TaxTMI 
TaxTMI 
2009 (4) TMI 821
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....ed to consider the absolute confiscation of Indian currency is not sustainable in law on mere presumptions in respect of the order of confiscation and the finding of contravention? 4. Whether the order passed by the Tribunal is invalid/non est in law in view of the violation of Section 52(6) of the FERA 1973 r/w Section 20(2)(b) of the FEMA 1999? 2. The learned counsel for the appellant did not advance any submission on Question No. 4. Therefore, we will deal only with question Nos. 1 to 3. The facts of the matter are as follows : 3. On information, the residential premises of the appellant was searched on 10-9-1990. Consequent to the search, Indian currency, totalling to Rs. 3,61,000/- and certain documents were seized. The appellant gave statements before the Enforcement Officer, Madras, on 10-9-90, 11-9-90 and 9-11-90. He admitted that he received Rs. 30,00,000/- and has made payment to the extent of Rs. 26,22,000/- during the period June to September, 1990 as instructed by one Abdul Rahem of Alkobar. After deducting what was his commission the balance was the sum of Rs. 3,61,000/-. The Department followed up action pursuant to the details gathered from the documents an....
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....ly and he also contended that the figure alleged to have been distributed did not tally with the amount alleged to have been received. Therefore, the appellant requested that he be permitted to cross-examine the two persons viz., Smt. Mariam Beevi and Ramraj, who allegedly had given the statements to the authorities. 6. The appellant was remanded to judicial custody on 11-9-90. During the adjudication proceedings, Smt. Mariam Beevi and Ramraj were not produced for cross-examination. The appellant contended that this was a gross violation of principles of natural justice. He also contended that his retraction statements cannot be relied on; no conviction can be given on the retraction statements. Smt. Mariam Beevi and Ramraj had not identified the person who gave them the money. No details were given as to when and how he received the sum of Rs. 30 lakhs and the allegation made against him that he received several instalments ranging from Rs. 50,000/- to Rs. 1,00,000/- are baseless and there are no names of persons who came and delivered the money to him and there is nothing to indicate that those persons had informed him that they were handing over the money under instructions f....
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....al Excise), where the Supreme Court held as follows : ......."We find that, in the reply to the show cause notice, the assessee had specifically asked to be allowed to cross-examine the representatives of these two concerns to establish that the goods in question had been accounted for in their books of account and the appropriate amount of Central excise duty had been paid"..... He also relied on 1992 (58) E.L.T. 200 (Bom.) (Sadiq Ftehally v. Union of India), wherein the Bombay High Court held that when the Collector had asked the Professor of IIT to remain present for cross-examination, Collector was informed by the IIT, Bombay that the Professor of IIT, Bombay will not be available for cross-examination and in that case, the Supreme Court held that the Collector ought to have resorted to Sec. 108 of Customs Act, 1962 and call upon to summon the professor, whose attendance is necessary. 10. The learned counsel for the appellant submitted that the worded statements cannot be relied on since neither Mariam Beevi nor Ramaraju knew the names of the persons, who had allegedly given them the money. He submitted that, therefore, no violation of the provisions of Sections 9(1)(b....
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....orcement Directorate on 26-9-1990. In response to summons that he should appear on 12-11-90, he appeared at the Enforcement Directorate on 7-11-90 and confirmed the statement made on 10-9-90 and 11-9-90. This was again retracted on 9-11-90. The learned counsel submits that the decisions cited by him fully applies to his case and without threat this statement would not have been given. 14. The next ground raised is that mere confiscation of Indian currency cannot sustain the conviction. The learned counsel submits that there was nothing to show that it is only by an act contravening the provisions of FERA cash was in his possession and the presumption should be of innocence and even if there was contravention assumed without admitting the same, contravention would be reduced to Rs. 33,000/- which is the amount that they had been able to correlate with the statement of Smt. Mariam Beevi and not the amount of Rs. 3,61,000/-. For this, the learned counsel relied on CFC (Mad) 152 (Union of India v. Marcel Nenenus), wherein the Division Bench of this Court held that speculations should be avoided, particularly when orders of confiscation and imposition of penalty are to be made and th....
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....Mariam Beevi and Ramraj the learned special counsel for the Enforcement Directorate submitted that they have clearly stated that they did not know the names of those who came and gave money to them. These statements are also natural. Smt. Mariam Beevi had stated that she received the money as per the instructions of her husband Sulthan during the last week of August. This would not clearly amount of denial of natural justice. 18. He also produced the xerox copies of all the documents seized under the Mahazar and pointed out the various names found in the document., bus ticket, amounts indicated as against the names. Against Ramaraju the number 12 is written, which meant that Rs. 12,000/- should be given to Ramaraju. As against Smt. Mariam Beevi it was 5 and it was written on the cover "5 Gown received". Further there is a reference to a local residence from where the appellant has made calls and the number is 846160. This was mentioned in the confessional statements and this too indicated that it a natural and voluntary statement. For all these reasons, he submitted the impugned order deserves to be confirmed. 19. Now we will look at the materials before evaluating the legal ....
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....at he had married in February, 1990 and he had a Savings Account No. 7328. He has an uncle by name C.S. Tajudeen, whose telephone number was 846160. He also stated that he knew Abdul Raheem, who had been working as a Supervisor for the last four years in Gulf Catering, Alkobar and staying there. The appellant told the said Abdul Raheem about his family problems and his sufferings due to insufficient income and asked him to give him a job. For this, Abdul Raheem told him that he was receiving Saudi Riyals from persons working in Alkobar and disbursing Indian rupees to persons in India and that he needed a reliable person to do that job in Madras. The appellant has stated that he had received Rs. 30 lakhs from different persons and in several instalments. Certain persons gave these amounts at his house, others had given the amount to him at the places mentioned by them. He had met some persons near Spencers building in Mount Road, Madras the entrance of Bapalal Jewellers, Radhakrishnan Road and near Chozha hotel and received the amounts. Out of 30 lakhs, he received Rs. 8.5 lakhs as per the instructions of Abdul Rahim. The previous night Abdul Rahim had contacted the appellant from A....
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....quire the concerned Enforcement Officer and therefore the statements were not binding upon him. 23. So the first confessional statements dated 10-9-90 and 11-9-90 were retracted. After 12-9-90 he was free. It is clear from the retraction letter dated 9-11-90, he was not under judicial custody. He had received the summons asking him to appear on 12-11-90 but due to his wife's ill-health, he had voluntarily gone on 9-11-90 to the Directorate and explained the position. At that time, he affirmed his statements dated 10-9-90 and 11-9-90. Then he must have come out from the Directorate Office soon thereafter to make the 9-11-90 retraction. Therefore, he must have been in the office from 10.00 a.m onwards at the most for a few hours. It is during this period he had given the statement affirming the statements dated 10-9-90 and 11-9-90. Therefore, this statement made on 9-11-90 would not have been given under threat or coercion. 24. He came to the office voluntarily to inform the authorities that he could not be present on 12-11-90. It is difficult for us to believe that in the few hours that he was present, he was under such threat or coercion as to give a statement affirming the s....
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....ours and explained my position. I have also furnished my new house address. At that time, I have been threatened, forced to write a stt., stating that the statements given by me on 10-9-90 and 11-9-90 were true by the officers. Regarding this, I have already sent a letter on 13-9-90 stating that the stts. Recorded from me on 10-9-90 and 11-9-90 were not voluntary one and the same was written under threat and coercion. The stt. recorded today i.e., on 9-11-90 stating that the stts given by me as truly was not binding on me. Regarding this matter, I have received your letter dated 26-9-90 only yesterday i.e., on 8-11-90. In your aforesaid letter, it has been stated that the stts. given by me on 10-9-90 and 11-9-90 were voluntarily written by me and the same were written without any force or threat and that was not correct one and I can't accept it. Sd/- A.L. Jalaluddin 9-11-90. It is clear that the appellant is under the impression that by merely making a retraction he will be let off the hook. 25. If we believe the affirmed statement made by the appellant dated 9-11-90 then the confessional statement must be accepted. Further the statements made on 10-9-90 and 11-9-90....
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....f account and appropriate duty had been paid. They found that in the reply to the show cause notice, the assessee had specifically asked to be allowed to cross-examine the representatives of these two concerns to establish that the goods in question had been accounted for in their books of account and appropriate amount of Central excise duty had been paid. It was not contested that the matter should go back to the assessing authority for hearing the matter de novo after ensuring the lacunae pointed out in the order of the Vice-President are not. In the first place the documents were necessary for establishing the assessee's case and two, there appears to have been no contest in this regard. So we do not think this case helps the appellant. 29. In other judgment reported in 1992 (58) E.L.T. 200 (Bom.) (Sadiq Ftehally v. Union of India) when the Collector had asked the Professor of IIT to remain present for cross-examination, Collector was informed by the IIT, Bombay that the Professor of IIT, Bombay will not be available for cross-examination and in that case, the Supreme Court held that the Collector ought to have resorted to Sec. 108 of Customs Act, 1962 and summoned the profe....
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....t may not be held to be applicable. It is now a well settled principle that presumption of innocence as contained in Article 12(2) of the International Covenant on Civil and Political Rights is a human right although per se it may not be treated to be a fundamental right within the meaning of Article 21 of the Constitution of India. 20. Sub-section (2) of Section 71 places the burden of proof upon an accued or a proceedee only when the foreign exchange acquired has been used for the purpose for which permission to acquire it was granted and not for mere possession thereof. The Parliament, therefore, advisedly did not make any provision placing the burden of proof on the accused/proceedee. ........ 24. It is interesting to note that both the learned counsel have placed strong reliance upon a decision of this Court in KTMS Mohd. and Anr. v. Union of India (1992) 3 SCC 178. This Court therein made a distinction between the provisions of the FERA and the Income-tax Act, opining : 31. Leave apart, even if the officers of the Enforcement intend to take action against the deponent of a statement on the basis of his inculpatory statement which has been subsequently repudiated, ....
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.... "25. Submission of Mr. P.V. Shetty that appellant had special knowledge and that burden of proof would be on him in terms of Section 106 of the Indian Evidence Act, in situation of this nature, cannot be held to have any substance. The initial burden of prove that the confession was voluntary in nature would be on the Department. The special or peculiar knowledge of the person proceeded against would not relieve the prosecution or the Department altogether of the burden of producing some evidence in respect of that fact in issue. It may only alleviate that burden to discharge and very slight evidence may suffice." 31. In K.I Pavunny v. Assistant Collector (HO) Central Excise Collectorate, Cochin (1997) 3 SCC 721 a finding of fact was arrived at that the confession was voluntary in nature. Reliance therein for the purpose of arriving at the guilt of the accused was not only placed on the statement given under Section 108 of the Customs Act, 1962 but also on the deposition of evidence of Pws. 2, 3 and 5. ......... 34. A person accused of commission of an offence is not expected to prove to the hill that confession had been obtained from him by any inducement, threat or pr....