S PARAMESHWARAN Vs. DEPUTY DIRECTOR OF ENFORCEMENT

JUDGEMENT

(1.) THE above appeals may be dealt with together for the reason that they have been dealt with by the authorities below likewise and on account of the fact that they involve the same parties arising out of one and the same transaction. THE authorities below, Deputy Director of Enforcement, southern Zone, Sastri Bhavan, Madras, in his order dated June 23, 1996, as also the Foreign Exchange Regulation Appellate Board in its order dated June 26, 1992, have dealt with the factual details and it is unnecessary for us to advert to all those details having regard to the narrow controversy raised before us and involved in these appeals. Under the impugned orders, a penalty of Rs. 5, 000 was imposed on Associated Travels (P.) Ltd. , the appellant in C. M. A. No. 1211 of 1993, for the alleged contravention of section 9 (1) (b) of the Foreign Exchange regulation Act, 1973 Per contra, Mr. S. Veeraraghavan, learned Additional central Government standing counsel, appearing for the respondent-Department adopted the reasons assigned concurrently by both the authorities below and contended that the visiting card sufficiently disclosed the required basis and relevant material to safely treat Hameed Abdul Kader as a person resident outside India, though he may be an Indian citizen and that, therefore, no exception could be taken to the concurrent findings recorded by both the authorities below and the orders of the authorities below including the appellate Board do not call for any interference in out hands. We have carefully considered the submissions of learned counsel appearing on either side. Section 9 (1) (a) and 9 (1) (b) of the Foreign Exchange Regulation Act, 1973, read as follows : "save as may be provided in and in accordance with any general or special exemption from the provisions of this sub-section on which may be granted conditionally or unconditionally by the Reserve Bank, no person, in, or resident in India, shall. . . . . (a) make any payment to or for the credit of any person resident outside India; (b) receive, otherwise than through an authorised dealer, any payment by order or on behalf of any person resident outside India. . . . . . " " Person resident outside India" is defined in section 2 (q) as meaning a person who is not resident in India and'person resident in India ' is defined in section 2 (p) and so far as it is relevant for our purpose is as follows : " (1) a citizen of India, who has, at any time after the 25th day of March, 1947, been staying in India but does not include a citizen of India who has gone out of, or stays outside India, in either case. . . (a) for or on taking up employment outside India , or (b) for carrying on outside India a business or vocation outside India , or (c) for any other purpose, in such circumstances as would indicate his intention to stay outside India for an uncertain period. . . . . . " * From the above, it could be seen that a person resident in India cannot be, at the same time, a person, resident outside India and "person outside India " has been defined in a negative and exclusionary manner as one who is not a person resident in India. A citizen of India is one who is at any time after March 25, 1947, been staying in India, but it does not include a citizen of India, who has gone out of, or stays outside India, in either case for or on taking up employment outside india, or for carrying on outside India, a business or vocation outside India, or for any other purpose, in such circumstances as would indicate his intention to stay outside India for an uncertain period. Consequently, if Hameed Abdul kader, who is said to be a citizen of India, unless shown or proved to have gone out or to be staying outside India for or on taking up employment outside india, or for carrying on outside India, a business or vocation outside India, or for any other purpose, in such circumstances as would indicate his intention to stay outside India for an uncertain period, he cannot be dubbed as a person resident outside India. THE question, though is a question of law, would depend very much on the proof of necessary facts which go as inevitable ingredients to prove the status of a person before he could be attributed with the status of being a person resident outside India, particularly in a case, where he is indisputably a citizen of India.

(2.) LEARNED counsel appearing on either side invited our attention elaborately to the relevant findings and the manner of consideration adopted by the authority below as also the Appellate Board, and placed strong reliance on the materials adverted thereto, of which, as noticed earlier, strong reliance has been placed on the information contained in the visiting card of Hameed Abdul Kader to be sufficient to prove that the said person is carrying on business or vocation outside India. We have bestowed our careful consideration to the materials on record. In traversing the claim on behalf of learned counsel for the appellants by learned senior counsel that nothing precluded the authorities exercising powers under the Act to examine the said hameed Abdul Kader or to examine such person to give evidence or produce documents and this not having been done in this case, the authorities below could not have adjudicated on the status of such person so as to condemn as a consequence thereof the appellants.