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TMI Blog2009 (8) TMI 1300X X X X Extracts X X X X X X X X Extracts X X X X ..... for the respondent and gone through the record, relevant law and judicial pronouncements carefully. Briefly stated, the facts giving rise to this appeal are that on a reliable information received against bookies like appellant, Dinesh Mehta @ Kothari @ Santacruz, Sobhan Mehta @ Vicky, Ashok Kamdur @ Royal, Devendra Kothari and Jagmohan Bagri, the residential premises of the appellant, Dinesh Mehta was searched by the Enforcement Officers on 30.09.2002 and as a result of Rs. 2,50,000/- along with certain documents were seized. The official premises M/s. Bharat Tours Travels was also searched on the same date where Rs. 4,00,000/- and certain documents were recovered during the search. 4. During investigation, it was found that Dinesh Mehta @ Kothari @ Dinesh Santacruz has paid totaling to Rs. 51 lakhs to bookies like Sobhan Mehta, Hitesh Samrat. Devendra Kothari and Rafiq Ahmet @ Raees for the credit of different persons resident outside India during 1997-98 to October, 2002 without the permission of RBI and thus committed contravention of the provisions of Section 3(d) of the FEM Act, 1999. 5. It also emerged that Dinesh Merita had received Rs. 2,50,000/- from Ashok Kamdar @ Ashok ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to person residing in India only and the statement of other co-accused has no relevance to the facts of the case. There is nothing wrong in dealing with Indian in Indian currency hence there was no violation of the provisions of the FEM Act, 1999 and the impugned order was liable to be set aside. 8. It would be appropriate here to mention the relevant provisions of FEMA, 1999 regarding the receipt or payment Indian currency in India on instructions of a person resident outside India for better appreciation of legal position which is provided as under: Section 3 - Dealing in foreign exchange, etc. Save as otherwise provided in this Act, rules or regulations made thereunder, or with the general or special permission of the Reserve Bank, no person shall - .. (b) make any payment to or for the credit of any person resident outside India in any manner; (c) receive otherwise through an authorised person, any payment by order or on behalf of any person resident outside India in any manner. Explanation For the purpose of this clause, where any person in, or resident in, India receives any payment by order or on behalf of any person resident outside India through any other person (includi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ber- December 2001 in two to three instalments to settle the account of profit of Shri Sunil Khubchandani @ Popat of Dubai. He further stated as under: ... he was introduced to Sunil Khubchandani @ Popat by Hitesh Samrat when he visited Dubai with him and Ashok Royal having Tel. No.880 0941 in November 2000. He was introduced to Raees, intermediary of Miyan Saheb by Shri Sobhan. He was provided conference call facility by Raees to talk to Miyan Saheb. Miyan Sheb was also contacting him on his Mobile and residence number. 10. The statement of the appellant is fully corroborated by the statement of Deven Kothari, Ashok Kamdar and Rafiq Ahmed which was recorded on 28.10.2002. Rafiq Ahmed deposed that he was running the STD Booth since last six to seven years. The regular customers were availing a conference facility from his centre who were engaged in the betting in cricket matches. They were availing the service to contact the bookies abroad. He named customers as Sobhan @ Vicky, Ashok Royal, Devendra Kothari and Dinesh Mehta @ Dinesh Santacruz. He farmer deposed that his elder brother, Raees who is in Abu Dhabi presently was previously running the STD Booth. His business was not run ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om his residence on 02.10.2002. About the foreign based parties, be deposed that he dealt with Miya Saheb (Pakistan), Nayyar (Pakistan), P.K. (Pakistan) and others. He was continuing dealing with Miya Saheb (Pakistan), Nayyar (Pakistan). He deposed that he came in contact with these parties in the year 1997-98 through Dinesh Santacruz and Sobhan as they were already dealing with them. He further deposed that Raees was intermediary of Miya Saheb (Pakistan), Nayyar (Pakistan) and Baba Satyam was intermediary for Hazi Farookh and P.K. Eaba. 14. As regards appellant, he admitted that he paid Rs. 2.5 lakhs to Dinesh Santacruz on instructions of Miya Saheb on 28.09.2002 in lieu of his profits earned during India v. South Africa, one day International match in Championship Trophy separately. When confronted with the statement of Dinesh Santacruz dated 01.10.2002, he confirmed the contents mentioned therein about him. He provided the details about the receipt and the payments of Indian Currency in their dealing with bookies. 15. The statement of Rajenera Anadkat was also recorded on 05.06.2003 who had terrorist link and had also dealt with Indian bookies. He admitted having paid and receiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r by any improper means that statement must be rejected brevi manu. At the same time, it cannot be recorded as involuntary or unlawfully obtained. It is only for the maker of the statement who alleges inducement, threat, promise, etc, to establish the such improper means has been adopted. 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 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 voluntary one only. On this principle of law, this Court in several decisions has ruled that even in passing a detention order on the basis an inculpatory statement of a detenue who has violated the provisions of the FERA or the retraction and record its opinion before accepting the inculpatory statement lest the order will be vitiated. ***** 18. The officers working in Enforcement Directorate are not polic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... indulged in receiving any making payments on instructions of persons resident outside India. The statement of Rafiq Ahamed was recorded on 28.10.2002 where he deposed as under: ... he is running the STD Booth since the last 6/7 years. He has some regular customers who are availing conference facility from him and they are engaged in betting in cricket matches. They are availing the service to contact the bookies abroad. Such customers are Sobhan @ Vicky, Ashok Royal. Devendra Kothari and Dinesh Mehta @ Dinesh Santacruz. He further stated his elder brother Shri Raees who is in Abu Dhabi presently was previously running the STD Booth. Since his business was not running well, his brother asked him to provide conference facility to some bookies of Pakistan like Miya Saab, Nayar and Sohil Karachi to have contact with Sobhan , Dinesh Mehta, Devendra Kothari and Ashok Royal He was getting the payments in cash. For his service during the last 2/3 years he has received Rs. 2.5 lakh from Sobhan @ Vicky, Rs. 1 lakh from Dinesh Mehta, Rs. 1 lakh from Ashok Royal and Rs. 50,000/- from Devendra Kothari all on instructions of Miya Saab. 20. Thus close association of the appellant, is established ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ilt. There is no law which forbids acceptance of a voluntary and true admissional statement if the same is later retracted on bald assertion of threat and coercion. In this regard, judgment in K.I. Pavunny v. Assistant Collector (HQ). Central Excise Collectorate, Cochin, [1997] 3 SCC 721 where the Hon'ble Supreme Court observed as follows :- It would thus be seen that there is no prohibition under the Evidence Act to rely the upon retracted confession to prove the prosecution case or to make the same basis for conviction of the accused. Practice and prudence require that the court could examine the evidence adduced by the prosecution to find out whether there are any other facts and circumstances to corroborate the retracted confession. It is no: necessary that there should be corroborates from independent evidence adduced by the prosecution to corroborate each detail contained in the confessional statement. The court is required to examine whether the confessional statement is voluntary; in other words, whether it was not obtained by threat, duress or promise. If court is satisfied from the evidence that it was voluntary, then it is required to examine whether the statement is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hardly help the appellant where the other Bookies Devendra Kothari, the appellant himself, and Ashok D. Kamdar had confirmed dealings with him in betting business with regard to overseas Bookies. Though Sobhan S. Mehta denied having known Devendra Kothar Dinesh Mehta and Ashok Royal etc. but admitted having known their names in the market in the circle of cricket betting. It has rightly been observed by the Adjudicating Officer that the denial has been made by Sobhan Mehta only with a view to escape intricacies of law. 26. The third recipient Hitesh Samrat could not be examinee by the respondent. It is argued by the appellant that statement of Hitesh Samrat has not been recorded where inference was to be drawn in favour of the appellant for total want of evidence. This contention is devoid of merits as each and every recipient was not required to be examined by the respondent. The unauthorized activities of the hawala payments in the name of cricket betting as analyzed in this case are committed in the secrecy, and the noticees could not be expected to have regular accounts books prepared for their clandestine activities. 27. The appellant admitted having received payments and havi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thmetic precision. The court or Tribunal has to assure self for arriving at a correct decision but hyper technicality of connecting one evidence with another in a mechanical system cannot be adopted. The law allows the proper judicial mind a little space in joints, in this regard; it will be apt to reproduce paras 30 to 22 of the reports in Collector of Customs, Madras Ors. V. D. Bhoormull AIR 1974 SC 859 which are as under: 30. It cannot be disputed that in proceedings for imposing penalties under Clause (8) of Section 167 to which Section 178-A does not apply, the burden of proving that the goods are smuggled goods, is on the Department. This is a fundamental rule relating to proof in ail criminal or quasi-criminal proceedings, where there is no statutory provision to me contrary. But in appreciating its scope and the nature of the onus cast by it, we must pay due regard to other kindred principles, no less fundamental, of universal application. One of them is that the prosecution or the Department is not required to prove its case with mathematical precision to a demonstrable degree for, in all human affairs absolute certainty is a myth, and as Prof. Brett felicitously puts it - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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