TMI Blog1994 (11) TMI 365X X X X Extracts X X X X X X X X Extracts X X X X ..... , her arrest and conviction, Roma Niranjan Shah is stated to have been the wife of Niranjan J. Shah, and, consequently, the said Niranjan J. Shah was treated to be a "person" falling within the category provided under section 68A(2)(b) of the Narcotic Drugs and Psychotropic Substances Act. The competent authority started the proceedings after recording detailed reasons, as to how the properties owned by Niranjan J. Shah, as detailed in the reasons so recorded, and specified in more detail in the schedule attached thereto, as well as those held by other persons on his behalf were liable to be forfeited under Chapter V-A of the Act. Consequently, a notice under section 68H was issued to the aforesaid Niranjan J. Shah as well as another person, named Jayanti Damjibhai Rathod alias Viraj K. Shah, calling upon them to show cause as to why the properties as enumerated in the schedule to the notice be not forfeited on the ground that the source for acquisition of the said properties remained unexplained, and he had every reason to believe that they were acquired from the gains of illegal activities. This notice dated January 21, 1993, was endorsed, inter alia, to Messrs. Romil Exports, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and its value has been assessed at Rs. 15 lakhs. In the appeal, the ground taken in the first instance is that the notice to show cause was issued on January 21, 1993, and that the appellant through one of its partners addressed a letter dated March 11, 1993, to the respondent, namely, the competent authority, through its advocate, pointing out that no date for personal hearing had been intimated, and that explanation could be offered by the appellant as regards the acquisition and ownership of the said properties mentioned in the schedule to the show-cause notice, and that a date for personal hearing be fixed to enable the parties to appear before the respondent, and produce necessary evidence in that regard. A copy of the letter has been filed along with the grounds of appeal, as annexure "B". But instead, the appellant received on or about March 16, 1993, an order passed under section 68-I of the Narcotic Drugs and Psychotropic Substances Act, forfeiting all the properties mentioned in the schedule to the notice. It was pleaded that this order seems to have been passed on March 10, 1993, i.e., only one day before the letter which was sent by the appellant through its advocate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral justice of affording an opportunity of being heard, this "may" has to be read as "shall", and that it was incumbent upon the competent authority to have issued a second notice fixing a date of hearing and affording reasonable opportunity to the appellant of being heard, and that this was irrespective of the fact whether an explanation to the show-cause notice had been filed or not. We have given our careful thought to this contention. But we find that learned counsel has not taken note of the proviso to section 68-I(1) of the Act, which reads as under : "Provided that if the person affected (and in a case where the person affected holds any property specified in the notice through any other person such other person also) does not appear before the competent authority or represent his case before it within a period of thirty days specified in the show-cause notice, the competent authority may proceed to record a finding under this sub-section ex parte on the basis of evidence available before it." The Legislature has thus very clearly, by means of this proviso, vested in the competent authority the power to proceed ex parte against the person affected or any other holder o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e competent authority shall be well within its jurisdiction to proceed ex parte, and pass an order on the basis of evidence available on record. The impugned order, therefore, does not suffer from any legal infirmity or procedural lapse. Shri Jagtiani next contended that the proceedings under Chapter V-A of the Act were erroneously initiated against the appellant for the reason that Mrs. Roma Niranjan Shah was not the spouse of Niranjan J. Shah at the time of her conviction under the Canadian Law pertaining to drug trafficking as she stood divorced from the said Niranjan J. Shah at the relevant time. Another inter-related contention was that even if Niranjan J. Shah is to be treated as spouse of Mrs. Roma Niranjan Shah, she was not convicted under the Canadian Narcotics Control Act with any long-term of imprisonment, but was sentenced to only one day's imprisonment, with the benefit of probation. In so far as the aforesaid two contentions are concerned, we are of the considered view that they cannot be entertained at this stage, for the short reason that both these involve questions of fact, namely, as to whether or not Mrs. Roma Niranjan Shah stood divorced from Niranjan J. Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Bindu Shah. Even if this car is to be treated as the property of the partnership, then also it is a property jointly and severally owned by the four partners of the firm. Under sub-clause (d) of section 68(2) : "every person who is a relative of a person referred to in clause (a) or clause (b) or clause (c)" shall also be covered by the provision of Chapter V-A. The term "relative" as defined in section 68B(i), includes : "(1) spouse of the person ; . . . . (3) brother or sister of the spouse of the person ; and . . . . (5) any lineal ascendant or descendant of the spouse of the person. . . .'' Niranjan Shah, being spouse of Roma Niranjan Shah, his two sisters are covered by clause 68B(i)(3), and mother under section 68B(i)(5) of the Act, and thus the property of each can be forfeited whether owned jointly or severally, by virtue of being a relative of the affected person, namely, Roma Shah, as defined in this Act. That being so, the property of the partnership firm owned by these four relatives is liable to forfeiture. There being no evidence, that this property was acquired by means, as can be considered lawful or out of income derived from legal sources ; it ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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