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Judgment
Honourable Mr. Justice R. Sudhakar
This Writ Petition is filed praying to issue a Writ of Certiorari, calling for the entire records pertaining to order No. SDE (PKD)/IV/5/2009 dated 31.03.2009 on the file of first respondent and quash the same as illegal and consequently direct the first respondent to conduct fresh enquiry. Mr. M. Dhandapani, learned counsel appears for the respondent.
The only plea canvassed by the petitioner is that no proper opportunity was given and there is a violation of principles of natural justice.
I am unable to accept such plea as the authority, who passed the order under challenge, has placed on record the steps taken to serve notice on the petitioner for personal hearing from para 6 onwards in the impugned order. In para 20 of the impugned order the details of the various dates, on which dates the notice was attempted to be served on the petitioner and could not be served, were given. It is also on record that one lawyer Shri S.S.M. Buhari appeared on behalf of the petitioner.
It is clear from para 15 of the impugned order that notice was served vide letter dated 4.4.2008, under mahazar dated 3.4.2008 in terms of Rule 9(c) of FEMA (Adjudication Proceedings and Appeal) Rules 2009. But none appeared on the date of hearing. However, by letter dated 7.4.2008, Shri S.S.M. Buhari, advocate of M. Mohd. Haneefa, the petitioner herein filed a reply memorandum dated 11.7.2007 giving the details of the stand taken in opposition to the adjudication.
The statements recorded in paras 15 and 16 of the impugned order reads as follows:-
Vide letter dated 4.4.2008, Madurai office had informed that Shri Haneefa had gone to Dubai about 6 months back and his family was residing at Chennai and the call notice addressed to him was served under Rule 9(c) of FEM (Adjudication Proceedings and Appeal) Rules 2009 under Mahazar dated 3.4.2008. No one appeared on 11.4.2008.
Vide letter dated 7.4.2008 Shri S.S.M. Buhari, Advocate of Shri M. Mohd. Haneefa in reply to the memorandum dated 11.7.2007 has furnished the following:-
i) That his client denies the allegation and charges contained in memorandum and submits that he was an innocent person and he had not violated sections 3(a), 3(d) & 4 of FEMA as alleged in the show cause notice. He had been falsely implicated in the case;
ii) That his statements dated 18.8.2004 and 19.8.2004 are not voluntary statements as the same were obtained from him by way of torture by the Enforcement Officer;
iii) That his client was taken to the Enforcement Directorate, Chennai on 18.8.2004 and he was kept under illegal custody of the Enforcement Officer for more than 48 hours and during this period the alleged statements were obtained from his client and hence the statements are against the natural justice and cannot be relied on in the show cause notice; his client had already retracted the said statements vide retraction letter dated 31.8.2004;
iv) That the documents alleged to had been seized from his client office premises as well as from his residential premises do not belong to his client and his client was not given any opportunity to cross examine the co-accused;
In view of the above, his client humbly submits that he had been falsely implicated in the above case. He is an innocent person, he is a law abiding citizen of India. Therefore his client further humbly submits that the charges brought against his client may kindly be dropped and thus render justice.
Thereafter also several opportunities were given to which the petitioner as well as his counsel did not respond and participate in the proceedings. Therefore, the authority had no other option except to pass final order. Hence, the plea of no opportunity given and there is a violation of principles of natural justice has to be rejected and is accordingly rejected.
In view of the above, as rightly pointed out by the learned counsel for the respondent, the petitioner can always pursue the matter in accordance with the provision of law before the competent authority. For the purpose of limitation, petitioner is entitled to seek set off of the period during which the writ petition was pending before this Court and also explain the period during which he could not file the appeal in time so as to enable the appellate authority to consider the plea of limitation on merits. The Writ Petition is disposed of as above. No costs. Consequently, connected miscellaneous Petition is closed.