2009 (4) TMI 821 - HC - FEMA

Whether the Tribunal failed to consider the violation of principles of natural justice in not granting an opportunity to the appellant for cross-examination of the witnesses and that the findings and orders are based on inadmissible and flimsy evidence? Whether the Tribunal ignored the subjective satisfaction regarding the voluntary nature of statements, when the statement of the appellant was retracted at the earliest point of time and the appellant reported to the Magistrate about slapping by the Enforcement Officials, as held by the Supreme Court in KTMS Mohamed s case reported 1992 (4) TMI 6 - SUPREME Court ? Whether the Tribunal failed 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? 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? Held that - The questions raised by the appellant are purely questions of facts and not questions of law. We reject the appeal and the Civil Miscellaneous Appeal stands dismissed.

Summary

Issues Involved:
1. Violation of principles of natural justice due to denial of cross-examination.
2. Subjective satisfaction regarding the voluntary nature of the appellant's statements.
3. Legality of the absolute confiscation of Indian currency based on presumptions.

Issue-wise Detailed Analysis:

1. Violation of Principles of Natural Justice:
The appellant argued that the denial of the opportunity to cross-examine witnesses, Smt. Mariam Beevi and Ramraj, was a gross violation of natural justice. The appellant contended that these witnesses did not identify the person who gave them money and that no details were provided about the receipt of Rs. 30 lakhs. The Special Directorate, however, held that formal cross-examination was unnecessary, as the statements were detailed and written in the appellant's own hand, indicating they were not made under coercion. The Tribunal supported this view, stating there was no denial of reasonable opportunity for the appellant to produce evidence. The High Court concluded that the denial of cross-examination did not amount to a violation of natural justice, citing precedents where cross-examination was not deemed necessary for procedural fairness.

2. Voluntary Nature of Statements:
The appellant retracted his statements, claiming they were made under threat and coercion. He reported to the Magistrate that he had been slapped by Enforcement Officials. The appellant cited various judgments to argue that statements made under duress should not be considered voluntary. The Special Directorate and the Tribunal found the retractions unconvincing, noting that the appellant had voluntarily affirmed his statements on 9-11-90. The High Court agreed, finding the detailed and coherent nature of the statements indicative of their voluntary nature. The Court emphasized that the appellant's retraction was an afterthought and not credible.

3. Legality of Absolute Confiscation:
The appellant argued that the confiscation of Rs. 3,61,000/- was not sustainable in law, as there was no evidence linking the amount to any violation of FERA. The Special Directorate and the Tribunal found sufficient documentary and oral evidence to substantiate the charges. The High Court upheld this view, noting that the appellant's detailed statements and the corroborative evidence from Smt. Mariam Beevi and Ramraj justified the confiscation. The Court dismissed the argument that the confiscation was based on mere presumptions, affirming that the evidence met the required standard of proof.

Conclusion:
The High Court dismissed the appeal, finding no violation of natural justice, affirming the voluntary nature of the appellant's statements, and upholding the legality of the confiscation. The Court concluded that the appellant's arguments were questions of fact rather than law and found no merit in the appeal.