TaxTMI 
TaxTMI 
TaxTMI 
2017 (8) TMI 756
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....nder Section 2(2)(b) of the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (hereinafter referred to as "SAFEMA"). Mrs. Suman S. Rana (hereinafter referred to as Affected Person No. 2 or AP-2) is the wife of AP-1, therefore, AP-2 is also covered under Section 2(2)(c) of SAFEMA as relative. It was further noticed that AP-2 was staying with AP-1 and providing all the necessary help and assistance to AP-1 in his illegal activities, therefore, she is also covered under the definition of "associate" as provided under Section 2(2) (d) of the Act and hence provisions of SAFEMA are applicable to both the APs. 2. On the basis of the report received from the investigating agency and material / evidences gathered during the course of enquiry conducted by the respondent"s office, the properties as described herein below which were found to be in the name of AP-2 and on having reasons to believe that the said properties were acquired wholly or partly out of or by means of income, earning or assets derived or money earned by the AP-1 from illegal activities, a show cause notice under Section 6 of the SAFEMA was issued on 17.04.2008 calling upon the APs to explain ....
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....lly. (d) That she purchased the property mentioned as S. No. 1 of the Show Cause Notice vide Sale Agreement dated 1.11.1996 for total consideration of Rs. 6,25,000/- and the payments were made from the gift of Rs. 3,00,000/- received from her grandfather and Rs. 4,05,000/- earned by her from singing on various functions at Congress House, Lamington Road, Mumbai. (e) That the detenu had never given any money as advance for the purchase of the said property. (f) That the property mentioned at S. No. 3 of the SCN, i.e., the LIC Policy No. 262573731 for a sum assured of Rs. 5,65,000/- premium was paid from her regular income which has been shown in the Income Tax Returns. (g) That the detention order was issued on 21.08.2006 and it was not even suggested that the detenue was indulging in any illegal activities with her since 1996. 4. In adjudication, the explanation of the appellant was not found to be satisfactory and the mentioned three properties were forfeited to the Central Government under the impugned order. Subsequently, vide the Tribunal"s order dated 31.03.2011 in appeal No. FPA-18/BOM/2010 the property mentioned at serial no. 2 above namely Flat No. 1604, Satyam Tower, ....
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....t have also been mentioned in the written submissions. 7. In reply to the arguments on behalf of the appellant, the learned Inspecting Officer, office of Competent Authority, Ahmedabad appearing on behalf of the respondent mainly sought to defend the order on the ground that the appellant would be covered within the definition of "associate" of AP-1 and specifically clause-(ii) of Explanation-3 under section 2 of the Act whereby "any individual who had been or is managing the affairs or keeping the account of such person" is covered within the meaning of "associate" as referred to in clause-(d) of Section 2(2) of SAFEMA. For this purpose, it was argued that the appellant- AP-2 had assisted AP-1 to assume the name of Sanjay Srinath Rana and to obtain legal documents like Ration Card and Passport in such assumed name. The fabricated documents have also been utilized by her (viz. the appellant). It was submitted that therefore she would be an "associate" of AP-1 for the purposes of the Act. 7.1 The contention of the appellant that she could not also be considered as the wife of AP-1 was not seriously contested by the learned representative appearing for the respondent during the hea....
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....a-22. ......he married Suman Rana in the year 1994 and have two children. He knew Suman Rana since the last 10-12 years. He assumed the name of Sanjay Srinath Rana after marriage. He got issued the passport No. B 2907103 in the said name ..........and he did not have any passport in the name of Suresh Kumar U. Jain. Para-27 Investigations have revealed that he ( Suresh Kumar. U. Jain) had also obtained a passport under a false name and identity. He had given his name as Mr. Sanjay to various persons in order to hide his identity .....He had also confessed that he had used the false name as Mr. Sanjay in order to avoid being identified, if detected in any illegal activity. Para-28. .......The fact that he had obtained a passport with fake name and identity also manifests that he had pre planned agenda and has deliberately created a dual identity to avoid detection by investigating agencies. 9.2 Further, as per the report submitted by the investigating agency viz. DRI, Mumbai, while seeking proclamation to declare the AP-1 as an absconder from the court of Ld. Additional CMM, Mumbai, it was mentioned that the family of AP-1 comprising of his parents and lawfully wedded wife and fo....
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....inath Rana. Regarding the affidavit given by her in connection with the passport application wherein it is stated that AP-1 and AP-2 are husband and wife, her explanation is that this happened on account of her being an illiterate person. 12.1 As far as the statements of AP-1 are concerned, we find that he has given differing statements regarding his relationship with the appellant at different times. As pointed by the appellant, while in the statement dated 05.11.2005, It was stated that he was residing with Ms. Suman Rana, his sister in law, in his subsequent statement dated 22.01.2006 he stated that he had married Suman Rana in the year 1994 and he had two children; that he stayed with Ms. Suman Rana during the period November, 2004 to April 2005; that he assumed the name of Sanjay Srinath Rana after marriage and had got issued a passport in the said name. 13. In this regard it is observed that during the course of these proceedings in 2013, the appellant had filed an application to bring on record certain documents as additional evidence. Apart from copies of certain court decisions, certain documents including documents filed by the investigating agency DRI in bail proceedin....
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....fession as a Mujra Dancer, the relationship does not appear to be one of husband and wife. 13.3 We find that one point that is clearly established from the deposition of AP-1 and AP-2 and which is also admitted by the department that AP-1 had stayed at the subject premises of AP-2 for the period November, 2004 to April 2005. In other words, AP-1 was not regularly staying with AP-2. The question to be considered is whether such stay, alongwith other circumstances as referred by the Respondent, would make the relationship between the two as husband and wife. This aspect is considered herein below. 14. It has been submitted on behalf of the appellant that for the purpose of invoking clause (c) of Section (2)(2) of SAFEMA whereby "relative" of a person referred to in clause (a) or clause (b) of the section has been brought within the purview of SAFEMA, the term "relative" has been defined in Explanation-2 below the section. In terms of the said definition and in the context of the present case "relative" in relation to a person means spouse of the person. In the absence of any special definition for "spouse" in the Act, the generic meaning of the word "spouse" would prevail. The gene....
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....etation cannot change the language of the statute. .......... According to the ratio of above decision, the wife of the AP-1 living in Rajasthan, who was referred to in the order dated 29.11.2005 of the Ld. ACMM Mumbai (Para 13 above), could only be considered as the spouse/wife of AP-1/detenu and by no stretch of imagination, the appellant herein, with whom the detenu lived for a brief period of six months from October, 2004 to April, 2005, could be considered to be the spouse/wife of AP-1. We find that the ratio of the above decision is squarely applicable to the present case. 14.1 Another judgment cited by the appellant is that of the Supreme Court in the case of Vijeta Gajra vs. State of NCT Delhi, 2010 ALL MR (CRL) 2656 (SC) in which while interpreting the meaning of "relative" of husband for the purposes of proceedings for offences under section 498 A and 406 of the IPC, it was held that this would be limited only to blood relation by marriage. It is observed that the facts of the said case and the issue decided therein are not applicable to the present case. 14.2 The appellant have also relied on the judgment of the Supreme Court in the case of S.Bala Subranmanyam vs. Su....
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.... 16. It is contended that that appellant would be covered within Clause (ii) of the said Explanation as she was allegedly managing the affairs of APFPA- 1. The only activities that have been stated in this regard are that the appellant assisted AP-1 to assume the name of Sanjay Srinath Rana and to obtain documents like Ration Card and Passport in the assumed name and that the detenu resided in the residence of the appellant through November, 2004 to April, 2005. We are of the view that the said activities by themselves would not bring the appellant within the purview of the term "associate" on the basis that she was managing the affairs of or keeping the accounts of AP-1 The explanation of the appellant in this regard is that certain documents had been given by her to AP-1/detenu to help her in obtaining the passport for her blind son Nishant Rana, which was misused by him to obtain a passport for himself in an assumed name using the same set of documents. It is observed that there is no evidence to establish that the appellant knowingly assisted AP-1/detenu in assuming the false identity of another person or in the obtaining his passport in the assumed name. Considering the overal....