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TMI Blog2008 (8) TMI 1034X X X X Extracts X X X X X X X X Extracts X X X X ..... ter acquiring the status of a person resident in India, (2) received payment of Rs. 16,26,500 as consideration and in lieu of payment of US dollars 75000 and Singapore dollar 61663.40; and (3) unauthorisedly acquired US dollars 62790 and Japanese Yen 7236950 and further failed to surrender the same to authorized dealer within a period of three months from the date he arrived in India. 3. The application for dispensation of pre-deposit is disposed off by FERA Board by order dated 29.10.1991 allowing the appellant to make pre-deposit of a penalty of Rs. 8,00,000. The appellant complied with this pre-deposit order. Presently, this appeal is taken up for final disposal on merits. 4. The following five Show Cause Notices were issued to the appellants asking them to show cause why adjudication proceedings should not be held against him:- (a) No. T-4/36-B/86-(SCN-IV) dated 31.10.1986 alleged that the appellant firstly otherwise acquired and thereafter transferred US dollars 62,793 to the bank account of M/s Greenland Corporation. Japan, maintained in Bank of Credit and Commercial International Hongkong, which amount the appellant failed to offer for sale within three months from the date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Manager and is a person resident outside India. Therefore, holding the appellant guilty for contravention of different provisions of FER Act, 1973, is totally wrong. Per contra, Shri A.C. Singh, DLA, supported the impugned order. 6. The main argument on behalf of the appellant is that he had not been a person resident in India as per the provisions of Section 2(p) Foreign Exchange Regulation Act, 1973. Another argument made is that the Show Cause Notices is not served on the appellant, hence, principles of natural justice are violated. 7. The definition of a person resident in India and a person resident outside India as couched by legislature are found in Section 2(p) and 2(q) Foreign Exchange Regulation Act, 1973, which brought out below :- Section 2(p) person resident in India means - (i) a citizen of India, who has, at any time after the 25th day of March, 1947, been staying in India, but does not include a citizen of India who has gone out of, or stays outside, India, in either case - (a) for or on taking up employment outside India, or (b) for carrying on outside India a business or vocation outside India, or (c) for any other purpose, in such circumstances as would indicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... slation or intention when the language of provision is plain and unambiguous. It cannot add or subtract words to a statute or read something into it which is not there. It cannot rewrite or recast legislation. It is also necessary to determine that there exists a presumption that the legislature has not used any superfluous words. It is well-settled that the real intention of the legislation must be gathered from the language used. It may be true that use of the expression shall or may is not decisive for arriving at a finding as to whether the statute is directory or mandatory. But the intention of the legislature must be found out from the scheme of the Act. It is also equally well-settled that when negative words are used, the courts will presume that the intention of the legislature was that the provisions are mandatory in character. Further, in Gurpreet Singh Bhullar v. Union of India 2006 (3) Scale 135, the judgment of Balram Kumawat v. Union of India (2003) 7 SCC 628 is extensively quoted as under :- Furthermore, even in relation to a penal statute any narrow and pedantic, literal and lexical construction may not always be given effect to. The law would have to be interprete ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 2(q) FER Act, 1973. Therefore, the appellant has got to be taken as a person resident in India for all practical purposes. More so when the appellant continued to reside in India not only from 1985 but till 1991 1992 when this appeal was heard by FERA Board and the appellant approached the High Court of Judicature at Bombay by filing a Civil Writ Petition. He had also been closely watching the writ proceedings filed and undertaken by co-noticee Ganesh Narain Jatia about whom he had been sending information to FERA Board. 10. Though a certificate of registration issued under Regulation of Alien Registration Law by Japan is filed before this Tribunal, as available at page 55 of the records, but this certificate describes the stay period from 14.1.1989 till 13.1.1990. This certificate describes the date of the issuance of certificate as 26.11.1988. In this situation, it is difficult to accept this certificate as a proof of non-resident status of the appellant, especially when the certificate is otherwise ante dated but description of foreign residency is post dated. By date of registeration the period of stay had not started, hence, can be labeled as imaginary bearing no factual a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not necessary to recapitulate and recite all the decisions on this legal aspect. But suffice 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 Customs authorities or the officers of Enforcement under the relevant provisions of the respective Acts. Is a sine qua non to act on it for any purpose and if the statement appears to have been obtained by any inducement, threat, coercion or 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 that 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 authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fter referring to various judgements on this subject in State (NCT) Delhi v. Navjot Sandhu @ Afsan Guru 2005 (122) DLT 194 (SC) as follows :- 27. We start with the confessions. Under the general law of the land as reflected in the Evidence Act, no confession made to a police officer can be proved against an accused. 'Confessions' which is a terminology used in criminal law is a species of admissions as defined in Section 17 of the Evidence Act. An admission is a statement, oral or documentary which enables the court to draw an inference as to any fact in issue or irrelevant fact. It is trite to say that every confession must necessarily be an admission, but, every admission does not necessarily amount to a confession. While sections 17 to 23 deal with admissions, the law as to confessions is embodied in sections 24 to 30 of the Evidence Act. Section 25 bars proof of a confession made to a police officer. Section 26 goes a step further and prohibits proof of confession made by any person while he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate. Section 24 says down the obvious rule that a confession made under any inducement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss prompted by his conscience to tell the truth. Deliberate and voluntary confessions of guilt, if clearly proved are among the most effectual proofs in law. (Vide Taylor's Treatise on the Law of Evidence, VI. I) However, before acting upon a confession the court must be satisfied that it was freely and voluntarily made. A confession by hope or promise of advantage, reward or immunity or by force or by fear induced by violence or threats of violence cannot constitute evidence against the maker of the confession. The confession should have been made with full knowledge of the nature and consequences of the confession. If any reasonable doubt is entertained by the court that these ingredients are not satisfied, the court should eschew the confession from consideration. So also the authority recording the confession, be it a Magistrate or some other statutory functionary at the pre-trial stage, must address himself to the issue whether the accused has come forward to make the confession in an atmosphere free from fear, duress or hope of some advantage or reward induced by the persons in authority. Recognizing the stark reality of the accused being enveloped in a state of fear and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... retracted confession without finding assurance from some other sources as to the guilt of the accused. Therefore, it can be stated that a true confession made voluntarily may be acted upon with slight evidence to corroborate it, but a retracted confession requires the general assurance that the retraction was an afterthought and that the earlier statement was true. This was laid down by this Court in an earlier case reported in Subramnia Goundan v. State of Madras [1958 SCR 428 : 1958 Cri LJ 238] 33. The same learned Judge observed in Haroon Haji Abdulla v. State of Maharashtra [(1968) 2 SCR 641 : 1968 Cri LJ 1017] that a retracted confession must be looked upon with greater concern unless the reasons given for having made it in the first instance are on the face of them false . There was a further observation in the same paragraph that retracted confession is a weak link against the maker and more so against a co-accused. With great respect to the eminent judge, the comment that the retracted confession is a weak link against the maker goes counter to a series of decisions. The observation must be viewed in the context of the fact that the court was concentrating on the confessio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nces and probabilities of the case. If on such examination and comparison, the confession appears to be a probable catalogue of events and naturally fits in with the rest of the evidence and the surrounding circumstances, it may be taken to have satisfied the second test. 37. In Parmananda Pegu v. State of Assam [(2004) 7 SCC 779 : 2004 SCC (Cri.)2081] this Court while adverting to the expression corroboration of material particulars used in Pyare Lal Bhargava case clarified the position thus: (SCC p. 790, para 20) By the use of the expression 'corroboration of material particulars the Court has not laid down any proposition contrary to what has been clarified in Subramania Goundan case as regards the extent of corroboration required. The above expression does not imply that there should be meticulous examination of the entire material particulars. It is enough that there is broad corroboration in conformity with the general trend of the confession, as pointed out in Subramania Goundan case. The analysis of the legal position in paras 18 and 19 is also worth noting: (SCC p. 788). 18. Having thus reached a finding as to the voluntary nature of a confession, the truth of the conf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... officers under the NDPS Act in relation to arrest, search and seizure were similar to powers vested on officers under the Customs Act. Nothing new has been submitted which can persuade us to take a different view. 16. Lastly, it is argued that proof beyond reasonable doubt is not reached. Here, it can be said that though proof beyond doubt is a burden on Enforcement Directorate under Section 59(2) FER Act, but this burden cannot be stretched to mathematical precision or imaginary heights, otherwise, task of prosecuting agency will become unreachable. In this regard, we may refer to the observations of Hon'ble Supreme Court in Collector of Customs, Madras 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 all criminal or quasi-criminal proceedings, where there is no statutory provision to the contrary. But in appreciating its scope and the nature of the onus cast by it, we must pay due regard to other kindred princ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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