TaxTMI 
TaxTMI 
TaxTMI 
2022 (12) TMI 1244
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....ce was allowed and the petitioner was directed to undergo R.I. for a period of two years and to pay a fine of Rs.5,000/-. In default of payment of fine, to further undergo R.I. for a period of two months under Section 56 of FERA. Brief facts of the case are that on 18.06.1997, the Punjab Police intercepted one Piara Lal and Madan Lal, who were coming from Delhi to Punjab in Punjab Roadways bus and recovered Rs.2.00 lacs and Rs.1.90 lacs, respectively. Thereafter, FIR No.90 dated 18.06.1997 under Sections 411 & 414 of the Indian Penal Code, 1860 (for short 'IPC') and Section 9 of FERA was registered. Later on, during the investigation of Piara Lal and Madan Lal, a raid was conducted on residence of petitioner Muneesh Suneja @ Goldy and recovery of DM5300, Rs.3.00 lacs in cash, 08 yellow material biscuits of 10 toll each with a foreign mark along with certain incriminating documents was effected. In the meantime, another accused Jagdish Chand was also apprehended by the Enforcement Directorate and from his search, 7360 US dollars, 3295 UK pounds, 4135 Canadian dollars and 360 Australian dollars (total having value of Rs.6,14,283/-) were recovered. In the statement, Jagdish Chand dis....
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....le under Section 56 of FERA. All three accused did not plead guilty and claimed trial. After framing of charge, accused were granted permission to cross-examine the witnesses i.e. PW1 to PW4. After completing the cross-examination, Special Public Prosecutor closed the post-charge evidence. Thereafter, statements of the accused were recorded under Section 313 Cr.P.C. and all the incriminating evidence was put to them. The accused denied the same and pleaded their innocence. In defence evidence, petitioner Muneesh Suneja @ Goldy appeared as DW1 and accused Sanjay appeared as DW2. Thereafter, the trial Court acquitted two accused Rakesh Kumar and Sanjay vide judgment dated 19.02.2011 passed by the Chief Judicial Magistrate, Jalandhar, whereas petitioner Muneesh Suneja @ Goldy was convicted. He preferred an appeal before the lower appellate Court and the Additional Sessions Judge, Jalandhar, vide judgment dated 01.07.2013, set aside the judgment of conviction and order of sentence and remanded the case back for decision afresh, after affording further opportunity to the accused to lead further defence evidence. In pursuance thereof, petitioner Muneesh Suneja @ Goldy examined DW3 Pan....
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....gs in paras No.23 to 27 of its judgment observing that under first point, it was held that no evidence has come forth to establish beyond doubt that there was nexus between purchased gold and use of foreign exchange, therefore, the petitioner cannot be held guilty of violating the provisions under Sections 8(1) & 8(2) of FERA. It is also held that since the accused has not claimed ownership of the recovered gold and he retracted his confession made before PW3, which are on record as Ex.D4 and Ex.D5, stating that the gold was purchased from M/s Laljibhai Khanjibhai Jewellers, Ahemdabad, therefore, the prosecution has failed to prove that gold was purchased using foreign exchange and the findings at first point were returned in favour of the petitioner. So far as point No.2 is concerned, it was held that it cannot be concluded that retraction is mere an afterthought and had been influenced by the fact that when he was detained and produced in the Court, he had no availability of legal help and this point was decided in favour of the prosecution. So far as third point is concerned, it was held that DM 5300 were recovered from the petitioner, as per panchnama Ex.PW3/A, which is a con....
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....ors. Law does not say that the accused has to prove that retraction of confession made by him was because of threat, coercion, etc. but the requirement is that it may appear to the court as such. 35. In the instant case, the Investigating Officers did not examine themselves. The authorities under the Act as also the Tribunal did not arrive at a finding upon application of their mind to the retraction and rejected the same upon assigning cogent and valid reasons therefor. Whereas mere retraction of a confession may not be sufficient to make the confessional statement irrelevant for the purpose of a proceeding in a criminal case or a quasi criminal case but there cannot be any doubt whatsoever that the court is obligated to take into consideration the pros and cons of both the confession and retraction made by the accused. It is one thing to say that a retracted confession is used as a corroborative piece of evidence to record a finding of guilt but it is another thing to say that such a finding is arrived at only on the basis of such confession although retracted at a later stage. 36. Appellant is said to have been arrested on 27.10.1994; he was produced before the learned Chief....
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.... admitted that no reply was sent to the retraction made by the petitioner, therefore, retracted statements of the petitioner were never disputed by the prosecution. It is submitted that it is evident from cross-examination of PW2 and PW3 that the petitioner has been falsely implicated, as nothing incriminating was recovered from his shop, therefore, there is no violation of Sections 8(1) & 8(2) of FERA. It is stated that the petitioner was carrying on legal business of sale and purchase of electronic goods in New Delhi and in police custody, he was forced to make involuntary statement on 19.06.1997 by the officials of Punjab Police and Enforcement Directorate and again on 20.06.1997, he was forced to make involuntary statement under Section 40 of FERA. It is stated that MLR of the petitioner conducted at the instance of the Court, where he was produced, reflects that he was tortured and beaten. It is next argued that except the involuntary statements, there is no other evidence against the petitioner regarding recovery and there are material contradictions in the statements of PW2 and PW3, which are not explained by the prosecution. It is submitted that search of house of the peti....
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.... Court has taken a balanced and objective view, while awarding sentence of 06 months and the lower appellate Court has wrongly enhanced the sentence and prayed that judgment of enhancement of sentence be set aside, as it was set aside by the Hon'ble Supreme Court in Shiv Govind's case (supra). It is further submitted that the petitioner has already undergone more than 07 months of sentence; he is facing protracted trial since 1997, therefore, being first offender, he may be granted the concession of probation of good conduct or in the alternative, impugned judgment passed by the lower appellate Court be set aside. In reply, learned Additional Solicitor General of India has argued that the lower appellate Court has right enhanced the sentence considering gravity of the offence, as sentence of 06 months R.I. awarded by the trial Court was inadequate. It is submitted that the petitioner was found involved in huge transaction of foreign exchange and was dealing in prohibited items i.e. gold biscuits of foreign origin and therefore, it being an economic offence, sentence was right enhanced. After hearing learned counsel for the parties, considering the limited scope of an appeal agai....