(Act
46 of 1973)
[As amended by the Foreign Exchange
Regulation
(Amendment) Act, 1993]
(Act 29 of 1993)
Cognizance of offences
61. (1) Notwithstanding anything contained in section 29 of
the Code of Criminal Procedure, 1973, it shall be lawful for any
metropolitan magistrate and for any magistrate of the first class to
pass a sentence of imprisonment for a term exceeding three years or of
fine exceeding five thousand rupees on any person convicted of an
offence punishable under section 56.
(2) No court shall take cognizance -
(i) of any offence punishable under sub-section (2) of section 44 or
sub-section (1) of section 58, -(a) where the offence is alleged to
have been committed by an officer of Enforcement not lower in rank
than an Assistant Director of Enforcement, except with the previous
sanction of the Central Government; (b) where the offence is alleged
to have been committed by an officer of Enforcement lower in rank than
an Assistant Director of Enforcement, except with the previous
sanction of the Director of Enforcement; or
(ii) of any offence punishable under sections 56 or section 57,
except upon complaint in writing made by -(
a) the Director of Enforcement; or (b) any officer authorised in
writing in this behalf by the Director of Enforcement or the Central
Government; or (c) any officer of the Reserve Bank authorised by the
Reserve Bank by a general.or special order:
Provided that where any such offence is the contravention of any of
the provisions of this Act or of any rule, direction or order made
thereunder which prohibits the doing of an act without permission, no
such complaint shall be made unless the person accused of the offence
has been given an opportunity of showing that he had such permission.
Certain offences to be non-cognizable
62. Subject to the provisions of section 45 and
notwithstanding anything contained in the Code of Criminal Procedure,
1973, an offence punishable under section 56 shall be deemed to be
non-cognizable within the meaning of that Code.
Confiscation of currency, security, etc.
63. Any court trying a contravention under section 56 and
the adjudicating officer adjudging any contravention under section 51
may, if it or he thinks fit and in addition to any sentence or penalty
which it or he may impose for such contravention, direct that any
currency, security or any other money or property in respect of which
the contravention has taken place shall be confiscated to the Central
Government and further direct that the foreign exchange holdings, if
any, of the person committing the contravention or any part thereof,
shall be brought back into India or shall be retained outside India in
accordance with the directions made in this behalf.
Explanation - For the purposes of this section, property in
respect of which contravention has taken place shall include -(a)
deposits in a bank, where the said property is converted into such
deposits; (b) Indian currency, where the said property is converted
into that currency; (c) any other property which has resulted out of
the conversion of that property.
Preparation, attempt, etc.
64. (1) Whoever makes preparation to contravene any of the
provisions of this Act [other than section 13, clause (a) of
sub-section (1) of section 18, section 18A, clause (a) of sub-section
(1) of section 19, sub-section (2) of section 44 and sections 57 and
58] or of any rule, direction or order made thereunder and from the
circumstances of the case it may be reasonably inferred that if not
prevented by circumstances independent of his will, the contravention
as aforesaid would have taken place, shall, for the purposes of
section 56, be deemed to have contravened that provision, rule,
direction or order, as the case may be..(2) Whoever attempts to
contravene, or abets any contravention of, any of the provisions of
this act [other than section 13, clause (a) of sub-section (1) of
section 18, section 18A, clause (a) of sub-section (1) of section 19,
sub-section (2) of section 44 and sections 57 and 58] or of any rule,
direction or order made thereunder, shall, for the purposes of this
Act, be deemed to have contravened that provision, rule, direction or
order, as the case may be.
Correction of clerical errors, etc.
65. Clerical or arithmetical mistakes in any decision or
order passed by the Appellate Board or the adjudicating officer under
this Act, or errors arising therein from any accidental slip or
omission may, at any time, be corrected by the Appellate Board or the
adjudicating officer or his successor in office, as the case may be:
Provided that where any correction proposed to be made under this
section will have the result of prejudicially affecting any person no
such correction shall be made -(i) after the expiry of a period of two
years from the date of such decision or order; and
(ii) unless the person affected thereby is given a reasonable
opportunity for making a representation in the matter.
Application of section 360 of the Code of Criminal
Procedure,1973 and of the Probation of Offenders Act, 1958
66. (1) Nothing contained in section 360 of the Code of
Criminal Procedure, 1973, or in the Probation of Offenders Act, 1958
shall apply to a person convicted of an offence under this Act unless
that person is under eighteen years of age.
(2) The provisions of sub-section (1) shall have effect
notwithstanding anything contained in sub-section (4) of section 56.
Application of the Customs Act, 1962
67. The restrictions imposed by or under section 13, clause
(a) of sub-section (1) of section 18, section 18A and clause (a) of
sub-section (1) of section 19 shall be deemed to have been imposed
under section 11 of the Customs Act, 1962, and all the provisions of
that Act shall
have effect accordingly..Offences by companies
68. (1) Where a person committing a contravention of any of
the provisions of this Act or of any rule, direction or order made
thereunder is a company, every person who, at the time the
contravention was committed, was in charge of, and was responsible to,
the company for the conduct of business of the company as well as the
company, shall be deemed to be guilty of the contravention and shall
be liable to be proceeded against and punished accordingly:
Provided that nothing contained in this sub-section shall render any
such person liable to punishment if he proves that the contravention
took place without his knowledge or that he exercised all due
diligence to prevent such contravention.
(2) Notwithstanding anything contained in sub-section (1), where a
contravention of any of the provisions of this Act or of any rule,
direction or order made thereunder has been committed by a company and
it is proved that the contravention has taken place with the consent
or connivance of, or is attributable to any neglect on the part of,
any director, manager, secretary or other officer of the company, such
director, manager, secretary or other officer shall also be deemed to
be guilty of the contravention and shall be liable to be proceeded
against and punished accordingly.
Explanation - For the purposes of this section -(i) "company"
means any body corporate and includes a firm or other association of
individuals; and (ii) "director", in relation to a firm,
means a partner in the firm.
Power of court to publish name, place of business, etc., of
companies convicted under the Act
69. (1) Where any company is convicted under this Act for
contravention of any of the provisions thereof or of any rule,
direction or order made thereunder, it shall be competent for the
court convicting the company to cause the name and place of business
of the company, nature of the contravention, the fact that the company
has been so convicted and such other particulars as the court may
consider to be appropriate in the circumstances of the case, to be
published at the expenses of the company in such newspapers or in such
other manner as the court may direct.
(2) No publication under sub-section (1) shall be made until the
period for preferring an appeal against the orders of the court has
expired without any appeal having been preferred, or such an appeal,
having been preferred, has been disposed of.
(3) The expenses of any publication under sub-section (1) shall be
recoverable from the company as if it were a fine imposed by the
court.
Explanation - For the purposes of this section, "company"
has the same meaning as in clause (i) of the Explanation to section
68.
Recovery of sums due to Government
70. (1) Where any penalty imposed on any person under this
Act is not paid, -(i) the adjudicating officer may deduct the amount
so payable from any money owing to such person which may be under the
control of any officer of Enforcement; or
(ii) the adjudicating officer may recover the amount so payable by
detaining or selling any goods belonging to such person which are
under the control of any officer of Enforcement; or
(iii) if the amount cannot be recovered from such person in the
manner provided in clause (i) or clause (ii), the adjudicating officer
may prepare a certificate signed by him specifying the amount due from
such person and send it to the Collector of the district in which such
person owns any property or resides or carries on his business and the
said Collector on receipt of such certificate shall proceed to recover
from the said person the amount specified thereunder as if it were an
arrear of land revenue.
(2) Where the terms of any bond or other instrument executed under
this Act or any rule made thereunder provide that any amount due under
such instrument may be recovered in the manner laid down in
sub-section (1), the amount may, without prejudice to any other mode
of recovery, be recovered in accordance with the provisions of that
sub-section.
(3) The several modes of recovery specified in this section shall
not affect in any way -.(i) any other law for the time being in force
relating to the recovery of debts due to the Government; or
(ii) the right of the Government to institute a suit for the
recovery of the penalty due to the Government,and it shall be lawful
for the Central Government to have recourse to any such law or suit
notwithstanding that the amount is to be recovered by any mode
specified in this section.
Burden of proof in certain cases
71. (1) Where any person is prosecuted or proceeded against
for contravening any of the provisions of this Act or of any rule,
direction or order made thereunder which prohibits him from doing an
act without permission, the burden of proving that he had the
requisite permission shall be on him.
(2) Where any person is prosecuted or proceeded against for
contravening the provisions of sub-section (3) of section 8, the
burden of proving that the foreign exchange acquired by such person
has been used for the purpose for which permission to acquire it was
granted shall be on him.
(3) If any person is found or is proved to have been in possession
of any foreign exchange exceeding in value fifteen thousand rupees,
the burden of proving that the foreign exchange came into his
possession lawfully shall be on him.
Presumption as to documents in certain cases
72. Where any document -(i) is produced or furnished by any
person or has been seized from the custody or control of any person,
in either case, under this Act or under any other law, or
(ii) has been received from any place outside India (duly
authenticated by such authority or person and in such manner as may be
prescribed) in the course of investigation of any offence under this
Act alleged to have been committed by any person, and such document is
tendered in any proceedings under this Act in evidence against him, or
against him and any other person who is proceeded against jointly with
him, the court or the adjudicating officer, as the case may be, shall
-.(a) presume, unless the contrary is proved, that the signature and
every other part of such document which purports to be in the
handwriting of any particular person or which the court may reasonably
assume to have been signed by, or to be in the handwriting of, any
particular person, is in that person's handwriting, and in the case of
a document executed or attested, that it was executed or attested by
the person by whom it purports to have been so executed or attested;
(b) admit the document in evidence notwithstanding that it is not
duly stamped, if such document is otherwise admissible in evidence;
(c) in a case falling under clause (i), also presume, unless the
contrary is proved, the truth of the contents of such document.
Supplemental provisions
73. (1) For the purposes of this Act and of any rules,
directions or orders made thereunder -(a) in the case of any person
who, having been resident in India, ceases to be such, the Reserve
Bank may, by order, declare the territory in which such person shall
be treated as being resident;
(b) in the case of any person resident in India who leaves India,
the Reserve Bank may give a direction to any bank that until the
direction is revoked, any sum, from time to time, standing to the
credit of that person and any security held on his behalf at any
office or branch of that bank in India specified in the direction
shall not be dealt with except with the permission of the Reserve
Bank;
(c) a firm or the branch of a firm shall be treated in all respects
as if such firm or branch were a body corporate resident where it is
situated;
(d) subject to the provisions of clause (c), a branch of any
business, whether carried on by a body corporate or otherwise, shall
be treated in all respects as if the branch were a body corporate
resident where the branch is situated;
(e) the making of any book entry or other statement regarding a
debit against a branch of any business in favour of the head office or
any other branch of that business shall be treated as the
acknowledgement of a debt whereby a right is created in favour of a
person resident where the head office or other branch is situated.
(2) Nothing in this Act relating to the payment of any price or sum
by the Central Government shall be construed as requiring the Central
Government to pay that price or sum otherwise than in Indian currency
or otherwise than in India..(3) The Reserve Bank may give directions
in regard to the making of payment and the doing of other acts by bankers, authorised dealers, money-changers, stock brokers, or other
persons, who are authorised by the Reserve Bank to do anything in
pursuance of this Act in the course of their business, as appear to it
to be necessary or expedient for the purpose of securing compliance
with the provisions of this Act and of any rules, directions or orders
made thereunder.
(4) Subject to any other express provision in this behalf contained
in this Act, where any provision of this Act requires the permission
of the Reserve Bank for doing anything under such provision, the
Reserve Bank may specify the form in which an application for such
permission shall be made and the particulars which such application
shall contain:
Provided that different forms and different particulars may be
specified in respect of applications for permission under different
provisions of this Act.
Penalty for contravention of direction of Reserve Bank or for
failure to file returns
73.A. Without prejudice to the provisions of sections 50 and
51 where any authorised dealer contravenes any direction given by the
Reserve Bank under this Act or fails to file any return as directed by
the Reserve Bank, the Reserve Bank may, after giving a reasonable
opportunity of being heard impose on the authorised dealer a penalty
which may extend to ten thousand rupees and in the case of continuing
contravention with an additional penalty which, may extend to two
thousand rupees for every day during which such contravention
continues.
Delegation
74. The Reserve Bank may, with the previous approval of the
Central Government, by order, delegate any of its powers or functions
-(i) under section 8,9 or 10 or sub-clause (b) of clause (A) of
sub-section (2) of section 18 or sub-section (7) of section 18 to any
authorised dealer; or
(ii) under section 8 or 9 to any money-changer, subject to such
restrictions, conditions and limitations as may be specified in the
order.
Power of Central Government to give directions
75. For the purposes of this Act, the Central Government
may, from time to time, give to the Reserve Bank such general or
special directions as it thinks fit, and the Reserve Bank shall, in
the discharge of its functions under this Act, comply with any such
directions.
Factors to be taken into account by the Central Government and
the Reserve Bank while giving or granting permissions or licences
under the Act
76. Save as otherwise expressly provided in this Act, the
Central Government or the Reserve Bank, as the case may be, shall,
while giving or granting any permission or licence under this Act,
have regard to all or any of the following factors, namely:-
(i) conservation of the foreign exchange resources of the country;
(ii) all foreign exchange accruing to the country is properly
accounted for;
(iii) the foreign exchange resources of the country are utilised as
best to subserve the common good;and
(iv) such other relevant factors as the circumstances of the case
may require.
Certain officers to assist officers of Enforcement
77. The following officers are hereby empowered and required
to assist the officers of Enforcement in the enforcement of this Act,
namely:-
(a) officers of the Customs Department;
(b) officers of the Central Excise Department;
(c) officers of Police;
(d) officers of the Central or State Government employed at any port
or airport;
(e) such other officers of the Central or State Government or a
local authority as are specified by the Central Government in this
behalf by notification in the Official Gazette.
Bar of legal proceedings
78. No suit, prosecution or other legal proceeding shall lie
against the Central Government or the Reserve Bank or any officer of
Government or of the Reserve Bank or any other person exercising any
powers or discharging any functions or performing any duties under
this Act, for anything in good faith done or intended to be done under
this Act or any rule, direction or order made thereunder.
Power to make rules
79. (1) The Central Government may, by notification in the
Official Gazette, make rules for carrying out the provisions of this
Act.
(2) Without prejudice to the generality of the foregoing power, such
rules may -(a) prescribe the forms and the circumstances of their use
for the purposes of this Act; (b) prescribe the procedure to be
followed by the authorised dealers and money-changers and by persons
applying for permission to do anything for the doing of which
permission is necessary under this Act; (c) prescribe the manner in
which inquiries may be held, and orders may be served, under this Act
and the procedure to be followed in respect of the proceedings before
the adjudicating officer or the Appellate Board; (d) provide, subject
to such conditions as may be specified therein, for the publication of
names and other particulars of persons who have been found guilty of
any contravention of the provisions of this Act, or of any rule,
direction or order made thereunder; (dd) prescribe the fee payable by
a person preferring appeal to the Appellate Board under sub-section
(2) of section 52; (e) provide for any other matter which is to be or
may be prescribed under this Act.
(3) Every rule made under this Act shall be laid, as soon as may be
after it is made, before each House of Parliament, while it is in
session, for a total period of thirty days which may be comprised in
one session or in two or more successive sessions, and if before the
expiry of the session immediately following the session or the
successive sessions aforesaid both Houses agree in making any
modification in the rule, or both Houses agree that the rule should
not be made, the rule shall, thereafter have effect only in such
modified form or be of no effect, as the case may be; so, however,
that any such modification or annulment shall be without prejudice to
the validity of anything previously done under that rule.
Power to remove difficulties
80. If any difficulty arises in giving effect to the
provisions of this Act, the Central Government may, by order, do
anything not inconsistent with such provisions for the purpose of
removing the difficulty:
Provided that no such order shall be made after the expiration of
two years from the commencement of this Act.
Repeal and saving
81. (1) The Foreign Exchange Regulation Act, 1947 is hereby
repealed
(2) Notwithstanding such repeal -
(a) anything done or any action taken or purported to have been done
or taken (including any rule, notification, inspection, order or
notice made or issued, or any appointment, confirmation or declaration
made or any licence, permission, authorisation or exemption granted or
any document or instrument executed or any direction given or any
proceedings taken or any confiscation adjudged or any penalty or fine
imposed) under the Act hereby repealed shall, in so far as it is not
inconsistent with the provisions of this Act, be deemed to have been
done or taken under the corresponding provisions of this Act;
(b) the provisions of section 60 of this Act shall apply in relation
to the contravention of any of the provisions of the Act hereby
repealed or of any rule, direction or order made thereunder;
(c) any appeal preferred to the Foreign Exchange Regulation
Appellate Board under sub-section (2) of section 23E of the Act hereby
repealed but not disposed of before the commencement of this Act and
any appeal that may be preferred to the said Board against any order
made or to be made under section 23 of the Act hereby repealed may be
disposed of by any member of the Appellate Board constituted under
this Act in accordance with the provisions of sub-section (6) of
section 52 of this Act:
(d) every appeal from any decision or order of the Foreign Exchange
Regulation Appellate Board under sub-section (3) or sub-section (4) of
Section 23E of the Act hereby repealed shall, if not filed before the
commencement of this Act, be filed before the High Court within a
period of sixty days of such commencement;
Provided that the High Court may entertain any such appeal after the
expiry of the said period of sixty days if it is satisfied that the
appellant was prevented by sufficient cause from filing the appeal
within the said period..(3) The mention of particular matters in
sub-section (2) shall not be held to prejudice or affect the general
application of section 6 of the General Clauses Act, 1897 with regard
to the effect of repeal.
