9911796707
TMI Blog1988 (7) TMI 43X X X X Extracts X X X X X X X X Extracts X X X X ..... inafter called the "COFEPOSA Act"), on August 5, 1975, and was released soon after the lifting of the Emergency in March, 1977. Because of his detention under the COFEPOSA Act, the Competent Authority, Madras, initiated forfeiture proceedings against the appellant by issue of a notice under section 6 of the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976, or! December 20, 1977. The appellant appeared at the initial stages and produced some evidence. However, in the meanwhile, the incumbent of the post of Competent Authority was transferred and a new one took over. Fresh notices were issued to the appellant for appearance which could not be served upon him as it appears he was out of India. An ex parte order of forfeiture was, therefore, passed under section 7 on February 11, 1980. The appellant claims that he subsequently came to know of that order on return from abroad in 1986, and this knowledge also resulted from the tenant of his forfeited property discontinuing payment of rent to him and instead paying the same to the Collector. An appeal was then filed in April 1986, by him against the forfeiture order. The same was heard by the then Chairman a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent year 1974-75. The appellant has also pleaded before us that he has been having 850 kulis of agricultural land owned by him from which the tenant gave him 17 bags of paddy every year. These 850 kulis are equal to slightly more than 2 1/2 acres of land. The appellant has also urged that he has suffered a lot inasmuch as he has been under detention for almost 19 months and has also paid a penalty of Rs. 7,000 under the Foreign Exchange Regulation Act. After the passing of the earlier order by the Competent Authority under the SAFEM Act, the rent of his flat which had been Rs. 700 p.m. was started to be realised by the Collector under the directions of the Competent Authority and the Collector has thus already about Rs. 14,000 so realised. The same has not been refunded to him. He has, therefore, sought that in case mercy is taken on him and those Rs. 14,000 are treated as fine under section 9 of the SAFEM Act, the same would well meet the ends of justice and that he should not be deprived of his only property. It has also been pointed out by him that no deliberate foreign exchange irregularities were committed by him as the offences imputed were technical in nature inasmuch as hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inasmuch as that statement had been retracted by the appellant subsequently. From the side of Competent Authority, the learned departmental representative, Mr. Yadav, has taken considerable pains to point out from number of documents on record and the account books which the appellant had produced before the Competent Authority at the initial stage that the case set up by the appellant about the investments made in his business, the income thereof, the savings effected, etc., is entirely misleading. The appellant, according to him, has been clandestinely carrying on illegal dealings in foreign exchange. The alleged sale of jewellery has also been proved to be fictitious. Had it been true, the appellant would not have disclosed this amount of Rs. 10,000 as income from undisclosed sources on his own in his return for 1974-75. Moreover, in the income-tax proceedings as also before the Directorate of Enforcement, he plainly stated that he had no proof of the sale of jewellery. Subsequently, he came out with two affidavits before the Competent Authority and both were found to be unworthy of reliance. Thus, one of the deponents retracted from his averments and the other person was foun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure proceedings under the SAFEM Act. That was a case of a writ riled before the Bombay High Court which was competent to go into the legality or otherwise of a detention under the COFEPOSA Act. That power is not available to this Tribunal under the SAFEM Act. We are, therefore, of the opinion that the appellant falls within the definition of the term "person" as contained in section 2(2) of the SAFEM Act, as he has been a detenu under the COFEPOSA Act. The forfeiture proceedings were thus rightly initiated against him. Adverting to the other plea of the appellant that there was a substantial procedural irregularity and breach of the principles of natural justice, we find that the appellant's counsel appeared before the Competent Authority on June 17, 1987, when he was required to give his written submission within a fortnight, i.e., by July 5, 1987. No hearing took place on the latter date. The case was taken up on July 7, 1987, when it was noted that the affected person's explanation to the letter dated May 7, 1987, was received. Thereafter, there was a mention that the case was put up for perusal and instructions. Why this lapse took place in not holding a hearing on July 5, 198 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... done, must be confronted to the affected person. Moreover, addressing of arguments at the final hearing is a substantial stage, and no matter should be decided without providing an opportunity for the same. There is no warrant for assuming that the Officer can form his own opinion on the evidence and material placed on record without even hearing the person concerned. This is precisely what has happened and in the circumstances, we are unable to sustain the impugned order. We are very much conscious that setting aside of this order would necessitate another remand and further that this is a very old case. We have not been favourably inclined to remand cases, unless there are compelling circumstances. Those circumstances patently exist in the present case, as evidence collected behind the back of the appellant was not confronted to him and he was not provided an opportunity to put up his case and lead evidence which he might have felt appropriate in the light of that material. Opportunity for addressing arguments in any case must be given. In their absence, we agree with the appellant's contention that there has been material irregularity in the procedure and violation of the princ ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
