Skip to content


P.M. Srinivasan Vs. the Assistant Director, Enforcement Directorate, Cabinet Secretariat, Department of Personnel, Goverment of India and anr. - Court Judgment

LegalCrystal Citation
SubjectFERA
CourtChennai High Court
Decided On
Case NumberWrit Petition No. 6666 of 1982
Judge
Reported in1984(2)ECC276
AppellantP.M. Srinivasan
RespondentThe Assistant Director, Enforcement Directorate, Cabinet Secretariat, Department of Personnel, Gover
DispositionPetition dismissed
Excerpt:
.....same field and there is double jeopardy--section 23-f, whether arbitrary and unreasonable--whether ultra vires and beyond legislative competency--words and phrases--'if any person fails to pay the penalty imposed by the director'--meaning of--constitution of india, schedule vii, list i--foreign exchange regulation act (7 of 1947), sections 23-d, 23-f.;sections 23-d and 23-f of the foreign exchange regulation act, 1947, cover different fields and different offences. therefore the question of double jeopardy would not arise. ;the power conferred under section 23-f of the act is a power conferred on a court and since it is a penal provision, the words ' if any person fails to pay the penalty imposed by the director' can only mean a case of failure to pay wilfully or deliberately or..........confers such an arbitrary and unreasonable power to imprisonment and, therefore, the provision is ultra vires. the question of double jeopardy does not arise in this case because the offence contemplated under section 23-f is different from the one for which the penalty is levied under section 23-f is non-payment or failure to pay penalty imposed by the director under section 23-d, whereas the penalty imposed under section 23-d is for contravention of the provisions of sections 4, 5, 9, 10, 12(2), 17, 18-a, 18-b or any rules, directions or orders made thereunder. since they cover different field and different offences, the question of double jeopardy would not arise. the learned counsel for the petitioner is also not well-founded in his contention that there is an automatic conviction.....
Judgment:
ORDER

V. Ramaswami, J.

1. In this writ petition, the petitioner has questioned the constitutional validity of Section 23-F of the Foreign Exchange Regulation Act, 1947, read with Section 23-D as ultra vires and beyond the legislative competence of Parliament. Under Section 23-D the Director of Enforcement is conferred a power to adjudicate and hold an enquiry in the prescribed manner and if he is satisfied on such enquiry that the person has committed the contravention of the provision of Section 23(1)(a), he may impose such penalty as he thinks fit in accordance with the provisions of the said Section 23. Section 23-F reads as follows:

Penalty for contravention of order made by Director of Enforcement and Appellate Board.--If any person fails to pay the penalty imposed by the Director of Enforcement or the Appellate Board or the High Court, or fails to comply with any of their directions or orders, he shall, on conviction before a court, be punishable with imprisonment for a term which may extend to two years, or with fine, or with both.

2.According to the learned Counsel, in Section 23-D proceedings, the Director of Enforcement is enabled to impose a penalty and for the same offence the person is also made liable to imprisonment under Section 23-F. Though it comes in different stages, it is a continuation of the same and, therefore, it is in the nature of double jeopardy. In any case, according to the learned Counsel, the mere non-payment of the penalty itself is made an offence under Section 23-F and, therefore, the provision Confers such an arbitrary and unreasonable power to imprisonment and, therefore, the provision is ultra vires. The question of double jeopardy does not arise in this case because the offence contemplated under Section 23-F is different from the one for which the penalty is levied under Section 23-F is non-payment or failure to pay penalty imposed by the Director under Section 23-D, whereas the penalty imposed under Section 23-D is for contravention of the provisions of Sections 4, 5, 9, 10, 12(2), 17, 18-A, 18-B or any rules, directions or orders made thereunder. Since they cover different field and different offences, the question of double jeopardy would not arise. The learned Counsel for the petitioner is also not well-founded in his contention that there is an automatic conviction on failure to pay without regard to any of the other circumstances or facts, and that, therefore, the provisions of Section 23-F are ultra vires. The power conferred under Section 23-F is a power conferred on a court and since this is a penal provision, there could be no doubt that the words 'if any person fails to pay the penalty imposed by the Director' could only mean a case of failure to pay wilfully or deliberately or fraudulently or any other circumstances which go to show that there is a sort of wilful or deliberate non-payment. In the circumstances, I am unable to agree that there is any unreasonableness or arbitrariness or automatic conviction by reason merely of the order under Section 23-D without any further facts. The provision therefore, cannot be held to be ultra vires on any grounds mentioned. The question of legislative competency could not arise as the Foreign Exchange Regulation Act, 1947, is an enactment by Parliament and even if none of the specific entries in List I cover this, the residuary entry will cover. The writ petition, accordingly, fails and it is dismissed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //