V BHASKARAN Vs. SPECIAL DIRECTOR OF ENFORCEMENT ENFORCEMENT DIRECTORATE MINISTRY OF FINANCE NEW DELHI

JUDGEMENT

(1.) THE appellant was issued with an 'opportunity notice' contemplated under Section 61(2)(ii) of the Foreign Exchange Regulation Act, 1973 (hereinafter referred to as FERA) by the third respondent, alleging that he contravened the provisions of FERA while purchasing a Toyoto Lexus car from London under a fictitious transaction, making use of the name of one Dr.S.Balakrishnan, No.3, Shelley Avenue, Manor Park, London-E126, UK, employed as an anesthetist in the National Health Service of England and said to be a friend of the father-in-law of the appellant. It was also alleged that the vehicle was illegally imported to India, by offering under-valuation of the car for the purposes of payment of import duty.

(2.) WHILE it is the allegation of the respondents/Department that it is an illegal purchase made by the appellant, it is the case of the appellant that the said car was gifted to him on the occasion of his marriage by the said Dr.S.Balakrishnan, who is the friend of his father-in-law. It is the contention of the Department that the investigation conducted by the officials of the Directorate General of Revenue Intelligence, Chennai by recording the statements of persons associated with Dr.S.Balakrishnan, would, undoubtedly, prove that Dr.S.Balakrishnan cannot afford to purchase such a valuable car from his income from the medical profession and that such cars were owned by wealthy people in England itself. The officers of the Directorate General of Revenue Intelligence also recorded the statement of one T.K.Chandrasekaran, 377/378, Arcot Road, Kodambakkam, Chennai-24, on 15.7.1996, who stated that his brother-in-law Dr.Balakrishnan resides in UK and had studied his MBBS in Madras and he may be drawing " 2000 per month in his present occupation as an anesthetist. He further stated that his brother-in-law Dr.Balakrishnan is working in a Government Hospital in UK and that he is a non-resident Indian and about five years back, he was using a second hand Benz in UK and that going by the financial background of his brother-in-law, Dr.Balakrishnan could not have owned a Lexus car.

(3.) MR.Vijay Narayanan, learned senior counsel appearing for the appellant would argue that in the entire opportunity notice, no specific allegation has been made against the appellant, except saying, at one paragraph, that the car has been purchased for the appellant. He would further argue that FERA has been repealed w.e.f. 31.5.2000, since FEMA came into operation from 1.6.2000 and the impugned opportunity notice under Section 61(2)(ii) of FERA has been issued on 21.5.2002 i.e. just before expiry of two years period from the date of repeal of FERA, only to save limitation, provided under Section 49(3) of FEMA, giving a very short period of five days time for the appellant to reply and this indicates the manner in which the Department has acted in a hurried and vindictive manner, by leaving to winds the avowed principles of natural justice and audi alteram partem, besides indicating their preconceived ideas and views. He has further argued that in spite of request by the appellant, the Department has not furnished the copy of documents, which are very essential for the appellant to make his effective representation and reply to the opportunity notice. He would further argue that Section 51 of FERA talks about 'reasonable opportunity' to be given before instituting adjudication and it does not mention the number of days within which reply and a personal hearing should be given. But, no such opportunity was ever given to the appellant and unfortunately, the learned single Judge has failed to assess these factual and legal aspects in their proper perspective, and has erroneously dismissed the writ petition, necessitating the appellant to file this writ appeal. On such arguments, the learned senior counsel would pray to allow the writ appeal, setting aside the order of the learned single Judge and the impugned opportunity notice.