Team  SoOLEGAL

NON-APPEARANCE IN FEMA INVESTIGATION IS NO GROUND TO SUSPEND PASSPORT: Delhi High Court

Team SoOLEGAL 16 Apr 2019 4:18pm

NON-APPEARANCE IN FEMA INVESTIGATION IS NO GROUND TO SUSPEND PASSPORT: Delhi High Court

Section 10(3)(c) of the Foreign Exchange Management Act, 1999 provides for the passport being suspended if it is in the interests of sovereignty and integrity India, the security of India, friendly relations of India with any foreign country, or in the interests of the general public.

In the present case, the petitioner is an NRI. He permanently resides in the UAE since 1993 assailed the order of the Consulate General of India whereby his passport was suspended. The allegations leveled against the petitioner were of money laundering and transfer of sale proceeds of the assets in India to foreign countries. The passport of the petitioners was suspended on the mere ground that he failed to appear personally before the Officers who were investigating the alleged violation of the provisions of Foreign Exchange Management Act, 1999. The Authorities claimed that such suspension was in the interest of general public. The suspension was challenged by the petitioner in Delhi High Court.

The High Court noted that this case pertains to infraction of provisions of Section 13 of FEMA, which would be resulting in the concerned officer making a complaint to the adjudicating authority under Section 16 of the FEMA and on such complaint being made, the adjudicating authority would hold such enquiry under sub-section (1) of Section 16 of FEMA.
It was observed that FEMA does not provide for any provision of arrest or criminal prosecution. The power to examining persons conferred on the officers of the Directorate of Enforcement under Section 39 of FERA also do not find a place in the Act of 1999.

There is no statutory custodial interrogation in FEMA and therefore an alternative mode of examination under video conferencing was an option available, reiterated the bench.
The allowed the petition thereby setting aside the order. It said that criminal prosecution as contemplated under Section 13(1C) of FEMA can be commenced by filing a criminal complaint. If such complaint is filed and the competent Court issues summons, the passport facilities provided to the accused could be withdrawn by virtue of Section 10(3)(h) of the Passports Act. 

Tagged: Delhi High Court   Passport   Suspension   Foreign Exchange Management Act 1991   Passport Act 1947  
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