TMI Blog2022 (12) TMI 1244X X X X Extracts X X X X X X X X Extracts X X X X ..... e of Rs.5,000/- and in default thereof, to further undergo R.I. for two months, is set aside and that of the trial Court is restored. As the fine has already been paid and the petitioner, as per the custody certificate, has already undergone 07 months of sentence i.e. over and above 06 months R.I. awarded by the trial Court, no further action is called for, as he has already undergone the entire sentence. With the aforesaid modifications, present revision petition is disposed of. - CRR-4694-2016 (O&M) - - - Dated:- 22-12-2022 - HON'BLE MR. JUSTICE ARVIND SINGH SANGWAN Present: Mr. Bipan Ghai, Sr. Advocate with Mr. Nikhil Ghai, Advocate, Mr. A.S. Pannu, Advocate for the petitioner. Mr. Satya Pal Jain, Additional Solicitor General of India with Mr. Pankaj Gupta, Sr. Panel Counsel for the respondent. ******* ARVIND SINGH SANGWAN, J. (ORAL) Challenge in this revision petition is to the judgment dated 08.12.2016 passed by the lower appellate Court, vide which appeal filed by the petitioner against the judgment of conviction and order of sentence dated 31.03.2014, holding him guilty of offence under Section 8(1) 8(2) of Foreign Exchange Regulatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he is liable to be prosecuted under Section 56 of FERA read with Sections 49(3) and 49(4) of Foreign Exchange Management Act, 1999 (for short FEMA ). Thereafter, formal complaint under Section 56 of FERA was filed by authorized person i.e. Chief Enforcement Officer, Jalandhar. The accused were summoned to face the trial vide order dated 21.05.2002. It is a fact that during the trial, accused Madan Lal and Piara Lal died and accused Jagdish Chand was never arrested and was declared proclaimed offender. In the trial, which was faced by petitioner Muneesh Suneja @ Goldy, Rakesh Kumar and Sanjay, the complainant examined PW1 HC Harmail Singh, who had registered formal FIR No.90 dated 18.06.1997 in Police Station Payal as Ex.PW1/A. Enforcement Officer N.K. Dhaka, who conducted the search in the residential premises of petitioner Muneesh Suneja @ Goldy along with two officials I.M. Bhatia and V.P. Gogiya, appeared as PW2 and proved the panchnamas Ex.PW2/A to Ex.PW2/C regarding recovery of foreign currency Ex.PW2/D and recovery memo of gold Ex.PW2/E. Assistant Director of Enforcement I.M. Bhatia appeared as PW3 and proved statement of accused recorded under Section 40 of FER ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en date, the petitioner was sentenced to undergo R.I. for a period of six months and to pay a fine of Rs.5,000/-. In default of payment of fine, he was ordered to further undergo R.I. for a period of three months. It was stated that the custody period as undertrial will be set off and the case property will be confiscated, however, the gold in question i.e. 08 biscuits of 10 tola each and Indian currency of Rs.3.00 lacs is to be returned to the accused against receipt, after expiry of period of limitation. Thereafter, two appeals were preferred before the lower appellate Court. First appeal was filed by the petitioner challenging his conviction and order of sentence and second appeal was filed by the complainant/Chief Enforcement Officer for enhancement of the sentence. The lower appellate Court, vide impugned judgment dated 08.12.2016, dismissed the appeal filed by the petitioner, however, allowed the appeal filed by the complainant. Resultantly, sentence of 06 months R.I. awarded by the trial Court was enhanced to R.I. for a period of 02 years, however, fine of Rs.5,000/- was retained. This revision petition is pending since 2016 and is still in motion hearing. Vide orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er judgment dated 19.02.2011, which has attained finality, the petitioner, who was implicated on their disclosure, cannot be convicted, as there is no independent evidence against him. It is submitted that except the voluntary statement of the petitioner, which was later on retracted by him at the first available opportunity, when he got the legal assistance, there is no other evidence on record, therefore, statements of the petitioner recorded by PW2 under Section 40 of FERA were not voluntary and he cannot be held guilty on the solitary statements, which were later on retracted, as the confession was not voluntary in nature. The reliance is placed on the judgment of the Hon ble Supreme Court in Vinod Solanki Vs. Union of India and another, 2009 (1) RCR (Crl.) 911, wherein it is held as under: - 34. A person accused of commission of an offence is not expected to prove to the hilt that confession had been obtained from him by any inducement, threat or promise by a person in authority. The burden is on the prosecution to show that the confession is voluntary in nature and not obtained as an outcome of threat, etc. if the same is to be relied upon solely for the purpose of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n law insofar as they failed to pose unto themselves a correct question. The Tribunal proceeded on the basis that issuance and services of a show cause notice subserves the requirements of law only because by reason thereof an opportunity was afforded to the proceedee to submit its explanation. The Tribunal ought to have based its decision on applying the correct principles of law. The statement made by the appellant before the learned Chief Metropolitan Magistrate was not a bald statement. The inference that burden of proof that he had made those statements under threat and coercion was solely on the proceedee does not rest on any legal principle. The question of the appellant's failure to discharge the burden would arise only when the burden was on him. If the burden was on the revenue, it was for it to prove the said fact. The Tribunal on its independent examination of the factual matrix placed before it did not arrive at any finding that the confession being free from any threat, inducement or force could not attract the provisions of Section 24 of the Indian Evidence Act. It is thus submitted that the statement Ex.PW3/A is an involuntary statement and the petitioner c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r to us that the High Court had overlooked the principles, laid down by this Court repeatedly, which should govern the exercise of powers of the High Court to enhance sentences Imposed by trial courts. In Bed Raj v. The State of Uttar Pradesh (1955) 2 SCR 583. this Court observed at page 588-589: A question of a sentence is a matter of discretion and it is well settled that when discretion has been properly exercised along accepted judicial lines, an appellate court should not interfere to the detriment of an accused person except for very strong reasons which must be disclosed on the face of the judgment; See for example the observations in Dalip Singh v. State of Punjab (1954 S.C. Rule 146, 156) and Nar Singh v. State of Uttar Pradesh [1955](1) S.C.R. 238, 241). In a matter of enhancement there should not be interference when the sentence passed imposes substantial punishment. Interference is only called for when it is manifestly inadequate. In our opinion, these principles have not been observed. It is impossible to hold in the circumstances described that the Sessions Judge did not impose a substantial sentence, and no adequate reason has been assigned by the learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant. I have considered the request of the appellant/accused for taking a lenient view on sentence, but the prosecution has duly proved on record the guilt of the accused beyond any shadow of doubt that the documents written in the hands of the accused himself and admitting his guilt with regard to the transaction made regarding the purchase of foreign currency from unauthorized sources and retraction of the same after due deliberation, but the learned trial Court inspite of this fact granted the minimum sentence. In this way, the offence committed by the appellant/accused is of serious in nature. Hence, the sentence announced by the trial Court is modified and is enhanced to undergo rigorous imprisonment for two years and to pay fine of Rs.5000/-. In default of payment of fine, to further undergo rigorous imprisonment for two months under Section 56 of FERA 1973. The fine has already been paid before the Trial Court. (b) A perusal of the findings recorded by the lower appellate Court would show that no special reasons have been assigned to make out a case for enhancement of the sentence. In view of judgement of the Hon ble Supreme Court in Shiv Govind s case (supra), ..... X X X X Extracts X X X X X X X X Extracts X X X X
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