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TMI Blog2024 (9) TMI 1035X X X X Extracts X X X X X X X X Extracts X X X X ..... urnished 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. A number of hearings were given to the Appellants during the course of the Adjudication proceedings. In the Appeals before us we find that the Ld. Adjudicating Authority has taken note of the statements of persons who were named in the seized documents and diaries as well as of documents recovered from them Contraventions by the two Appellants are established. Ld. Counsel for the Appellants has pleaded for reduction in penalties due to economic status of the two Appellants. In the order dated 01.08.2008, this Tribunal reduced the pre deposit to 10% of the penalty which have already been deposited by the two Appellants in 2011 and 2012. We find that the ends of justice will be met if the penalties are reduced to the amounts of pre deposit made. Therefore, the penalty on the Appellant Shri Mustaq Mohd. Patel is reduced to Rs. 13,50,000/- and the penalty on the Appellant Shri Mohammed Rafiq Ali Patel is reduced to Rs. 1,35,000/-. - JUSTICE MUNISHWAR NATH BHANDARI : CHAIRMAN And SHRI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 30th September, 2008. On 30.10.2009, this Tribunal ordered dismissal of the two appeals for non-compliance of the order dated 01.08.2008 with respect to pre deposit of the penalties. In view of the Hon ble Gujarat High Court order dated 23.09.2011 the Appeals were restored to the original positions. The Appellant Shri Mohammed Rafiq Ali Patel made pre deposit of Rs. 1,35,000/- through seven demand drafts, between 22.11.2011 26.12.2011, to satisfy of the order dated 01.08.2008. The Appellant Shri Mustaq Mohd. Patel through various demand drafts made between November, 2011 to January, 2012 satisfied the condition of pre deposit of Rs. 13,50,000/-. 3. Ld. Counsel for the Appellants stated that the impugned order has been passed ex-parte in breach of principles of natural justice. The application from the advocate that he was not well was not noticed by the Ld. Adjudicating Authority. No fresh notice of hearing was issued before passing the order on 26.04.1999. Even the replies from the two Appellants were not considered. There is no independent material to indicate that the order was received from a person resident outside India. The statement of Shri Yogesh Bhatt, the Angadiya was n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Notice, Noticee No. 1 3 had sent telegrams seeking adjournments. A fresh call notice was issued to the noticees fixing personal hearing on 10.4.96. In response to which noticee No. 3 had sent a letter dated 8.4.96 stating that he is a poor man he could not appear personally as such his case may be decided on the basis of his reply filed which was followed by another Call notice was issued to the noticees fixing P.H. on 14.6.96. In response to the latest call notice, Sh. Qureshi Aftab, Advocate had filed a letter dated 12.6.96 on behalf of noticee No. 1 2 seeking adjournment. He also filed vakalatnama for noticee No. 1 2. A fresh C/N dated 19.6.96 was issued to the noticees fixing personal hearing on 3.7.96 a copy of which was endorsed to Sh. Qureshi M. Aftab, Advocate of Noticee No. 1 2. However nobody appeared for personal hearing. From the above facts I find that noticees were issued with Call notices on various occasions and they had chosen to either ignore the same or to seek adjournment on one pretext or another. I have therefore decided to adjudicate the case ex-parte on basis of replies filed by the noticees. 6. Ld. Counsel for the Respondent argued that the Ld. Adjudicatin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bhatt had further established the alleged receipts of amounts by them as per the instructions of their relatives. These facts went on to establish that the writings on the seized documents contained the details of payments received and distributed, allegedly by Noticee No. 1. The figures indicating the alleged receipts and disbursement of amounts as mentioned in the SCN were apparently arrived at on the basis of the figures in the seized diaries. Besides the above documents seized from the residence of noticee No. 2, certain documents were also seized from the residence of notice No.1, wherein the names of certain persons were written which were already figuring in the seized diaries. From the above facts, it is observed that Sh Mustaq Mohd. Patel was actively engaged in the receipt and distribution of amounts in India as per the instructions of his brother Sh. Ayubbhai of Canada. The figures as revealed from the seized documents establish that the noticee No.1 had received amount totaling Rs. 2,70,96,000/- from persons in India as per the order of his brother in Canada and further made payments totaling Rs. 2,70,14,712/- to person resident in India as per the order of his brother ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alty of Rs. 13,50,000/- (Rupees Thirteen Lakhs and Fifty Thousand only) on said Sh. Mohd. Rafiq Ali Patel in terms of sec 50 of the Act should meet the ends of justice. Ld. Counsel for the Respondent pleaded that in view of the aforementioned findings by the Ld. Adjudicating Authority, the Appeals may please be dismissed. 7. We have carefully considered the rival submissions and the material on record. We find that the Appellant Shri Mustaq Mohd. Patel was working in a shop in Surat of his maternal uncle for a salary of Rs. 2,500/- per month. During the search u/s 37 FERA on 27.03.1992 at the residential premises of the Appellant Shri Mustaq Mohd. Patel five loose sheets were seized and at the residence of the Appellant Shri Mohammed Rafiq Ali Patel three diaries and ten loose sheets were seized. Panchnamas were drawn to this effect. Statements of the two Appellants were recorded under Section 40 of FERA on 27.03.1992. The Appellants were arrested under Section 35 of FERA on the same date and produced before the Chief Judicial Magistrate, Surat who remanded them to judicial custody up to 03.04.1992. The Appellants had filed bail applications before the Sessions Court which were rej ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ature of explanation of the documents seized from their residential premises. The content of the statements bring out not only the figures of the amounts which were received and distributed on the orders of person abroad as noted in the seized documents but also names of persons who either received the amounts or assisted in distribution of such amounts. There is admission in the statement of the Appellant Shri Mohammed Rafiq Ali Patel that the entries in the diary pertain to the hawala payment made by the Appellant Shri Mustaq Mohd. Patel under the instructions of his three brothers living in Canada. He has also explained the code used in the seized diaries as well as his role in assisting Shri Mustaq Mohd. Patel. He has given explanation about the commission paid and the rate at which these have been paid. He has admitted having assisted Shri Mustaq Mohd. Patel. The statement of Shri Mustaq Mohd. Patel has not only confirmed the statement of Shri Mohammed Rafiq Ali Patel but also has an admission that the amounts were sent by his brother named Ayyub residing in Canada who gave him instructions through letter or telephone. He also admitted that the documents seized from the reside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the noticee can be relied upon. In the Judgement (Supra) following has been observed in paragraph 23: 23. It is trite law that evidence brought on record by way of confession which stood retracted must be substantially corroborated by other independent and cogent evidence, which would lend adequate assurance to the court that it may seek to rely thereupon. We are not oblivious of some decisions of this Court wherein reliance has been placed for supporting such contention but we must also notice that in some of the cases retracted confession has been used as a piece of corroborative evidence and not as the evidence on the basis whereof alone a judgment of conviction and sentence has been recorded. In K.T.M.S Mohamed Vs. Union of India [(1992) 3 SCC 178] the Hon ble Supreme Court held that merely because statement is retracted, it cannot be regarded as involuntary or unlawfully obtained. In this regard, following observations were made in paragraph 34 : 34. But suffice it to say that the core of all the decisions of this Court is to the effect that the voluntary nature of any statement made either before the Custom Authorities or the officers of the Enforcement under the relevant pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... persons who were named in the seized documents and diaries as well as of documents recovered from them. In this regard, the Hon ble Supreme Court has made the following observations in paragraph 28 of the judgment Telstar Travels Private Limited Ors. V. Enforcement Directorate, (2013) 9 SCC 549. : 28. Coming to the case at hand, the adjudicating authority has mainly relied upon the statements of the appellants, and the documents seized in the course of the search of their premises. But, there is no dispute that apart from what was seized from the business premises of the appellants, the adjudicating authority also placed reliance upon the documents produced by Miss Anita Chotrani and Mr Raut. These documents were, it is admitted disclosed to the appellants who were permitted to inspect the same. The production of the documents is not subjected to cross-examination. Such being the case, the refusal of the adjudicating authority to permit cross- examination of the witnesses producing the documents cannot even on the principles of the Evidence Act be found fault with. At any rate, the disclosure of the documents to the appellants and the opportunity given to them to rebut and explain ..... X X X X Extracts X X X X X X X X Extracts X X X X
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