2005 (9) TMI 703 - AT - FEMA

Summary

Issues:
1. Contravention of sections 9(1)(b) and 9(1)(d) of FERA, 1973 by the appellant.
2. Existence of Shri Hanif and instructions received from him.
3. Validity of alleged confessional statements.
4. Corroboration of confessional statements.
5. Burden of proof on the department.

Analysis:

1. Contravention of FERA Sections:
The appeal was against an adjudication order imposing a penalty for contravention of sections 9(1)(b) and 9(1)(d) of FERA, 1973. The appellant was penalized for receiving and making payments without RBI exemption. The appellant contested the charges, leading to adjudication proceedings and the impugned order.

2. Existence of Shri Hanif:
The appellant argued that the department failed to prove the existence of Shri Hanif, a person from Dubai. The appellant questioned the basis for presuming Hanif's existence solely on a telephone number. Legal precedents were cited to emphasize the importance of proving the identity of the person giving instructions from outside India.

3. Validity of Confessional Statements:
The appellant claimed that confessional statements were extracted under duress and retracted later, rendering them unreliable. The respondent, however, defended the adjudicating officer's reliance on these statements and documents seized during interrogation. Discrepancies in statements of involved individuals were highlighted.

4. Corroboration of Confessional Statements:
The judgment referenced the Supreme Court's stance on retracted confessions, emphasizing the need for voluntary and corroborated statements. The court must ensure the absence of coercion or inducement in obtaining confessions. The appellant's argument centered on the lack of proper corroboration for the confessional statements used against them.

5. Burden of Proof:
Legal principles regarding burden of proof were discussed, emphasizing the department's obligation to establish the elements of the offense under FERA. The lack of concrete evidence proving Hanif's identity as a person residing outside India was highlighted. The judgment concluded that the adjudicating authority failed to meet the necessary standards for relying on the contested confessional statements, leading to the setting aside of the impugned order and allowing the appeal.

This detailed analysis covers the key issues raised in the judgment, providing a comprehensive overview of the legal arguments and precedents cited during the proceedings.