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Judgment
Ramanujam, J.—Since the points involved in all these cases are substantially the same and they arise from one and the same order passed
by the Additional Director of Enforcement, they are dealt with together.
The appellant in C. M. A. 288 of 1980 and the appellant in C. M. A. 289 of 1980, are husband and wife and they have been found guilty for
the contraventions of Sections 5(1)(aa) and 5(1)(c) of the Foreign Exchange Regulation Act, both by the initial authority as well as by the Foreign
Exchange Regulation Appellate Board, hereinafter referred to as the Appellate Board and in these appeals they are challenging the orders passed
by the Appellate Board.
On 27-1-1974, the residence of one Abdul Azeez, the appellant in C. M. A. 288 of 1980 and his wife, the appellant in C. M. A. 289 of 1980,
were searched. During the search a few foreign letters account sheets, a note book containing certain accounts and particulars, four pocket diaries,
a cheque relating to an account in the Indian Overseas Bank, Kumbakonam, standing in the name of Abdul Azeez and Foreign Exchange valued
295 US 4, Brunel Dollar note valued 5 and Ceylon Rupees 20 had been recovered. In his statement recorded on that date, Abdul Aziz who is a
Malaysian citizen stated that he was running a restaurant in Malaysia and transport company in India jointly with his brother-in-law Muthalif and
admitted having received Rs. 5000, otherwise than through authorised dealer in foreign exchange by order or on behalf of a person resident
outside India and having made 20 payments amounting to Rs. 31,600, to various parties in India on behalf of his brother-in-law, Muthalif of
Malaysia. He had further admitted that he was having in his possession the foreign exchange which was seized from his house, which is the balance
of the foreign exchange which he brought from Malaysia in March, 1973. His wife Havva Beevi also admitted in her statement dated 17-1-1974,
that she had received 8 payments amounting to Rs.1,26,700/- as arranged for her by her husband, Abdul Aziz otherwise than through authorised
dealers in foreign exchange under instructions from her husband Abdul Aziz. One Basheer, the appellant in C. M. A. 290 of 1980, had also given a
statement on 29-10-1974 to the effect that as per instructions of Abdul Aziz he received a sum of Rs. 40,000/- from an unknown person and
handed over the same to Havva Beevi. Based on the recovery of the various documents from the residence of Abdul Aziz and his wife and also the
statements given by both as also by the said Basheer, showcase notices were issued to them to show cause why they should not be proceeded
against for violation of the provisions of the Act. All the three persons filed objections to the show cause notices and after considering their
objection, the Additional Director found the appellants guilty of the charges leveled against them in the show cause notices and on the basis of their
statements as well as the documents and other materials seized from the residence of Abdul Aziz. All the three filed appeals before the Appellate
Board. Before the Appellate Board it was contended that the transactions referred to in the show cause notices did not involve foreign exchange
and, therefore, there was no violation of any of the provisions of the Act. However, the appellate Board found that Abdul Aziz has admitted in his
statement dated 27-1-1974, receipt of Rs. 5000/- through illegal channel in November, 1973, under instructions from Malaysia in connection with
the purchase of property for Muthalif, that he has also admitted having made payments totaling Rs. 31,600/- to various parties in India, that as
regards the charge u/s 9(c) for non surrender of foreign currency and foreign exchange, the evidence on record showed that he failed to surrender
within one month the foreign exchange found in his residence and that, therefore, he has been rightly held guilty for violation of S. 5(1)(aa), 5(1)(c)
and S. 9 of the Act.
As regards his wife, Havva Beevi, who stands charged for violation of Section 5(1)(aa) for receiving 8 payments amounting to Rs. 1,26,700
under instructions from her husband Abdul Aziz who was then residing in Malaysia and for violation of Section 5(1)(c) for having made 16
payments amounting to 6,900/- to various parties in India, the appellate Board found that since these transactions have been admitted by her in her
statement dated 27-1-1974, and also her husband''s statement given on the same day, she is guilty of contravention of Section 5(1)(aa) and S.
5(1)(c) of the Act. However, on the question of the penalty the appellate Board found that a substantial portion of the amount received by her
husband from Malaysia was mainly for family expenses and therefore the penalty amount of Rupees 45,000/- levied u/s 5(1)(aa) by the Director of
Enforcement should be reduced to Rs. 30,000/-. The Appellate Board however, sustained the penalty of Rs. 3,000/- awarded for contravention
of S. 5(1)(c).
Basheer, the appellant in C. M. A. 290 of 1980 is found to have contravened Section 5(1)(aa) and Section 5(1)(c) in respect of Rs. 40,000/-.
Out of the said sum of Rs. 40,000/-, he has delivered a sum of Rs. 20,000/- to Havva Beevi, wife of Abdul Aziz and kept the balance of Rs.
20,000/- with him. The said sum of Rs. 20,000/- received by Havva Beevi forms part of the sum of Rs. 1,26,700/- which is the subject matter of
the charge as against Havva Beevi. Since Basheer has admitted in his statement the receipt of Rs. 40,000/- and its later distribution on the
instructions of Abdul Aziz who was then residing in Malaysia, the Additional Director found the charge proved and levied a penalty of Rs. 5000.
The conviction and the penalty have been sustained by the Appellate Board.
In all these three appeals, a legal plea has been raised by the learned counsel for the appellants. According to him, the raid was conducted by
the Enforcement Directorate on 27-1-1974, and the show cause notices have been issued thereafter under the provisions of the Foreign Exchange
Regulation Act, 1973. The contention of the learned counsel is that on the facts of this case the show cause notices can be issued only under the
1973 Act and not under the 1947 Act and that even if the 1947 Act is applied, the statements recorded from the appellants cannot be acted upon
as the statements have not been taken by the Director of Enforcement as contemplated by S. 19E of the said Act. The learned counsel in support
of his submission that on the facts of this case the 1947 Act is not applicable and that action could be taken only under the 1973 Act, refers to
Section 81 of the 1973 Act, which is repealing and saving section. Section 81(1) repeals the Foreign Exchange Regulation Act, 1947. Section
81(2) says that notwithstanding such repeal anything done or any action taken under the repealed Act in so far as it is not inconsistent with the
provisions of the Act, should be deemed to have been done or taken under the corresponding provisions of the Act. The submission of the learned
counsel for the appellants is that if anything has been done or action taken under the 1947 Act in respect of the Foreign Exchange violation by the
appellants, that could be saved and that in this case everything including the raid has been done after the new Act came into force, and therefore S.
81 will not come to the aid of the department. However, the learned counsel in our view has overlooked the provisions in S. 81(3) which makes
the provision of S. 6 of the General Clauses Act, 1897 with regard to the effect of the repeal, applicable S. 6 of the General Clauses Act
specifically preserves the previous operation of any enactment repealed or any liability incurred under the repealed enactment. In this case,
admittedly the Foreign Exchange violation has taken place before the new Act came into force and when the old Act was in force. Though the
show cause notices were issued after the new Act came into force, they were in relation to an offence which had been committed when the old Act
was in force. Since the offence has been committed when the old Act was in force, the appellants should be taken to have incurred a liability under
the old Act for the offences committed while that Act was in operation. In such cases, on the basis of S. 6 of the General Clauses Act, the liability
incurred can be enforced as if the 1973 Act had not been passed. Thus the offence committed or the liability incurred under the old Act the
provisions of the old Act can be invoked treating the new Act as not having been passed. Therefore, it should be held that the 1947 Act has rightly
been invoked in this case.
The other contention of the learned counsel is that if the 1947 Act is to be applicable, then under Sec. 19E it is only the Director of Enforcement
who could take a statement but in this case the statements have been taken by officers other than the Director of Enforcement and, therefore, the
statements given by the appellants cannot be relied on as having any evidentiary value. But a perusal of S. 19E shows that the said section
constitutes the Director of Enforcement as an authority to conduct adjudication proceedings and to conduct an enquiry in connection with any
violation. In this case the enquiry and the adjudication have actually been conducted by the Additional Director of Enforcement and, therefore,
there is no violation of S. 19E. Taking of a statement at the stage of the preliminary investigation proceeding the adjudication proceedings cannot
attract S. 19E. Therefore, even though the statements have been taken from the appellants by the officers subordinate to the Director of
Enforcement, that will not violate S. 19E as alleged by the appellants learned counsel. In this view of the matter, the proceedings for adjudication
initiated under the old Act cannot be said to be invalid.
Since the finding of the initial authority as well as the Appellants Board are passed on the statements made by the appellants themselves also the
records seized from the residence of Abdul Aziz, the initial authority as well as the Appellate Board have rightly come to the conclusion that the
charges leveled against the appellants in the show cause notices had been proved. Though the learned counsel for the appellants refers to certain
minor discrepancies in the statements of the charges as also the statements given by the appellants, we do not think that there is any justification for
interfering with the finding of the initial authority as well as the Appellate Board that the appellants have contravened the various provisions of the
Act referred to in the show cause notices as against them.
Then the further question that is canvassed before us is as to whether the penalty awarded against each of the appellants could be justified as
reasonable and proper. As regards Abdul Aziz, the initial authority has leveled an aggregate penalty of Rs. 13,300, and the Appellate Board has
sustained the quantum of penalty as being reasonable. As regards Havva Beevi, the initial authority has levied an aggregate penalty of Rs.48,000,
which has been reduced by the Board to Rs.33,000/-. As regards Basheer the aggregate penalty levied was Rs.10,000 and this was sustained by
the Appellate Board. The learned counsel for the appellant in C.M.A. 289 of even the reduced penalty of Rs.30,000, is excessive having regard to
the fact that she being the wife of Abdul Aziz had no other go except to act as per his instructions that as the wife she cannot refuse to receive the
amount sent by the husband for the benefit of the family and that though there is technical violation by her by the receipt of the amount through
persons resident in India on instructions from her husband who is residing outside India, her conduct in receiving the amount should be viewed by
her was utilised for the benefit of the family, the Appellate Board has already reduced the penalty from Rs.45,000 to Rs.30,000. We are inclined
to take the view that Havva Beevi being the wife of Abdul Aziz she is bound to obey and carry out the instructions of her husband. Any
disobedience of the instructions on her part will either result in her estrangement with the husband or the money sent by the husband being lost to
the family. Therefore, the said circumstance should be taken into account in determining the question whether the penalty levied is reasonable.
Taking note of the said circumstance we are inclined to reduce the penalty of Rs.30,000, as awarded by the Appellate Board to Rs.20,000. The
penalty of Rs.10,000, levied against Basheer does not call for any interference as there are no extenuating circumstance.
In the result, the Civil Miscellaneous Appeals Nos. 288 and 290 of 1980 are dismissed and Civil Miscellaneous Appeal No. 289 of 1980 is
partly allowed and the aggregate penalty levied on the appellant therein is reduced to Rs.23,000/-. There will be no orders as to costs in any of
these appeals.
. . .
Order: This matte has come up for being mentioned today.
The appellant in C.M.A. 289 of 1980 states that he may be granted some time for payment of he penalty amount. He is granted two months
time from this date for payment of penalty levied.
Appeal dismissed.