Supreme Court of India
J. SRI NISHAversusTHE SPECIAL DIRECTOR, ADJUDICATING AUTHORITY, DIRECTORATE OF ENFORCEMENT AND ANR.
- Citation
- 2026 INSC 309
- Decided
- 1 April 2026
- Disposal
- Disposed off
- Bench
- VIKRAM NATH
Holding
A show‑cause notice issued in circumstances where the Competent Authority has found no "reason to believe" a FEMA violation may be set aside, and the High Court’s dismissal of the writ petitions was erroneous.
Summary
The appellants, a company and its directors, were alleged to have acquired shares of a Singapore entity without RBI approval, violating Section 4 of the Foreign Exchange Management Act (FEMA). The Enforcement Directorate seized their assets under Section 37A, but the Competent Authority later refused to confirm the seizure, finding no "reason to believe" a contravention existed. Despite this, the Adjudicating Authority issued a show‑cause notice (SCN) and later imposed a penalty and confiscated the property, which the appellants challenged through writ petitions. The High Court dismissed the writs, holding that challenges to SCNs are generally not maintainable. The Supreme Court held that where the SCN is issued in circumstances of lack of jurisdiction, non‑application of mind, or abuse of process, interference is permissible, and the High Court’s dismissal was erroneous. Consequently, the Court set aside the High Court’s order and the Adjudicating Authority’s penalty, reviving the proceedings from the SCN stage, and directed the appellate authority to decide the pending appeal on the seizure order before proceeding further.
Issues considered
- Whether a show‑cause notice issued by the Adjudicating Authority can be challenged on the ground of lack of jurisdiction or abuse of process when the Competent Authority has refused to confirm seizure under Section 37A.
- Whether the High Court was correct in holding that writ petitions against a show‑cause notice are not maintainable in the present facts.
- Whether the Adjudicating Authority can proceed with adjudication and impose penalties despite the Competent Authority’s finding that there was no "reason to believe" a violation of Section 4 of FEMA.
- Whether the appellate authority must first decide the pending appeal against the Competent Authority’s order before the adjudication proceedings can continue.
Legislation cited
Headnote
Issue for Consideration The writ petitions instituted by the appellants assailing the show cause notice (SCN) issued by the Adjudicating Authority under Foreign Exchange Management Act, 1999, came to be dismissed. Whether the impugned order passed by the High to be set aside. Headnotes† Foreign Exchange Management Act, 1999 – ss.4, 37A – Foreign Exchange Management (Transfer or Issue of any Foreign Security) Regulations, 2004 – Appellants alleged to have contravened the provisions of s.4 of FEMA, r/w. FEMA Regulations, on the
Subjects
Show cause notice (SCN)CorrigendumSeizure of assetsAcquisition of shares in foreign entityReason to believeAdjudicating AuthorityConfiscation of the propertySection 37 of FEMAAbuse of processForeign securities
Judgment
[2026] 4 S.C.R. 313 : 2026 INSC 309
J. Sri Nisha
v.
The Special Director, Adjudicating Authority,
Directorate of Enforcement and Anr.
(Civil Appeal No. 4167 of 2026)
01 April 2026
[Vikram Nath and Sandeep Mehta,* JJ.]
Issue for Consideration
The writ petitions instituted by the appellants assailing the show
cause notice (SCN) issued by the Adjudicating Authority under
Foreign Exchange Management Act, 1999, came to be dismissed.
Whether the impugned order passed by the High Court is liable
to be set aside.
Headnotes†
Foreign Exchange Management Act, 1999 – ss.4, 37A –
Foreign Exchange Management (Transfer or Issue of any
Foreign Security) Regulations, 2004 – Appellants alleged to
have contravened the provisions of s.4 of FEMA, r/w. FEMA
Regulations, on the premise that they had acquired and held
shares of a foreign entity without the requisite approval and
in violation of the statutory framework – Properties seized by
the Authorised Officer – Competent Authority held that there
was no contravention of s.4, provisions of s.37A were held
inapplicable and prayer for confirmation of seizure of assets
was rejected – Parallelly, Adjudicating Authority issued show
cause notice (SCN) alleging violation of the provisions of FEMA
along with allied regulations – A corrigendum was issued to
the SCN – Writ petitions were filed by the appellants – The
High Court dismissed the writ petitions – Correctness:
Held: A prima facie satisfaction was recorded by the Competent
Authority that there was no evidence of the appellants being involved
in foreign security transactions having any value – Consequently,
there did not exist the “reasons to believe” referred to in s.37A(1) –
This Court has consistently held that although ordinarily a writ
petition against an SCN may not be entertained, however, the said
proposition is not an inviolable rule – Interference at the stage of
* Author
314 [2026] 4 S.C.R.
Supreme Court Reports
SCN is permissible in exceptional circumstances, such as where
the notice suffers from patent lack of jurisdiction, reflects non-
application of mind, is issued with a pre-determined or premeditated
approach, amounts to an abuse of the process of law, or results in
a violation of the principles of natural justice – Thus, the rejection
of challenge laid by the appellants to the SCN on the ground of
non-maintainability was not justified in the peculiar facts of the
case at hand – The High Court repeatedly referred to the effect
of the seizure order passed by the Authorised Officer u/s.37A of
FEMA and the scope of consideration thereof by the Adjudicating
Authority while passing the final order u/s.16 – The observations
made by the Division Bench impliedly efface the findings recorded
by the Competent Authority while refusing to confirm the seizure,
thereby foreclosing the outcome of the appeal pending before the
appellate authority – In effect, the Adjudicating Authority has undone
the order of the Competent Authority even while the appeal against
the said order is pending – Such a course of action tantamounts
to abdicating the powers of the Appellate Authority, even when the
order of the Competent Authority was still under challenge in appeal
at the instance of the department – The impugned order passed by
the High Court and the order passed by the Adjudicating Authority
imposing penalty and ordering confiscation of the property held by
appellants are declared to be arbitrary and contrary to law – The
same are hereby set aside – The proceedings are revived from
the stage of the SCN. [Paras 32, 33, 35, 38, 39]
Case Law Cited
Union of India v. VICCO Laboratories [2007] 12 SCR 534 : (2007)
13 SCC 270 : 2007 SCC OnLine SC 1420 – referred to.
List of Acts
Foreign Exchange Management Act, 1999; Foreign Exchange
Management (Transfer or Issue of any Foreign Security)
Regulations, 2004; Constitution of India.
List of Keywords
Show cause notice (SCN); Corrigendum; Seizure of assets;
Acquisition of shares in foreign entity; Reason to believe;
Adjudicating Authority; Confiscation of the property; Section 37
of Foreign Exchange Management Act, 1999; Abuse of process;
Foreign securities.
[2026] 4 S.C.R. 315
J. Sri Nisha v. The Special Director, Adjudicating Authority,
Directorate of Enforcement and Anr.
Case Arising From
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4167 of 2026
From the Judgment and Order dated 23.07.2024 of the High Court
of Judicature at Madras in WA No. 3521 of 2023.
With
Civil Appeal No(s). 4168, 4169, and 4170 of 2026
Appearances for Parties
Advs. for the Appellant(s):
Siddharth Luthra, Harin P Raval, Hari P Raval, Sr. Advs.,
E. Sudarsanan, K. Suresh, Rajendra Singvi, V. Ramesh, K. Stalin
Raja, C. Balaji, R. M. Narendran, Sam Jayaraj Houston, S. Manoj
Kumar.
Advs. for the Respondent(s):
Anil Kaushik, A.S.G., Zoheb Hussain, Arkaj Kumar, Bhuvan Kapoor,
Animesh Upadhyay, Arvind Kumar Sharma, Ms. Anushka Gupta,
Ms. Aakriti Mishra.
Judgment / Order of the Supreme Court
Judgment
Mehta, J.
1. Heard.
2. Leave granted.
3. This batch of appeals arises out of the common judgment and final
order dated 23rd July, 2024 passed by the Division Bench of the
High Court of Judicature at Madras1 in W.A. Nos.3520 to 3524 of
2023 and C.M.P. Nos.28745, 28749, 28748, 28750, 28756 of 2023
and 2240 of 2024.
4. The appellants herein had approached the learned Single Judge of
the High Court, assailing the order/show cause notice2 dated 22nd
1 Hereinafter, referred to as the “High Court”.
2 For short, ‘SCN’.
316 [2026] 4 S.C.R.
Supreme Court Reports
December, 2021 issued by the Adjudicating Authority under the
provisions of the Foreign Exchange Management Act, 19993, and
the consequential corrigendum dated 13th March, 2023.
5. The writ petitions instituted by the appellants assailing the said SCN
and corrigendum came to be dismissed by the learned Single Judge
vide common final order dated 30th November, 2023. The intra-Court
appeals preferred against the said order also stand rejected by the
impugned judgment dated 23rd July, 2024. It is in these circumstances
that the appellants are before us by way of these appeals with
special leave.
6. Since all the appeals involve identical questions of fact and law,
they were heard analogously and are being decided by this common
judgment.
Background: -
7. The appellants herein are the Company named M/s. Accord Distilleries
& Breweries Pvt. Ltd. and its Directors. The allegations against the
appellants in the questioned SCN emanate from a transaction of
acquisition of 70 lakh shares of an entity named M/s. Silver Park
International Pte. Ltd., a Singapore based Company, registered as
per the laws of Singapore and subsequent transfer/distribution of
these shares.
8. The transactions referred to above triggered the proceedings for
violation of provisions of FEMA against the appellants herein. The
foundational facts of these proceedings are that the appellant in Civil
Appeal @ SLP (C) No.34269 of 2025, J. Sundeep Anand, an Indian
citizen, being the Director of M/s. Accord Distilleries & Breweries Pvt.
Ltd. had subscribed to and acquired shares/foreign securities (without
consideration) in M/s. Silver Park International Pte. Ltd. allegedly
without the requisite approval of the Reserve Bank of India4 and in
violation of the provisions of the Foreign Exchange Management
(Transfer or Issue of any Foreign Security) Regulations, 20045. The
said shares were subsequently transferred to the other appellants,
who are the wife and children of J. Sundeep Anand, also without
3 For short, ‘FEMA’.
4 For short, ‘RBI’.
5 For short, ‘FEMA Rules’.
[2026] 4 S.C.R. 317
J. Sri Nisha v. The Special Director, Adjudicating Authority,
Directorate of Enforcement and Anr.
the requisite regulatory approval. Consequently, the appellants were
alleged to have contravened the provisions of Section 4 of FEMA,
read with the aforesaid Regulations, on the premise that they had
acquired and held shares of a foreign entity without the requisite
approval and in violation of the statutory framework. As a result,
the Authorised Officer seized the properties of the appellants vide
order dated 11th September, 2020 under Section 37A(1) of FEMA.
9. Pursuant to the initiation of proceedings, the Authorised Officer-
respondent No.26 herein, resorting to the procedure provided under
Section 37A(2) of FEMA moved the Competent Authority, i.e., the
Commissioner of Customs (Appeals-I), for seizure of the assets of
the appellants herein.
10. The Competent Authority, exercising powers under Section 37A(3) of
FEMA after due consideration of the material placed before it, came
to a conclusion that there was no proof that any of the appellants
had ever paid for the shares floated by M/s. Silver Park, since the
said company never made a call for the same. Consequently, no
contravention of Section 4 was made out, and the provisions of
Section 37A were held to be inapplicable. Accordingly, the prayer
for confirmation of seizure of assets was rejected vide a detailed
order dated 3rd February, 2021. The said order is presently under
challenge at the instance of the Directorate of Enforcement before
the Appellate Tribunal under SAFEMA at New Delhi in FPA-FE No.
33/CHN/2021.
11. Parallelly, with the proceedings for seizure and on identical set of
allegations, the Authorised Officer, moved the Adjudicating Authority-
respondent No. 17 herein (the Special Director of Enforcement
Directorate) under Section 16(3) of FEMA, pursuant whereto an SCN
dated 22nd December, 2021 was issued to the appellants alleging
violation of the provisions of FEMA along with allied regulations. The
appellants appeared before the Adjudicating Authority in response to
the SCN and advanced preliminary as well as additional submissions
during the course of the proceedings. After the personal hearing was
concluded and the matter was reserved for orders by the Adjudicating
Authority, a corrigendum dated 13th March, 2023 came to be issued
6 Hereinafter, referred to as the “Authorised Officer”.
7 Hereinafter, referred to as the “Adjudicating Authority”.
318 [2026] 4 S.C.R.
Supreme Court Reports
to the SCN. Both the SCN as well as the corrigendum were subjected
to challenge in the writ petitions filed by the appellants before the
learned Single Judge of the High Court.
12. The foundational challenge to the SCN and the corrigendum was
that once the Competent Authority had recorded categoric findings
of lack of basis for seizure in the order made under Section 37A(3)
of FEMA, rejecting the prayer for confirmation of seizure of assets,
there was no tangible material in the hands of the authorities to
conclude that the appellants had violated Section 4 of FEMA. The
very essence of the SCN stood struck off with the order passed by
the Competent Authority under Section 37A(3) of FEMA, and hence,
the SCN was non est in the eyes of law. The writ petitions were
rejected by the learned Single Judge by order dated 30th November,
2023, and the intra-court appeals preferred against the said order
were also dismissed by the Madras High Court by judgment dated
23rd July, 2024, which are the subject matter of challenge in these
appeals by special leave.
Submissions on behalf of the appellants: -
13. Mr. Siddharth Luthra and Mr. Harin P. Raval, learned senior counsel
representing the appellants, vehemently and fervently contended
that once the Competent Authority had concluded in the proceedings
under Section 37A of FEMA that there was no ground to confirm the
seizure of the assets of the appellants herein, the very foundation of
the SCN stood effaced. In those circumstances, the SCN was fit to
be quashed in exercise of the writ jurisdiction under Article 226 of
the Constitution of India because the foundational facts for sustaining
the said SCN proceedings were lacking.
14. It was further submitted that the order of the Competent Authority
dated 3rd February, 2021 refusing to confirm the seizure of the assets
has been passed in favour of the appellants and that the appeal
against the said order at the instance of the respondent (Directorate
of Enforcement) is still pending adjudication before the Appellate
Tribunal under SAFEMA at New Delhi in FPA-FE No. 33/CHN/2021.
Under these circumstances, the outcome of the said appeal ought
to have been awaited before issuance of the SCN.
15. Learned senior counsel further pointed out that the plea of the
respondents that the appellants have concealed the factum of the
[2026] 4 S.C.R. 319
J. Sri Nisha v. The Special Director, Adjudicating Authority,
Directorate of Enforcement and Anr.
SCN having been finally adjudicated is wholly misconceived, inasmuch
as, in the pleadings of the civil appeals, the appellants have clearly
mentioned that the SCN culminated into a final order against which
statutory appeal(s) have also been preferred.
16. Learned senior counsel submitted that the findings recorded by the
Division Bench of the High Court in para Nos.32, 33, and 34 of the
impugned order, virtually setting at nought the order passed by the
Competent Authority under Section 37A of FEMA, have prejudiced
the case of the appellants because the Adjudicating Authority has
heavily relied upon these very observations while passing the final
adjudication order.
17. Learned senior counsel further submitted that it is a fit case in which
this Court should feel persuaded to quash the SCN along with the
corrigendum and the adjudication order dated 26th August, 2024 as
there existed no foundation for the same.
18. Their alternative submission was that the order of adjudication dated
26th August, 2024 deserves to be set aside and the respondents
should be directed to await the outcome of the appeal pending
under Section 19 of FEMA before the SCN can be adjudicated
on merits. They further prayed that the observations and adverse
findings recorded by the Division Bench on the order passed by the
Competent Authority under Section 37(A)(3) of FEMA should not
prejudice the case of the appellants at any stage of the proceedings.
Submissions on behalf of the respondents: -
19. Per contra, Mr. Anil Kaushik, learned Additional Solicitor General
representing the respondents, strenuously, arduously, and vociferously
opposed the submissions advanced by the appellants’ counsel. He
urged that the nature of proceedings under Section 37A of FEMA is
intermediary/interim in nature and has no bearing on the adjudication
of the SCN.
20. He further submitted that irrespective of the outcome of the appeal
against the order under Section 37A of FEMA, the Adjudicating
Authority has independent jurisdiction to decide the show cause
proceedings on its own merits, and the appellants cannot seek
any advantage from the fact that the Competent Authority has not
confirmed the seizure.
320 [2026] 4 S.C.R.
Supreme Court Reports
21. He referred to sub-section (4) of Section 37A to buttress the contention
that the adjudication proceedings are independent of the seizure
proceedings to urge that the High Court was absolutely justified
in observing that the findings recorded in the order passed by the
competent authority in proceedings under Section 37A would have
no bearing on the outcome of the adjudication proceedings.
22. He emphasized that the appellants have concealed the fact of the
final order having been passed pursuant to the SCN and hence,
they do not deserve any indulgence in these matters.
Discussion and Analysis
23. We have considered the submissions advanced by learned counsel
for the parties and have gone through the impugned orders. We
have also carefully perused the statutory framework governing the
dispute at hand.
24. Before we delve into the merits of the case, it is necessary to deal
with the preliminary objection raised on behalf of the respondents
that the appellants had suppressed the fact that a final adjudication
order had been passed pursuant to the SCN and, for that reason, they
do not deserve any indulgence in the present proceedings. Upon a
consideration of the record, we find no merit in the said contention.
There is nothing to indicate any deliberate concealment or lack of
candour on the part of the appellants so as to disentitle them from
seeking relief. On the contrary, the pleadings in the civil appeals
clearly manifest that the SCN had culminated in a final adjudication
order, against which statutory appeal(s) have also been preferred.
The allegation of suppression is thus wholly misconceived and does
not furnish a ground to non-suit the appellants.
25. Now, we shall advert to the merits of the case. For the ease of
reference, Section 37A of FEMA on which the fulcrum of the
controversy lies, is reproduced hereinbelow: -
“37-A. Special provisions relating to assets held
outside India in contravention of Section 4.—
(1) Upon receipt of any information or otherwise,
if the Authorised Officer prescribed by the Central
Government has reason to believe that any foreign
exchange, foreign security, or any immovable property,
[2026] 4 S.C.R. 321
J. Sri Nisha v. The Special Director, Adjudicating Authority,
Directorate of Enforcement and Anr.
situated outside India, is suspected to have been held
in contravention of section 4, he may after recording the
reasons in writing, by an order, seize value equivalent,
situated within India, of such foreign exchange, foreign
security or immovable property: Provided that no such
seizure shall be made in case where the aggregate
value of such foreign exchange, foreign security or
any immovable property, situated outside India, is less
than the value as may be prescribed.
(2) The order of seizure along with relevant material
shall be placed before the Competent Authority,
appointed by the Central Government, who shall be
an officer not below the rank of Joint Secretary to the
Government of India by the Authorised Officer within
a period of thirty days from the date of such seizure.
(3) The Competent Authority shall dispose of the
petition within a period of one hundred eighty days
from the date of seizure by either confirming or by
setting aside such order, after giving an opportunity of
being heard to the representatives of the Directorate of
Enforcement and the aggrieved person. Explanation.—
While computing the period of one hundred eighty
days, the period of stay granted by court shall be
excluded and a further period of at least thirty days
shall be granted from the date of communication of
vacation of such stay order.
(4) The order of the Competent Authority confirming
seizure of equivalent asset shall continue till the
disposal of adjudication proceedings and thereafter,
the Adjudicating Authority shall pass appropriate
directions in the adjudication order with regard to
further action as regards the seizure made under
sub-section (1):
Provided that if, at any stage of the proceedings under
this Act, the aggrieved person discloses the fact of
such foreign exchange, foreign security or immovable
property and brings back the same into India, then the
Competent Authority or the Adjudicating Authority, as
322 [2026] 4 S.C.R.
Supreme Court Reports
the case may be, on receipt of an application in this
regard from the aggrieved person, and after affording
an opportunity of being heard to the aggrieved person
and representatives of the Directorate of Enforcement,
shall pass an appropriate order as it deems fit,
including setting aside of the seizure made under
sub-section (1).
(5) Any person aggrieved by any order passed by the
Competent Authority may prefer an appeal to the Appellate
Tribunal.
(6) Nothing contained in Section 15 shall apply to this
section.”
[Emphasis supplied]
26. A perusal of the aforesaid provision would clearly indicate that
the same has been enacted in order to ensure that the assets of
a person suspected to be involved in foreign exchange or foreign
security violations may be seized to the extent equivalent to such
foreign exchange or foreign security, which may be under scrutiny
of the Adjudicating Authority.
27. Hence, the provision is in nature of a preventive measure for ensuring
that the assets equivalent to the foreign exchange or foreign security
may be kept secured for future proceedings pursuant to adjudication.
28. Sub-section (4) gives an impression that the order passed by
Competent Authority confirming the seizure would remain alive
only till the disposal of the adjudication proceedings, and that the
Adjudicating Authority would be authorized to proceed with further
action, i.e., SCN, etc. without being fazed by the confirmation of the
seizure proceedings.
29. The effect of sub-section (4) is evidently to leave the seized assets
at the disposal of the Adjudicating Authority for realisation of the
adjudicated amount, if any and to prevent frustration of the adjudication
order. However, sub-section (4) is restricted to an order of the
Competent Authority “confirming seizure of equivalent assets and the
continuance thereof till the disposal of the adjudication proceedings”.
The said provision literally does not deal with a situation where the
seizure has not been confirmed.
[2026] 4 S.C.R. 323
J. Sri Nisha v. The Special Director, Adjudicating Authority,
Directorate of Enforcement and Anr.
30. The controversy in the present cases is more appropriately examined
within the framework of sub-sections (1) to (3) of Section 37A. A
plain reading of Section 37A(1) indicates that the power of seizure
is predicated upon the existence of a “reason to believe” that
foreign exchange, foreign security or immovable property situated
outside India is suspected to have been held in contravention of
Section 4. Such satisfaction by the Authorised Officer at the stage
of preliminary seizure under Sub-section (1) is only tentative and is
expressly subject to scrutiny under Sub-sections (2) and (3), wherein
the Competent Authority is required to independently examine
whether the reasons recorded justify continuation of the seizure.
The exercise undertaken by the Competent Authority is thus not an
empty formality, but a substantive evaluation of whether the material
on record is sufficient to sustain even a prima facie inference of
contravention in relation to foreign exchange. In the present case,
upon such evaluation, the Competent Authority declined to confirm
the seizure by a well-reasoned order, thereby indicating that the
material did not meet even this preliminary threshold. The refusal to
confirm the seizure, therefore, reflects a considered finding that the
foundational requirement of a “reason to believe” was not satisfied
on the material available.
31. For the sake of convenience, the reasons recorded in the order dated
3rd February, 2021, whereby the Competent Authority refused to
confirm the seizure made under Section 37A(1) are extracted below: -
“In this case none of the respondents i.e., R1 to R4 were
holding any foreign security having a value at any point
of time. The subscribed shares remained only in paper
for the time being. None of the documentary evidences
in this matter have been countered by the enforcement
directorate. The Enforcement Directorate has not proved by
way of evidence that the money indicated in the “subscribed
shares” have been paid either “legally or illegally”. As
held by the Hon’ble SC, in the above cited case law,
the suspicion must be reasonable i.e. have a degree of
objectivity and basis/foundation for the suspicion must
be based on ‘certain reasons’. In my considered opinion,
unless it is shown by the investigating department that.
“something” was “held” in contravention of Section 4 of
FEMA, Section 37A(1) will not come into play. In this case
324 [2026] 4 S.C.R.
Supreme Court Reports
no share of any value was held in Singapore. Therefore
suspicion has no foundation. As the department. has failed
to prove, Section 37A (1) of FEMA, 1999 cannot be invoked
to seize the properties owned by Mr. S. Jagathrakshakan
(R1), Ms. Anusuya Jagathrakshakan (R2), Ms. Sri
Nisha (R3) & Mr. Sundeep Aanand (R4). Therefore, the
prayer made by the authorised officer vide petition dated
05.10.2020 under Section 37A(2) to confirm the seizure
of properties as mentioned in the Annexures A, B, C & D
of the Order of Seizure dt.11.09.2020 is rejected and the
impugned Order of Seizure is set aside.”
32. Thus, a prima facie satisfaction was recorded by the Competent
Authority that there was no evidence of the appellants being involved
in foreign security transactions having any value. Consequently, it
has to be taken that there did not exist the “reasons to believe”
referred to in Sub-section (1) of Section 37A. These findings definitely
support the cause of the appellants herein. It is not in dispute that
the appeal preferred by the Department against the order dated 3rd
February, 2021, is still pending consideration. The Division Bench
of the High Court, while deciding the writ appeal, observed that the
writ petition against the SCN is not entertainable. We feel that the
said observation may not be correct in every situation. This Court
has consistently held that although ordinarily a writ petition against
an SCN may not be entertained, however, the said proposition is not
an inviolable rule. Interference at the stage of SCN is permissible
in exceptional circumstances, such as where the notice suffers
from patent lack of jurisdiction, reflects non-application of mind, is
issued with a pre-determined or premeditated approach, amounts
to an abuse of the process of law, or results in a violation of the
principles of natural justice. In such situations, the High Court would
be justified in exercising its jurisdiction under Article 226 of the
Constitution to prevent manifest injustice. In this context, we may
gainfully refer to the following observations from Union of India v.
VICCO Laboratories8: -
“31. Normally, the writ court should not interfere at the
stage of issuance of show-cause notice by the authorities.
8 (2007) 13 SCC 270 : 2007 SCC OnLine SC 1420
[2026] 4 S.C.R. 325
J. Sri Nisha v. The Special Director, Adjudicating Authority,
Directorate of Enforcement and Anr.
In such a case, the parties get ample opportunity to put
forth their contentions before the authorities concerned and
to satisfy the authorities concerned about the absence of
case for proceeding against the person against whom the
show-cause notices have been issued. Abstinence from
interference at the stage of issuance of show-cause notice
in order to relegate the parties to the proceedings before
the authorities concerned is the normal rule. However, the
said rule is not without exceptions. Where a show-cause
notice is issued either without jurisdiction or in an
abuse of process of law, certainly in that case, the writ
court would not hesitate to interfere even at the stage
of issuance of show-cause notice. The interference at
the show-cause notice stage should be rare and not in a
routine manner. Mere assertion by the writ petitioner that
notice was without jurisdiction and/or abuse of process of
law would not suffice. It should be prima facie established
to be so. Where factual adjudication would be necessary,
interference is ruled out.”
[Emphasis supplied]
33. Thus, the rejection of challenge laid by the appellants to the SCN
on the ground of non-maintainability was not justified in the peculiar
facts of the case at hand.
34. We shall now advert to the observations made by the Division
Bench that the interim seizure under Section 37A may not have
any implication in respect of the final order to be passed by the
Adjudicating Authority, and that it would be apposite for such authority
to deal with the effect and import of the seizure order passed by the
Authorised Officer under Section 37A of FEMA while passing the
final order under Section 16 of FEMA. Further, in para 34, the High
Court again referred to the seizure made under sub-section (1) and
directed the Adjudicating Authority to take note of the said provision.
For ease of reference, paras 32, 33, and 34 of the impugned order
are reproduced hereinbelow: -
“32. Therefore, the very purpose and object of inserting
Section 37A is to seize value equivalent situated within India
of such foreign exchange, foreign security or immovable
326 [2026] 4 S.C.R.
Supreme Court Reports
property during pendency of the adjudication proceedings
and such seizer proceedings initiated under Section 37A,
undoubtedly cannot stand as a bar to proceed with the
adjudication proceedings under Section 16 of the FEMA by
the Adjudicating Authority. As noted under the definition, the
functions of the Adjudication Authority, Authorised Officer
and Competent Authority are distinguishable and each
Authority is conferred with powers under the Act to carry
out certain actions. Therefore, the contention on behalf
of the appellants that the Authorised Officer is below the
Competent Authority has no relevance as far as Section
37A of FEMA is concerned
33. In fine, we could arrive at an irresistible conclusion that
a writ against a show cause notice is not entertainable.
The adjudication proceedings have completed and the
final order is about to be passed by the Adiudicating
Authority. Regarding an interim seizure under Section 37A
is concerned, it may not have any implication in respect of
the final order to be passed by the Adjudicating Authority
and it would be appropriate on his part to deal with the
effect of seizure order passed by the Authorised Officer
under Section 37A of FEMA, while passing final order
under Section 16 of FEMA.
34. The above position has been amply made clear in
Sub Section (4) to Section 37A of the Act, wherein, it is
contemplated that the Adjudicating Authority shall pass
appropriate directions in the adjudication order with regard
to further actions as regards to seizer made under Sub
Section (1) to Section 37A and in this case, the Adjudicating
Authority is directed to take note of said provision and
take an appropriate decision with reference to the order
passed by the Authorised Officer under Section 37A(1)
of the FEMA.”
35. On a bare perusal of the aforesaid observations, we find that the
High Court repeatedly referred to the effect of the seizure order
passed by the Authorised Officer under Section 37A of FEMA and
the scope of consideration thereof by the Adjudicating Authority
while passing the final order under Section 16. We may note that the
[2026] 4 S.C.R. 327
J. Sri Nisha v. The Special Director, Adjudicating Authority,
Directorate of Enforcement and Anr.
observations (supra) made by the Division Bench impliedly efface
the findings recorded by the Competent Authority while refusing to
confirm the seizure, thereby foreclosing the outcome of the appeal
pending before the appellate authority.
36. The High Court referred to sub-section (4) of Section 37A as if it
were concluding that the seizure had been confirmed, whereas the
factual situation reads otherwise. In case the finding of the Competent
Authority refusing to confirm the seizure for substantive reasons
stands affirmed in appeal, manifestly, the same would have a bearing
on the outcome of the adjudication proceedings.
37. The Adjudicating Authority, while passing the final order under Section
16 of FEMA, extensively referred to and relied upon the aforesaid
observations of the Division Bench. The relevant conclusions from
the adjudication order dated 26th August, 2024 are reproduced
hereinbelow for ease of reference: -
“…..
(iii) The above analysis was strengthened by the Hon’ble
High Court of Madras in judicial pronouncement dated
30.11.2023 in the matter of Writ Petitions in WP Nos.
21105/2023, 21359/2023, 21100/2023, 21096/2023 and
21102/2023, filed by the Noticees against the Adjudicating
Authority, and as such, the Hon’ble High Court was pleased
to dismiss the Writ Petitions
(iv) The Noticees preferred Writ Appeal against the order
of Hon’ble High Court of Madras in the above WPs. The
Division Bench of Hon’ble High Court of Madras vide its
order dated 23.07.2024 in the Writ Appeals in WA No.s
3520 to 3524 of 2023 has observed that:
“31. We concur with the learned Additional Solicitor
General of India, in view of the fact that the special
provision under Section 37A is all about an interim
seizer value equivalent situated within in India of
such foreign exchange, foreign security or immovable
property. In the event of seizer during the pendency
of the adjudication proceedings, the procedures to
be followed by the authority are enumerated under
Sub Section (6) of Section 37A of FEMA.
328 [2026] 4 S.C.R.
Supreme Court Reports
32. Therefore, the very purpose and object of
inserting Section 37A is to seize value equivalent
situated within India of such foreign exchange, foreign
security or immovable property during pendency
of the adjudication proceedings and such seizer
proceedings initiated under Section 37A, undoubtedly
cannot stand as a bar to proceed with the adjudication
proceedings under Section 16 of the FEMA by the
Adjudicating Authority. As noted under the definition,
the functions of the Adjudication Authority, Authorized
Officer and Competent Authority are distinguishable
and each Authority is conferred with powers under
the Act to carry out certain actions. Therefore, the
contention on behalf of the appellants that the
Authorised Officer is below the Competent Authority
has not relevance as far as Section 37A of FEMA
is concerned.”
As such, the Division upheld the Single Bench Order of
Hon’ble High Court of Madras on 23.07.2024 and dismissed
the Writ Appeals.
(v) …..
(vi) The Competent Authority has passed an
Order setting aside the Seizure Order dated
11.09.2020, vide his order Petition No. 01/2021
dated 03.02.2021. Having perused the said order
of the Competent Authority, I find that Section 4
of FEMA has been mis-interpreted holding that
the terms acquire, hold, own, possess or transfer
of foreign security were only in respect of paid-
up shares. I find that the Competent Authority
has not considered the observations from the
Financial Statement of the overseas entity,
showing the shares as fully paid-up. In terms of
Section 4 of FEMA, the act of holding of foreign
security is sufficient, and it does not mandate
that the foreign securities are necessarily paid
up. FEMA defines the term “Direct Investment
Outside India” that the investment means by way
[2026] 4 S.C.R. 329
J. Sri Nisha v. The Special Director, Adjudicating Authority,
Directorate of Enforcement and Anr.
of contribution to the capital or subscription to
the Memorandum of Association of a Foreign
entity or by way of purchasing existing shares of
a foreign entity...... However, in the case on hand,
during the impugned period the Noticees were
holding shares of M/s. Silver Park International
Pte. Ltd. Singapore, and also that the said shares
were fully paid-up.
(vii) It is observed from the Reserve Bank of India -
Frequently Asked Questions, that RBI while clarifying
“whether an Indian Party/resident Indian acquire
shares of a Foreign entity without upfront payment
or on deferred payment basis” clarified that “No. The
provisions of Notification No. FEMA 120/RB-2004
dated July 7th 2004 as amended from time to time,
do not permit acquisition of foreign shares without
payment or deferred payment basis.” In view of the
above, it is obvious that the Noticees have acquired
Foreign Shares of M/s. Silver Park International Pte.
Ltd. without obtaining prior RBI approval to make
Direct investment outside India. From the above, it
is obvious that the Noticees have acquired and held
foreign shares in violation of Section 4 of FEMA.
(viii) However, I find that the Competent Authority,
without considering the above statutory stand
points, has passed Order setting aside the Seizure
Order of the Authorized Officer. Therefore, I do
not concur with the order of the Competent
Authority. As such, I find that the impugned seized
properties are in accordance with the provisions
of Section 37A of FEMA.”
[Emphasis supplied]
38. In effect, the Adjudicating Authority has undone the order of the
Competent Authority even while the appeal against the said order
is pending. Such a course of action, in the opinion of this Court,
tantamounts to abdicating the powers of the Appellate Authority, even
when the order of the Competent Authority was still under challenge
in appeal at the instance of the department.
330 [2026] 4 S.C.R.
Supreme Court Reports
39. In wake of the above discussion, we are of the opinion that the
impugned order dated 23rd July, 2024 passed by the Division Bench
of the High Court and so also the order of the learned Single Judge
of the High Court dated 30th November, 2023, rejecting the writ
petition preferred by the appellants and as a consequence, the final
order dated 26th August, 2024 passed by the Adjudicating Authority
imposing penalty and ordering confiscation of the property held by
appellants are declared to be arbitrary and contrary to law. The
same are hereby set aside. The proceedings are revived from the
stage of the SCN.
40. As an upshot, we provide that the Appellate Authority shall first
decide the appeal preferred by the Department against the order
of the Competent Authority under Section 37A(5) of FEMA after
hearing the parties and by passing a reasoned order within a period
of two months from today. Pursuant to the disposal of the appeal
pending before the Appellate Authority, the proceedings arising out
of the SCN may be commenced and shall be taken to their logical
conclusion without being prejudiced by any of the observations made
hereinabove or in the orders passed by the High Court.
41. The appeals are disposed of in these terms.
42. Pending application(s), if any, shall stand disposed of.
Result of the case: Appeals disposed of.
†
Headnotes prepared by: Ankit Gyan
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