9911796707
TMI Blog2003 (11) TMI 652X X X X Extracts X X X X X X X X Extracts X X X X ..... of U.S. Dollars 1,57,400 and B.D. Taka 25,000 from Shambhunath Dubey Noticee No. 6 who was never an authorised dealer in foreign exchange during June-July, 1994, the charge against Govardhan Karel was for contravention of section 8(1) and 8(2) read with section 64(2) for abetting H.P. Karel for illegal purchase of foreign exchange, that against Pradeep Kumar Verma was for contravention of section 8(1) for illegal acquisition of foreign exchange of US Dollars and against Ranjan Das and Babul Das was for contravention of section 8(1) read with section 64(2) of the Act. The charge against Shambhunath Dubey was for contravention of sections 8(1) and 8(2) of the Act for the alleged acquisition and sale of US Dollars 1,57,400 and B.D. Taka 25,000 on rates of exchange other than that not authorised by the RBI. H.P. Karel was also asked to show cause for not confiscating the Silver Bar weighing 2,974 gms. and Indian Currency of Rs. 5 lakhs seized from his possession. Pradeep Kumar Verma in his reply statement dated 31-7-1995 had totally denied the charge of unauthorised deals and also denied acquaintance with persons named Babul Das or Ranjan Das. The other noticees, failed to submit any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... confession statement of co-accused by name H.P. Karel, Rajan Das and Babul Das. It is further alleged that H.P. Karel, Ranajan Das and Babul Das had retracted their confessional statements before the Chief Metropolitan Magistrate, Calcutta on 6-7-1994 the very day of their arrest when they were produced before the said Magistrate and so the finding arrived at on retracted statements is thoroughly vitiated in law. Appeal No. 194/2003 4. The appellant herein is none other than the 6th Respondent/Noticee in the adjudication proceedings, he challenges the validity and legality of the impugned findings and orders of penalty on the plea that the adjudicating officer was wrong in having placed undue reliance on retracted confession statements of H.P. Karel. According to this appellant, the statement recorded from H.P. Karel was by undue induction of physical assault and threat and it was never a voluntary statement as contemplated in section 40 of the Act. The appellant prays for the setting aside the finding and order as such. Appeal No. 208 5. The appellant herein is Noticee/Respondent No. 2 in the adjudication proceedings, according to the appellant he had never offered any volunt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and so those do not attribute any probative value as in the cases of statements recorded under the Customs Act, 1962. According to the appellant, H.P. Karel and other accused persons were arrested on 5-7-1994 and their statements were recorded by the officials from their office during night hours under threat and physical assault and so had they acceded to write out the statements as demanded by the Enforcement Officials and they had retracted their said statements the very next day when they were produced before the Chief Metropolitan Magistrate. In this context, the counsel for appellants refers to the discussions and findings in pages 10 to 13 of the orders and submits that the adjudicating officer and totally failed to consider the submissions made on behalf of these appellants as on their retracted statements and it was on that account that the adjudicating officer had arrived into wrong findings on the charges of contravention of sections 8(1) and 8(2). It is further submitted on behalf of the appellants that there was absolutely no lawful evidence to find against H.P. Karel and Shambhunath Dubey of the charge of contravention of section 8(1) and 8(2) or to find against Gov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inst B.D. Taka 25,000 purchased from Shambhunath Dubey against payment of Rs. 20,000 on the same day. 11. I have closely examined the legality of the observations and findings in the impugned orders. As rightly submitted on behalf of the appellants, the order of the CMM dated 6-7-1994, the petitions filed before the Ld. Magistrate by H.P. Karel on the very same day, the remand petition dated 6-7-1994 by the Enforcement Directorate and the medical report of the Superintendent, Alipore Central Jail submitted on 12-7-1994 before the Magistrate, copies whereof produced alongwith the appeal memo and not disputed by the Respondent/Enforcement Directorate clearly reveal that H.P. Karel had some physical injuries and abrasions on both his lower limbs; the orders of the Ld. Magistrate dated 6-7-1994 also refers to the petition of H.P. Karel and Goverdhan Das Karel regarding the physical assault they were subjected to in the Office of Enforcement Directorate and for their medical treatment; the Ld. Magistrate had remanded the accused to Alipore Central Jail with direction that H.P. Karel and Goverdhan Das Karel were to be taken for medical check-up and submit report by 20-7-1994; the Jail S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 09 of 2003, the adjudicating officer could have been cautious in right away accepting the statements as voluntary ones. The appellant's plea that the earliest statements recorded by the said two appellants, which were got copied down by these appellants from the records already prepared by the Enforcement Directorate officials cannot be ignored in view of the medical reports. There is reason for strong suspicion that these statements were got recorded by physical torture. The adjudicating officer had erred in relying on such scanty materials to weave out any contravention of the statutory provisions under FERA. 14. According to the appellant, the contents in the note-book marked 'A' cannot be construed as indication of any dealings in purchase of gold and US Dollars and that it cannot be said that the appellant had purchased gold from Pradeep Kumar Verma and that H.P. Karel had purchased US Dollars from Shambhunath Dubey as submitted on behalf of the appellants their names were seen in the said note-book so also any date of purchase of US Dollars or of gold were not mentioned in the said documents. As pointed out by the counsel for the appellants the basis for arriving at the find ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 1994 under threat and physical torture and the Advocate accompanied him was sent out from the office; so also no further statement of Pradeep Kumar Verma was got recorded by the officials. 18. H.P. Karel, Goverdhan Das Karel, Ranjan Das and Babul Das had retracted their statements before the CMM Court Calcutta and they had filed reply statements denying the charge against them. From the impugned findings it is seen that the adjudicating officer had erred in relying on the earlier statements of the accused persons despite the fact that they had retracted their earlier statements on 6-7-1994 before the CMM, Calcutta. So also the observation in page 3 of the impugned findings that H.P. Karel had confirmed his earlier statement dated 5-7-1994 stands to no reason. 19. As on the non-availability of Shambhunath Dubey (Appellant in Appeal No. 194/2003), the adjudicating officer has observed that he was absconding and was not at his given address. According to Shambhunath Dubey, he had never sold any foreign exchange to H.P. Karel or his brother Goverdhan Das Karel. Obviously there was no search held in the residence or business place of Shambhunath Dubey. It is the consistent case of S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all aspects including its style and position of events as in the case of the statements allegedly recorded from Ranjan Das and Babul Das. It is also relevant to note even the sections of the Act was written in so called statements of HP Karel and Goverdhan Das Karel in such a manner that it was written out by people who were well conversant with the provisions of laws; from a mere reading of the statement got written out from H.P. Karel, I feel it hard to believe that a common layman that to a Gold Smith had used to quote number of sections of the Act correctly, any statement of apparently the number of sections and such other things were dictated by some persons well versed with the matters. Considering the materials on record including the copies of statements of H.P. Karel, Goverdhan Das Karel, Ranjan Das, Babul Das and Pradeep Kumar Verma, their submissions before the Ld. Magistrate on 6-7-1994 and also the findings arrived at by the adjudicating officer based on flimsy materials and retracted statements which would not form a basis for bring home guilt against the appellants, the impugned findings against the appellants are illegal and so liable to be set aside. As such the f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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