Courts to not take cognizance of offences under Ss. 56 & 57 of FERA unless opportunity to show requisite permission under S. 61(2)(ii) provided

Delhi High Court: A Single Judge Bench of the Delhi High Court comprising of Sanjeev Sachdeva, J., allowed a Criminal Revision Petition before it. The petition alleged failure of the respondents to comply with Section 61(2)(ii) of the Foreign Exchange Regulations Act, 1973 (hereinafter ‘FERA’) which prohibits taking cognizance by a court of offences punishable under Section 56 and 57 of FERA unless opportunity is provided to the accused to prove that they had the requisite permission.

The petitioners argued that no such opportunity was provided, therefore, the trial court could not have taken cognizance and framed charges against the petitioners resulting in the proceedings thereto liable to being quashed. The counsel for the respondent, in response, conceded to the argument that there is a requirement of giving an opportunity to the accused to show that they had the requisite information and that it was provided when the accused had appeared before the Authority for recording his statement under Section 40 of FERA, however, the counsel submitted that the accused had failed to produce the permission when enquired about it. She further submitted that there is no mandatory requirement of giving an “opportunity notice”.

The statement was admittedly recorded in 1996, while the offence was alleged to have been committed in 1995. An “Opportunity Notice” was interestingly issued by respondents in 2002 which specifically asked the petitioners to show if they had the requisite permission in accordance with Section 61(2)(ii). However, on reviewing the statements on record, and the document itself, it was found that the notice was neither sent to the correct address nor served on the petitioner. The Court, while observing that there would have been no need to serve a notice in 2002 had an opportunity actually been provided to the petitioner earlier, rejected the arguments of the respondents. Petition allowed. Impugned order quashed. [United India Airways Ltd v. Chief Enforcement Officer, Enforcement Directorate, 2018 SCC OnLine Del 8233, decided on 05.04.2018]

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