TaxTMI 
TaxTMI 
2018 (7) TMI 1224
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.... The appellant married in India in the year 1997. He intends to return to India and permanently. 3. The above-mentioned appeal is pending for the last 10 years. 4. The brief facts of the matter are mentioned about the appellant in para 13 to 16 of the impugned order. The same is read as under:- "13. On conclusion of investigation, a Memorandum No. T- 4/80-D/98 2001 dated 10-1-2001 was issued to:- a) Shri Jaswinder Singh @ Raju i.e. noticee No. 1 on the ground that by making payment to Mohd. Muslim @ Gullu @ Sharma i.e. Noticee No. 2, a sum of Rs. 2.85 Crores by order or on behalf a person resident outside India he had contravened the provisions of Section 9(1)(d) of FERA, 1973 and had rendered himself liable to be proceeded against under Section 50 of FERA, 1973. b) Shri Mohd. Muslim @ Gullu @ Sharma i.e. noticee No. 2 on the ground that by receiving and making payment of Rs. 2.85 Crores by order or on behalf a person resident outside India he had contravened the provisions of Section 9(1)(b) and 9(1)(d) of FERA, 1973 respectively and had rendered himself liable to be proceeded against under Section 50 of FERA, 1973. c) Shri Musta Ahmed Gilkar @ Haider, Mustaq Ahmed Bh....
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....ement Officials though the contents were not informed to him, his signatures were obtained in the said statement. He stated that Shri Mustaq Ahmed Gilkar in his statement has stated that Sharma was involved in Hawala Transaction for distribution among all Terrorist outfits. He stated that all the persons whose statements were recorded by the Police, in Police custody had not tendered any statement before the Enforcement Officials. He stated that he had not been supplied the photocopies of the relied upon documents and requested that the same may be supplied to him for making effective and purposeful reply to the memorandum. He further stated that he would like to cross examine the co-noticees and would like to cross examine all the official witnesses who had recorded certain statements and conducted the searches and the panch witnesses of various panchnames relied upon the memorandum and would also like to produce defence witnesses and would like to had a personal hearing in the matter." 5. It is evident that the allegation against the appellant Jaswinder Singh is that he had contravened Sections 9 (1) (d) of FERA allegedly on the ground that he had allegedly made payments of Rs.....
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....arged of the charges/offences alleged against him in the said case under Sections 121/121A/122/120B IPC vide judgment and order dated 20.09.1999 passed by Hon‟ble ASJ, New Delhi. It was observed at Page 19 as under:- "Thus, in my considered opinion there is no prima facie evidence on record to show that the entries mentioned in the pocket diaries allegedly recovered from the possession of appellant no. 5 & 6 represent honest and real transactions and that money was paid in accordance with these entries." 12. The finding of fact which has become final and according to rule of issue estoppel this cannot be reopened. Therefore, the present case which is solely based upon these entries in the diary allegedly recovered from the appellant fails and on that basis the appellant cannot be convicted for any offence under FERA. A reference may be made to (1969) 2 SCR 526 TITLED "LALITA AND ORS. VERSUS STATE OF UP.‟ 13. The appellant was taken into custody by the police on 27.8.1998 at about 6.30 p.m. form his office premises situated at 138/1, IInd floor, Tilak Bazar, Khari Baoli, Delhi along with his two brothers namely Avtar Singh and an employee Revoshto Ram. 14. On 28.8.....
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....to India and there is no reason as to why he would credit any amount with any person resident outside India as alleged, therefore, the entire averments made against the appellant in this regard are false and unbelievable on the face of it. 20. It is submitted with regard to entries mentioned in the pocket diaries recovered from the possession of the appellant as well as from Shri Mohd. Muslim @ Gullu @ Sharma, the said entries are admissible in evidence as FERA, 1973, which is a Special Act. The provision of Section 72 mandates the presumption as to documents in certain cases. Counsel states that in view of presumption couple with the disclosure statement, the respondent has discharged its burden to prove it case. 21. It is also submitted that the appellant has made the disclosure statement before Police is admissible in evidence. It is stated on behalf of the respondent that the statement dated 08.09.1998 of the appellant was recorded under Section 39 of FERA, 1973 in Judicial Custody wherein he interalia admitted that he went to Pakistan several times and met Quzan Ali @ Kazi at Akhri Mandi Tang Bazar, Lahore, Pakistan; that during business conversation, Quzan Ali @ Kazi told h....
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.... to the adjudication proceedings. 26. It is a matter of record that the appellant was arrested in connection with another case on 31.8.1998 by the police allegedly on the ground that he was involved in International Hawala transactions and that he had received money illegally from Pakistan and Dubai in Delhi and that on the instructions of a Pakistan based ISI agent namely Kazim Ali he had supplied more than three Crore Rupees to Kashmiri militants through Co-appellant Mohd. Muslim @ Gullu @ Sharma for militant activities in India. The appellant submits that as per the challan dated 30.10.1998 filed in the Court, the police allegedly arrested Mohd. Muslim on 27.8.1998 at the instance of four accused namely Mustaq Ahmed Bhatt, Mustaq Ahmed Gilkar, Fayaz Ahmed Paddar and Suhail Idrish who were arrested in connection with the above case on 17.8.1998 on the ground that thes four accused persons had disclosed that he was a Hawala operator and had supplied a sum of Rs. 2 Crore to them for carrying out militant activities in India. Later, the accused Mohd. Muslim allegedly disclosed that he had links with Pakistan based Kazim Ali and Rizwan who were handed over the money in Lahore which ....
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....losure statement of appellant Jaswinder Singh recorded on 8.9.1998 under section 39 of FERA. The statement of the appellant recorded by the officials of the enforcement Directorate on 8.9.1998 while he was in judicial custody in connection with the Case No. 3/99 in FIR No. 600/98 P.S. Ambedkar Nagar is admissible in evidence. We have one of the copy of the statement of the appellant which is available on record. It appears to us very clearly that the corrected at various places. There were no initial of the officer who recorded the same. As a matter of fact it appears to be tampered with and is suspicious on the face for following reasons:- a) that the said statement dated 8.9.1998 was admittedly recorded while the appellant was in judicial custody at Tihar Jail, however, the said statement has not been attested by the Jail Superintendent. b) That it is clearly established before the Magistrate‟s Court and according to the department itself three officials of the Enforcement Directorate namely PW 2 Sudhukhan, Shri G.K. Dutta And Shri Pratam Singh were present in Jail when the appellant‟s alleged statement was recorded but the appellant‟s statement has been sig....
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....ppellant Jaswinder Singh for the period of January 1998 onwards to various persons named therein while he was not in India. There was no recovery from the appellant. Counsel for the appellant says that due to long passing of time and harassment, the appellant has compounded his offence and he was accordingly discharge by imposing costs and the same was deposited. 33. Even otherwise the entries in the diary is not admissible in evidence in view of law settled in 66 (1997) Del. Law Times 618 L.K. ADVANT VS. CBI. A reference may also be made to Judgment of Hon‟ble Supreme Court reported as AIR 1992 SC 1831 titled 'K.T.M.S. Mohd. And and Vs. Union of India.‟ 34. With regard to Disclosure statement of the appellant Jaswinder Singh before Police. The statement of appellant and the co-accused before police is not admissible in evidence and as such no reliance can be placed on this inadmissible piece of evidence. 35. The other important issue is that dispute contravention facts which are contrary to the evidence available on record such as pass-port entries as well as entries made in diary with one pen, he was also denied permission to cross examine witnesses notwithstanding....