9911796707
TMI Blog1987 (11) TMI 406X X X X Extracts X X X X X X X X Extracts X X X X ..... t, the contention of the appellant is that the adjudicating officer has grossly erred in giving a benefit of doubt to said Shri Saha by holding that contravention had been proved only in respect of a small amount of Rs. 16,000 while actually the offences committed as alleged by Directorate, involved a total amount of Rs. 18,93,991 which called for a much more severe penalty than the one imposed and that the economic offences should be dealt with heavy hand rather than be let off on erroneous and conflicting considerations as referred to in the adjudicating officer's order. The said Shri Saha has filed an appeal against the said order Appeal No. 195 of 1985 -alleging that the charge against him had not been proved and he should have been totally acquitted. Appeal No. 219 of 1986, is directed against the order passed by the Dy. Director of Enforcement, dated 30-1-1986, holding him guilty of contravening section 9(1)(b) for having received a sum of Rs. 27,400 only at the instructions of a non-resident and imposing a penalty of Rs. 20,000 in respect thereof. However, this order of the Dy. Director of Enforcement appears to have been separately passed on the basis of a separate show ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y different persons for having received payments in foreign currency from his brother, as against the slips issued by him; that he did not know about illegal nature of such transactions and that having come to know of this illegality now he would not indulge in these things thereafter. This statement was retracted by the appellant vide letter written to the Assistant Director, Enforcement, dated 18-6-1982, wherein he stated that the Indian currency seized from his residence in fact, consists of Rs. 16,000 given to him by his brother Shri Vimal Kumar Saha, another Rs. 10,000 left with him in cash by his brother-in-law (sister's husband) for making purchases in connection with the marriage of his niece; and the balance of Rs. 1,400 representing his own cash; that he had no knowledge about the contents of the papers and scribbles seized from his residence since the same had been left by his brother's friend who had stayed with him ; that the currency seized from his residence should accordingly be returned to him which is badly needed in connection with the marriage ceremony and other expenses. In support thereof, he also sent an invitation card issued in connection with the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. He further stated that the appellant had no knowledge or means to verify the payments alleged to have been received aggregating Rs. 13,95,050 from various persons and alleged payments aggregating Rs. 4,98,976 to different persons ; that the appellant had never received or paid any amount other than the Indian currency and there was nothing to show that the alleged amounts were received and paid by the appellant by the order of his brother Shri Kanu Saha of Bangladesh. The appellant also filed his written statements, dated 5-2-1985, [pp. 23-24/c] alleging that he was completely exhausted and mentally upset by an unwarranted search conducted at his residence for a number of hours and that he was forced to make an incriminating statement which he retracted immediately on 18-6-1982, after having recovered from the shock and effect of search and seizure ; that he had not contravened the provision of any Act and the possession of Indian currency seized from his residence had been fully explained earlier. 7. After considering the aforesaid documents and contentions, the Special Director, Enforcement, in his order under appeal came to the conclusion that only two payments of Rs. 1,000 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agraph 10 of the adjudicating officer refers. I am amazed as to why the adjudicating officer was not concerned with the seized Indian currency which is said to be the amount involved in the contravention of section 9(1)(6) and 9(1)(d) relevant to the period in issue, viz., March 1981 to May 1982. The logic of, and justification for, separating these two charges arising out of same set of circumstances by two different adjudicating officers is not at all clear. Apart from the inevitable prejudice caused to the appellant by separation of proceedings in this behalf, the inconsistency and avoidable conflict in the matter of imposing penalty for these charges by two different officers would become in the succeeding paragraphs. 9. That apart, the conclusion of the Special Director as appearing in paragraph 11 of the order under appeal is self-contradictory and without any sound basis. I have no option but to reproduce the relevant portion as under : After summing up the evidence contained in the seized documents and the admission of Shri Gopal Chandra Saha in his statement, dated 16-6-1982, which has not been contradicted in his statement, dated 3-5-1984, I hold that the two payments of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was immediately retracted on the 18th June The statement, dated 16-6-1982, is the one recorded under section 39 and not under section 40 of the Act and hence there is no presumption that the said statement was really true. In any case, the said statement does not talk of the total payment being to the tune of Rs. 13,95,050 and payments made aggregating Rs. 4,98,976 as stated in the charge. That statement only speaks of payments being received and payments being made by the appellant to the extent of Rs. 22,000 per month without any specification as regards to dates or the persons in volved. That statement by itself could not be the basis for holding him guilty of contravening the aforesaid provisions of the Act for an amount as stated in the charge. At this stage, it will be relevant to refer to a subsequent statement of the appellant, dated 3-5-1984 (English copy thereof appears at pages 20-21/c of the compilation filed in Appeal No. 195 of 1985). The only relevant portion therein is as under : I have carefully read today the pages numbered 1 to 7 of the seized documents seized from my residence today. These are letters written from Bangladesh. There are directions in those lette ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nst the appellant to the extent of aforesaid huge amounts as mentioned in the show-cause notices in contravention of section 9(1)(b) and 9(1)(d) respectively is totally unsubstantiated. It will be pertinent to point out that the alleged charge is confined only to the month of June 1982 and does not relate to the period between March 1981 to June 1982, which is a subject matter of separate show-cause notice pertaining to the amount of Rs. 27,400 only in Appeal No. 219 of 1986. Thus the order of the Additional Director in this behalf cannot be sustained as such. 12. The order passed by the Dy. Director, dated 30-1-1986, which is the subject matter of Appeal No. 219 of 1986, is confined to the amount of Rs. 27,400 recovered from the appellant's premises as a result of search. There is nothing to show beyond reasonable doubt that this amount was received by the appellant from various persons on the instructions of his non-resident brother Shri Kanu Saha. As already shown, the appellant's statement recorded on 16-6-1982, in this behalf which was retracted on the 18th June itself cannot be the sole basis for holding him guilty for alleged contravention. The case could possibly be ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
