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TMI Blog2007 (4) TMI 690X X X X Extracts X X X X X X X X Extracts X X X X ..... , therefore, liable to be set aside ? 3. The appellants were issued show cause notice for contravening the provisions of Section 9(1); 9(b) & 9(l)(d) of the Foreign Exchange Regulation Act, 1973 (hereinafter referred to as FERA, 1973). 4. On the basis of an information, the residential premises as well as business premises of Smt. Gurmeet Kaur Dhillion W/o Major Manjit Singh Dhillon r/o 596 Model Town, Jalandhar were searched under Section 37 of FERA, 1973 on 17-10-1995. The search resulted in seizure of incriminating documents and Indian Currency of ₹ 70,500/-. Nothing incriminating was recovered and seized from the business premises. Major Manjit Singh Dhillon was not present during the course of search. 5. During the course of search of the said premises Saudagar Singh son of Sh. Joginder Singh of village Dhirowal, Tehsil & District Jalandhar was searched under Section 34 of FERA which resulted in seizure of three chits indicating distribution of payments. 6. Smt. Gurmit Kaur Dhillon in a statement dated 17-10-1995 recorded under Section 40 of FERA inter alia stated that she was doing business of hawala payments along with her husband; that her husband is said to have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocate the premises where he had made payments. The persons named by him were also examined under the FERA and their respective statements were recorded under Section 39 of the Act. They admitted to have received compensatory payments under instructions of persons residing abroad. The names of the persons and amount received by them reads as under: Sr. No. Name of Party Amount received 1. D.V. Arora, R/o 278, Lajpat Nagar Jalandhar, Rs. 50,000 2. Shri Pakhar Ram S/o Nand Ram, V.P.O. Bhupa Rai, Distt. Jalandhar Rs. 2,00,000/- 3. Smt. Harbans Kaur w/o Shri Gajjan Singh Village Prempur, Distt. Hoshiarpur. Rs. 50,000/- 4. Shri Raghubir Singh S/o Shri Sarvran Singh, Viilage Aujla Manjki Distt. Jalandhar. Rs. 40,000/- 5. Smt. Baldev Kaur w/o Santokh Singh VPO Dhaliwal, Tehsii Nakodar, Distt. Jalandhar. ₹ 54,000/- 6. Shri Sucha Ram s/o Pargasna Ram VPO Dharamkot, Distt, Jalandhar. ₹ 50,000/- 7. Dass Ram s/o Sunder Ram, H. No. 146 Hargobind Nagar, Phagwara. Rs. 1,00,000/- B) Kultham Dashion Mela, Phagwara Rs. 5,44,000/- 8. . Malkiat Singh Gullu s/o Shri Didar Singh, VPO Sandhwan Via, Pharala, Distt. Jalandhar Rs. 1,50,000/- 9. Mangal Sin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t admissible against her. It was further claimed that she was tortured to such an extent that she had to undergo treatment from a Neuro Surgeon, Civil Hospital, Jalandhar. It was further claimed by her that in her bail application dated 19-10-1995, she had made it clear that her statement was recorded under stress, strain and duress and a representation in this regard was also sent to the President of India with a copy to the Director of Enforcement, New Delhi. It was also claimed that in the absence of any independent corroborative statement, her statement being not voluntary cannot be relied upon. Shri Saudagar Singh also retracted her statement. Except the statement of Shri Saudagar Singh there is no corroborative evidence. It was claimed that no offence is made out against the accused persons. Similar stand was taken by Shri Saudagar Singh. However, the Special Director, in view of the statement made by Smt. Gurmit Kaur Dhillon and Shri Saudagar Singh read with the statement of other persons came to the conclusion that there has been violation of FERA and accordingly a penalty of ₹ 10,00,000/- each on Smt. Gurmit Kaur, Mr. Manjit Singh Dhillon and ₹ 25,000/- was imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l be bound to state the truth upon any subject respecting which they are examined or make statements and produced such documents and other things as may be required. These provisions, therefore, enable a customs officer to summon any person to give evidence or for the purpose of interrogation in connection with any enquiry which such officers is making in connection with the smuggling of any goods. Neither these provisions in Section 107 nor Section 108 nor any other provision in the Act or the rules framed thereunder restricts the right of the customs officers to require the person to appear only at stated hours. In the nature of things, therefore, it will have to depend on the facts and circumstances of the case and therefore the only thing which we can expect is that the time and place shall be reasonable and fair having regard to the facts in that particular case. Normally, it is expected that such interrogation or examination will be done during the normal office hours or during day time. However, we could not say that in every case it could be done only during day time or during office hours. If the circumstances demand an examination or interrogation immediately or during th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve overstepped his limits, and any confessional statement obtained from such a person by keeping him in a prolonged custody has to be regarded with grave suspicion, because there is always room for criticism that such a confession might have been obtained from extorted maltreatment or induced by improper means. As pointed out by the Supreme Court in Nathu v. State of Uttar Pradesh the prolonged custody may stamp the confessional statement so obtained as involuntary one, and the intrinsic value of such a statement may be vitiated. The question whether person has been kept in prolonged custody is a question of fact, which has to be carefully considered against the background of the circumstances disclosed in each case. So, it is neither advisable nor possible to lay down any inflexible standards for the guidance of Courts, though in the ultimate analysis, it is the Court which is called upon to decide the circumstances of a particular case. 12. It is in the light of these principles the constitutional question raised by the learned Counsel shall be considered. 13. Learned Counsel for the petitioner contended that violation of FERA could not only be attributed to the appellants in c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tunity was given to the respondent. The Board was impressed by the respondent's contention that he was not given an effective opportunity to elicit evidence in his defence by cross-examining witnesses who had given statements against him. We see no reason to interfere with that order. 14. It was further contended by the learned Counsel for the appellants that no enquiry against Shri Hakumat Rai Sharma was held. The learned Counsel for the appellants further contended that confession of the accused persons could be pressed into service only when Court is inclined to accept other evidence and feels the necessity for an assurance in support of its conclusion deducible from the said evidence. Confessional statement can be considered only after the other evidence is considered and found to be satisfactory. In support of this contention reliance was placed on the judgment of the Hon'ble Supreme Court in the case of Bhana Khalpa Bhai Patel v. Assistant Collector of Customs, Bulsar, Gujarat wherein it has been held as under: We have already referred to the contentions urged by the learned Counsel for the appellant. We are unable to accept the arguments that the entire case rests ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tar Pradesh , confessions of co-accused are not evidence but if there is other evidence on which a conviction can be based they can be referred to as lending some assurance to the verdict. 16. The learned Counsel for the appellants finally argued that if for the sake of arguments, allegations levelled by the prosecution are believed that there was proof of transaction to the tune of ₹ 1,00,000/-(Rupees one lac only) and ₹ 1,50,000/-(Rupees one lac and fifty thousand only) even then the penalty of ₹ 10,00,000/- (Rs. Ten lac only) imposed each on two of the appellants and ₹ 25,000/- (Rs. Twenty five thousand only) imposed on the third appellant is clearly in violation of Section 50 of the FERA, which reads as under: Section 50. Penalty: If any person contravenes any of the provisions of this Act (other than Section 13, Clause (a) of subsection (1) of Section 18A and Clause (a) of Sub-section (1) of Section 19) or of any rule, direction or order made thereunder, he shall be liable to such penalty not exceeding five times the amount or value involved in any such contravention or five thousand rupees, whichever is more, as may be adjudged by the Director of Enf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ERA and, therefore, in view of the law laid down by the Kerala High Court in the case of Central Govt. represented by the Director, Enforcement Directorate, Foreign Exchange Regulation Act, New Delhi v. Alfred James Fernades (supra), said evidence cannot be taken into account. Once the statement of persons examined under Section 40 is taken out of the purview, then the confession of the co-accused is also of no value in view of the law laid down by the Hon'ble Supreme Court in the case of Bhana Khalpa Bhai Patel v. Assistant Collector of Customs, Bulsar, Gujarat (supra). Thus, it has to be held that the impugned order is based on no evidence, whatsoever, and, therefore, cannot be sustained in view of the fact that the appeal is being accepted on merit. I am not going into the quantum of penalty to be imposed which prima facie is in violation of Section 50 of the FERA. 19. The contention of the learned Counsel for the respondent that the present appeal is not competent as no question of law arises for consideration is also devoid of any merit as the questions of law arising in this case have been duly framed and answered. 20. In view of what has been stated above, the present ..... X X X X Extracts X X X X X X X X Extracts X X X X
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