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TMI Blog2018 (7) TMI 1224X X X X Extracts X X X X X X X X Extracts X X X X ..... ence. The other important issue is that dispute contravention facts which are contrary to the evidence available on record such as pass-port entries as well as entries made in diary with one pen, he was also denied permission to cross examine witnesses notwithstanding a specific request in writing in this regard. It is submitted that the statements made by the co-accused or the officers of the ED cannot be taken as corroboration. The statements should be corroborated from the independent facts and statements are not reliable till their veracity and genuineness is not tested by cross examination. Therefore, under the established principles of natural justice, the appellant requested before the Adjudication Authority for permission to cross examine the witnesses so as to enable them to establish his innocence and to state and/or explain his case. The cross examination of the officers who recorded his statement dated 08.09.1998 (in jail) and that of the IO is imperative in order to arrive at the truth of the matter, it was a perfect case where the crossexamined should have been allowed. Thus ED has failed to prove its case even by way of preponderance of probability and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... )(d) of FERA, 1973 respectively and had rendered himself liable to be proceeded against under Section 50 of FERA, 1973. c) Shri Musta Ahmed Gilkar @ Haider, Mustaq Ahmed Bhatt, Fiyaz Ahmed Paddar and Sohail Idrish i.e. noticee No. 3 to 6, on the ground that they aided and abetted to notices No. 1 and 2 in receiving and making payments of ₹ 2.85 crores, they had thus contravened the provisions of Section 9(1)(b) and (d) of FERA, 1973 in terms of Section 64(2) of the said Act and had rendered themselves liable to be proceeded against under Section 50 of FERA, 1973. 14. The Noticees S/Shri Jaswinder Singh @ Raju and Mohd. Muslim @ Gullu @ Sharma, Mustaq Ahmed Gilkar @ Haider, Mustaq Ahmed Bhatt, Fiyaz Ahmed Paddar and Sohai Idrish were asked to show cause in writing as to why adjudication proceedings as contemplated in Section 51 of FERA, 1973 should not be held against them for the said contravention and as to why the seized currencies lying with police staff should not be confiscated as per the provisions of Section 63 of FERA, 1973. 15. Vide letter dated 25.10.2001, Shri Shailendra Bhardwaj, Advocate on behalf of Shri Jaswinder Singh had submitted that his c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter. 5. It is evident that the allegation against the appellant Jaswinder Singh is that he had contravened Sections 9 (1) (d) of FERA allegedly on the ground that he had allegedly made payments of ₹ 2.85 Crore to persons in India on behalf of persons residing outside India. 6. The appellant submits that he is a respectable businessman who was carrying on the business of export of articles of hosiery. Woolen shawls, sweaters, etc. from India to Afghanistan under the name and style M/s Bhatia Co. Delhi and Raju trade Co. (ltd.) Afghanistan. The appellant had exported goods worth more than three crore in a year and had brought back valuable foreign exchange into India. 7. The case of the appellant is that he is absolutely innocent and he is being falsely implicated in the present case. The appellant has not contravened any provision of law as alleged. 8. The respondent mainly relying upon his diary-entries, co-accused statement and his own confessional statement in support the impugned order where the penalties were imposed after deciding the matter on merit. 9. There is no denial on the part of the respondent that the cross examination of the hand writing ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tody by the police on 27.8.1998 at about 6.30 p.m. form his office premises situated at 138/1, IInd floor, Tilak Bazar, Khari Baoli, Delhi along with his two brothers namely Avtar Singh and an employee Revoshto Ram. 14. On 28.8.1998 the father of the appellant namely Shri Jeet Singh sent a telegram to the Hon‟ble Prime Minister, Hon‟ble the Chief Justice of Delhi High Court and the Hon‟ble Home Minister. Again on 29.8.1998 the said Shri Jeet Singh sent a reminder telegram to the commissioner of Police, the Lt. Governor, Hon‟ble Chief Justice and the Finance Minister. 15. He was kept in custody by the police for a period of about four days starting from 27.8.1998 till he was shown to be arrested on 31.8.1998. 16. The case of the appellant from the very beginning is that during this unauthorized and illegal detention, the appellant Jaswinder Singh was made to write a diary which was later shown to have been recovered from him at the time of his arrest on 31.8.1998 and he was made to write the name and telephone numbers of the persons whom he had never met and the alleged details of the payment made to various persons mentioned therein. 17. In nut-s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 39 of FERA, 1973 in Judicial Custody wherein he interalia admitted that he went to Pakistan several times and met Quzan Ali @ Kazi at Akhri Mandi Tang Bazar, Lahore, Pakistan; that during business conversation, Quzan Ali @ Kazi told him that he can enter a business with him and he would give some money to him in Pakistan for his business in Afghanistan and when he will go to India, that money will be given to agent Gullu, 31, Meena Bazar, Jama Masjid and for which he will get a premium; that when he agreed to this proposal, kazi gave him pak ₹ 60,000 in the month of Feb. 1998; that the said money had been utilized by him for his business in Afghanistan and after coming to India in the month of May, 1998, he handed over Indian ₹ 50,000 to Gullu as per instruction of Kazi of Pakistan and got a profit of ₹ 8,000/- 22. Thus, it is apparently, the appellant has confessed that apart from the above he received ₹ 35 Lakhs from various persons in India for Kazi sometimes in the year 1997-98 and gave the same to Gullu of Jama Masjid at a premium of ₹ 500/- per one lakh. 23. It is further submitted on behalf of respondent that the above obser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disclosed that he was a Hawala operator and had supplied a sum of ₹ 2 Crore to them for carrying out militant activities in India. Later, the accused Mohd. Muslim allegedly disclosed that he had links with Pakistan based Kazim Ali and Rizwan who were handed over the money in Lahore which was to be sent to militants in India. These two persons then purchased cloth and other articles that were sent to India through passengers and petty smugglers. Mohd. Muslim allegedly further disclosed that he and appellant Jaswinder Singh used to sell these cloth and other articles in the market and collect the money which was then delivered to the various persons in Delhi at the instructions of above said two persons. He allegedly further disclosed that appellant Jaswinder Singh was involved with him and the Pakistan ISI in the said Hawala Business. 27. Hon‟ble High Court while granting bail to the appellant Jaswinder Singh and Mohd. Muslim vide an order dated 3.1.2003 passed in Crl. M.M. 2922 2968 of 2002 has observed as under: The question regarding petitioner s link with the alleged terrorist group or their involvement in any such conspiracy has been examined by the Learne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re the Magistrate‟s Court and according to the department itself three officials of the Enforcement Directorate namely PW 2 Sudhukhan, Shri G.K. Dutta And Shri Pratam Singh were present in Jail when the appellant‟s alleged statement was recorded but the appellant‟s statement has been signed only by the official PW2 J.P. Sadhukhan. c) That the statement is of four pages and the first three pages do not bear the signatures of the appellant and only the last page bears the signatures of the appellant which were fraudulently obtained on some blank papers. d) That there are material corrections in the said statement which have not been initiated by any official not even Pw2 Sadhukhan. e) That in any event the contents of the said statement are contrary to the documentary evidence placed on record in as much as while the appellant was in India during February 1998 he is alleged to have met one Kazi in Pakistan and taken ₹ 60,000/- from him in February, 1998. 30. It is the case of the appellant that he never had any transaction with Shri Mohd. Muslim @ Gullu as alleged and the appellant never received an amount of ₹ 60,000/- from Shri Quzan Ali in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h no reliance can be placed on this inadmissible piece of evidence. 35. The other important issue is that dispute contravention facts which are contrary to the evidence available on record such as pass-port entries as well as entries made in diary with one pen, he was also denied permission to cross examine witnesses notwithstanding a specific request in writing in this regard. It is submitted that the statements made by the co-accused or the officers of the ED cannot be taken as corroboration. The statements should be corroborated from the independent facts and statements are not reliable till their veracity and genuineness is not tested by cross examination. 36. Therefore, under the established principles of natural justice, the appellant requested before the Adjudication Authority for permission to cross examine the witnesses so as to enable them to establish his innocence and to state and/or explain his case. 37. The cross examination of the officers who recorded his statement dated 08.09.1998 (in jail) and that of the IO is imperative in order to arrive at the truth of the matter, it was a perfect case where the crossexamined should have been allowed. 38. In the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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