D. Dorairaj vs The Foreign Exchange Regulation Appellate Board (Southern Zone) and Another

Maheswaran, J.—This Civil Miscellaneous Appeal is directed against the order Of the Foreign Exchange Regulation Appellate Board in

Appeal No. 1123 of 1977 confirming the order of the Assistant Director, Enforcement Directorate, finding the appellant guilty u/s 19(1)(e) and

Section 14 of the Foreign Exchange Regulation Act read with Central Government notification dated 25-9-1998 and Section 9 Of the Foreign

Exchange Regulation Act, 1947 read with the said notification and also against the award of consolidated penalty of Rs. 5,800.

The gravamen of the charge is (1) that the appellant has been holding shares Worth about U.S. $ 160 in M/s. Bethleham Steel Corporation,

U.S.A. without the general or special permission of the Reserve Bank Of India and thereby has violated the provisions of Section 19(1)(b) of the

Foreign Exchange Regulation Act, 1973; (2) that he Was owning travellers'' cheques worth U.S. $ 150 and has failed to offer the same to an

authorised dealer in foreign exchange in India within thirty days of the date of his arrival in India in November, 1976, which is in violation of Section

14 of Foreign Exchange Regulation Act, 1973 read With Central Government notification No. F1(67)/EC/57 dated 25th September, 1958; and

(3) that he had failed to offer to an authorised dealer in India U.S. $ 602.13 being the foreign exchange held by him With the First Wisconsin Bank

of Milwaukee within one month of his return to India and thereby has Violated the provisions of Section 9 of the Foreign Exchange Regulation Act,

1947 read with Central Government notification No. Fl(67)EC/57 dated 25th September, 1958.

The appellant who was a student admitted that he was studying in the United States of America during 1952-1956 and also admitted holding the

shares, but stated that it was in ignorance of law. In regard to the second charges, he admitted that he had travellers'' cheques, but was under the

honest impression that travellers'' cheques could be retained with him for any length of time and no permission of Reserve Bank of India was

necessary. He would also say that he went to Japan in 1976 and came back after a stay of 21 days and on 11-1-1977 the Enforcement Officers

contacted him and he gave information in regard to the travellers'' cheques of U.S. $ 150. In regard to the third charge Of his continued

maintenance of account in a foreign bank, he would state that due to inadvertence, he failed to close the account before returning to India and that

he never operated the account after his departure from the United States of America and that in November, 1976 he went on a business tour to

Malaysia and then again to Japan and on his return to India, he surrendered the travellers'' cheques and also wrote to the foreign bank to close his

account and to remit the balance in his account to his account in India. In view of these admissions, the Assistant Director found him guilty of

having violated the said provisions with which he was charged and imposed a penalty of Rs. 500 in respect of the first charge, Rs. 300 in respect

of the second charge, and Rs. 5000 in respect of the third charge. In appeal, the Foreign Exchange Regulation Appellate Board confirmed the

finding that the appellant has violated the provisions of Section 19(1)(e) of the Foreign Exchange Regulation Act and also Section 14 of the said

Act and Section 9 of the Foreign Exchange Regulation Act, 1947 and also confirmed the penalty imposed. The appellant challenges the order of

the Appellate Board in this civil miscellaneous appeal.

The first contention of the learned Counsel, Mr. Krishnamurthi, appearing for the appellant is that Section 19(1)(e) of the Foreign Exchange Act,

1973 could not be invoked in respect of the person who had been holding any foreign exchange even before the commencement of the Act. His

second contention is that the notification dated 25-9-1958 is an executive instruction fixing a time limit of 30 days for offering the foreign exchange

and it cannot be the basis of punitive proceedings under the provisions of the Act. The third contention which has hot been specifically raised in the

memorandum of grounds of appeal, but which was raised before us, is that no action could be taken under the provisions of Section 9 of the

Foreign Exchange Regulation Act, 1947 as the same has been repealed by Section 81 of the Foreign Exchange Regulation Act, 1973. We shall

deal with these contentions in seriatim.

Section 19(1)(e) of the Foreign Exchange Regulation Act, 1973 runs thus:

19.(1) Notwithstanding anything contained in Section 81 of the Companies Act, 1956 (1 of 1956) no person shall, except with general or special

permission of the Reserve Bank,--

(a) * * *

(b) * * *

(c) * * *

(d) * * *

(e) acquire, hold or dispose of any foreign security.

It is not disputed before us by the appellant that he was holding the shares till 11-1-1977 when the Enforcement Officers contacted him. What the

learned Counsel for the appellant would contend is that Section 19(1)(e) could be invoked only if he acquires the shares or dispose of the shares

or holds the shares after the commencement of the Act. In support of this contention, he drew our attention to the definition of the term ""foreign

security"" which occurs in Section 2(i) of the Act and that definition reads thus:

''foreign security'' means any security created or issued elsewhere than in India and any security the principal of or interest on which is payable in

any foreign currency or elsewhere than in India;

A reference to the records shows that the appellant who was a student in the United States of America during 1952-1956 was holding shares

worth U.S. $ 160 in M/s. Bethlehem Steel Corporation, U.S.A. It cannot be disputed that he was holding such shares without the general or

special permission of the Reserve Bank of India. A reading of Section 2(i) together with Section 19(1)(e) would show that such security need not

necessarily be acquired, held or disposed of only after the commencement of the Act. We are unable to read such a construction in the definition in

Section 2(i) read with Section 19(1)(e) of the Act. In this case, admittedly the appellant was holding shares even in 1956 and was holding the

shares during the commencement of the Foreign Exchange Regulation Act, 1973. When the appellant was contacted by the Enforcement Officers

on 11-1-1977 he was holding these shares without the general or special permission of the Reserve Bank of India and in our view he has been

rightly found guilty of violating the provisions of Section 19(1)(e) of the Foreign Exchange Regulation Act, 1973.

The second contention, though at first flush appears to be correct, on a closer scrutiny is found to be not correct. Learned Counsel for the

appellant invited our attention to Section 14 of the Foreign Exchange Regulation Act, 1973 and contended that, that Section does not empower

the Government to offer the foreign exchange or cause it to be offered to the Reserve Bank of India on behalf of the Central Government and the

notification which is only an executive instruction fixing the time limit of 30 days for offering the exchange to sale, cannot form the basis for the

proceeding under the provisions of the Act. Section 14 undoubtedly empowers the Central Government by notification in the official gazette to

order every person in, or resident in, India owning or holding such foreign exchange as may be specified in the notification to offer it or cause it to

be offered for sale to the Reserve Bank of India on behalf of the Central Government or to such person as the Reserve Bank of India may

authorise at such price as the Central Government may fix, being a price which, in the opinion of the Central Government, is not less than the price

calculated at the rate of exchange for the time being authorised by the Reserve Bank of India. While passing the notification, it is open to the

Central Government to fix a time limit for such person mentioned in Section 14 of the Act to offer or cause it to be offered for sale to the Reserve

Bank on behalf of the Central Government or to such person as the Reserve Bank may authorise. This fixation of time limit is only incidental or

ancillary to the passing of the notification. If such a time limit is not fixed in the notification, it would be open to the person who holds the foreign

exchange to say that as no time limit is fixed in the notification, he is holding the same. It is therefore manifest that merely because Section 14 of the

Act does not mention or does not refer to the time limit to be stated in the notification, it is not correct to say that the Central Government is not

empowered to state the time limit in the notification. In our view, the second contention must also fail. It is admitted that the appellant was in

possession of the travellers'' cheques worth U.S. $ 150 on the date when he was confronted by the Enforcement Officers and the prescribed

period of 30 days had expired on that date. The order therefore finding him guilty of violation of Section 14 read with the Central Government

notification no. Fl(67)/FC/57 dated 25th September, 1958, is correct.

The third contention is that no action u/s 9 of the Foreign Exchange Regulation Act, 1947 could be taken as the same has been repealed. It is no

doubt true that Section 81 of the Foreign Exchange Regulation Act, 1973 repeals the old Act of 1947. It is pointed out by the learned Counsel for

the appellant that nothing was done nor any action was taken under the old Act and therefore the provisions of Section 9 of the Act of 1947 are

not applicable. But, what has been overlooked in this case is that Section 81(3) of Act 46 of 1973 says that the mention of the particular matters in

Sub-section (2) of Section 81 shall not be held to prejudice the general application of Section 6 of the General Clauses Act, 1897 with regard to

the effect of repeal. Section 6 of the General Clauses Act runs thus:

Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to

be made, then, unless a different intention appears, the repeal shall not--

(a) revive anything not in force or existing at the time at which the repeal takes effect; or

(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or

(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or

(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or

(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment

as aforesaid;

and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment

may be imposed as if the repealing Act or Regulation had not been passed.

Therefore, Section 81 will not affect the action taken u/s 9 of the Foreign Exchange Regulation Act, 1947. The third contention also fails.

For the reasons stated above, we hold that the order of the Appellate Board confirming the order of the Assistant Director, Enforcement

Directorate, is correct and confirm the same. The Civil Miscellaneous Appeal is dismissed with costs.