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TMI Blog2009 (6) TMI 1031X X X X Extracts X X X X X X X X Extracts X X X X ..... d 15.5.08 the appellant, to make pre-deposit of 50% penalty. The appellant has complied with this pre-deposit order. Presently this appeal is taken up for final disposal on merits. 3. We have heard lengthy arguments from Shri A.M. Sachwani, Advocate who has also filed synopsis of his argument which are taken on record. On behalf of Enforcement Directorate Shri A.C. Singh, DLA, conducted arguments. 4. Learned counsel Shri A.M. Sachwani argued that recovered loose chits cannot be taken into evidence and seized Indian currency of Rs. 6,70,000/- is not at all involved in contravention of FER Act 1973. The appellant was detained in custody for more than 38 hours along with another person named Chandulal S. Mayank when admissional statements of the appellant as well as of other detenu were recorded under threat and coercion so are retracted, hence, cannot be taken as basis against the appellant to hold him guilty as per the judgment in (i) Vinod Solanki v. Union of India 2009 (233) ELT 157 (SC) and (ii) Mohtesham Mohd. Ismail v. Special Directorate, Enforcement Directorate 2007 (10) SCR 804. Further arguments are made that appellant was released on bail when he made application for medic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of account book under Section 34 Indian Evidence Act. Moreover, the provisions of Indian Evidence Act ipso facto are not applicable to the FERA proceedings. 7. There is no denial that appellant admitted in his statement of having received amount of US dollar 597766 from Manu of Dubai in lieu of payment of 77626436 to co-noticee Chadulal A. Mayank on the instructions of aforesaid Manu of Dubai. The admissional statement when recorded from a senior citizen suffering from heart ailments during long period of detention can hardly make the admissional statement inadmissible irrelevant. There is nothing available in Indian Evidence Act whereby statement recorded during long detention becomes inadmissible except when threat and coercion is used. The description of threat and coercion by appellant is quite late and more so at the time of granting of bail. Therefore, it is possible to agree with the arguments that admissional statement cannot be taken into evidence without corroboration. Moreover to assure this Tribunal, there is corroboration from recovered chits and admissional statement of co-noticee. The factual position in this appeal is distinguishable, hence, the legal percepts lai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed (i) Ravi Chopra, (ii) Rakesh Kumar Arora, (iii) Ramesh Aurora, (iv) Ashok Dhanjani, (v) Ramlal Chawla, (vi) Dinesh Chander Tuteja and (vii) Smt. Rita Bhardwaj who described amounts paid by them to co-noticee Chandulal Mayank with whom the appellant is in hand and glow, hence, doing things prohibited by the provisions of section 9(1)(b), 9(1)(d), 9(1)(f )(1) FER Act. It is on record that payment is either received or further made on the instructions of two non-resident persons named Bali Ram and Manu of Dubai. Hence it is not possible to take them separately and to identify on whose instructions. In this regard we may cite the observations made in Collector of Customs, Madras Ors. v. D. Bhoormull AIR 1974 SC 859 and it will be apt to reproduce paras 30 to 32 of the reports 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 all criminal or quasi-criminal proceedings, where there is no statutory provision to the contrary. But in appreciating its sco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oubt, presumptio juris; but every day's practice shows that it may be successfully encountered by the presumption of guilt arising from the recent (unexplained) possession of stolen property , though the latter is only a presumption of fact. Thus the burden on the prosecution or the Department may be considerably lightened even by such presumption of fact arising in their favour. However, this does not mean that the special or peculiar knowledge of the person proceeded against will relieve the prosecution or the Department altogether of the burden of producing some evidence in respect of that fact in issue. It will only alleviate that burden to discharge which very slight evidence may suffice. The aforesaid principle has been approved and followed in Balram Prasad Agrawal v. State of Bihar Ors. AIR 1997 SC 1830 where a married woman had committed suicide on account of ill-treatment meted out to her by her husband and in-laws on account of demand of dowry and being issueless. The question of burden of proof where some facts are within the personal knowledge of the accused was examined in State of West Bengal v. Mir Mohammad Omar Ors. [2000] 8 SCC 382. In this case the assailants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... logical conclusion as the most probable position. The above principle has gained legislative recognition in India when section 114 is incorporated in the Evidence Act. It empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process the court shall have regard to the common course of natural events, human conduct etc. in relation to the facts of the case. 10. Therefore, this appeal does not contain merit and is required to be dismissed. The impugned order is correctly passed where corroboration in material particulars is available from recovered chits to assure truthfulness of the admissional statement. Further statements of recipients of money on instructions from abroad also give assurance of truthfulness of the allegations. Hence, the impugned order is required to be affirmed and sustained. 11. For the reasons stated hereinabove, this appeal is dismissed having no merits. The impugned order is sustained and maintained. The pre-deposited amount of 50% penalty may be appropriated towards penalty. Further the appellant is allowed to deposit remaining amount of penalty within a week from the date of receipt of this order failing whi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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