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Dr. Jaswant Singh Vs. Directorate of Enforcement - Court Judgment

LegalCrystal Citation
CourtAppellate Tribunal for foreign Exchange New Delhi
Decided On
Case NumberAPPEAL NO. 304 OF 1991
Judge
AppellantDr. Jaswant Singh
RespondentDirectorate of Enforcement
Advocates:R.S. Gill for the Appellant. Dr. Shamsuddin for the Respondent.
Excerpt:
foreign exchange regulation act, 1973 - section 8, read with sections 40 and 63 - comparative citation: 2006 (71) scl 1 (atffe - new delhi)1. the following order of the appellate tribunal for foreign exchange is delivered by r.n. poddar, member. 2. this appeal is directed against the adjudication order no. sde(r)v17/91 dated 15-5-1991 whereby special director, enforcement directorate, imposed total penalty of rs. 10,00,000 for contravention of sections 8(1) and 8(2) of the foreign exchange regulation act, 1973, (‘the said act) and also ordered confiscation of the recovered foreign exchange of us dollar 1811, dm 1800, canadian dollar 12, uae dirhams 10 and indian currency of rs. 1,25,950 under section 63 of the act. 3. a show-cause notice no. t-4/6-j/90 dated 14-9-1990 was issued to the appellant asking him to show cause why adjudication proceedings should not be held against him for indulging in purchase and sale of.....
Judgment:

1. The following order of the Appellate Tribunal for Foreign Exchange is delivered by R.N. Poddar, Member.

2. This appeal is directed against the adjudication order No. SDE(R)V17/91 dated 15-5-1991 whereby Special Director, Enforcement Directorate, imposed total penalty of Rs. 10,00,000 for contravention of sections 8(1) and 8(2) of the Foreign Exchange Regulation Act, 1973, (‘the said Act) and also ordered confiscation of the recovered foreign exchange of US dollar 1811, DM 1800, Canadian dollar 12, UAE Dirhams 10 and Indian currency of Rs. 1,25,950 under section 63 of the Act.

3. A show-cause notice No. T-4/6-J/90 dated 14-9-1990 was issued to the appellant asking him to show cause why adjudication proceedings should not be held against him for indulging in purchase and sale of foreign exchange of US dollar 4,50,000, DM 5,000 and UAE Dhiram 10 which included foreign exchange seized on 12-9-1989 and 15-9-1989 by the Police from a person not being authorized dealer in foreign exchange without the previous general or special permission of the RBI in contravention of provision of sections 8(1) and 8(2) of the Act and also why the seized foreign currencies as well as Indian currency amounting to Rs. 1,25,950 should not be confiscated to the Central Government as contemplated in section 63 of the Act. The SCN relied on the following documents:

1. Seizure Memo dated 12-9-1989 dated 12-9-1989, 15-9-1989 and foreign currencies/Indian currency seized thereunder.

2. Memo regarding disclosure dated 15-9-1989.

3. Police Investigation report (zimni).

4. Statement dated 15-9-1989, 16-9-1989 of Dr. Jaswant Singh.

4. The appellant filed a reply to the SCN controverting the charges. Not agreeing adjudication proceeding was held and impugned order passed imposing the said penalty and confiscating the seized foreign currency as well as the Indian currency.

5. Being aggrieved the appellant filed the present appeal accompanying interim application inter alia for dispensation of condition of pre-deposit of penalty. The Tribunal vide order dated 4-1-2005 granted full dispensation. Presently this appeal has been taken up for final hearing on merits. Shri R.S. Gill, advocate appeared for the appellant and Dr. Shamsuddin, DLA represented the respondent. Arguments are heard. In spite of liberty given neither party has filed written submissions. Accordingly this appeal is being disposed off without further waiting.

6. It is seen from the record that on 12-9-1989 appellants personal search was conducted by Punjab Police which resulted in recovery and seizure from him of US $ 800 (International Money Orders), US $ 119 (Cash), DM 1,800 (Cash), Can. $ 12 (cash), UAE Dhs. 10 (cash) and Indian currency of Rs.33,950. He was arrested and produced before the J.M.I.C., Kapurthala and was remanded to the police custody. While the appellant was in police custody he made a statement that he had concealed US $ 1,000 and Indian currency of Rs. 92,000 in wheat drum at his residence. Thereafter police took him to his residence on 15-9-1989 and upon identification made by him US $ 1,000 and Indian currency 92,000 was recovered from a wheat drum at his residence. On 15-9-1989 pursuant to the application moved by the Directorate of Enforcement the appellant was remanded to the custody of the Directorate of Enforcement till 18-9-1989 and the foreign currencies and Indian currency seized were also taken over by the office of the Enforcement Directorate.

7. Shri R.S. Gill, learned counsel for the appellant contends that vide a letter dated 26-12-1990 the appellant reiterated his earlier statement stating, inter alia, Rs. 1,25,000 was lawfully acquired and possessed by him. In the said letter appellant denied the recovery of any foreign exchange from him and alleged that his statement was extorted under torture and duress. It has been further stated that total amount of Indian currency Rs. 1,25,950 was recovered and seized by the police on 12-9-1989 itself and thus denied any recovery made on 15-9-1989 by the police. The appellant further contends that out of total amount of Rs. 1,25,950, Rs.70,000 was drawn from his saving bank account and Rs. 60,000 was sale proceeds of a plot and two shops.

8. Learned counsel Shri R.S. Gill further contends that impugned order

has been passed without affording any opportunity to the appellant to defend himself. The adjournment was sought for but was arbitrarily rejected. It has also been contended that learned Adjudicating authority has erred in placing reliance on the statement of the appellant recorded by the Enforcement Directorate and police officers. The statements were obtained under torture and duress. The statement having not been voluntarily made could not be used in the absence of independent corroborative evidence. It has been submitted that impugned order has been passed on surmises and conjecture and is liable to be set aside.

9. Per contra Dr. Shamsuddin, DLA submits, at the outset, that department is not required to prove any contravention of the provision of the Act with mathematical precision to a demonstratable degree. He refers to the case of Collector of Customs v. D. Bhoormull AIR 1974 SC 859 where Honble Supreme Court observed that the onus to prove on the department can be sufficiently discharged by circumstantial evidence. All that is required to establish such a degree of probability that a prudent man may, on its basis, believe in the existence of the facts and issue. Since it is exceedingly difficult, if not absolutely impossible, for the prosecution to prove facts which are within the knowledge of the accused, the Department is not obliged to prove them as part of the primary burden. Dr. Shamsuddin, DLA submits that above observations of the Honble Supreme Court would apply with more force while proving the charge of contravention of sections 8(1) and 8(2) of the Act since there is no direct evidence to establish the nexus of the acquisition/payment transactions.

10. Referring to the observation of the Honble Supreme Court in the case of Pyare Lal Bhargava v. State of Rajasthan AIR 1963 SC 1094, Dr. Shamsuddin, DLA, further submits that retracted confession may form basis of a conviction if the court is satisfied that it was true and voluntary in nature. In that case Honble Supreme Court observed :

“A retracted confession may form the legal basis of a conviction if the court is satisfied that it was true and voluntary made.”

11. It is further submitted that as per the statement of the appellant recorded on 12-9-1989 by the police the appellant admitted the recovery of the foreign currency and Indian currency of Rs. 33,950. On 15-9-1989 while he was leading the police to recovery of a sum of US $ 1,000 and Indian currency of Rs. 92,000 concealed in wheat drum from his residence. The appellant was produced before the Honble Magistrate on various dates he had not denied the recovery of foreign exchange. Also, mere denial of the recovery after a considerable period cannot absolve him from the responsibility. The entire story has been put forth as after thought.

12. We have carefully considered the rival contentions it is seen that in spite of three opportunities granted by the adjudicating authority the appellant could not avail none and the proceedings were adjourned on his requests. He also failed to appear on the next date either by person or through his representative in spite of being served. He cannot claim successive adjournments as a matter of right or equity. Therefore, the arguments based on violation of principles of natural justice are liable to be rejected.

13. It is to be noted that the appellant in his statement before the Directorate of Enforcement under section 40 of the Act admitted recovery of aforesaid foreign currency and Indian currency of Rs. 32,950 from him on 12-9-1989. The recovery of US $ 1,000 and Indian currency of Rs. 92,000 on 15-9-1989 was made pursuant to the information/statement made by him to the police. The section 27 of the Indian Evidence Act lays down an exception to the rule contained in sections 25 and 26 that a confession made by an accused person while he is in police custody or before police must be excluded from the evidence but permits the admission of such a confession which leads distinctly to the discovery of a fact under the conditions prescribed therein. In other words section 27 is a nature of proviso to sections 25 and 26. It is partially removes the ban placed on the reception of confessional statement under sections 25 and 26.

14. As regards the contention of the appellant that his statement has been obtained by the police and subsequently by the officials of the Enforcement Directorate under torture and duress the appellant has not brought out any factors of such inducement and torture. The Honble Supreme Court has observed in K.T.M.S. Mohd. v. UOI [1992] 197 ITR 1961 as under :

“We think it is not necessary to recapitulate and recite all the decisions on this legal aspect. But suffice it to say that the core of all the decisions of this Court is to the effect that the voluntary nature of any statement made either before the Customs authorities or the officers of Enforcement Directorate under the relevant provisions of the respective Acts is a sine qua non to act on it for any purpose and, if the statement appears to have been obtained by any inducement, threat, coercion or by any improper means that statement must be rejected brevi manu. At the same time, it is to be noted that, merely because a statement is retracted, it cannot be recorded as involuntary or unlawfully obtained. It is only for the maker of the statement who alleges inducement, threat, promise, etc. to establish that such improper means has been adopted. However, even if the maker of the statement fails to establish his allegations of inducement, threat, etc. against the officer who recorded the statement, the authority while acting on the inculpatory statement of the maker, is not completely relieved of his obligations in at least subjectively applying its mind to the subsequent retraction to hold that the inculpatory statement was not extorted. It thus boils down to this that the authority or any court intending to act upon the inculpatory statement as a voluntary 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. . . .” (p. 213)

15. There is nothing on record from which it can be deduced that inducement, torture, duress, etc. has been practised upon the appellant by the officials of the Enforcement Directorate. In that situation in absence of any proof of torture, duress, etc. inculpatory statement confession supported with recovery of currencies is acceptable as true.

16. The evidence available against the appellant is that of,—

(a) Recovery from personal search by Punjab police of foreign currency of U.S. dollar 800 in International Money Order, US $ 11 in cash, D.M. 1,800 Canadian dollar 12, UAE Dhiram 10 and Indian currency of Rs. 33,950;

(b) Confession made before police while in their custody on his arrest after personal search stating that the appellant has acquired the (personal-search) recovered foreign currency and is engaged in sale and purchase of the foreign currency at a different rate other than prescribed by RBI;

(c) A further statement before police that some of his acquired foreign currency of US $ 1,000 along with sale proceeds of foreign exchange of Rs. 92,000 is concealed by him and is lying in wheat drum in his house which is also recovered and seized;

(d) Another confessional statement before Enforcement Directorate (who took the applicant in their custody from police) which is recorded under section 40 of Foreign Exchange Regulation Act, 1973;

17. From the appellants personal search on 12-9-1989, aforesaid amount of foreign currency, along with aforesaid amount of Indian currency, was recovered. The appellant totally denies recovery of foreign currency but has claimed ownership of Indian currency. This dichotomy is not acceptable on the face of it. In case Indian currency is recovered and is so admitted then recovery of foreign currency cannot be doubted. Moreover, the amount of foreign currency is not small but is substantial. This substantial amount is quite difficult to implant on the appellant. Hence, this plea of implanting is liable to be rejected. Another recovery from the residential premises of the appellant is made on 15-9-1989 on the basis of information given by the appellant when he himself led the police party to recovery from wheat drum. By this recovery, some amount of foreign currency as well as some amount of Indian currency is seized. This recovery also cannot be doubted. Another aspect requires to be examined is that the appellant has pleaded torturous beating whereupon he confessed having made sale and purchase of foreign currency of the amount described in SCN.

18. The substantive law of confession is contained in the provisions of section 24 to section 30 Indian Evidence Act, 1872, but the procedural law is available under section 164 Criminal Procedure Code, 1973. (Nazir Ahmed v. King Emperor AIR 1936 P.C. 253). According to section 24, no confession is admissible in evidence which is procured by inducement, threat and coercion by a person in authority or caused by a promise with reference to the charge. Still, after removal of the impression caused by such inducement, threat or promise confession becomes relevant as per the provisions of section 28 of Indian Evidence Act, 1872. Howsoever, the confession before a police officer or under the police custody cannot be proved against the maker as provided in sections 25 and 26 of the Indian Evidence Act, 1872, but section 27 is an exception to sections 25 and 26. According to section 27, so much of the information which leads to recovery of a fact can be proved.

19. It is well-settled legal position that confession is an admission made at any time by person charged with crime stating or suggesting the inference that he committed the crime. The law of the confession is contained in sections 24 to 30 of the Indian Evidence Act, 1872 and section 164 of Criminal Procedure Code, 1973. All confessions can be classified in two categories. The confession recorded by a Magistrate under section 164 is classified as judicial confession and any other confession is named as extra judicial confession except those recorded by police. According to section 24 a confession is irrelevant if it has been caused by inducement, threat or promise having a reference to the charge from a person in authority. This section deals with confession which are not valid hence are made inadmissible in evidence. The word “voluntary” is used in contrast to “inducement, threat or promise” and not in the sense of “willingly”. To exclude the confession from evidence it is sufficient if a legitimate doubt is created wherefrom it appears that confession is not voluntary. The essence of section 24 is summarized by the Apex Court in Pyare Lal Bhargavas case (supra).

20. Further section 25 enacts that “no confession made to a police officer shall be proved as against a person accused of an offence”. Similarly confession to any person while in custody police excluded by section 26 of Indian Evidence Act. Both theses provisions of sections 25 and 26 clearly outlaw the confession before a police officer and the reason for adopting this policy is stated in Queen Empress v. Babu Lal [1884] ILR 6 All. 509 where the following is observed:—

“The Legislature had in view the malpractices of police officers in extorting confessions from accused persons in order to gain credit by securing convictions, and those malpractices went to the length of positive torture; nor do I doubt that the Legislature, in laying down such stringent rules, regarded the evidence of police officers as untrustworthy, and the object of the rules was to put a stop to the extortion of confessions, by taking away from the police officers the advantage of proving

such extorted confessions during the trial of accused person. It required no vivid imagination to picture what too often takes place when two or three of these not very intellectual or highly-paid police officials are called away to a village to investigate a grave crime, of which there are no very clear traces. Naturally it is much the easier way for them to begin by endeavouring to obtain a confession from the suspected person or persons, instead of by searching out the clues to the evidence from independent sources, and seeing what extraneous proof there is. It continually happens that, while the police have been occupying themselves in getting the confession, many of the traces of the crime, which, if at once followed up, would have produced valuable proof, have disappeared. Instead of working up to the confession, they work down from it, with the result that we frequently find ourselves compelled to reverse convictions simply because beyond the confession, there is no tangible evidence of guilt. Moreover, it is incredible that the extraordinarily large number of confessions, which come before us, should have been voluntarily and freely made in every instance as represented.”.

21. Howsoever, the officers of excise or custom or enforcement directorate are not treated as a police officer because they do not have a power to file chargesheet under section 173 of Criminal Procedure Code [Romesh Chandra Mehta v. State of W.B. AIR 1970 SC 940]. From above it is quite clear that the provision in section 26 make every confession made to any person while the accused is in custody of police unless such confession is made in the immediate presence of a Magistrate irrelevant. Thus section 26 is controlled by section 164 of Cr. P.C. where the Magistrate has to follow elaborate procedure which is mandatory [State of U.P. v. Singhara Singh AIR 1964 SC 358]. Despite all above the provisions of section 27 are an exception to sections 25 and 26 of the Indian Evidence Act but not to section 24. Here the information given by the accused person to a police officer whether incriminatory or otherwise if leads to the discovery of a fact then that much information along with the discovery is relevant. In this regard the judgment of Privy Council in Pulukuri Kotayya v. King Emperor AIR 1947 SC 67 can be referred which has been approved by Honble Supreme Court in Aghnoo Nagesia v. State of Bihar AIR 1966 SC 119.

22. Applying the above percepts of law to the facts of this appeal it is clear that certain amount of foreign currency was recovered from the appellants personal search with an amount of Rs. 33,950 in Indian currency. Further foreign currency of $ 1,000 with an amount of Rs. 92,000 Indian currency is recovered from the wheat drum on the information given by the appellant to the police? As possession of foreign currency by itself amounts to a violation of the provisions of section 8(1) of FERA because possession is 9/10th acquisition so this evidence can lead to the arriving of guilt against appellant under section 8(1) of the Statute for otherwise acquiring foreign currency without any prior permission of RBI. However the recovered amount of Indian currency comes to a total of Rs. 1,29,500. This amount is not abnormally high nor any incriminatory circumstances is brought out before adjudicating authority which can otherwise make this possession violative of the provisions of FERA.

23. The recording of statement under section 40 by Enforcement Directorate when appellant was in their custody cannot be termed as a confession recorded under the provisions of section 164 of Cr. P.C. Neither such recording can be called as extra judicial confession because the person has not come voluntarily before the Enforcement Directorate and made a statement but was under arrest when he made that statement before Enforcement Directorate. This statement cannot assume the character of a confession recorded under section 164 of Cr. P.C. Even if it is so assumed for the sake of arguments, the mandatory conditions prescribed by sub-sections (2) to (4) of section 164 are not complied with by Enforcement Directorate while recording confessional statement of the appellant. Such conditions are described as mandatory for all including the Custom Authority while recording confessional statement under section 168 of Customs Act. In this regard judgment of the Andhra Pradesh High Court in NSR Krishana Prasad v. Directorate of Enforcement 1992 Criminal Law Journal 1888 can be referred to where the provisions of section 108 of Customs Act which are pari materia to section 40 FERA, 1973 are discussed as follows:—

“Section 164, Cr. P.C. uses and refers to both the expressions “Confessions and Statements”. The distinction between statements and confessions was kept in mind while enacting section 164, Cr. P.C. it is well-settled that all confessions are statements, but also statements are not confessions. The Legislature advisedly used the expression “statement” while enacting section 108 of the Customs Act authorizing the empowered authority to record what the person summoned states. A plain reading of section 108 of the Customs Act makes it clear that it does not enable the empowered authority can only fall back upon section 164, Cr. P.C. to record a statement of confessional nature from the person summoned.

And further it is observed therefore, unless the empowered authority under section 18 of the Customs Act administers the caution or the warning embodied under section 164(2) Cr. P.C. before recording a statement of confessional nature, from the person summoned, the statement so recorded will be inadmissible in evidence for any purpose in other words, the impugned statements recorded by the authority under section..... of the Customs Act are inadmissible in evidence and liable to be eschewed from consideration for any purpose, as no caution or warning embodied under section 164(2), Cr. P.C. was administered to the person from whom the said statements were recorded. The defect is not curable under section 463, Cr. P.C.”.

24. The Enforcement Directorate recorded the same version of confession as was recorded by the police. According to the criminal jurisprudence prevalent in this land any confession before police officer or under police custody is not acceptable. From this it clearly flows that same version of the confessional statement if recorded second time by any authority including Enforcement Directorate except a Magistrate under the provisions of section 164 Cr. P.C. is not acceptable in evidence. It is legally well-settled that anything which is not permitted to be done directly cannot be allowed to be done indirectly. Otherwise every second version of the confessional statement before any other authority after the first version is made before the police will violate the delicate notions inscribed in the criminal jurisprudence. The question here is not applicability of the provisions of Indian Evidence Act but relates to acceptance of basic judicial norms. An involuntary confession or confession before police or in police custody is automatically excluded from admissibility without any further proof or argument. There are no provisions to the contrary in Foreign Exchange Regulation Act where from it can be deduced that requirement of sections 24, 25 and 26 of the Indian Evidence Act cannot apply. Therefrom it flows as a consequence that the second version before Enforcement Directorate of same confession as recorded by police is also excluded from admissibility. Also it is not necessary to make an express retraction of such confession because they are otherwise outside the legal permissibility.

25. When the factual position in this appeal is examined, the appellant made some confession of making the sale and purchase of foreign currency before Punjab Police and thereafter repeated these words again in the custody of Enforcement Directorate. As the confession before police or to another person while in custody of police is not admissible, so repetition of same confession before Enforcement Directorate cannot be accepted, except where such confession is recorded by Magistrate duly observing the procedural equirements of section 164 Criminal Procedure Code. The confession is required to be made before a Magistrate during the course of investigation which is not done, otherwise, it will not be admissible and has to be kept outside.

26. As stated above, the recovery of foreign currency during the personal search or upon the information given by appellant, from his residence is acceptable for conviction under section 8(1) for “otherwise acquiring foreign currency” without permission of the RBI, because the possession of foreign currency ipso facto is violative of these provisions. Hence, the appellant has rightly been found guilty under the provisions of section 8(1) of the Foreign Exchange Regulation Act, 1973, for “otherwise acquiring” foreign currency which is recovered from his personal search and also upon from his residence the information given by him. As possession of foreign currency is 9/10 proof of acquisition so the guilt arrived at against the appellant for contravention of section 8(1) cannot be faulted with. However, the recovery of Indian currency either from personal search or from his residence by itself is not bad in law without further proof that this Indian currency is used for buying or is the product of sale of foreign currency. The possession of Rs. 1,25,950 which otherwise not abnormally high cannot be faulted with in absence of any evidence to the contrary. In this regard the confession before police or before Enforcement Directorate by the appellant being inadmissible can neither be pressed into service nor can be looked at. Therefore, the possession and recovery of Indian currency has to be taken as innocuous and cannot lead to contravention of the provisions of the Foreign Exchange Regulation Act, 1973. The Enforcement Directorate has failed to prove by some evidence that this amount is intimately connected with the activity of sale and purchase of foreign currency who has failed to bring out any independent evidence in this regard, except that reliance is placed either on the confession before the police or repetition of this very confession before the Enforcement Directorate which is not acceptable. Even if the statement recorded by Enforcement Directorate is taken, for the sake of arguments, as extra-judicial confession, it cannot be acceptable due to inherent lacuna under which it is shrouded. In extra-judicial confession if accused again admits after admittance before police to some other person, such confession, usually, requires corroboration or the witness a responsible and independent person having no animus against the accused and could be relied upon without corroboration. State of Punjab v. Bhajan Singh AIR 1977 SC 258 and Maghar Singh v. State of Punjab AIR 1975 SC 1320. In the present scenario, the Enforcement Directorate cannot bear the label of a person having no animus towards the appellant. The Enforcement Directorate has a stake in the adjudication proceedings. Hence, it is neither without animus nor can be treated as independent witness.

27. As the finding of guilt for contravention of the provisions of section 8(2) of the Foreign Exchange Regulation Act, 1973, is dependent on the confession recorded by the police or on the same version repeated before Enforcement Directorate without such confession being recorded by Magistrate under section 164 Criminal Procedure Code, it does not withstand legal scrutiny. However, the recovery of foreign exchange being ipso facto bad and in contravention of the provisions of section 8(1) so conviction in this regard is maintainable. But, the amount of Rs. 1,25,950 is not proved to have been involved in contravention of provisions of section 63 so this money cannot be confiscated under the provisions of section 63 of the Foreign Exchange Regulation Act, 1973, nor conviction in this regard can be upheld. Needless to say, recovery of foreign currency is correctly forfeited by the Adjudicating Authority.

28. In view of the above discussion, the finding of guilt against the appellant for contravention of section 8(1) of the Foreign Exchange Regulation Act, 1973, testified by recovery from personal search of foreign currency of US dollar 800 (international money order), US dollar 11 (cash), DM 1,800, Canadian dollar 12, UAE Dhiram 10, including recovery of foreign currency of US dollar 1,000 from wheat drum upon information given by appellant, is sustained and affirmed. However, the arriving of guilt for contravention of the provisions of section 8(2) for entering into a transaction for conversion into foreign currency of Indian currency at different rates than prescribed by RBI which is testified only by confession before police or repetition of the same confession before Enforcement Directorate, is set aside and quashed. In the same vain, confiscation of aforesaid recovered foreign currency under the provisions of

section 63 Foreign Exchange Regulation Act, 1973, is upheld and sustained.

However, recovery and possession of Indian currency of Rs. 1,25,950 does not constitute any violation of the provisions of Foreign Exchange Regulation Act, 1973 and in absence of evidence to the contrary, this amount is required to be returned to the appellant. It cannot be confiscated under the provisions of section 63 because in this respect no contravention has been proved and brought to light.

29. By adjudication order, the penalty of Rs. 10,00,000 is imposed on both the counts, i.e., contravention of section 8(1) and section 8(2) of the Foreign Exchange Regulation Act, 1973. This being a composite penalty for violation of two sections of the Foreign Exchange Regulation Act, 1973, without any separate specification so after acquitting the appellant against the charge of section 8(2), this amount of penalty is re initially required to be reduced, at least, by half, i.e., Rs. 5,00,000. Further, the penalty of Rs. 5,00,000 for contravention of section 8(1) is based on total amount described in the confessional statement, i.e., US dollar 4,50,000, DM 5,000 and Canadian dollar 5,000 having been otherwise acquired. Looking towards this quantum, the adjudicating authority has imposed a penalty of Rs. 5,00,000 for contravention of section 8(1) of the Foreign Exchange Regulation Act, 1973, which also is required to be further reduced after proper counting of the amount involved in contravention. Keeping the same standard of penalty this amount has to be reduced to the total amount recovered from appellant which comes to US dollar 1,811, DM 1,800, Canadian dollar 12 and UAE Dhiram 10. If all the five denominations of foreign currencies counted together, without looking at their financial worth in forex market, the total comes to 3,633. Hence the penalty has to be co-related to this amount and nothing more. Taking a rough standard and also to give quietus to this long pending litigative process, we feel that the amount of penalty can be equal to the amount of Indian currency recovered from the appellant, i.e., Rs. 1,25,950. Though it is somewhat on higher side but this will serve the ends of justice. As discussed above, we have concluded for return of the recovered Indian currency of Rs. 1,25,950 in favour of the appellant. After reducing the penalty to same quantum the respondent is allowed to appropriate this amount available with it towards penalty.

30. For the reasons stated hereinabove, this appeal is partly allowed. The finding of guilt against the appellant for contravention of section 8(1) is maintained and upheld but the arriving of guilt for contravention of section 8(2) is quashed and set aside. Though the recovered amount of Indian currency of Rs. 1,25,950 is ordered to be returned, but the same can be appropriated towards amount of penalty which has been reduced to this very quantum as indicated above.


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