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1970 (8) TMI 87 - SC - FEMAOrder of acquittal set aside - Held that - While imposing sentence a Court might take notice of the fact that a person is being vicariously punished for an offence and if he shows that it is possible that the contravention of the Act took place without his knowledge or neglect a sentence of imprisonment may not be imposed. In this case he was abroad at the time of contravention and it is possible that the contravention took place without his knowledge or because of lack of diligence. It seems to us that on the facts of this case a sentence of fine of Rs. 2, 000/- will meet the ends of justice. The learned counsel for the respondent State urges that this is not a case fit for review because it is only a case of mistaken judgment. But we are unable to agree with this submission because at the time of the arguments our attention was not drawn. specifically to sub-s. 23C(2) and the light it throws on the interpretation of sub-s. (1). In the result the review petition is partly allowed and the judgment of this Court in Criminal Appeal No. 211 of 1969 modified to the extent that the sentence of six months rigorous. imprisonment imposed on Girdharilal is set aside. The sentence of fine of Rs. 2, 000/- shall however stand.
Issues Involved:
1. Legality of the High Court's reversal of the acquittal order. 2. Identification and involvement of the accused. 3. Legality and admissibility of evidence obtained during the search. 4. Applicability of Section 23C(1) and 23C(2) of the Foreign Exchange Regulation Act, 1947. 5. Review of the judgment based on the omission of Section 23C(2) during initial arguments. Detailed Analysis: 1. Legality of the High Court's Reversal of the Acquittal Order: The High Court at Calcutta set aside the order of acquittal and convicted the appellants under Section 23(1A) of the Foreign Exchange Regulation Act, 1947. The appellants were sentenced to rigorous imprisonment and fines. The Supreme Court upheld the High Court's decision, agreeing with its conclusions after reviewing the evidence. The Court found no reason to doubt the credibility of the witnesses and the evidence presented by the prosecution. 2. Identification and Involvement of the Accused: Customs Preventive Officer B. Roy discovered Rs. 51,000 in Indian currency notes in a parcel booked for Hong Kong. The investigation led to M/s. Agarwala Trading Corporation, where the appellants Girdharilal Gupta and Puranmall Jain were partners, and Bhagwandeo Tewari was an employee. Witnesses, including traffic assistants from the Indian Airlines Corporation, identified Bhagwandeo Tewari as the person who handled the consignment. The Supreme Court found the evidence of P.W. 4 (Ambare Nath Sen) credible and reliable, affirming the involvement of Bhagwandeo Tewari in the crime. 3. Legality and Admissibility of Evidence Obtained During the Search: The search of the firm's premises and the residence of the partners led to the seizure of incriminating documents, including account slips and cash books. The defense argued that the slips were fabricated and planted, but the Supreme Court found no evidence to support this claim. The Court noted that the entries in the account books corroborated the seized slips, dismissing the defense's contention that the slips were not evidence. The Court emphasized that the slips were part of the items discovered during the search and were admissible as evidence. 4. Applicability of Section 23C(1) and 23C(2) of the Foreign Exchange Regulation Act, 1947: The Supreme Court initially upheld the conviction of Girdharilal Gupta under Section 23C(1), which deems a person in charge of a firm guilty of contravention unless they prove it occurred without their knowledge or due diligence. However, upon review, the Court considered Section 23C(2), which requires proof that the contravention occurred with the consent, connivance, or neglect of the accused. The Court found that Girdharilal Gupta was in charge of the firm's business, but since he was abroad at the time of the contravention, it was possible that it occurred without his knowledge or due diligence. 5. Review of the Judgment Based on the Omission of Section 23C(2) During Initial Arguments: Girdharilal Gupta filed a review petition, citing the omission of Section 23C(2) during the initial arguments. The Supreme Court reopened the judgment and acknowledged that Section 23C(2) had a vital bearing on the case. The Court concluded that while Girdharilal Gupta was in charge of the business, the contravention might have occurred without his knowledge due to his absence abroad. Consequently, the Court modified the sentence, setting aside the imprisonment but maintaining the fine of Rs. 2,000. Conclusion: The Supreme Court upheld the convictions of Girdharilal Gupta and Bhagwandeo Tewari, while acquitting Puranmall Jain due to insufficient evidence of his active involvement. The review petition led to a modification of Girdharilal Gupta's sentence, acknowledging the potential lack of knowledge or diligence due to his absence abroad. The judgment emphasized the importance of credible evidence and the strict interpretation of penal provisions under the Foreign Exchange Regulation Act, 1947.
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