IN THE HIGH COURT OF KERALA AT ERNAKULAM
MFA No. 421 of 2002()
1. U.P. ABOOBACKER, S/O. MOHAMMED,
... Petitioner
Vs
1. THE SPECIAL DIRECTOR, ENFORCEMENT
... Respondent
2. THE APPELLATE TRIBUNAL FOR
For Petitioner :SRI.M.RAMESH CHANDER
For Respondent :SRI.P.S.SREEDHARAN PILLAI, SCGSC
The Hon'ble MR. Justice J.B.KOSHY
The Hon'ble MRS. Justice K.HEMA
Dated :28/02/2008
O R D E R
J.B.KOSHY & K.HEMA, JJ.
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M.F.A.No.421 OF 2002
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Dated 28th February, 2008
JUDGMENT
Koshy,J.
On 15.1.1985 while the appellant was boarding a Flight to
Delhi at Cochin Airport, he was intercepted by the Customs Authorities
and Foreign Currency of 9760 U.S. Dollars, 1000 Saudi Riyals and Indian
Currency of Rs.2,89,000/= were seized from him. Officers of the
Enforcement, Calicut recorded his statements dated 16.1.1985 and
17.1.1985. In the statement recorded on 16.1.1985 the appellant
deposed that he was holding Indian Passport No.331417 issued at
Bombay in 1981 and was working in Saudi Arabia for about three years
having come to India in April, 1984; that one K.Mohamed Ali employed in
Saudi Arabia had informed him that one Arab National by the name of
Shri.Essa Nassar was to come to Delhi with 100 visas and could be
contacted through one Shri. A.A.Singh of M/s.Constructions Consultants,
Nehru Place, New Delhi; that he met the said Shri.Essa Nassar at Delhi
on 20.12.84; that Essa Nassar gave him 100 visas; that he came back to
his native place to collect Rs.3,50,000/= from 50 persons at Rs.7,000/=
per visa that he got 2 drafts for Rs.1 lakh each on 16.1.85 from the
Federal Bank, Mongom in his own name drawn on their Delhi branch;
that he paid Rs.1 lakh to Shri.A.A.Singh of M/s. Constructions
MFA.421/2002 2
Consultants, New Delhi by endorsing one draft and the amount of
another draft was kept with him; that while returning to Kerala, he
had got down at Bombay where he purchased US $.9,760 at the rate
of Rs.14/- per dollar from a Baniya in Bombay on 11.1.85 out of Rs.1
lakh which he had with him as also from another amount of
Rs.50,000/- that he was having as Shri.Nassar had demanded a sum of
Rs.1,50,000/- in US dollars besides the other payment made by him
earlier for giving 100 visas; that with the said US Dollars he had
returned to Kerala and had collected the balance amount of Rs.2.89
lakhs from the remaining 50 persons on 21.1.85; that while boarding
the flight for Delhi, he was intercepted on 15.1.85 when he was in
possession of the said US dollars 9760 besides Indian Currency
amounting to Rs.2.89 lakhs which were intended to be paid to
Mr.Essa Nassar and that he was thereafter brought to the
Enforcement Directorate Office.
2. In his statement under Section 40 of the Foreign
Exchange Regulation Act, 1973 he stated that he was employed in
Jeddah since 1981 through his friend Mohamed Ali who was also
employed in Jeddah. It is stated that before coming to India he had a
talk with Mr.Essa Nassar who was then arranging to visit India with
100 visas for recruitment of man power and that it was arranged that
MFA.421/2002 3
he would be entrusted with 100 visas by the said Essa Nassar in
consideration of Saudi Riyals 7000 per visa that he had then paid a
part amount of Saudi Riyals 50,000 collected from various Indians
who were interested in their relatives or friends in India being
employed in South Arabia; that the balance amount was to be paid to
Shri. Nassar in India after the same had been collected from the
Indian counterparts of the persons at Jeddah who were in fact to go
for employment. In the above statement given under section 40 he
stated that these amounts were collected for arranging 100 visas as
directed by Shri. Essa Nassar and that the amount to be given to
Shri.Nassar was Rs.1,50,000/= in US dollars etc.
3. It is true that the above statements were taken when
he was under custody. Vide his letter dated 21.1.1985 he retracted
his above statements. After issuing show cause notice, the amounts
seized from him were confiscated and he was imposed with a penalty
of Rs.1,80,000/=. The above order was upheld by the Appellate
Tribunal also.
4. First contention of the appellant is that the original
officer who heard him did not pass the final order and since
adjudication order was not passed by the officer who heard him, the
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order is vitiated. But, we note that a detailed show cause notice was
issued stating each and every allegations of charge. That was
explained in the reply to the show cause notice. He has contested
each and every points. All these contentions were considered in the
order and there is application of mind. His reply was considered. In
any event, he has argued his case before the Tribunal and the
Tribunal, the ultimate fact finding authority, found that he was guilty
of the offences and confiscation of money and imposition of penalty
are fully justified and appeal was dismissed. After going through the
order of the Tribunal, we are of the opinion that principle of justice is
complied with and no prejudice is to be caused to the appellant in the
procedure adopted by the authorities. For about two months he had
no complaint that he was forced to give a statement while in custody.
Even after his release for two months he did not complain to any
authority that he was forced to give any statement. Merely because
statements given to the Customs Officer were retracted, its
evidentiary value will not be lost unless it is proved by sufficient
evidence that those statements were given by coercion.
5. Next contention of the appellant is that he was caught
hold at Cochin, but, final transaction took place in Delhi and there is
chance to change his mind. That cannot be accepted. Huge sum of
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money (Indian and foreign) was seized from him. He was not able to
explain satisfactorily the origin of the money and why he was keeping
so much uncounted money in cash with him etc. In these
circumstances, confiscation of the above currencies taken from him is
fully justified. With regard to the penalty of Rs.1,80,000/= imposed
on him, we are of the view that since the entire currency collected
was confiscated and considering the facts and circumstances of the
case, the penalty ought to have been restricted to Rs.1,00,000/= apart
from the confiscation of the amount. Therefore, the impugned order
of the Tribunal is modified. Apart from confiscation of the amount
seized from him, penalty is reduced from Rs.1,80,000/= to
Rs.1,00,000/=.
The appeal is allowed to the above extent.
J.B.KOSHY
JUDGE
K.HEMA
JUDGE
tks