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TMI Blog2007 (4) TMI 690X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. The appellants were issued show cause notice for contravening the provisions of Section 9(1); 9(b) 9(l)(d) of the Foreign Exchange Regulation Act, 1973 (hereinafter referred to as FERA, 1973). 4. On the basis of an information, the residential premises as well as business premises of Smt. Gurmeet Kaur Dhillion W/o Major Manjit Singh Dhillon r/o 596 Model Town, Jalandhar were searched under Section 37 of FERA, 1973 on 17-10-1995. The search resulted in seizure of incriminating documents and Indian Currency of ₹ 70,500/-. Nothing incriminating was recovered and seized from the business premises. Major Manjit Singh Dhillon was not present during the course of search. 5. During the course of search of the said premises Saudagar Singh son of Sh. Joginder Singh of village Dhirowal, Tehsil District Jalandhar was searched under Section 34 of FERA which resulted in seizure of three chits indicating distribution of payments. 6. Smt. Gurmit Kaur Dhillon in a statement dated 17-10-1995 recorded under Section 40 of FERA inter alia stated that she was doing business of hawala payments along with her husband; that her husband is said to have received message from En-gland ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had made payments. The persons named by him were also examined under the FERA and their respective statements were recorded under Section 39 of the Act. They admitted to have received compensatory payments under instructions of persons residing abroad. The names of the persons and amount received by them reads as under: Sr. No. Name of Party Amount received 1. D.V. Arora, R/o 278, Lajpat Nagar Jalandhar, Rs. 50,000 2. Shri Pakhar Ram S/o Nand Ram, V.P.O. Bhupa Rai, Distt. Jalandhar Rs. 2,00,000/- 3. Smt. Harbans Kaur w/o Shri Gajjan Singh Village Prempur, Distt. Hoshiarpur. Rs. 50,000/- 4. Shri Raghubir Singh S/o Shri Sarvran Singh, Viilage Aujla Manjki Distt. Jalandhar. Rs. 40,000/- 5. Smt. Baldev Kaur w/o Santokh Singh VPO Dhaliwal, Tehsii Nakodar, Distt. Jalandhar. ₹ 54,000/- 6. Shri Sucha Ram s/o Pargasna Ram VPO Dhar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as claimed by her that she was forcibly taken to the Enforcement Office, Jalandhar where she was beaten mercilessly by the Officers, where no woman officer was present. It was further claimed that she was subjected to a great physical and mental harassment till late in the night as is evident from the Arrest Memo which showed the time of her arrest as 23.00 hours. It was further claimed that she was not allowed to sleep throughout the night. She further claimed that the statement was dictated to her and her signatures were got under pressure and duress. It was claimed that said statement was not admissible against her. It was further claimed that she was tortured to such an extent that she had to undergo treatment from a Neuro Surgeon, Civil Hospital, Jalandhar. It was further claimed by her that in her bail application dated 19-10-1995, she had made it clear that her statement was recorded under stress, strain and duress and a representation in this regard was also sent to the President of India with a copy to the Director of Enforcement, New Delhi. It was also claimed that in the absence of any independent corroborative statement, her statement being not voluntary cannot be relie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment or thing relevant to the enquiry and to examine any person acquainted with the facts and circumstances of the case. Section 108 gives power to any Gazetted Officer of customs to summon any person whose attendance he considers necessary either to give evidence or to produce a document or any other thing in any inquiry which such officer is making in connection with the smuggling of any goods. Clause (3) of Section 108 further provides that all persons so summoned shall be bound to attend either in person or by an authorised agent, as such officer may direct and that all persons so summoned shall be bound to state the truth upon any subject respecting which they are examined or make statements and produced such documents and other things as may be required. These provisions, therefore, enable a customs officer to summon any person to give evidence or for the purpose of interrogation in connection with any enquiry which such officers is making in connection with the smuggling of any goods. Neither these provisions in Section 107 nor Section 108 nor any other provision in the Act or the rules framed thereunder restricts the right of the customs officers to require the person to ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustoms Official detains any person required or summoned under the provisions of the Customs Act for a prolonged period, even exceeding twenty four hours, or keeps him in closed doors as a captive prisoner surrounded by officials or locks him in a room or confines him to an office premises, he does so at his peril because Sections 107 and 108 of the Customs Act do not authorise the officer belonging to the Customs Department to detain a person for a prolonged custody and deprive him of the elementary facilities and privileges to which he is entitled. In such a situation, the officer must be held to have overstepped his limits, and any confessional statement obtained from such a person by keeping him in a prolonged custody has to be regarded with grave suspicion, because there is always room for criticism that such a confession might have been obtained from extorted maltreatment or induced by improper means. As pointed out by the Supreme Court in Nathu v. State of Uttar Pradesh the prolonged custody may stamp the confessional statement so obtained as involuntary one, and the intrinsic value of such a statement may be vitiated. The question whether person has been kept in prolonged cu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t allowed an opportunity to cross-examine the persons who had given statements, the enquiry could not be regarded as a fair enquiry. The order under appeal before it was accordingly set aside by the Board and the matter was remanded for fresh consideration by the concerned officer at first instance after according the parties a proper opportunity of being heard. 6. Counsel for the appellant submitted that the Board exceeded its jurisdiction in quashing the order and remanding the case. We do not agree. The Board was, in the circumstances of this case, justified in concluding that it would be fair if a fresh opportunity was given to the respondent. The Board was impressed by the respondent's contention that he was not given an effective opportunity to elicit evidence in his defence by cross-examining witnesses who had given statements against him. We see no reason to interfere with that order. 14. It was further contended by the learned Counsel for the appellants that no enquiry against Shri Hakumat Rai Sharma was held. The learned Counsel for the appellants further contended that confession of the accused persons could be pressed into service only when Court is inclined t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of corroboration needed for the one or the other before they can be acted upon. To read more meaning into the observations is not permissible for no such meaning was intended. The confession there considered was also be used against the maker and a co-accused. A confession intended to be used against a co-accused stands on a lower level than accomplish evidence because the latter is at least tested by cross-examination whilst the former is not. The observations of Govinda Menon J. must not be applied to those cases where the confession is to be used against a co-accused. As pointed out by this Court in Nathu v. State of Uttar Pradesh , confessions of co-accused are not evidence but if there is other evidence on which a conviction can be based they can be referred to as lending some assurance to the verdict. 16. The learned Counsel for the appellants finally argued that if for the sake of arguments, allegations levelled by the prosecution are believed that there was proof of transaction to the tune of ₹ 1,00,000/-(Rupees one lac only) and ₹ 1,50,000/-(Rupees one lac and fifty thousand only) even then the penalty of ₹ 10,00,000/- (Rs. Ten lac only) imposed each ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ute that the statement of the appellants Gurmeet Kaur Dhillon and Saudagar Singh were recorded while in custody and, therefore, this judgment has no application. 18. I have considered the arguments raised by the learned Counsel for the parties and find force in the pleas raised by the learned Counsel for the appellants. It is not in dispute that the statements of the accused were recorded after taking them into custody and they had admittedly retracted from the said statement. In spite of that, the authorities took no steps to permit the appellants to cross-examine the persons said to have been examined under Section 40 of the FERA and, therefore, in view of the law laid down by the Kerala High Court in the case of Central Govt. represented by the Director, Enforcement Directorate, Foreign Exchange Regulation Act, New Delhi v. Alfred James Fernades (supra), said evidence cannot be taken into account. Once the statement of persons examined under Section 40 is taken out of the purview, then the confession of the co-accused is also of no value in view of the law laid down by the Hon'ble Supreme Court in the case of Bhana Khalpa Bhai Patel v. Assistant Collector of Customs, Buls ..... X X X X Extracts X X X X X X X X Extracts X X X X
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