Judgment:
1. This appeal is directed against adjudication order No. ADJ/62/90/ 1974-75 dated 20-8-1990. whereby a penalty of Rs. 1,500 was imposed on the appellant for contravention of section 8(1) of the foreign exchange Regulation Act, 1973 ('the Act') and the seized foreign exchange to wit. Stg. £68, Deset Dinar 10, Piastres 25 and Cent 10 was confiscated to the Central Government.
2. Briefly stated, as a result of search operation, foreign currencies amounting to Stg. £68, Deset Dinar 10, Piastres 25 and Cent 10 were recovered and seized from the steel almirah placed in the bed room of the appellant Shri Zafar Alam. Consequently, Memorandum No. T-4/1/Agra/UP/83/30 dated 6-1-1983 was issued to the appellant requiring him to show cause as to why adjudication proceedings should not be initiated against him for contravention of section 8(1) by otherwise acquiring the said foreign exchange without the previous general or special permission of the RBI as also to show cause why the said seized foreign exchange should not be confiscated to the Central Government under section 63 of the Act. As the reply given by the appellant was not found satisfactory, adjudication proceedings were drawn against him. The Adjudicating Officer held the appellant guilty of having contravened the provisions of section 8(1) and imposed the penalty as mentioned above and confiscated the aforesaid seized foreign exchange.
3. I have heard the counsel for the appellant and the respondent and have perused the record. The main contention advanced on behalf of the appellant was that the seized foreign exchange actually belonged to one Mr. Herb Butler of U.K., who happened to visit the house of the appellant on 8-1-1982 and had left his purse containing the said foreign exchange at the appellant's house. The counsel for the appellant placed reliance on photo-copy of the letter dated 16-1-1982 alleged to have been sent by Mr. Butler to the appellant after going back to U.K. The counsel for the respondent, on the other hand, submitted that the explanation of the appellant was not satisfactory.
4. The recovery of the seized amount of the foreign exchange from the house of the appellant is not in dispute. What has been disputed by the appellant is the ownership of the foreign exchange. According to the appellant, the seized amount of foreign exchange did not belong to him and it actually belonged to one Mr. Butler of U.K. Section 71(3) provides that 'If any person is found or is proved to have been in possession of any foreign exchange exceeding in value two hundred and fifty rupees, the burden of proving that the foreign exchange came into his possession lawfully shall be on him. Therefore, the vital question is whether the appellant has discharged the burden of proving that the seized amount of foreign exchange came into his possession lawfully. As already stated, the case of the appellant is that the purse containing the said seized foreign exchange was left by one Mr. Butler of UK, when he visited the house of the appellant on 8-1-1982. In this regard, the appellant has placed reliance on the photo-copy of a letter dated 16-1-1982 said to have been written by Mr. Butler to the appellant on reaching U.K. The search took place on 29-1-1982. The said letter dated 16-1-1982 was not shown by the appellant to the search party on that day. It is stated by the appellant that he had received the said letter after 29-1-1982. However, the appellant has not been able to indicate as to on what date he had actually received the said letter*. Further, he has not filed the postal envelope by which the said letter was sent to him. The Assessing Officer also has found that the seized foreign currency was recovered from the steel almirah placed in the bed-room of the appellant Shri Zafar Alam and not from the purse, as contended by the appellant. In view thereof, I am of the view that the aforesaid explanation of the appellant is not at all convincing. Therefore, contravention of section 8(1) is established against the appellant. Needless to say that when a person found in pessession of foreign exchange fails to rebut the presumption envisaged under section 71(3) of the Act, he has to be naturally deemed to have otherwise acquired the foreign exchange under section 8(1).
5. As regards confiscation, the relevant finding of the Assessing Officer reads as follows:
"It is amply clear from foregoing observations that Shri Zafar Alam is an old exporter and is in export business since long. He is making frequent visits to overseas countries. In this background, it is assumed that Shri Alam is acquainted with the technicalities of acquisition of foreign exchange and relevant provisions of Foreign Exchange Regulation Act. Explanations submitted by the party are also in questionable light. In view of these facts, I take a serious note of offence and have levied a penalty of Rs. 1500 on Mr. Zafar Alam r/o 7/29. Tilak Nagar, Kanpur. In addition to this, I also order immediate confiscation and credit of seized foreign currencies of £68. Dinar 10. Piastres 25 and Cent 10 to the Central Government under section 63 of the Foreign Exchange Regulation Act, 1973."
The above portion contains adequate reasons for confiscation of the seized amount. The confiscation, therefore, appears to be in order.
6. In the result, the adjudication order is confirmed. The appeal is dismissed.