Judgment:
WP No.1163 of 2005 IN THE HIGH COURT AT CALCUTTA Constitutional Writ Jurisdiction ORIGINAL SIDE SHRI KESHAB BANGUR Versus UNION OF INDIA BEFORE: The Hon'ble JUSTICE DEBANGSU BASAK Date : 6th April, 2016.
Appearance: Mr.Bhaskar Sen, Sr.Adv.Mr.Indranil Roy, Adv.Mr.Bimalendu Das, Adv.Mr.P.KI.
Chatterjee,, Adv.Ms.S.Das, Adv..for the petitioner Mr.Kumar Jyoti Tewari, Adv..for UOI The Court : The petitioner has assailed an order dated December 13, 2004 passed by the Special Director of the Enforcement Directorate.
A sum of Rs.50 lakhs has been imposed as penalty against the petitioner after returning a finding that the charges of violation of the provisions of Foreign Exchange Regulation Act, 1973 stood established.
Mr.Bhaskar Sen, learned senior advocate appearing for the petitioner has submitted that, the impugned order is vitiated by the breach of the principles of natural justice.
The petitioner was not afforded a reasonable opportunity to present his case.
Notice of the hearing of the proceedings was not served on him.
He was not heard prior to the impugned order being passed.
The petitioner was unwell and was hospitalised continuously from January 27, 2003 to June 4, 2004 and again from June 8, 2004 to December 21, 2004.
In support of such contention he has relied upon paragraph 7 of the supplementary affidavit affirmed on behalf of the petitioner on May 19, 2005.
He has relied upon a medical report dated May 2, 2003 as well as two other discharge certificates appearing at pages 38 and 46 of the writ petition.
Mr.Sen has submitted that the petitioner was not made available all the documents on which the authorities had relied upon at the hearing.
There was a raid in the Mumbai residence of the petitioner and the documents were taken into custody.
The documents if allowed to be produced would show that the petitioner did not have any complicity in the subject matter.
Mr.Sen has further submitted that in the interim reply to the show cause notice, his client had made a request for cross-examination of the witness on behalf of the authorities.
Such request has also not been kept.
The petitioner has not been allowed the right of cross-examination.
In such circumstances, he submits that the impugned order should be set aside.
The parties should be remanded to the appropriate authority for fresh trial.
His client is ready to participate in the trial.
I have not called upon the respondent to address.
A proceeding was initiated by the Enforcement Directorate against the petitioner alleging contravention of various provisions of the Foreign Exchange Regulation Act, 1973 (FERA, 1973) for dealing with foreign exchange in a manner not authorised by law.
A show-cause notice dated December 16, 1998 was issued to the petitioner.
The same was replied to on behalf of the petitioner on November 30, 2001.
The reply runs into eleven pages of foolscape paper with the typing therein less than double space.
This the petitioner claims to be an interim reply.
The impugned order dated December 13, 2004 shows that the proceedings were fixed and taken up for hearing on November 11, 2003; November 27, 2003; November 26, 2004; September 29, 2004; October 27, 2004 and November 19, 2004.
The hearing therefore took place for over a period of time spanning from November 11, 2003 to November 19, 2004.
Hearing commenced after two years from the date of the reply to the show cause.
The petitioner claims that he was not served notice of the hearing for the final date.
The petitioner admits to have received notices of the earlier dates of hearing in paragraph 10 of the writ petition.
In support of the contention that notice of hearing was not served upon the petitioner, reliance has been placed on the report of the process server that the petitioner was not found at his address.
The petitioner has explained his absence from his known address on the alleged hospitalisation of the petitioner for the period from January 27, 2003 to June 4, 2004 and June 8, 2004 to December 21, 2004.
Consequently, according to the petitioner, no notice of hearing could be served on the petitioner as the petitioner was in hospital.
The factum of hospitalisation is pleaded at paragraph 11 of the writ petition and at paragraph 6 of the supplementary affidavit.
At paragraph 11 of the writ petition, the petitioner claims to have annexed the discharge certificates for the aforesaid periods of hospitalisation.
Two discharge certificates have been annexed to the writ petition.
In fact, these are the only discharge certificates in the entirety of the pleadings and the records available to Court.
The discharge certificate at page 38 of the writ petition relates to the period from January 27, 2003 to May 6, 2003.
The other discharge certificate at page 46 of the writ petition relates to the period from June 8, 2004 to December 21, 2004.
The dates of hearing are for the period from November 11, 2003 to November 19, 2004.
The petitioner has not produced any documents to substantiate paragraph 11 of the writ petition or paragraph 6 of the supplementary affidavit.
The petitioner has not been able to substantiate that he was hospitalised for the period January 27, 2003 to June 4, 2004 and again from June 8, 2004 to December 21, 2004.
The medical report also does not assist the petitioner.
The medical report apparently is dated May 2, 2003.
It finds that the petitioner was declared fit for discharge from a cardiological view point.
The petitioner has, therefore, knowing fully well of the pendency of the proceedings has sought to take shelter under a so-called medical ground.
The documents do not support the claim of the petitioner.
The petitioner had knowledge of the proceedings.
The petitioner chose not to participate in the proceedings.
In such circumstances, I am not in a position to accept the contention on behalf of the petitioner that no notice of the proceedings or of the date of hearing of the proceedings was served upon the petitioner.
Since the petitioner chose not to participate in the proceedings, the question of making over documents by the authorities relied upon at the hearing to the petitioner does not arise.
Had the petitioner participated in the proceedings he would not have been made over the documents at the hearing.
The request for cross-examination also is of no assistance as the petitioner was not present in the hearing to undertake the cross-examination of the witness on behalf of the authorities.
The impugned order is appealable.
It gives reasons.
The petitioner has chosen not to prefer an appeal.
The petitioner has chosen to file a writ petition.
The scope of enquiry in a writ jurisdiction is limited.
The contention of breach of principles of natural justice cannot be accepted in the facts and circumstances of this case.
No other ground has been canvassed at the hearing.
In such circumstances, there is no infirmity in the order impugned.
WP No.1163 of 2005 is dismissed.
The authorities are at liberty to proceed in accordance with law as expeditiously as possible to implement the impugned order.
(DEBANGSU BASAK, J.) bp.