M AYISHATH MUNAWARA Vs. UNION OF INDIA

JUDGEMENT

(1.) IN this petition under article 226 of the Constitution, the petitioner has sought for quashing the order dated March 10, 1977, bearing No. OC/MDS/96/76 passed by the third respondent and also the order dated July 13, 1978, bearing No. F.P.A. 15/1977-78 passed by the second respondent The petitioner is the daughter of the person detained under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, therefore, in respect of the properties held by her, a proceeding was started under the provisions of the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (hereinafter referred to as "the Act"). Notice was issued to her to explain the lawful sources by which the properties in question were acquired. Before the competent authority, the petitioner offered the explanation which was offered before the income-tax authorities. She was specifically asked to let in evidence for the following items.(1) Proof to prove that the national defence remittance was a legally acquired asset with particulars regarding the name and address of the remitters, the source of funds available for remittance outside INdia, the relationship between the lady and remitter and the reasons for the remittance, etc.(2) Proof, if any, available for the gift allegedly received at the time of puberty celebration and how the money was kept(3) Proof regarding the acquisition of the site where the residence at Killakarai was constructed(4) Sources of the funds advanced for film purchase and sale(5) Source of acquisition of property No. 45, Bunder Street, Madras, by her brother and(6) Sources for acquisition of jewellery.The case was posted for furnishing the details mentioned above. As no evidence was adduced to prove the aforesaid items, the competent authority forfeited all those items free from all encumbrances and directed that the same should be surrendered or delivered possession to the authorities mentioned in the order passed under section 19(1) of the ActAggrieved by the aforesaid order, the petitioner preferred an appeal before the Appellate Tribunal for Forfeited Property in F.P.A. 15/1977-78. Before the Tribunal, an affidavit of the person who had remitted the sum of Rs. 30, 000 to the petitioner was filed, but the Tribunal refused to take the affidavit on file on the ground that there was no satisfactory explanation offered as to why the same could not be filed before the competent authority, that the name of the remitter was not disclosed before the competent authority, that the affidavit itself was not sufficient to prove that the sum of Rs. 30, 000 came from legitimate sources, that in the event of taking the affidavit on file, further evidence was required to be adduced to show the relationship of Meeralabbai with the petitioner, the source of funds out of which the remittance was made and the reasons for which the remittance was made.

(2.) THEREFORE, the Tribunal rejected the affidavit.It is contended by Shri Ramachandran, learned counsel appearing for the petitioner, that no doubt, a burden is cast upon the petitioner to prove that the property has been acquired from lawful source. It is also true that the petitioner could not produce evidence before the competent authority, but before the Tribunal, she made sincere efforts to produce the evidence, but she was not permitted to do so.On the contrary, it is contended by learned Additional Central Government Standing Counsel for the Department that under rule 15 of the Smugglers and Foreign Exchange Manipulators (Appellate Tribunal for Forfeited Property) Rules, 1977 (hereinafter called "the Rules"), the petitioner has no right to adduce additional evidence before the appellate authority, therefore, the Tribunal was justified in refusing to permit the petitioner to adduce additional evidence. It is further submitted that as long as all the material particulars are not disclosed even in the affidavit, the mere filing of an affidavit of a person purported to have remitted the amount to the petitioner, would not be sufficient to permit the petitioner to adduce additional evidence.

(3.) TO avoid delay, the parties are directed to appear before the Tribunal on March 1, 1995. In the event, the petitioner fails to appear on March 1, 1995, the Appellate Tribunal is entitled to proceed in the matter in accordance with law. No order as to costs.