TMI Blog2009 (4) TMI 821X X X X Extracts X X X X X X X X Extracts X X X X ..... ely questions of facts and not questions of law. We reject the appeal and the Civil Miscellaneous Appeal stands dismissed. - C.M.A. No. 1030 of 2005 and C.M.P. No. 5840 of 2005 - - - Dated:- 9-4-2009 - Prabha Sridevan and T.S. Sivagnanam, JJ. Shri M.A. Kalam, for the Petitioner. Shri K. Ramasamy, Special Counsel for Enforcement Directorate, for the Respondent. JUDGMENT This appeal was admitted on the following substantial questions of law : 1. Whether the Tribunal failed to consider the violation of principles of natural justice in not granting an opportunity to the appellant for cross-examination of the witnesses and that the findings and orders are based on inadmissible and flimsy evidence? 2. Whether the Tribunal ignored the subjective satisfaction regarding the voluntary nature of statements, when the statement of the appellant was retracted at the earliest point of time and the appellant reported to the Magistrate about slapping by the Enforcement Officials, as held by the Supreme Court in KTMS Mohamed s case reported in 1992 (3) SCC 178? 3. Whether the Tribunal failed to consider the absolute confiscation of Indian currency is not sustainable in law o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Rs. 12,000/- and asked him to receive and also told that the money was given, as per the instructions of his son. The name and address and the cover containing the name and address of Smt. Mariam Beevi, was referred to as Sheet No. 17 and the name and address of the cover containing the name and addresses of Ramraj was referred to as Sheet No. 15. 5. A show cause notice was given on 4-9-1991 for contravention of Sec. 9(1)(b) and (d) of Foreign Exchange Regulation Act, 1973 (hereinafter referred to as FERA). Reply was given by the appellant on 17-12-1991 stating that Rs. 3,61,000/- was not connected with any violation of FERA and that he was doing plastic business and he had sold his wife s jewels and the gift money given to his wife at the time of marriage and with this amount he wanted to purchase a flat. According to him, the statements recorded from him had been retracted by him in the letters dated 13-9-90, 9-11-90 and 14-1-1991 and they were not voluntary. He was threatened and he wrote down the statement as per the dictation of the officers. He denied all the allegations specifically and he also contended that the figure alleged to have been distributed did not tally with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... moved the appellate Board. 8. The Board considered in detail whether the findings of the order called for any interference. It held that there is no illegality or infirmity in placing reliance on the materials by the adjudicating officer and that there was absolutely no reason to believe that the appellant was kept in prolonged illegal custody by the officials and that the records also revealed that there was no denial of reasonable opportunity for the appellant to produce evidence in support of his plea. Therefore, the order of confiscation proceedings were confirmed and the penalty was reduced to Rs. 30,000/- each for violation of Section 9(l)(b) and (d) total penalty of Rs. 60,000/-. Against this, the appeal has been filed. 9. The learned counsel for the appellant submitted that this is a case where the appellant had clearly retracted the statement. He submitted that inspite of the appellant s specific request for cross-examination, opportunity was not given. The learned counsel relied on 2005 (10) SCC 634 = 2002 (143) E.L.T. 21 (S.C.) (Lakshman Exports Ltd. v. Collector of Central Excise), where the Supreme Court held as follows : ....... We find that, in the reply to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t any time. Inculputory statement held not to be voluntary and acceptable. The learned counsel submitted that this would violate Article 21 of the Constitution of India. He also submitted that there is nothing to connect the sum of recovery of Rs. 3,61,000/- with any one, who is residing abroad and the presumption should be of innocence and this is a basic human right and he referred to 2009 (233) E.L.T. 157 (S.C.) = 2009 (13) S.T.R. 337 (S.C.) (Vinod Solanki v. Union of India) wherein, the Supreme Court held that presumption of innocence is a human right though it may not be treated as a fundamental right under Article 21 of Constitution of India. 13. The learned counsel for the appellant read out the retraction statement made on 13-9-90, wherein it was stated that it was recorded from the appellant under threat and coercion and the same was not binding upon him. It is also stated in the statement that the appellant complained the same before the learned Magistrate when he was remanded on 11-9-90 and he was released on 12-9-90 at 8.00 p.m. This retraction was rejected by the Enforcement Directorate on 26-9-1990. In response to summons that he should appear on 12-11-90, he appear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and submitted that the facts contained in the statements dated 10-9-90 and 11-9-90 such as they must have been exclusively within the knowledge of the appellant and neither threat nor coercion was exerted for recording the statements and the flow of the narration is natural and there is nothing in the confessional statements to indicate that it has been made against the appellant s will and it is in his own handwriting in Tamil. He also submitted that the first retraction statement was made on 13-9-90, where he stated that the statement was recorded from him under threat and coercion. Subsequently, he again affirmed on 9-11-90 stating that whatever he stated in the statements on 10-9-90 and 11-9-90 are true. Then he again retracted his statement. This is clearly an after thought. The learned Special Counsel for Enforcement Directorate submitted that in Solanki s case Supreme Court had held that one must see whether retraction is bona fide and if it is not bona fide, then the confessional statement has to be accepted. 17. As regards denial of opportunity to cross-examine Smt. Mariam Beevi and Ramraj the learned special counsel for the Enforcement Directorate submitted that they ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... them. He had met some persons near Spencers building in Mount Road, Madras at the entrance of Bapalal Jewellers, Radhakrishnan Road and near Chozha hotel and received the amounts. Then the appellant had denied all that the facts mentioned above were not true. He also denied that he had given money to Smt. Mariam Beevi as per the instructions of her husband Sulthan. 20. If we look at his statement given on 10-9-90, we see that he had referred to his family members given, the name of his elder brother Kabeer who was residing in Nagore along with his wife and two children, his second elder brother is residing in Nagore along with his wife and two younger brothers Aliyar and Yousuf who were unemployed and staying in Nagore and his third sister Fathima is residing in Nagore along with her husband and one child and that the wife of the appellant and his mother were residing in Nagore. He had stated that the two elder sisters and one younger sister were married and staying separately with their family in Nagore. He had also stated that he owned no house or land in his name and that he had married in February, 1990 and he had a Savings Account No. 7328. He has an uncle by name C.S. Tajud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned in 13, in July, as per the instructions of Abdul Rahim and Rs. 12,000/-, Rs. 10,000/- and Rs. 5,000/- to Ramraj, Arokiam and Mariam Beevi respectively. 22. The appellant was produced before the Magistrate on 11-9-90 at 4.45 p.m. and the Magistrate has recorded as follows : Accused produced at 4.45 p.m. on 11-9-90. Complains of slapping by Enforcement Directorate official. No visible injuries. Hence he is not sent to hospital. He was released from custody on 12-9-90 at 8.00 p.m. On 9-11-90 he appeared before the Enforcement Directorate and stated that he had received the summons that he should appear on 12-11-90. But since he received news from Nagore about his wife s ill-health he would not be able to appear on 12-11-90 and therefore, he had come to the Directorate on 9-11-90. On 9-11-90 he again affirmed that the statements made on 10-9-90 and 11-9-90 were true. On the same date i.e., on 9-11-90 he again made a retraction. Subsequently, on 14-1-91 he had written that the Director had not given any time or right to enquire the concerned Enforcement Officer and therefore the statements were not binding upon him. 23. So the first confessional statements dated 10-9-90 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Maohamed Abdulla Sahib Street, Chepauk, Madras and have been presently residing at the said address in Walaja Road from 7-11-90. Recorded before me Sd. with the assistance 9-11-90 of N.Gopal, AEO A.L. Jalaludeen Sd. 9-11-90 E.O. Madras Free English Translation From A.L. Jalaludeen 39, Walajah Road I Floor, Madras-5 To The Additional Director of Enforcement Enforcement Directorate Shastri Bhawan 26, Haddows Road, Madras-6 Ref : No. T.3/384/32/CITY-10-90 Sir, I have received summons from your office yesterday (8-11-90) requiring me to appear on 12-11-90. As I received message from Nagore stating that my wife is not well, I came to your office on 9-11-90 at 10.00 hours and explained my position. I have also furnished my new house address. At that time, I have been threatened, forced to write a stt., stating that the statements given by me on 10-9-90 and 11-9-90 were true by the officers. Regarding this, I have already sent a letter on 13-9-90 stating that the stts. Recorded from me on 10-9-90 and 11-9-90 were not voluntary one and the same was written under threat and coercion. The stt. recorded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he two cases referred to by the learned counsel for the appellant can be distinguished on facts. 28. In 2005 (10) SCC 634 = 2002 (143) E.L.T. 21 (S.C.) (Lakshman Exports Ltd. v. Collector of Central Excise), there was a difference of opinion between two Members of the Tribunal and the matter was referred to the President. The difference of opinion arose because of the findings of the Vice-President of the Tribunal that the principles of natural justice had not been observed and that the assessee had suffered thereby. The President, however, did not agree and he held that there had been no request by the assessee to cross-examine the representatives of the two concerns to show that the goods in question had been accounted for in their books of account and appropriate duty had been paid. They found that in the reply to the show cause notice, the assessee had specifically asked to be allowed to cross-examine the representatives of these two concerns to establish that the goods in question had been accounted for in their books of account and appropriate amount of Central excise duty had been paid. It was not contested that the matter should go back to the assessing authority for hear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disbursing Rs. 26,22,000/-. Therefore, it is clear that this was contravention of Sec. 9(1)(b) and 9(1)(d) of Foreign Exchange Regulation Act (FERA). 32. We must refer to Solanki s case (cited supra) on which reliance was placed by the learned counsel for the appellant. Actually that case helps the Department. It was contended that no reliance should be placed on the retracted confessional statement unless the same was corroborated substantially in material particulars by some independent evidence. 33. The Supreme Court held in that case as follows. 19. The Act is a special Act, which confers various powers upon the authorities prescribed therein. Even the salutory principles of mens rea and actus reu in a proceeding under the Act may not be held to be applicable. It is now a well settled principle that presumption of innocence as contained in Article 12(2) of the International Covenant on Civil and Political Rights is a human right although per se it may not be treated to be a fundamental right within the meaning of Article 21 of the Constitution of India. 20. Sub-section (2) of Section 71 places the burden of proof upon an accued or a proceedee only when the foreign excha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igations in at least subjectively applying its mind to the subsequent retraction to hold that the inculpatory statement was not extorted. It thus boils down that the authority or any Court intending to act upon the inculpatory statement as a volunatary one should apply its mind to the retraction and reject the same in writing. It is only on this principle of law, this Court in several decisions has ruled that even in passing a detention order on the basis of an inculpatory statement of a detenu who has violated the provisions of the FERA or the Customs Act etc., the detaining authority should consider the subsequent retraction and record its opinion before accepting the inculpatory statement lest the order will be vitiated . 25. Submission of Mr. P.V. Shetty that appellant had special knowledge and that burden of proof would be on him in terms of Section 106 of the Indian Evidence Act, in situation of this nature, cannot be held to have any substance. The initial burden of prove that the confession was voluntary in nature would be on the Department. The special or peculiar knowledge of the person proceeded against would not relieve the prosecution or the Department altogether of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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