TaxTMI 
TaxTMI 
TaxTMI 
2009 (7) TMI 766
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....0,000 and Indian currency of Rs. 43,800. 3. On 13/14-2-1993, the statement of the appellant was recorded by the respondent, Director of Enforcement under section 40 of Foreign Exchange Regulation Act, 1973 in which the appellant stated that the seized foreign currencies were given to him by Dr. Anand who lives in Doha, United Arab Emirates, in December 1991 when he had come to Delhi and on his subsequent visits after declaring the same on his arrival. The appellant contacted Dr. Anand in Doha and informed him of the seizure of foreign currency from him. A letter was written by Dr. Anand to the respondent claiming that the seized foreign currencies from the petitioner were his which were given by him to the petitioner for the purpose of acquiring property for charitable hospital. The petitioner also filed an affidavit dated 12-3-1993 of Dr. Anand along with a copy of the letter which was sent by Dr. Anand to the respondent. 4. In the deposition in the form of affidavit filed by Dr. Anand, it was deposed by him that he had brought into India a sum of US$ 82,000 in cash for which he had made a declaration at the Customs counter of Delhi Airport vide the Currency Declaration Form No.....
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.... of the appellant was, however, dismissed by order dated 30-9-2005, a copy of which was dispatched to the appellant on 5-10-2005 and received by the appellant on 7-10-2005. Thereafter the present appeal was filed by the appellant under section 54 of Foreign Exchange Regulation Act, 1973 on 5-12-2005, within time. 8. The appellant has challenged the order on the grounds that the authorities below did not consider the ramification of the statement of the appellant recorded under section 40 of the Foreign Exchange Regulation Act, 1973 where he had categorically deposed, at the first instance, that the foreign currencies seized from him belonged to Dr. Anand of Doha. It was also contended that the copy of the declaration form given by Dr. Anand along with his affidavit could not be ignored by the authorities below in the facts and circumstances on the various assumptions by the authorities. 9. The appellant has also contended that merely because the address of Dr. Anand could not be orally given by the appellant, adverse inference could not be drawn against him inasmuch as in Doha there are no addresses for the postal purposes and the communications are sent at the post box numbers a....
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.... Centre, Munirka. The Surveillance Team had noticed said Shri Bhandari was in a car bearing registration No. DL3C B 0881 which was trailed. While trailing the car, it was also noticed that Shri Lal Singh was following the said car on a scooter No. DL1S D 7270. Shri Lal Singh was intercepted but Shri Bhandari managed to escape. Shri Lal Singh led the officers to Flat No. BE-7C, DDA Flats, Munirka, from where, according to Lal Singh, Shri Bhandari had come to take delivery of foreign exchange. In the flat besides the appellant, Shri C. Anand was also present. 12. From the scooter of the Lal Singh bearing No. DL1S D 7270 foreign currencies were recovered. On searching the flat of the appellant bearing No. BE-7C DDA flats, Munirka, foreign currencies as detailed hereinabove were recovered and the statement of Lal Singh was recorded under section 40 of FERA, 1973 on 13-2-1995 and 14-2-1993 who stated that the foreign currency recovered from his scooter had been given to him by one Bittu who operated from Room No. 31, Hotel Prabha, Bagichi Chetan Dass, Near Red Fort, Delhi, for delivering the same to Shri Aditya Bhandari or appellant. Shri Lal Singh is alleged to have disclosed that in ....
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...., therefore, mere possession itself is the proof of attempt/preparation of acquisition. 14. The point for consideration is whether the appellant had un-authorizedly acquired the foreign exchange in contravention of the provisions of section 8(1) of the Act. Section 8(1) of the Act is as under:- "8. Restrictions on dealing in foreign exchange.-(1) Except with the previous general or special permission of the Reserve Bank, no person other than an authorized dealer shall in India, and no person resident in India other than an authorized dealer shall outside India, purchase or otherwise acquire or borrow from, or sell, or otherwise transfer or lend to or exchange with, any person not being an authorized dealer, any foreign exchange. Provided that nothing in this sub-section shall apply to any purchase or sale of foreign currency effected in India between any person and a money-changer. Explanation.-For the purposes of this sub-section, a person, who deposits foreign exchange with another person or opens an account in foreign exchange with another person, shall be deemed to lend foreign exchange to such other person. (2) Except with the previous general or special permission of the....
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...., 1973, the Supreme Court in Abdul Mohamed (supra) had held that the expression "acquire" has different connotation and it indicates something more than mere possession. In this case foreign exchange was recovered from the car belonging to the accused and there was no evidence to indicate that the accused knew what the packet contained when it was delivered to him or when the packet was recovered from the car being intercepted. The accused had taken a plea that it was handed over to him at Bombay to be carried to Kasaragod and somebody had to come to take it from him at Kasaragod. It was held that such a plea on the face of it could not be rejected ipso facto. It was further held that in the absence of any positive material to indicate as to how he could have acquired the foreign exchange, the accused could not be held to have otherwise acquired the foreign exchange in violation of the provisions of section 4(1) of the 1947 Act. In another case O.P. Gulati (supra) it was held that mere possession, even if a conscious possession of foreign currency would not amount to acquisition of foreign currency in contravention of section 8(1). In this case during a search an amount of US$ 2000....
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..... Sub: Request for release of U.S. Dollars and assorted Foreign Currency lawfully belonging to me. Sir, I am resident of Doha holding passport No. H-904780. I have been informed by the relations of Sh. Prabhat Kumar Srivastava R/o. BE-7/C, DDA Flats, Munirka, New Delhi that on 13-2-1993 your officers raided his place and seized US Dollars and assorted foreign exchange from him and arrested him. I wish to bring to your kind notice that the entire seized amount belongs to me which I kept in safe custody of Sh. Prabhat Kumar Srivastava during my visit to India in November, 1991. I enclose herewith an affidavit duly attested by the Indian High Commission at Dubai with supporting documents to show my ownership of the seized amount and the circumstances under which these amounts were kept in custody with Sh. Prabhat Kumar Srivastava. A perusal of my affidavit and the supporting documents would show that Sh. Prabhat Kumar Srivastava is not the owner of these amounts. I humbly request that the seized amount of US Dollars and assorted foreign exchange may kindly be released to Sh. Prabhat Kumar Srivastava from whose possession your officers seized so that as and when I come to India,....
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....astava and requested him to keep it in his safe custody. 10.That after keeping the money in the safe custody with Shri Prabhat Kumar Srivastava in December, 1991 I have not asked for that money till date as I have still not been able to finalize my plans to set up the Charitable Hospital in India due to my professional pre-occupation. 11.That on 12-3-1993 Shri Rajesh Kumar Srivastava elder brother of Shri Prabhat Kumar Srivastava informed me on telephone that some Revenue Officers of Indian Govt. have seized my packet of foreign currency from the custody of Shri Prabhat Kumar Srivastava and have held him under the charge of violation of FERA of India. 12.That I was very perturbed by the news and felt guilty that because of me my friend has landed into trouble. 13.That the entire amount of foreign exchange recovered from Shri Prabhat Kumar Srivastava belongs to me. 14.That I, therefore, appeal to the Indian Govt. that entire amount of foreign currency taken away from Shri Prabhat Kumar Srivastava may kindly be given back to him so that I can collect the same from him." 19. Dr. N.S. Anand in his affidavit dated 16-3-1993 which was sworn at Dubai also gave details of foreign cur....
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....ial was produced to set up a Charitable hospital and in the circumstances it has been presumed that no one would leave cash with someone without informing his plans for the purpose for which the money is intended. The Appellate Tribunal also inferred the culpable mental state of the petitioner as inferred by the Special Director. The Appellate Tribunal though referred the certificate of Dr. Anand, however, has not considered it on the ground that it was quite early i.e. 17-4-1991. The declaration certificate has also been ignored because currencies of other countries were also recovered and it had not been disclosed either in the affidavit or in the application as to where from he got changed US Dollars into currency of other nations and for what purpose. The Appellate Tribunal presumed that Dr. Anand could not have handed over US Dollars to his so-called trustee for safe upkeep and on this ground the application and currency declaration form have been rejected and the adjudication order by the Special Director was not faulted. 22. A copy of currency declaration form for US$ 82,000 dated 17-4-1991 has been produced. Authenticity of certificate has not been disbelieved nor can be r....
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....ities but on their own assumptions. The respondent had to establish the culpable state of mind of the petitioner beyond reasonable doubt and not on the basis of their assumptions. The presumptions drawn by the respondents have been rebutted successfully by the petitioner in the present facts and circumstances and consequently it has to be inferred that the petitioner did not have culpable mental state to commit the offence as has been alleged by the respondent. In O.P. Gulati (supra), the Appellate Board had rather held that in certain facts and circumstances even conscious possession of foreign currency will not result into violation of section 8(1) of Foreign Exchange Regulation Act. In the said case, the accused was having the foreign currency which was sent by his son for the travel of his daughter and wife and it was held that it was not within the expression of "otherwise acquire". 24. The precedent relied upon by the respondent 'State of Maharashtra' (supra) is distinguishable as the search was made in absence of the accused and in presence of his wife and mother and as a result of the search, gold biscuits of foreign marking and of 24 carat purity, which was not available ....