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TMI Blog2008 (6) TMI 640X X X X Extracts X X X X X X X X Extracts X X X X ..... ssain Rashid in (i) wrongful acquisition of foreign currency, (ii) receiving and distributing money on the instructions of non-resident person and (iii) receiving/making payment in consideration of receipt or acquisition of property outside India. The appellant has made pre-deposit of penalty of Rs. 50,000 in compliance of order dated 1-12-2006 passed by this Tribunal. Presently this appeal is taken up for final disposal on merits. 3. We have heard Shri P. Ojha, Advocate on behalf of the appellant and Dr. Shamsuddin, DLA on behalf of respondent. 4. It is contended by learned counsel Shri P. Ojha that charges of abetment for the purpose of committing contravention of sections 9(1)(a), 9(1)(b), 8(1) and 9(1)(f)(i) are totally wrong. Appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elating to sell of imported old cars. Also all these cars are imported in different names but factually the import is made by late S.M. Hussain Rashid who factually also arranged payment. The fact of import of the cars and mode adopted thereof is exclusively within the knowledge of the appellant but he has not come out clearly on this aspect of the matter. This onus or burden lies on the appellant under section 106 of Indian Evidence Act. In absence of clarity this Tribunal is entitled to draw an adverse inference against the appellant. 7. Further two admissional statements are available on the scene. The first admissional statement is of late S.M. Hussain Rasheed which is retracted but the second admissional statement is of the appellant w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ectively 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 should apply its mind to the retraction and reject the same in writing it is only. On this principle of law, this Court in several decisions has ruled that even in passing a detention order on the basis of an inculpatory statement of a detenu who has violated the provisions of the FERA or the customs Act etc. The detaining authority should consider the subsequent retraction and record its opinion before accepting the inculpatory statement lest the order will be vitiated.... (p. 195) 8. Further, it is argued that ret ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rriving at a guilt. The appellant himself had admitted the contravention. Similarly, certain other persons who are not in appeal before this Tribunal but whose trial is held jointly made admissional statements. It is held in Naresh J. Sukhwani v. Union of India 1996 SCC (Cri.) 76, that statements recorded by Customs officials (where provisions are pari materia) is not a statement recorded under section 161 Criminal Procedure Code but is a material piece of evidence which can certainly be used against a co-noticee when the person giving statement is also tarnishing his image by making admission of guilt. 10. Looking towards above situation, we find it difficult to agree with the contention made on behalf of the appellant who had actively ass ..... X X X X Extracts X X X X X X X X Extracts X X X X
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