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TMI Blog2014 (3) TMI 1235X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant was true it was not caused by any inducement, threat or promise by a person in authority. In this regard, the respondent miserably failed as no plausible explanation was given by the Enforcement Directorate. Moreover, the cross examination of Shri Jagdish Prasad Karel despite demand was also not allowed, which is against the natural law of justice. There is momentum of force in the submissions of appellant, when he emphasized that the retraction statement of the appellant was true and not an afterthought as it was mode by the appellant on the next very day i.e. on 07.09.1996 after his release from the custody of Enforcement Directorate on 06.09.1996 at 11:30 p.m. nothing incriminating was recovered from the office of the appellant during raid as on 06.09.1996 at 08:15 p.m. there was also no independent evidence in the present case against the appellant. So, the confessional statement which was forcefully taken from the appellant is not voluntary. It is also relevant to mention that the present Appeal filed before this Tribunal, pertains to the year 2003 i.e. more than 10 years old. There is no modicum of merit in the submissions of Ld. ALA for the respondent. Thus, Im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt undertakes that he will file his power of Attorney/Vakalatnama during the course of day. The ALA requests for further adjournment of the matter. It has come to my notice that this is a remanded matter from the Hon'ble High Court of Calcutta, titled as Naresh Kumar Agarwal (supra), wherein the judgment of this Tribunal, dated 12.8.2008 was set aside by the Hon'ble High Court of Calcutta and remanded the matter for fresh hearing within a period of three months from the date of receipt of this order. It is pertinent to mention that the Registrar of this Tribunal put up the present matter before the Chairperson on 02.01.2014 for fixing the date of hearing & he reported that the Hon'ble High Court of Calcutta, vide its order, dated 23.2.2010 had remanded the matter back to this Tribunal for decision on merits within three months from the receipt of this order/matter. The letter of the Ld. Counsel Ms. Sunita Bansal alongwith the copy of the order of the Hon'ble High Court of Calcutta dated 23.2.2010, received in this Tribunal on 31.12.2013, as per report of the Registry through Registrar. On the basis of the report of the Registrar, the matter was listed at the earli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... maniam Prasad, Advocate and he is busy in the Hon'ble Supreme Court & requests for adjournment. Ld. ALA also requests for adjournment of the matter. Request allowed in the interest of justice. Last opportunity is given because this is a remanded matter & the matter is fixed for 5.3.2014 for the purpose already fixed. Ld. ALA has also received all the documents relating to this matter from the Ld. Counsel today. Sd/- (Dr. H.K. Mudgil) Acting Chairperson The next interim order of the Tribunal, dated 5.3.2014 speaks volumes as under:- Single Bench Dated : 5.3.2014 Appeal No.(s) : 405/2003 Appellant (s) : Shri Naresh Kumar Agarwal Shri B. Naveen Kumar, ALA appeared on behalf of Enforcement Directorate, while Shri Subramaniam Prasad, Advocate along with Ms. Sunita Bansal, Advocate & Shri Anurag, Advocate appeared for the appellant. Arguments of both parties heard & the matter is reserved for orders. Sd/- (Dr. H.K. Mudgil) Acting Chairperson 3. It is also relevant to mention that the appellant Shri Naresh Kumar Agarwal, by means of the present Appeal No.405/2003, challenged the Adjudicating Order No.21/2003/DD(KNS) dated 29.08.2003, passed by Deputy Director, Enfo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r and remand the matter for fresh hearing on fact and in law on the points (1) whether there has been a retraction of confessional statement or not (2) whether the respondent has been able to prove the case as per standard as required in a case like this. The aforesaid two things are required to decide the matter effectively. This shall be done within a period of three months from the date of receipt of a copy of this order". 5. On the basis of judgment of the Hon'ble Calcutta High Court (titled supra), the present Appeal No.405/2003 is being reheard for disposal. The factual matrix of the case succinctly, may be noticed that the appellant, Shri Naresh Kumar Agarwal, by means of the present Appeal No.405/2003, challenged the Adjudicating/Impugned Order No. 21/2003/DD (KNS) dated, 29.08.2003, passed by Deputy Director, Enforcement Directorate, Calcutta, imposing a penalty of Rs. 4,00,000/- (Rupees four lakhs) for contravention of provision of Section 9(1)(b) and Rs. 3,00,000/- (Rupees three lakhs) for contravention of provision of Section 9(1)(d) of the FER Act, 1973 respectively against the appellant Shri Naresh Kumar Agarwal, on the reasons that the appellant paid Rs. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the instance of one Shri Dilip Saha of Bangladesh & handed over it to one Shri Jagdish Prasad Karel. It is further emphasized that the confessional statement of Shri Jagdish Prasad Karel was recorded on three different dates i.e 27.08.1996, 28.08.1996 & 25.09.1996. In the above mentioned statements of Shri Jagdish Prasad Karel i.e. on 27.08.1996 & 28.08.1996, nothing incriminating was found in the statements against the appellant. In the statement, dated 25.09.1996 of Shri Jagdish Prasad Karel, there was an allegation of payment of Rs. 12,98,800/- (Rupees twelve lakhs ninety eight thousand & eight hundred) by the appellant to Shri Devkinandan Karel (younger brother of Shri Jagdish Prasad Karel). However, the statement, dated 25.09.1996 of Shri Jagdish Prasad Karel was retracted later on, vide his representation, dated 10.10.1996. The fact of retraction of the confessional statement of the appellant was also brought to the notice of local police Station, namely, Burrabazar Police Station, Kolkata-7 under a letter, dated 07.09.1996 & a retraction was also sent to the Director, Enforcement Directorate, New Delhi on 11.09.1996 with affidavit affirmed by the appellant on 07.09.1996. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant or the said Shri Jagdish Prasad Karel was a genuine one or not. It is further added that all the investigation and materials gathered in the course of investigation clearly show that the confessional statement of the appellant was taken under force and coercion. So, the balance of convenience goes in favour of the appellant. The judgment of the Hon'ble Supreme Court titled as Vinod Solanki v. Union of India [2009] 92 SCL 157, relied upon by the appellant, covers the facts of the present case and therefore the Adjudicating Order / No.21/2003/DD(KNS), dated 29.08.2003, passed by Deputy Director, Enforcement Directorate, Calcutta, imposing a penalty of Rs. 4,00,000/- (Rupees four lakhs only) and Rs. 3,00,000/- (Rupees three lakhs only) for contravention of provisions of Section 9(1)(b) and Section 9(1)(d) of the FER Act, 1973 respectively against the appellant may kindly be set aside & the present appeal may kindly be allowed. Legal position of law is discussed in the authority titled (supra). 7. On the other hand, Shri B. Naveen Kumar, Ld. ALA for the respondent controverted all the submissions of Ld. Counsel for the appellant. He submitted that the judgment of the Hon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is order. Hence, the present appeal is being decided within the time frame work as directed by the Hon'ble Calcutta High Court, titled (supra). After perusal of record, I observe that the confessional statement of Shri Jagdish Prasad Karel was recorded on three different dates i.e. on 27.08.1996, 28.08.1996 & 25.09.1996. In the above mentioned statements of Shri Jagdish Prasad Karel i.e. on 27.08.1996 & 28.08.1996, nothing incriminating was found in the statements against the appellant Shri Naresh Kumar Agarwal. In the statement, dated 25.09.1996 of Shri Jagdish Prasad Karel, there was an allegation of payment of Rs. 12,98,800/- (Rupees twelve lakhs ninety eight thousand & eight hundred) by the appellant to Shri Devkinandan Karel (younger brother of Shri Jagdish Prasad Karel). However, the statement dated, 25.09.1996 of Shri Jagdish Prasad Karel was retracted later on, vide his representation, dated 10.10.1996. The fact of retraction of the confessional statement of the appellant was also brought to the notice of local police Station, namely, Burrabazar Police Station, Kolkata-7 under a letter, dated 07.09.1996 & a retraction was also sent to the director, Enforcement Director ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the requirement is that it may appear to the court as such. 38. In the instant case, the investigating officers did not examine themselves. The authorities under the Act as also the Tribunal did not arrive at a finding upon application of their mind to the retraction and rejected the same upon assigning cogent and valid reasons therefore. Whereas mere retraction of a confession may not be sufficient to make the confessional statement irrelevant for the purpose of a proceeding in a criminal case or a quasi-criminal case but there cannot be any doubt whatsoever that the court is obligated to take into consideration the pros & cons of both the confession and retraction made by the accused. It is one thing to say that a retracted confession is used as a corroborative piece of evidence to record a finding of guilt but it is another thing to say that such a finding is arrived at only on the basis of such confession although retracted at a later stage." The judgment titled (supra) is applicable in the present case as the facts & other issues of the present Appeal are at par with the issues involved. There is momentum of force in the submissions of Ld. Counsel for the appellant, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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