IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 28TH FEBRUARY 2008 / 9TH PHALGUNA 1929 MFA.No. 421 of 2002() --------------------- AGAINST THE ORDER DATED 03/10/1989 IN T4/1-M/86 IN SDE.S.IV/31-35//1989 of DIR.OF ENFORCEMENT(FERA), DELHI .................... APPELLANT:(PARTY NO.1 BEFORE THE ADJUDICATING AUTHORITY: APPELLANT BEFORE THE APPELLATE TRIBUNAL) ------------------------------------------------------------------------------------------------ U.P. ABOOBACKER, S/O. MOHAMMED, ULLATTUPARAMBIL, VALLUVAMBRAM, MONGOM, MALAPPURAM DISTRICT, BY POWER OF ATTORNEY HOLDER K. SUBAIR, S/O. ABOOBACKER, KODALI HOUSE, VALLUVAMBRAM P.O., MALAPPURAM DISTRICT. BY ADV. SRI.M.RAMESH CHANDER RESPONDENTS: (ADJUDICATING AUTHORITY AND APPELLATE TRIBUNAL); ---------------------------------------------------------------------------------------------------------------- 1. THE SPECIAL DIRECTOR, ENFORCEMENT DIRECTORATE (FOREIGN EXCHANGE REGULATION ACT), NEW DELHI. 2. THE APPELLATE TRIBUNAL FOR FOREIGN EXCHANGE, 4TH FLOOR, B-WING, JANPATH BHAVAN, JANPATH, NEW DELHI-1. R1 & R2 BY ADV.SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR GENERAL THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 28/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss ORDER ON C.M.P.NO.2346/2002 IN M.F.A.NO.421/2002 DISMISSED 28/02/2008 SD/- J.B.KOSHY, JUDGE SD/- K.HEMA, JUDGE /TRUE COPY/ P.A.TO JUDGE Kss J.B.KOSHY & K.HEMA, JJ. -------------------------------------- M.F.A.No.421 OF 2002 ------------------------------------- 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 MFA.421/2002 4 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 MFA.421/2002 5 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