9911796707
TMI Blog1995 (4) TMI 322X X X X Extracts X X X X X X X X Extracts X X X X ..... ied with the Board's order of 13-9-1993 by depositing an amount of Rupees two lakhs by way of pre-deposit this order disposes of the appeal on merits. 2. It would appear that on the basis of information gathered from the documents seized after search of one Baligur Rehman of Hong Kong at Delhi Airport on 14-11-1984 the premises of Shyam Kishan Sharma (S.K. Sharma) were searched by the officers of DRI. The search resulted in the Jjrecovery and seizure of incriminating documents, contraband gold and Indian currency. The statements of Baligur Rehman, S.K. Sharma and Ravi Sharma, son of S.K Sharma who also resided with his father, were Mso recorded under section 108 of the Customs Act, 1962. It would also appear that S.K. Sharma and the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rency of about similar amount during these visits. The appellant alleged to have further stated that he used to be sent to Hong Kong by his father with the instructions that if customs authorities at Hong Kong were to ask, he should declare foreign currency equivalent to US $ 30,000. 4. The SCN also refers to the letter of 27-11-1984 purported to have been sent by Customs authorities of Hong Kong in reply to information sought by DRI. In this letter it is stated inter alia that the appellant declared foreign currency totalling to US $ 8,00,000 on three occasions in 1984, the details of which are as follows: 2-9-1984 = US $ 2,00,000 (assorted) 9-9-1984 = US $ 4,00,000 (assorted) 23-9-1984 = US $ 2,00,000 (assorted) 5. The documentary evidenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder : The respondent has been charged with aiding and abetting the said Shri S.K Sharma in otherwise transferring foreign exchange to persons not being authorised dealers in foreign exchange by taking out the said foreign exchange to Hong Kong. These acts constitute the contravention of section 8(1) read with section 64(2) of the FERA Act, 1973. All these contraventions are to be adjudicated upon by the designated officials of Enforcement (section 50 of EFRA 1973). 8. In our opinion the, charge as framed does not make out any contravention of section 8(1) and abetment thereof. The act of sending or taking foreign exchange out of India is expressly and specifically covered by the provisions of section 13(2) which are as follows : No person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ilty on that count. 10. In the course of the proceedings we asked the learned counsel for the appellant as to why the defect in the charge should not be rectified and; the appellant be held guilty of abetting the act of otherwise transferring Pie foreign exchange sent by S.K. Sharma for delivery to Baligur Rehman, by so delivering to him in Hong Kong. We referred, in this connection to the Board's power under section 52(4) of the Act. Shri Bhatnagar, the learned counsel submitted that in that case also the charge would not be sustainable as the factual allegations on which the charge could be based are not substantiated on the evidence on record While elaborating his submission Shri Bhatnagar relied on Raja Khan v. Emp., 22 Cr. L.J. 448 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to Hong Kong and the amount of foreign exchange declared on those visits. The foreign exchange mentioned in the statement is US dollars while in the said letter it is 'assorted'. Moreover, that letter, even if taken in evidence indicates the taking out of foreign exchange. It does not indicate the delivery of foreign exchange to Baligur Rehman. 13. It is stated in the impugned order that SCN was issued in November 1988 after completion of investigation. There is nothing to indicate whether any investigation was made after the statement of the appellant was recorded under section 108 or after the receipt of the letter of Hong Kong Customs in November 1984. No attempt seems to have been made to get at the correct factual details of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statement does not implicate the applicant in respect of the charge. Hong Kong Customs's letter does not confirm appellant's visit in June, 1984; nor does it corroborates the amount and nature of foreign currency. Apparently, the investigating agency was aware of the inadequacy of the evidence to bring home the charge as they have relied on the statements (though not admissible) for Proving the transfer of the foreign exchange and on the Hong Kong Customs letter for proving the amount (though it is contrary to the statements as this letter does not prove the transfer of foreign exchange. It appears from the discussion of the so called evidence in the impugned order that the learned adjudicating officer has not correctly appreciated ..... X X X X Extracts X X X X X X X X Extracts X X X X
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