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TMI Blog2008 (7) TMI 1107X X X X Extracts X X X X X X X X Extracts X X X X ..... its. 3. I have heard elaborate arguments from Shri. J.S. Arora, Advocate, on behalf of the appellant and Shri. A.C. Singh, DLA, for the respondent and gone through the record, relevant law and judicial pronouncements carefully. The appellant is charged in this case for having received Rs. 20.50 lakhs from Prithviraj Sheth on instructions of one Hirmani, a person resident outside India, without the permission of RBI. The appellant was asked to show cause why the seized amount of Rs. 13 lakhs should not be confiscated against him under Section 63 of the FERA. The appellant was held guilty by the Adjudicating Officer and being aggrieved this appeal has been preferred by the appellants against the impugned order. 4. This is the second round of litigation where the first judgement of Special Director dt.31.07.2000 was challenged before this Tribunal and the matter was remanded back for fresh adjudication where impugned Adjudication order no. ADJ/336/B/SDE/AKB/2003/ 5835 dt. 07.08.03 has been passed by Special Director, Directorate of Enforcement, Mumbai again imposing a penalty of Rs. 5,00,000. 5. Briefly stated the facts giving rise to this appeal are that the Enforcement Directorate c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ia whereas the amount received has wrongly been shown as Rs. 20.50 lakhs and the figures mentioned in the SCN and stated by the appellant did not tally where the inference was to be drawn in favour of the appellant The contradictions related to the material point and the impugned order was liable to be set aside. 7. However, on analyzing the factual situation it is found that Prithviraj Sheth in his statement dt.05.05.99 and 06.05.99 and 13.05.99 admitted that he was also known as Kishorebhai @ Kapil @ Salim and was indulged in receiving and making payments on instructions of Shri. Babulal Bisnoi and Shri. Ghanshyam of Dubai. When confronted with the notebook marked 'A' seized from his premises containing the details of payments made by him in Mumbai from 19.04.99 to 05.05.99 on the instructions of one JP of Dubai he explained its contents. A notebook marked 'B' also contained the names of those persons to whom he had made payments, the appellant was one of the persons whose name and address was found noted in diary marked 'A' on page no.38 and 41. The appellant was located and identified on the basis of information contained in the documents seized from Pri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssional statement from them and the appellant has not been able to produce any evidence in support of his case. Moreover, there is inordinate delay in retraction of the statement by the appellant which has not been explained. The burden of proving the fact that the statement was recorded under force was on the appellant himself which he has not been able to discharge. 10. The retraction of the said statements where there is nothing to support the case of the appellant cannot be of any avail to the appellant. There is mere bald statement where no inference can be drawn in their favour. The burden of proving the fact that the said confessional statements were obtained under duress and threat was on the appellant himself. KTMS Mohd. v. UOI (1992) 3 SCC 178 can be referred here wherein the Supreme Court observed as follows : - We think it 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there is sufficient corroboration to prove the charge against the offender. To quote the relevant para: It would thus be seen that there is no prohibition under the Evidence Act to rely upon the 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 not necessary that there should be corroboration 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 true. If the court on examination of the evidence finds that the retracted confession is true, that part of the inculpatory portion could be relied upon to base the conviction. However, prudence and practice require that court would seek assu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... admittedly employees of Prithviraj Sheth were found present with the appellant in his premises on the spot by the officers during search and their presence could not be explained in this case. The statements of Babulal Bisnoi and Ramlal Bisnoi incriminating the appellant could not be explained where an adverse inference is the natural consequence. Why they will implicate the appellant has not come on record. Viewed in this perspective, I am of the considered opinion that the search as well as seizure action was in accordance with law and procedure. 16. I find no force in the argument of Ld. Counsel Shri. J.S, Arora that the opportunity of cross examination was not given to the appellant where his right for natural justice has been violated. Here it will be relevant to mention the ruling of Supreme Court in Surjit Singh Chhabra v. UOI, 1997 SCC (Criminal) 272 where the Hon'ble Court observed that the customs officials were not police officials and the cross examination of the witnesses was denied on the grounds of the failure of the noticees to give any sufficient reason for the same. The Court observed that the denial of the cross examination under such circumstances was not v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , task of prosecuting agency will become unreachable. The Enactment like FERA are legislations which cover a wide network of offences which go under the sobriquet of 'White Collar Crimes' or economic offences which tend to jeopardize national economy and national interest. The economic offenders who ruin the economy of the State should be brought to book. In these offences the proof beyond reasonable doubt is a criteria but not with mathematical precision: in this regard, it will be apt to produce observations of the Supreme Court in Collector of Customs, Madras v. Bhoormull AIR 1974 SC 859 case in relation to smuggling of goods which are as under : ...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 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 deg ..... X X X X Extracts X X X X X X X X Extracts X X X X
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