Case Law Details
M/s Advantages India & Anr Vs Union of India & Ors (Delhi High Court)
This Court is of the opinion that there is a principle and/or policy for guidance of exercise of discretion by the Government in the matter of selection of an investigative agency and there is no arbitrary, vague and uncontrolled power with the Government so as to enable it to discriminate between persons or things similarly situated. Accordingly, this Court is of the view that Petitioner‟s reliance upon State of Punjab vs. Khan Chand (supra) is misconceived.
Also as the Notification dated 27th October, 2011 is neither an interpretation nor an understanding of Section 43 of FCRA but a convention/practice/policy to be followed by the Union of India while implementing Section 43, this Court is of the view that judgment of the Apex Court Bhuwalka Steel Industries Ltd. vs. Bombay Iron and Steel Labour Board & Anr. (supra) is inapplicable to the present case.
Consequently, the Notification dated 27th October, 2011 as well as the consistent practice followed by the Central Government lay down a principle and/or policy in the matter of appointment/selection of an investigative agency under Section 43 of FCRA and saves it from attack on the ground that it violates Articles 14 and 21 of the Constitution.
The letter dated 04th August 2017, issued by the Ministry of Home Affairs, FCRA Wing, signed by the Director (FC & MU), states that the inquiry conducted by the Ministry had prima facie revealed that the petitioner association i.e. M/s Advantage India had violated various provisions of FCRA and it was suggested to be a fit case for detailed investigation and criminal prosecution under Section 43 FCRA by CBI, ‗if found fit‘. Accordingly, both the letters under Sections 23 and 43 were issued by the same authority i.e. Government of India, Ministry of Home Affairs, FCRA Wing, Director (FC & MU). Consequently, this Court is of the view that the judgment in Hussein Ghadially Alias M.H.G.A. Shaikh & Ors. Vs. State of Gujarat (supra) relied upon by the Petitioners does not apply to the present cases as the statutory provisions were followed and the inspecting officer as well as investigating authority, both were appointed by the Government of India and „a delegatee had not sub-delegated the investigation to CBI‟ in the present cases.
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