Pattanaik, J. - (1.) All these appeals are directed against a common judgment of a learned single Judge of Delhi High Court and a common question of law arises and as such they are heard together and are being disposed of by this common judgment. The question for consideration in all these appeals is whether refusal on the part of a person, who is summoned under S. 40 of the Foreign Exchange Regulation Act, 1973 (hereinafter referred to as 'the Act') to comply with the directions under the summons, would attract the provisions of S. 56 of the Act The High Court by the impugned judgment came to the conclusion that the provisions of S. 56 of the Act will not get attracted for violations of the directions under S. 40 of the Act and, accordingly, the complaints filed for such violation and cognizance taken in the complaint cases have been quashed.
(2.) Mr. Mukul Rohtagi, the learned Additional Solicitor General, contended that the power having been conferred on the officers of the Enforcement Directorate to summon any person, whose attendance is necessary, either to give evidence or to produce a document, in course of any investigation or proceeding under the Act and the Act itself having made it binding on the person summoned to attend, as provided in sub-sec. (3) of S. 40, the refusal on the part of the person summoned to carry out the obligation under the statute, should be seriously viewed and must be held to be a contravention of the provisions of the Act, making such contravention punishable under S. 56 of the Act, and the High Court was in error in quashing the complaints filed.
(3.) Mr. R. K. Handoo, the learned counsel appearing for the accused respondents in some of the appeals as well as Mr. A. K. Ganguly, the learned senior counsel, appearing for the accused in some of the appeals, however contended that the orders/directions, violation of which is punishable under S. 56 of the Act are those statutory orders or directions and the summons issued under S. 40 has no statutory character and, therefore, the said violation by the person summoned, cannot be made punishable under S. 56 of the Act. It was also further contended that the 'offence' not being defined under the Act, one will have to examine the definition of 'offence' in General Clauses Act and on such an examination, it would appear that the impugned violation cannot be held to be an 'offence' and, therefore, cannot be made punishable under S. 56 of the Act, and the High Court, therefore was fully justified in quashing the complaints filed. For better appreciation of the contentions raised, it would be necessary to extract the provisions of S. 40 and S. 56 of the Act in extenso: "Section 40:Power to summon persons to give evidence and produce documents - (1) Any Gazetted Officer of Enforcement shall have power to summon any person whose attendance he considers necessary either to give evidence or to produce a document during the course of any investigation or proceeding under this Act. (2) A summons to produce documents may be for the production of certain specified documents of a certain description in the possession or under the control of the person summoned. (3) All persons so summoned shall be bound to attend either in person or by authorised agents, as such officer may direct; and all persons so summoned shall be bound to state the truth upon any subject respecting which they are examined or make statements and produce such documents as may be required; Provided that the exemption under S. 132 of the Code of Civil Procedure, 1908, shall be applicable to any requisition for attendance under this Section. (4) Every such investigation or proceeding as aforesaid shall be deemed to be a judicial proceeding within the meaning of Ss. 193 and 228 of the Indian Penal Code. Section 56:- Offences and prosecutions:(1) Without prejudice to any award of penalty by the adjudicating officer under this Act, if any person contravenes any of the provisions of this Act (other than S. 13, Clause (a) of sub-sec. (1) of (S. 18, S. 18A), clause (a) of sub-section (1) of S. 19, sub-sec. (2) of Sec. 44 and Sections 57 and 58) or of any rule, direction or order made thereunder, he shall, upon conviction by a Court, be punishable - (i) in the case of an offence the amount or value involved in which exceeds one lakh of rupees with imprisonment for a term which shall not be less than six months, but which may extend to seven years and with fine: Provided that the Court may, for any adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months; (ii) in any other case, with imprisonment for a term which may extend to three years or with fine or with both. (2) If any person convicted of an offence under this Act (not being an offence under Section 13 or clause (a) of sub-section (1) of (S. 18 or S. 18A) or clause (a) of sub-sec. (1) of S. 19 or sub-sec. (2) of Sec. 44 or Sec. 57 or S. 58) is again convicted of an offence under this Act (not being an offence under S. 13 or clause (a) of sub-sec. (1) of Sec. 18 or Sec. 18A) or clause (a) of sub-sec. (1) of S. 19 or sub-sec. (2) of Section 44 or Section 57 or Section 58), he shall be punishable for the Second and for every subsequent offence with imprisonment for a term which shall not be less than six months but which may extend to seven years and with fine: Provided that the Court may, for any adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months. (3) Where a person having been convicted of an offence under this Act (not being an offence under S. 13 or clause (a) of sub-sec. (1) of (S. 18 or S. 18A) or clause (a) of sub-sec. (1) of S. 19 or sub-sec. (2) of S. 44 or S. 57 or S. 58) is again convicted of an offence under this Act (not being an offence under S. 13 or clause (a) of sub-sec. (1) of (S. 18 or S. 18A), or clause (a) of sub-sec. (1) of S. 19 or sub-sec. (2) of S. 44 or S. 57 or S. 58), the Court by which such person is convicted may, in addition to any sentence which may be imposed on him under this section, by order, direct that, person shall not carry on such business as the Court may specify, being a business which is likely to facilitate the commission of such offence, for such period not exceeding three years, as may be specified by the Court in the order. (4) For the purpose of sub-secs. (1) and (2), the following shall not be considered as adequate and special reasons for awarding a sentence of imprisonment for a term of less than six months, namely - (i) the fact that the accused has been convicted for the first time of an offence under this Act. (ii) the fact that in any proceeding under this Act, other than a prosecution, the accused has been ordered to pay a penalty or goods in relation to such proceedings have been ordered to be confiscated or any other penal action has been taken against him for the same offence; (iii) the fact that the accused was not the principal offender and was acting merely as a carrier of goods or otherwise was a secondary party in the commission of the offence; (iv) the age of the accused. (5) For the purposes of sub-sections (1) and (2), the fact that an offence under this Act has caused no substantial harm to the general public or to any individual shall be an adequate and special reason for awarding a sentence of imprisonment for a term of less than six months. (6) Nothing in (the proviso to S. 188 of the Code of Criminal procedure, 1973) shall apply to any offence punishable under this Section." The answer to the questions raised would depend upon an analysis and interpretation of the aforesaid two provisions of the Act. The Foreign Exchange Regulation Act, 1973 was enacted by the Parliament, basically for the conservation of the foreign exchange resources of the country and the proper utilisation thereof in the interest of economic development of the country. The Act having been enacted in the interest of national economy, the provisions thereof should be construed so as to make it workable and the interpretation given should be purposive and the provisions should receive a fair construction without doing any violence to the language employed by the Legislature. The provisions of S. 40 itself, which confers power on the officer of Enforcement Directorate, to summon any person whose attendance, he considers necessary during the course of any investigation, makes it binding as provided under sub-sec. (3) of S. 40, and the investigation or the proceeding in course of which such summons are issued have been deemed to be a judicial proceeding by virtue of sub-sec. (4) of S. 40. These principles should be borne in mind, while interpreting the provisions of S. 40 and its effect, if a person violates or disobeys the directions issued under S. 40. Before embarking upon an in-depth inquiry into the provisions of the Act for the purpose of interpretation of S. 40 and S. 56, it would be appropriate to notice some of the decisions given by different High Courts on the subject.;