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TMI Blog2014 (5) TMI 784X X X X Extracts X X X X X X X X Extracts X X X X ..... The AT also erred in proceeding on the basis that the failure to supply English translations of the seized documents was not violative of natural justice since the author of the documents was Prem Singh. The writings on the loose sheets were in Gurmukhi and not Pushto as thought by the ED during the adjudication proceedings. If reliance was going to be placed on the said loose sheets’ then surely they ought to have been translated if they had to corroborate the retracted statements of Prem Singh and Tarlochan Singh - Order set aside - Decided in favour of appellant. - CRL. A. 276 of 2008 - - - Dated:- 24-4-2014 - Justice S. Muralidhar,JJ. For the Appellant : Mr. S.S. Gandhi Senior Advocate with Mr. Akshay Anand Advocate. For the Respondent : None. ORDER 1. These appeals are directed against the common order dated 30th November 2007 passed by the Appellate Tribunal for Foreign Exchange ( AT ) dismissing the Appeal Nos. 618 of 2005 619 of 2005 and 620 of 2005 thereby confirming the adjudication order ( AO ) dated 13th June 2005 passed by the Special Director ( SD ) Directorate of Enforcement ( DoE ) holding that the Appellants had contravened Sections 8( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Indian Currency of Rs. 20 36 000 seized from his residence on 6th March 1991 was the sale proceeds of foreign exchange sold by him and this was without the permission of the RBI. He is stated to have confessed that from January 1991 to 6th March 1991 he had purchased and sold foreign exchange worth Rs. 1.5 crores. 4. Rajendra Singh filed a statement before the learned Additional Chief Metropolitan Magistrate ( ACMM ) on 8th March 1991 itself stating that he had been subjected to torture and threatened that if he did not make a statement in writing as per the decision of the ED they would implicate his wife in this recovery and put her behind bars. The other two appellants Prem Singh and Tarlochan Singh by separate communications dated 18th December 1991 retracted their respective statements on the ground that they were obtained under coercion and threats. 5. The entries in the bunch of loose sheets recovered from the residence of Prem Singh on which the ED placed reliance were admittedly not in English or Hindi. The ED did not translate them. Reliance was entirely placed on the purported explanation of the writings on the loose sheets by Prem Singh in his statement und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2005 619 of 2005 and 620 of 2005 filed by the Appellants were dismissed by the AT by the common impugned order dated 30th November 2007. Relying on the decision of the Supreme Court in KTMS Mohamed v. Union of India (1992) 3 SCC 178 the AT held that the retracted confessional statements could only be relied upon since there was other corroborative evidence. As regards the rejection of the request for cross-examination the AT held that neither the recovery of the currency from the residence of the Appellants nor the ownership thereof was disputed. Therefore the SD was justified in rejecting the request. The AT further held that the non-supply of the English translation of the entries in Pushto in the bunch of loose sheets did not result in violation of the principles of natural justice since the author of the document is none other than the Appellant Prem Singh himself. 11. While admitting the appeals against the impugned order of the AT this Court stayed the operation of the impugned orders after noting that 25% of the respective penalty amounts had already been deposited before the ED by the appellants. 12. One other development that had taken place during the pend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said decision the Supreme Court observed: However even if the maker of the statement fails to establish his allegations of inducement threat etc. against the officer who recorded the statement the authority while acting on the inculpatory statement of the maker is not completely relieved of his obligations in at least subjectivity applying its mind to the subsequent retraction to hold that the inculpatory statement was not extorted. It thus boils down that the authority or any court intending to act upon the inculpatory statement as a voluntary one should apply its mind to the retraction and reject the same in writing. It is only on this principle of law this Court in several decisions has ruled that even in passing a detention order on the basis of an inculpatory statement of a detenu who has violated the provisions of the FERA or the Customs Act etc. the detaining authority should consider the subsequent retraction and record its opinion before accepting the inculpatory statement lest the order will be vitiated. 16. Further in Telstar Travels Private Limited v. Enforcement Directorate (2013) 9 SCC 549 it was held that the burden is on the authority/prosecution to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only because it would tantamount to further delay in finalizing the proceeding were not tenable or justified. The denial of cross-examination of the ED officials by the Appellants indeed has caused them severe prejudice since the ED was relying on the said statements as if they were by themselves substantive evidence. 19. In light of the legal position explained in the decisions noted hereinbefore the Court is of the view that in the present case there was miscarriage of justice in denying the request of the Appellants for cross-examination of the ED officials. Allowing the request would have enabled the SD to determine whether the claim that the confessional statements were recorded under threat and coercion was credible. 20. The law explained by the Supreme Court in KTMS Mohamed v. Union of India and the subsequent decision in Telstar Travels Private Limited v. Enforcement Directorate is that a retracted confessional statement could be relied upon as long as it is corroborated by other evidence. In the present case the Court finds that the ED had failed to place before the SD any credible or reliable corroborative material other than the notings on the loose sheets whic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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