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TMI Blog1995 (12) TMI 432X X X X Extracts X X X X X X X X Extracts X X X X ..... his relatives, particularly for such a long period. He submitted that the appellant has not bona fidely disclosed his source of income. After hearing the parties, a suggestion was made to Shri Shingrani to deposit at least a part of the amount of penalty by way of pre-deposit. Shri Shingrani after consulting the appellant submitted that the appellant may be allowed to deposit a sum of Rs. 10,000 and may be granted waiver in respect of pre-deposit of the amount of penalty. He stated that the appellant shall deposit Rs. 10,000 within a week s time and prayed that the appeal be heard on merits straightway and the final order may be pronounced after the appellant has deposited the amount of Rs. 10,000. 2. In the circumstances, I waive the pre-deposit of the balance amount of Rs. 90,000 on the condition that the appellant shall deposit a sum of Rs. 10,000 by way of pre-deposit within a week's time. The respondents have informed that the appellant has deposited the said amount on 4-12-1995 in compliance with the directions of the Board. This order, therefore, disposes of the appeal on merits. 3. The appellant has assailed the impugned order primarily on the ground that the enforceme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ept the involuntary statement recorded by the customs authorities under section 108 of the Customs Act and that, that statement cannot be taken as evidence. In support, Shri Shingrani cited the judgment of the Madras High Court in Roshan Beevi v. Joint Secretary to Government of Tamil Nadu 1984 Cri. LJ 134 where the High Court relied on the observations of the Supreme Court in Nathu v. State of U.P. AIR 1956 SC 56. Shri Shingrani also relied on the judgment of the Delhi High Court in Motia Rani Bhatia v. Addl Director of Enforcement 1983 Cr. L.J. 590 in support of his contention that the statement recorded under section 108 cannot be tendered in evidence to prove the charges under the Foreign Exchange Regulation Act. Shri Srivastava appearing for the respondent did not dispute that the charges in the SCN and the findings in the impugned order are based solely on the appellant's statement under section 108, as borne out by the record of the case. He, however, submitted that the learned counsel for the appellant tried to mislead the adjudicating authority by referring to Motia Rani Bhatia's case (supra) as the observations made by the Hon'ble High Court in that case were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, independently of the confessional statement and it is only when there is such evidence that the adjudicating authority can look into the confessional statement to corroborate such evidence. It appears from page 2 of the impugned order that the appellant's reply to the SCN was not received by the learned Adjudicating Officer before the case was fixed for oral hearing on 16-2-1995. The appellant has filed a reply dated 4-12-1992 to the SCN and has also filed a postal receipt of the registration. Apparently, the reply was not brought on record of the adjudicating authority. In any case, since the learned counsel for the appellant had filed his written submissions on 9-2-1995 and the learned Adjudicating Officer had also heard the appellant's counsel on 16-2-1995, it cannot be said that the points made in reply to the SCN were not made before the learned Adjudicating Officer. 8. The learned Adjudicating Officer has rightly rejected the appellant's contention by holding that the fact that the appellant had been exonerated of the charges under the Customs Act does not entitle him to be proceeded against on the charges of contravention of the provisions of the Foreign Exch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urse of the oral hearing, I suggested to Shri Shingrani that assuming that the appellant's statement under section 108 cannot be taken in evidence as such, what he has to say about the recovery of the sum of Rs. 4 lakhs from his premises. I impressed upon him that even though the appellant's statement under section 108 as such cannot form the basis of any finding, the appellant could still be questioned on the information obtained by the customs authorities and since the appellant is not carrying on any business activities in India, he could legitimately be asked as to what he has to say about the Department's suggestion that the amount was received by him on the instructions of Abdul Majid of Karachi. Shri Shingrani has nothing to deny the suggestion. 11. In view of the above, I am of the opinion that the appellant's statement as recorded by the customs authorities under section 108 as such cannot form the basis of any finding of contravention as the same was not voluntary. Once it is found that the statement is not voluntary, it cannot be taken into consideration as evidence and any exercise as to whether the statement is true or not is not warranted in law. In th ..... 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