BIMAL KUMAR JAIN Vs. DIRECTORATE OF ENFORCEMENT

JUDGEMENT

(1.) Ld. Single Judge's order upholding the decision of the Assistant Director, Enforcement Directorate in the course of the proceedings under Section 60(3) of the Foreign Exchange Management Act, 1999 (hereafter referred to as "FEMA") is challenged in this appeal.

(2.) The Enforcement Directorate made a complaint on 8.1.2016 alleging violation of provisions of FEMA; a show cause notice was issued on 11.1.2016 to the appellant calling upon him to disclose why adjudication proceedings contemplated under the enactment, should not be drawn. Adjudication pursuant to the show cause notice was initiated. At the stage of initiation of proceedings for release of jewellery seized, a writ petition was disposed of on 14.9.2017. During the course of proceedings, the appellant sought cross-examination of Mr. Manoj Garg (Investigating Officer) as well as others, which was denied. The Special Director (Adjudicating Officer) rejected the application by a cryptic order on 3.1.2018. The observations of the Special Director are, as follows :

(3.) The application made to the Special Director in the course of proceedings in this case (dated 21.12.2017), is part of the record. No doubt, the appellant sought the Investigating Officer's crossexamination inasmuch as, according to him, examination as to the conclusion in his report was necessary. The appellant, at the same time requested for cross-examination of the other witnesses, whose statements were on record by the Directorate of Enforcement. So far as statements of these witnesses or individuals are concerned, the order of the Special Director is absolutely silent. In this given situation, the Single Judge's conclusion that cross-examination cannot be sought as a matter of right in respect of witnesses is correct. At the same time, what appears to have been overlooked in the impugned order is that, apart from the Investing Officer, other witnesses' examination too, was sought. The Special Director did not deal with that aspect in any manner. In the circumstances, the appellant shall approach the Special Director within three weeks spelling out the reasons why the cross-examination of the witnesses other than the IO is needed. In the event such application is made, the Special Director shall consider it and after granting appropriate hearing to the appellant, pass a reasoned order. The reasoned order shall be communicated to the appellant within two weeks of the conclusion of such hearing/opportunity.