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TMI Blog2024 (9) TMI 121X X X X Extracts X X X X X X X X Extracts X X X X ..... ities given to the Appellants earlier that the impugned Order is vitiated by the violation of the principles of natural justice. The retractions have been dealt with by the Respondent Directorate from time to time as mentioned in the afore cited paragraphs. Since, the statements were explanatory in nature, providing explanation of the documents recovered during the search, the denial of cross-examination does not cause pre-judice to the interest of the Appellants. It is to be noted that since Sh. Samsul Huda was resident of Dhaka, the demand to cross-examine him was ab initio infructuous. The Appellant Sh. Liakat Ali failed to cooperate during the investigation and the adjudication proceedings. His belated participation through his Appeal at this stage cannot come to his rescue as to deny his involvement by raising the bogey of the alleged person being someone else other than him, without any corroboration. After having served the SCN and having furnished the relied upon documents, even so during the proceedings of adjudication, there does not appear to be any prejudice caused to the interest of the Appellants by the denial of cross examination, which in any case may not have been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Appellants challenged the impugned Order on the grounds of the violation of principles of natural justice. Their prayer for cross-examination was not granted. The Ld. Adjudicating Authority failed to consider the opinion of the handwriting expert with respect to the matter written on the diaries and certain loose sheets recovered during the search. The statements which were recorded by the Appellants were retracted as during the custody they were tortured and beaten. Ld. Adjudicating Authority did not consider the medical reports furnished in this regard. In fact, reports of injury of Sh. Nand Lal Sarwogi, Sh. Banik and Late Sh. Uttam Sarwogi had not been considered by the Ld. Adjudicating Authority. No enquires had been made as to establish the identity of Sh. Samsul Huda under whose instructions the alleged illegal payments and receipts had been indulged in by the Appellants. The counsels contended that the Advisory Board did not find sufficient cause for the detention of Sh. Nand Lal Sarwogi, and Late Sh. Uttam Sarwogi under COFEPOSA. This Tribunal also allowed the Appeal No. 180/1995 of Sh. Nand Lal Sarwaogi vide its order dated 16.01.2003 in another matter. 4. Ld. Counsels ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut reaching any finality. In the circumstances and having given sufficient opportunities, I am inclined to decide the case on the basis of materials/submissions on record. 41. During the course of the proceedings, the noticees requested for cross-examination of the co-noticees and the reasons given for such demand were that the statements were recorded by use of threat, coercion etc. and such statements were retracted by the said persons who made the statements. The noticees also questioned the search and seizure operations stating that the documents were fabricated in the office of the Enforcement Directorate and incriminating materials were incorporated in the said documents with motive of implicating the noticees. On examining the said contentions adduced by the noticees, I find that the averments of the noticees are without any documentary and material backings. It is, but natural on the part of any person accused of an offence to raise such unreasonable and baseless allegations when they are faced with the legal proceedings. To accept and consider such submissions, the noticees should furnish evidences to prove such allegations. In this case except leveling such wild and bald ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alongwith name and addresses of the persons from whom payments were received, amounts received, dates of receipts, names and addresses of the recipients. In this regard, I find that the amounts involved in the violations of Section 9(1)(b) and 9(1)(d) of the FERA, 1973 had been derived from the documents seized from the business premises of M/s Ritika Enterprises at 1, Singhee Dutta Lane, Kolkata on 30.12.1993. The seized documents marked A, B C contained the accounts of receipts and payments made by the noticees namely, S/Shri Uttam Saraogi and Nandlal Saraogi and the said documents were explained by them in their statements recorded in terms of Section 40 of the FERA, 1973. These seized documents as well as the statements recorded from the noticees were relied upon in the SCN. Further statement of Sh. Jnan Bikash Banik who was implicated by the said noticees was also recorded on 11.1.1994 in which he admitted the transactions. The noticees had taken inspection of the original relied upon documents and copies of the same were furnished to them. In the circumstances the noticees contentions that the Adjudicating Authority should provide the aforesaid details became irrelevant as al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntentions had no relevance at this stage. 7. From the afore cited paragraphs of the impugned Order we find that the contentions which have been reiterated during the present proceedings had been meticulously dealt with by the Ld. Adjudicating Authority. The relied upon documents were provided to the Appellants. It does not appear to be convincing that merely because hearing was not held just before the passing of the impugned Order, in-spite of a number of opportunities given to the Appellants earlier that the impugned Order is vitiated by the violation of the principles of natural justice. The retractions have been dealt with by the Respondent Directorate from time to time as mentioned in the afore cited paragraphs. Since, the statements were explanatory in nature, providing explanation of the documents recovered during the search, the denial of cross-examination does not cause pre-judice to the interest of the Appellants. It is to be noted that since Sh. Samsul Huda was resident of Dhaka, the demand to cross-examine him was ab initio infructuous. The Appellant Sh. Liakat Ali failed to cooperate during the investigation and the adjudication proceedings. His belated participation t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpletely relieved of its 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. We find that the ld. Adjudicating Authority has duly considered the subsequent retraction and recorded its opinion before accepting the inculpative statement. We also find that this confessional statement have been corroborated by other independent and cogent evidence as have been brought out in the paragraphs from the impugned Order which have been cited afore. 9. After having served the SCN and having furnished the relied upon docume ..... X X X X Extracts X X X X X X X X Extracts X X X X
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