MOHTESHAM MOHD. ISMAIL versus SPL. DIRECTOR, ENFORCEMENT DIRECTORATE AND ANR.

Citation: [2007] 10 S.C.R. 804 · Decided: 09-10-2007 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Appeal(s) allowed

Judgment (excerpt)

A 
MOHTESHAM MOHD. ISMAIL 
-( 
v. 
SPL. DIRECTOR, ENFORCEMENT DIRECTORATE AND ANR. 
OCTOBER 9, 2007 
B 
[S.B. SINHA AND HARJIT SINGH BEDI, JJ.] 
Foreign Exchange Regulation Act, 1973-ss. 5, 9(J)(b), 9(l)(d) 
and 9(3) ands. 54-Proceedings under the Act-Against the accused-
c Retraction of confession by the accused-Adjudicating authority 
imposing penalty-Appeal of accused allowed by Appellate Board-
Appeal against the order of the Board by the Adjudicating Authority-
High Court maintaining the appeal and setting aside order of the Board 
on Merit--On appeal, held: Power to prefer appeal to High Court is 
D with Central Government-Adjudicating Authority having not been 
authorised to act on behalf of Central Government could not prefer 
the appeal-The Adjudicating Authority being a quasi-judicial 
.... 
authority cannot prefer appeal being dissatisfied with the judgment 
of the appellate authority-High Court was not correct in inter/erring 
E with finding of fact arrived at by Appellate Authority-In view of 
retracted confession, conviction of the accused was not correct. 
Evidence-Confessional statement-Evidentimy value of-Held: 
Such evidence cannot be treated as substantive evidence. 
F 
By a Notification, Central Government appointed the 
respondent-Special Director of Enforcement for the purpose of 
enforcing the provisions of Foreign Exchange Regulation Act, 1973. 
The respondent adjudicated the case of the appellant and imposed· 
penalty in terms of Section 9(3) of the Act. Appeal of the appellant 
G thereagainst was allowed by Foreign Exchange Regulation 
Appellate Board. Respondent preferred app~al against the order of 
~-
the Board before High Court. In the appeal, Board was impleaded 
as party but Central Government was not. High Court set aside the 
question of maintainability of the appeal and also set aside the order 
H 
804 
> 
MOHTESHAMMOHD. ISMAIL v. SPL. DIRECTOR, 
805 
ENFORCEMENT DIRECTORATE 
of the Board, on merit. Hench the present appeal. 
A 
Appellant contended that in view of Section 54 of the Act, only 
officers authorised in this behalf could prefer an appeal; and that 
order of High Court is unsustainable because High Court failed to 
consider the question that the appellant had retracted from his 
confession. 
B 
Respondent contended that in view of the Notification, he was 
authorised to prefer the appeal. 
Allowing the appeal, the Court 
HELD : 1.1. The Central Government for the purpose of 
enforcing the provisions of Foreign Exchange Regulation Act, 1973 
is empowered to appoint officers. From a bare perusal of Sections 
5, it would be evident that notifications are required to be issued by 
c 
the Central Government delegating specific functions under the Act. D 
[Para 11] [813-F] 
1.2. From the Notification dated 22.09.1989, it would appear that 
the officer authorized by the Central Government for the purpose 
of enforcing the provisions of the Act was specifically empowered 
to adjudicate upon the dispute. The said Notification itselfis a pointer E 
to the fact that for the purpose of exercising the functions of the 
Central Government under one provision or the other, the officer 
concerned must be specifically empowered in that behalf. A general 
empowerment would, however, be permissible. Before the High 
Court, no Notification was filed to show that the authority concerned 
F 
was empowered to prefer an appeal on behalf of the Central 
Government. The Central Government was not even imp leaded as 
a party to the appeal. First Respondent did not file the appeal on 
behalf of or representing the Central Government. It was filed in its 
official capacity as the adjudicating authority and not as a delegatee G 
of the Central Government. [Para 12] [813-G, H; 814-A, B] 
1.3. An adjudicating authority exercises a quasi-judicial power 
and discharges judicial functions. When its order had been set aside 
by the Board, ordinarily in absence of any power to prefer an appeal, H 
806 
SUPREME COURT REPORTS 
\-
[ 2007] I 0 S.C.R. 
A it could not do so. For the purpose of exercising the functions of the 
Central Government, the officer concerned must be specifically 
authorized. Only when an officer is so specifically authorized, he can 
act on behalf of the Central Government and not othenvise. Only 
because an officer has been appointed for the purpose of acting in 
B terms of the provisions of the Act, the same would not by itself entitle 
an officer to discharge all or any of the function

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