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JHARKHAND HIGH COURT
R.R.Prasad, J.
Rajesh Kumar Prasad @ Rajesh Kumar —Petitioner
versus
State of Jharkhand —Opp.Party
Cr. M.P. No.1605 of 2014
Decided on 22.5.2015
For the Petitioner:Mr. Anil Kumar, Sr. Advocate, Mr. Ashutosh Kr. Singh, Advocate
For the Opp.Party:M/s. A.K.Das, Jyoti Nayan, Advocates
IMPORTANT POINT
Offences under the Foreign Exchange Regulation Act, 1973 punishment of which extend to a period of seven years, cannot be taken to be bailable, rather in terms of the provision as referred to above and also in view of the Second part of Schedule I to Cr.P.C are held as non-bailable.
Headnote:Foreign Exchange Regulation Act, 1973 — Section 9, 56 and 64 — Offences punishment of which extend to seven years under the Act being non-cognizable whether are bailable or non-bailable — In view of provisions of the Act offences are to be held to be non-bailable.
Held: Thus, I do find that under the Act, no such provision is there like that of Sections 19 and 20 of the Central Excise Act, which do stipulate that when a person is arrested under the Excise Act, he shall be forwarded to nearest Central Excise Officer if available within the reasonable distance or to Officer-in-charge of the nearest police station, who on being forwarded, may either admit him to bail to appear before the Magistrate having jurisdiction or in default of bail forward him in custody to such Magistrate. Whereas under FERA the power in terms of Section 45 of the FERA though has been given to police officer and other officer to make search and arrest when warrant but no provision is there that if arrest is affected by the officer other than the police officer, he is required to forward the accused to the officer-in-charge either for him to admit him on bail or to produce before the Magistrate, rather the provision as contained in Section 35 relating to the arrest, does stipulate that enforcement officer if has reason to believe that one has committed offence punishable under the Act, he may arrest such person and may inform him of the ground for such arrest and the said officer in terms of Subsection (3) of Section 35 will have same power as that of the officer-in-charge of the police station. That apart, no such provision is there which does speak about the compounding of the offence as is there under the Central Excise Act and Custom Act.
Under the circumstances, the offences under the Foreign Exchange Regulation Act, 1973 punishment of which extend to a period of seven years, cannot be taken to be bailable, rather in terms of the provision as referred to above and also in view of the Second part of Schedule I to Cr.P.C are held as non-bailable. (Paras 18 & 19)
ORDER
R.R.Prasad, J.—The question, which does arise in this case is as to whether offences, punishment of which extend to seven years, under the Foreign Exchange Regulation Act, 1973 (in short FERA), being non-cognizable in terms of Section 62 of the Act, are bailable or non-bailable?
2. Before adverting to the submissions, advanced on behalf of the parties, the facts giving rise to this case, needs to be taken notice of.
3. The case seems to be offshoot of fodder scam cases, which, under the direction of the Patna High Court as well as under the direction of Hon’ble Supreme Court, had been lodged against the number of accused persons including the father of this petitioner namely Dr. K.M.Prasad, wherein allegations had been made in almost all the cases that the accused persons in conspiracy with each other did withdraw the money from the different Treasuries in crores on the basis of fake allotment letters and fictitious supply orders. Against Dr. K.M.Prasad 14 cases were lodged, whereas against Kamlesh Kumar, S/o Dr. K.M.Prasad, 8 cases were lodged. During investigation of those cases, it could be revealed that Dr. K.M.Prasad has acquired huge immovable and movable properties in his name as well as in the name of his sons and daughters including the petitioner being the son of Dr. K.M.Prasad. Further, it had been found that Dr. K.M.Prasad had received foreign exchange remittances by way of foreign exchange instruments amounting to 3,15,000/US Dollar and 1000/Pounds during the year 1991-92 and those transactions were not genuine gift, rather it were in violation of the provision of Foreign Exchange Regulation Act, 1973 (in short FERA).
During investigation, it also transpired that the petitioner had received 75,000/US Dollars through foreign exchange remittances.
4. On such allegation, a complaint case bearing No. C III85/ 2002, was lodged against Dr. K.M.Prasad and his daughters and sons including this petitioner for contravention of provision of Section 9 (1)(1)(a) and 9 (1)(b)(i), read with Section 64 (2) of the Foreign Exchange Regulation Act, 1973.
On filing of the complaint, cognizance of the offence punishable under Section 56 of the FERA Act, read with Sections 49(3) and 49(4) of the Foreign Exchange Management Act, 1999, was taken against the accused persons including this petitioner. Thereupon, warrant of arrest was issued against the petitioner.
5. Earlier the entire criminal proceedings of the said case was challenged before this Court in W.P.(Cr.) No. 85 of 2003, which was dismissed on 19/07/2012.
6. According to the petitioner, since non-bailable warrant of arrest has been issued taking the offences to be non-bailable, necessity arose to file this application for declaration as to whether offences under the FERA are bailable or non-bailable? That is how the matter has come up before this Court.
7. Mr. Anil Kumar, learned senior counsel appearing for the petitioner submits that the object of FERA, 1973, is to consolidate and amend the law regulating certain payments dealing in foreign exchange and security transaction indirectly affecting the foreign exchange and the import and export of currency for the conservation of the foreign exchange resources of the Country and the proper utilization thereof in the interest of the economic development of the Country and, thereby, the main object of the legislature is to have proper regulation of the foreign exchange. Though the provision is there also for prosecution but that appears to be a secondary object of the legislature and, as such, the offences in terms of the provisions as contained in Section 62 of FERA Act, has been made non-cognizable though punishment for some of the offences in terms of the provisions contained in Section 56 of the Act, extend to seven years but the Act is silent as to whether offence would be bailable or non-bailable? In absence of such provision being there under the said Act, one would be guided by first schedule of the Code indicating t
