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TMI Blog2015 (1) TMI 1026X X X X Extracts X X X X X X X X Extracts X X X X ..... called highly belatedly retraction of his confessional statement, has to be rejected. Pertinently, though the appellant sought to produce bank transaction statements to show that he had been receiving monies from Ubaidullah of Dubai after the incident in question, and his consistent case is that he had been receiving monies from Ubaidullah of Dubai even earlier, he did not produce any material evidence to show that monies were earlier being received through a legal banking channel. - The appellant has been let off rather lightly considering that he had admitted to having received ₹ 13 Lakhs in all, i.e. ₹ 5 Lakhs on 16.11.1994 and ₹ 8 Lakhs in all, on two earlier occasions. The maximum fine, in these circumstances, could have been to the tune of ₹ 65 Lakhs. However, the appellant has been let off with a nominal fine of ₹ 1.5 Lakhs. - Decided against assessee. - CRL.A. 86/2009 - - - Dated:- 9-1-2015 - MR. VIPIN SANGHI, JJ. For The Appellant : Mr. Rohit K. Aggarwal, Advocate For The Respondent : Mr. Kirtiman Singh, CGSC along with Mr. Waize Ali Noor, Advocate. VIPIN SANGHI, J. (OPEN COURT) 1. The appellant has preferred the present ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s from Ummu for payment of Indian currency. The appellant also sought to retract from his statement recorded on 17.11.1994 under Section 40 of FERA during the course of the personal hearing. 4. In his statement recorded on 15.12.2004, the appellant stated to the effect that his brother Ubaidullah was situated at Dubai, who had sent money for household expenses. To establish his relationship with Ubaidullah, he stated that he can produce the ration-card and photocopy of passport of Sh.Ubaidullah, which would show that the father s name is Sh. Rahimutullah Siddique. He claimed that he had given his earlier statement in his own hand-writing as per dictation of the officers of Enforcement, as he did not have knowledge of legal implications of his earlier statement. He further stated that he was not aware that receiving money from abroad at the instance of person staying abroad was an offence and that, subsequently, he had been receiving money from his brother in rupees through demand drafts by Rakji Bank at Saudi Arabia through his cousin brother. He stated that he could submit copy of his passport and bank certificates regarding the deposits through demand drafts as well as photoco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i H.R. Siddique at the time of personal hearing. 19.2 In view of above I find that in all Sh. H.R. Siddique had received and made payments to the extent of ₹ 13,00,000/- in the aforesaid manner and had contravened the provisions of Section 9(1)(b) and 9(1)(d) of FERA, 1973 and I find him guilty for the said contraventions. 6. As noticed above, the Appellate Tribunal rejected the appellant s first appeal. The submission of the appellant that his retracted statement could not form the basis of his being held guilty, was considered and rejected by the Appellate Tribunal by observing that a retracted confessional statement may be a sufficient ground for conviction of the offender, provided there is sufficient corroboration to prove the charges against the offender. In this regard, the Appellate Tribunal placed reliance on the judgement of the Supreme Court in K.I. Pavunny Vs. Assistant Collector (HQ), Central Excise Collectorate, Cochin, (1997) 3 SCC 721; and K.T.M.S. Mohd. Vs. Union of India, (1992) 3 SCC 178. The Appellate Tribunal held that the appellant had not brought on record any factors to substantiate the claim of inducement, threat, or pressure, or physical tortu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the appellant, namely, the list and details of the persons to whom the monies received from Ubaidullah of Dubai had to be distributed, which had been received by fax on 14.11.1994. 13. Having heard learned counsels and perused the record, including the adjudicating order and the impugned appellate order, I am of the view that there is no merit in this appeal. As noticed above, the retraction of the confessional statement containing admission of wrong-doings by the appellant came after more than ten years, at the stage of personal hearing only, and not before that. Had the appellant been subjected to threat, coercion or pressure - as alleged by him rather belatedly, he would have retracted his confessional statement soon after making the same, once the alleged threat, coercion or pressure ceased to influence the action of the appellant. It is not his case that the said factors continued to influence him for 10 long years. Moreover, the appellant failed to disclose as to how he was pressurized, coerced, or tortured, and by whom, when he made the earlier confessional statement. The confessional statement was also duly corroborated by the aforesaid independent evidence viz. th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the statement, the authority while acting on the inculpatory statement of the maker is not completely relieved of his obligations in at least subjectively 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. Thus, the plea of the appellant, founded upon his so-called highly belatedly retraction of his confessional statement, has to be rejected. Pertinently, though the appellant sought to produce bank transaction statements to show that he had been receiving monies from Ubaidullah of Dubai after the incident in question, and his consistent ca ..... X X X X Extracts X X X X X X X X Extracts X X X X
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