Sunder Lal was arrested on 4.9.1986 and grounds of arrest haw been explained to him. The matter is at a very crucial stage of investigation and has got international ramification and accused person is a very rich man and influential person and is likely to hamper the investigation if released on bail at this stage."