Charge Of Criminal/Quasi-Criminal Nature Can’t Be Allowed To Hang Over The Head Of A Citizen Indefinitely: Calcutta HC Quashes ED’s 26-Yr-Old Show Cause Notice [Read Judgment]

The petitioner has spent the last 26 years with the adjudication proceeding hanging over his head like the proverbial Damocles’ sword, the court said.

Quashing a 26-year-old show cause notice issued to a man by the Enforcement Directorate (ED), the Calcutta High Court observed that a charge of a criminal or quasi-criminal nature cannot be allowed to hang over the head of a citizen indefinitely without the authority concerned coming to a conclusion as to whether or not there is substance in the charge.

Surendralal Girdharilal Mehta’s case before the high court was that the show cause notice was issued by the Special Director, Enforcement Directorate, on 14^th January 1991 and the adjudication proceeding under Section 51 of the Foreign Exchange Regulation Act (FERA) has not proceeded since then. He also contended that no document was supplied to him, despite repeated requests and hence violated his right under Article 21 of the Constitution of India by keeping the proceeding pending for 26 years.

The only explanation for this huge delay given by the ED before the high court was that, each time a notice of hearing was given, Mehta’s counsel sought to adjourn because copies of the relevant documents had not been supplied.

Rejecting such an explanation, Justice Arijit Banerjee observed: “This, in my opinion, did not amount to any dilatory tactics on the part of the petitioner. He was well within his rights to ask for copies of documents which the respondents intended to rely upon to connect the petitioner with the impugned transaction allegedly undertaken in violation of the provisions of FERA. It was equally an obligation on the part of the respondents to supply copies of such documents to the petitioner before any hearing took place to enable the petitioner to meaningfully defend himself at the hearing. This is nothing but a basic requirement of the principles of natural justice.”

Further contention on part of the authorities was that Mehta never demanded that the adjudication proceeding be expedited and completed at an early date and, therefore, he cannot complain of the delay and cannot ask for quashing of the show cause notice and the adjudication proceeding on the ground of delay alone.

The court, in this regard, observed: “It is irrelevant that the petitioner did not ask for speedy conclusion of the adjudication process. It was incumbent upon the respondent authorities to diligently proceed with the adjudication and come to a conclusion at an early date. A charge of a criminal or quasi-criminal nature cannot be allowed to hang over the head of a citizen indefinitely without the concerned authority coming to a conclusion as to whether or not there is substance in the charge. Just as a person against whom a quasi-criminal charge has been brought is liable to be punished if the charge is proved, equally, he is entitled to be exonerated of the charge if the charge cannot be established with proper evidence. Either way, the decision must be reached within a reasonable period of time. This is in public interest and is essential to preserve public confidence in the adjudication process. The prejudices that a charged person suffers by reason of undue long pendency of a proceeding against him are many fold as noted in some of the decisions discussed above. In the facts of the present case by no stretch of imagination, it can be said that the delay that has been caused in the adjudication process is reasonable and absolutely no explanation has been furnished for such delay. The charges against the petitioner are of a quasi-criminal nature and the right of the petitioner to have a speedy disposal of the adjudication proceeding has been infringed by the respondents in the facts of this case. On this ground alone the impugned show cause notice is liable to be quashed.”