Point of Law: Section 52(4) of FERA and Section 19(6) of FEMA contemplates a revision, scope of such proceeding is limited to examine legality, propriety and correctness of an order made by Adjudicating Authority.

JUDGMENT :

C.Jayachandran, J.

This Miscellaneous First Appeal challenges the Order of the Appellate Tribunal for Foreign Exchange, in Revision Petition No.260/2001, which allowed the revision reversing the adjudication order of acquittal in AD/MAS/45/2000 (KSA). The Revisional Authority found the charges levelled against the appellant, of contravention of Sections 9(1)(b) and 9(1)(d), read with Section 64(2), of the Foreign Exchange Regulation Act, 1973 ('FERA', for short) to be proved and directed confiscation of the seized amount of Rs.6,10,000/-, besides imposing a penalty of Rs.5,00,000/-.

2. Heard Sri.Joshi N.Thomas, learned counsel for the appellant and Sri.Jayasankar V.Nair and Smt.Mini Gopinath, learned Standing Counsel for the Enforcement Department (hereinafter referred to as 'the E.D.').

3. In accord with the requirements of Section 35 of the Foreign Exchange Management Act, 1999 (for short, 'FEMA'') we re-frame the questions of law, which arise in the instant appeal as here under :

(I) Whether the failure, if any, of the Appellate Tribunal in deciding the question of maintainability of the revision as directed by this Court in O.P.No.27071/2001 vitiates the impugned order?

(II) Whether a revision petition is maintainable without exhausting the remedy of appeal provided under the FEMA, 1999?

(III) Whether the observations made by the Division Bench of this Court in M.F.A.No.614/2001 about the present appellant's case in paragraph no.4 of the judgment binds the Appellate Tribunal or this Court? Whether the order impugned is vitiated for having taken a decision contrary to such observations made by the Division Bench?

(IV) In exercise of the revisional powers under Section 19(6) of FEMA, or for that matter, u/s. 52(4) of FERA, whether the Appellate Authority can reverse an order of acquittal to that of conviction?

(V) Whether the impugned order is vitiated on the ground of perversity, on the appreciation of the facts and circumstances and the evidence on record ?

4. Before addressing the points formulated on law, we will refer to the essential facts required for disposal of this appeal.

5. The appellant was apprehended at Karipur Airport on 16.10.1991 by the Customs Preventive Unit and currency notes for Rs.6,10,000/-and a list containing the names of certain persons were seized from him. Suspecting violation of FERA, 1973, the Customs Authorities handed over the seized amount and the document to the E.D. The investigation revealed that the appellant was a carrier in currency, engaged by one Salamath at Mumbai, on the instructions of one Razak at P.O.No.9898, Oman. According to the prosecution, the appellant reached Bombay on 15.10.1991, met Sri.Salamath at Star Hotel in Mohammedali Road, Bombay and as per the telephonic inst ructions given by Razak to Salamath and the accused in the night, Salamath gave Rs.6,10,000/-to the appellant on 16.10.1991, along with five lists containing the names and addresses of certain persons, to whom the amounts are to be distributed. The understanding was that the appellant will handover the amount to one Mustafa, the younger brother of Razak, who, in turn, will distribute the amounts to the persons named in the lists. The appellant, who reached Karipur on a ticket arranged by Salamath, was intercepted and apprehended by the Customs Officers, who seized the money and documents from him, as referred above. The conduct of the appellant amounts to contravention of Sections 9(1)(a) & 9(1)(d) read with Section 64(2), of the FERA, 1973. A further charge under the same provisions was levelled against the appellant for a similar transaction of Rs.5,00,000/-carried out by him on 06.10.1991, based on his voluntary statement.

6. As per Adjudication Order dated 23.8.2000, the appellant was found not guilty and was acquitted of the charges. The Adjudicating Officer found that the alleged confessional statement of the appellant cannot be acted upon, firstly for the reason that the accused/appellant was coerced