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TMI Blog2008 (6) TMI 639X X X X Extracts X X X X X X X X Extracts X X X X ..... urchased and sold foreign exchange without the permission of RBI at the rates other than prescribed by the RBI and besides confiscating the seized foreign currencies and Indian currency under section 63 of the FERA. The appellant has made payment of 10 per cent of the penalty amount where presently this appeal is taken up for final disposal on merits. 2. I have heard elaborate arguments from Shri Naveen Malhotra, Advocate, on behalf of the appellant and from Shri A.C. Singh, DLA, for the respondent and gone through the record carefully. A show-cause Notice was issued against the appellant in this case for purchasing the foreign exchange to the tune of US $12,555, DM2990 and Mauritius Rs. 50 and foreign exchange equivalent to Rs. 40,000 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eeds of the foreign exchange sold by him during Jan-Feb, 1986 and he had kept this money for the purchase of foreign exchange from foreigners. The SCN was issued against the appellant where he was held guilty and penalized and being aggrieved this appeal has been preferred by the appellant against the impugned order. 4. It is argued by ld. Counsel, Ms. Naveen Malhotra, the impugned order was based on retracted confessional statement which was not corroborated by independent evidence. The witnesses of the Panchnama and the Enforcement Officers were examined where the contradictions in their statement showed the innocence of the appellant. The confessional statement dated 15-3-1986 was extracted from the appellant by the officers under coerci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd a money changer. Explanation. - For the purposes of this sub-section, a person, who deposits foreign exchange with another person or opens an account in foreign exchange with another person, shall be deemed to lend foreign exchange to such other person. (2) Except with the previous general or special permission of the Reserve Bank, no person, whether an authorised dealer or a money changer or otherwise, shall enter into any transaction which provides for the conversion of Indian currency into foreign currency or foreign currency into Indian currency at rates of exchange other than the rates for the time being authorised by the Reserve Bank. 6. The appellant admitted the charge levelled against him in his confessional statement. However, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 21 it has been observed by the Supreme Court that the retracted confessional statement can become the basis of confession if the Court is satisfied from the evidence that it is voluntary and is proved. The Court would seek assurance getting corroboration from the evidence produced by the prosecution. In the instant case the retracted confessional statement of the appellant is fully corroborated by the documentary as well as attended circumstantial evidence of the case. 8. It is a matter of record that search and seizure action at the premises in question were accomplished on 14-3-1986 by the Enforcement Directorate in accordance with law in the presence of witnesses. The seized documents and the Mahazar were signed by the appellant and copi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aced no credence on the deposition made by Ramesh Bakshi during cross examination on 18-9-1992. There was no reason for Ramesh Bakshi to falsely implicate the appellant. Another witness Sohanlal affirmed that he had signed the Panchnama and had witnessed the search. 9. The appellant has tried to explain the recovery of Indian currency of Rs. 30,000 from his residence by describing that it was raised by him as loan to make payments to a Co-operative Group Housing Society. The appellant submitted a letter dated 24-2-1986 from Group Housing Society in support of his contention. However, the appellant has not been able to establish this case about making payments to the Housing Society where he himself has admitted that the said Indian currency ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it has been observed by the Supreme Court in Collector of Customs, Madras v. D. 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 degree; for, in all human affairs absolute certaint ..... X X X X Extracts X X X X X X X X Extracts X X X X
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