Delhi High Court
Enforcement Directorate vs Subhash Chandra Tuli on 25 March, 2015
$~20
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.A. 810/2011
Decided on 25th March, 2015
ENFORCEMENT DIRECTORATE ..... Appellant
Through : Mr.Rakesh Kumar, Standing
Counsel
versus
SUBHASH CHANDRA TULI ..... Respondent
Through :Mr.Rajeev Awasthi, Adv.
CORAM:
HON'BLE MR. JUSTICE A.K. PATHAK
A.K. PATHAK, J.(ORAL)
1. By this appeal, appellant has challenged the order dated 21st January,
2011 passed by the Appellate Tribunal for Foreign Exchange, New Delhi
whereby Revision Petition of the appellant has been dismissed on the ground
that same had not been filed by competent person. The Tribunal has taken
this view by following the order dated 4 th August, 2009 passed by a learned
Single Judge of this court in Criminal Appeal No. 806/2007 titled M.I.
Enterprises (I) P. Ltd. & Ors. vs. Directorate of Enforcement. Learned
Single Judge has held that Deputy Legal Advisor was not competent to file
revision on behalf of the appellant prior to 23rd February, 2009. The
Directorate of Enforcement initiated proceedings against the respondent for
CRLA 810/2011 Page 1 of 5
contravening the Sections 8(1), 8(2) and 9(1)(d) of the Foreign Exchange
Regulation Act, 1973 (FERA) (since repealed). It was alleged that
respondent had dealt in foreign exchange currency without permission of the
Reserve Bank of India. Proceedings were initiated before the Adjudicating
Authority. Show cause notice was issued to the respondent. Evidence was
led by the parties before Adjudicating Authority. Vide a reasoned order
dated 31st March, 2004 Adjudicating Authority held that no case was made
out against the respondent for having committed any offence under Sections
8(1), 8(2) and 9(1)(d) of FERA, consequently, dropped the proceedings.
Adjudicating Officer held as under:-
"From the perusal of Sec.49 of FEMA, 1999, it is
seen that in terms of Sub Sec.(3), no Adjudicating
Officer shall take notice of any contravention
under Sec.51 of the repealed Act after the expiry of
2 years from the commencement of FEMA, 1999.
FEMA, 1999 has come into effect from 01.6.2000.
These proceedings are under the repealed Act. No
adjudicating officer has dealt with this case so far.
The adjudication process has not even started.
Adjudication proceedings can be held only after
the adjudicating officer after considering the
replies to the SCN is of the opinion such
CRLA 810/2011 Page 2 of 5
proceedings can be held as will be clear from Rule
3(3) of the Adjudication proceedings and Appeal
Rules, 1974. Here in this case the adjudication
process has not started within the 2 year period
from 01.6.2000. Hence I am of the view that
adjudication proceedings are time barred at this
stage in terms of Sec.49(3) of FEMA, 1999. It has
also been noticed that sub sec.(4) of sec.49 of
FEMA, 1999 to the provisions of the sub sec.(3).
Hence the time bar position is quite clear."
2. Appellant preferred a Revision Petition bearing number 123/2005
before the Appellate Tribunal for Foreign Exchange, New Delhi, which has
been dismissed by the order impugned in this appeal. Revision Petition was
preferred by the Dy. Legal Advisor for and on behalf of the appellant.
3. Aggrieved by the order passed by the Appellate Tribunal, appellant
has preferred this appeal.
4. Learned counsel for the appellant has vehemently contended that Dy.
Legal Advisor was authorised by the Government of India vide order dated
23.02.2009 to prefer the revision petitions against the order of Adjudicating
Officer. This order was passed by the Central Government during the
CRLA 810/2011 Page 3 of 5
pendency of Revision Petition. Thus, it cannot be said that revision was not
preferred by a competent person duly authorised in this regard.
5. In M.I. Enterprises (supra), Revision Petition was filed by the Dy.
Legal Advisor much prior to 23rd February, 2009. Same authorisation letter
dated 23rd February, 2009 which is involved in this petition, was relied upon
to say that Revision Petition was preferred by a duly authorised person.
Learned Single Judge of this Court has held that revision preferred by the
Dy. Legal Advisor prior to 23rd February, 2009 was not maintainable as he
had no authorization in his favour at the time of filing of the revision
petition. It was held that Appellate Tribunal could not have entertained the
Revision Petition.
6. In Mohtesham Mohd. Ismail vs. Spl. Director, Enforcement, 2007 (8)
Supreme Court Cases, 254, Supreme Court held thus: "for the purpose of
exercising the functions by the Central Government, the officer concerned
must be specifically authorized. Only when an officer is so specifically
authorized, he can act on behalf of the Central Government and not
otherwise. Only because an officer has been appointed for the purpose of
acting in terms of the provisions of the Act, the same would not by itself
entitle an officer to discharge all or any of the functions of the Central
CRLA 810/2011 Page 4 of 5
Government". Learned Single Judge, in M.I. Enterprise (supra), has placed
reliance on the judgment of Supreme Court. In M.I. Enterprise (supra) also
revision was filed through the Dy. Legal Advisor prior to 23rd February,
2009 and was held as not maintainable.
7. Special Leave Petition filed by the appellant against M/s. M.I.
Enterprises (supra) has been dismissed vide order dated 17th August, 2012.
8. In this case also, revision was filed much prior to 23 rd February, 2009.
As on that date Dy. Legal Advisor was not authorised by the Central
Government to initiate such proceedings. Accordingly, I am of the view that
Appellate Tribunal has not committed any illegality in dismissing the
Revision Petition. Appeal is dismissed.
A.K. PATHAK, J.
MARCH 25, 2015
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