AFSAR ALI GAZI vs DEPUTY DIRECTOR GENERAL OF FOREIGN TRADE & ORS

We have gone through the Supplementary Affidavit filed in support of the prayer for condonation of delay of five days in preferring the appeal. We are satisfied that sufficient grounds have been made out for condoning the delay. Accordingly, the delay in preferring the appeal is condoned.

By consent of the parties, the appeal is treated as on day''s list and the same is taken up for hearing.

The petitioner contends that he is a handling agent. He carries on business of export/import on behalf of various principals. He challenged an order of suspension dated March 23, 2017 issued by the Deputy Director General of Foreign Trade under the Foreign Trade (Development and Regulation) Act, 1992 by way of filing W.P.No.383 of 2017.

The learned single Judge dismissed the writ application. The learned Judge observed that a wrong quoting a of section in the impugned suspension order did not vitiate the order. Further, the writ petitioner could not produce before the learned Judge, the reply given by him to the show cause notice. Hence, according to the learned Judge, there was no material before the learned Judge to demonstrate that the suspension order was perverse. Accordingly, the learned Judge held that the suspension order did not warrant interference. Being aggrieved, the writ petitioner is before us, by way of the instant appeal.

We have heard learned counsel for the parties.

The show cause notice was issued by the authorities to the writ petitioner on the basis of a criminal investigation that was initiated pursuant to the First Information Report lodged by one M/s.S.B.Impex. The appellant/writ petitioner was not named in the said FIR. However, his name

came up in the course of the investigation and a show cause notice was issued. He replied to the show cause notice, by way of a letter dated 31st January, 2017. In the suspension order, the issuing authority merely recorded that no satisfactory explanation against the show cause notice was furnished by the appellant. There is no reason indicated as to why the explanation of the appellant was not acceptable to the authority. It was a mere ipse dixit of the authority. No supporting reason was given. Effectively, it is a non-speaking order. To exercise the power of suspension under Section 8 of the 1992 Act, the authority must have ?reasons to believe? that a party against whom such power is being exercised has committed certain acts as contemplated by the said section. The belief of the authority, therefore, must be supported by cogent reasons and the same must be disclosed in the suspension order. The suspension order cannot be supplemented by relying on subsequent documents.

Further, the appellant has disclosed a letter written by M/s. S.B.Impex, the defacto complainant who lodged the FIR wherefrom it appears that M/s.S.B.Impex has no grievance against the appellant and it has received the entire money relating to the transaction in question from the appellant. In fact, in the said letter addressed to the Deputy Director General of Foreign Trade, the said M/s.S.B.Impex has stated that it has no objection against the appellant and shall be satisfied if the suspension order against him is withdrawn.

Be that as it may, on the short ground that the suspension order is devoid of reasons and a non-speaking one, we set it aside. It is established law that any judicial/quasi-judicial/administrative order which prejudicially affects any party or has adverse civil consequences for that party, must be supported by cogent reasons. This is now accepted as a limb of natural justice.

The writ petitioner has also challenged another order dated 23rd March, 2017 issued by the Deputy Director General of Foreign Trade whereby the authorities refused to grant renewal of further license to the appellant. The said order is also a non-speaking order and does not record as to why the explanation furnished by the appellant in response to the show cause notice is not acceptable. For the same reasons, as indicated above, the said order is also set aside.

The Deputy Director General of Foreign Trade is directed to consider the application of the appellant for renewal of license and dispose of the application in accordance with law by passing a reasoned order, after giving an opportunity of personal hearing to the appellant or his authorized representative, within four weeks from the date of communication of this order.

We make it clear that this order, however, will not prevent the respondent authorities from taking any action against the appellant as they may be entitled to in accordance with law.

Thus, the appeal is allowed.

The appeal and application are disposed of accordingly.

Since no affidavit-in-opposition has been called for from the respondents to controvert the allegations made against them, the allegations contained in the stay petition as well as supplementary affidavit, are deemed not to have been admitted by them.