Vinod Kumar Shadev v. U.O.I & Ors

MOOL CHAND GARG, J. AUGUST 17, 2009 anb

* IN THE HIGH COURT OF DELHI AT NEW DELHI + Crl.A. 315/2007 Date of Reserve: 22.07.2009. Date of Decision: 17.08.2009. VINOD KUMAR SAHADEV. …Appellant Through: Ms. Sangita Bhayana, adv. Versus UNION OF INDIA & ORS. ...RESPONDENTS Through: Mr. Deepak Anand, adv. with Ms. Rajdipa Behura, adv. CORAM: HON'BLE MR. JUSTICE MOOL CHAND GARG 1. Whether the Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be Yes reported in the Digest? : MOOL CHAND GARG 1. The appellant had filed a writ petition impugning the order dated 23.3.2007 passed by the Appellate Tribunal for Foreign Exchange (hereinafter referred to as "respondent No.2") which writ petition was converted as an appeal under Section 35 of the Foreign Exchange Regulation Act, 1973 (hereinafter referred to as "the FERA, 1973"). By the impugned order, the respondent No.2 modified the order dated 10.4.1991 passed by the Special Director, Enforcement Directorate (hereinafter referred to as "respondent No.3") to the extent that the penalty of Rs. 8,50,000/- imposed upon the appellant was reduced to Rs.5,00,000/- in respect of three show cause notices for the alleged contravention of the provisions of Section 8(1) and 8 (2) of the FERA, 1973. 2. The respondent initiated the proceedings against the appellant relying upon the statement made by one Surinder Kumar Dhawan, who, as alleged, was arrested by the Customs Authorities at Palam Airport on 13.9.1985 and was found in possession of Saudi Riyals 43,500, DM 12,500 and DHs 2000 while he was moving towards security check at the airport for going to Singapore by KLM Flight and stated that the foreign exchange was received by him from Vinod Kumar Sahadev, the present appellant. 3. As a follow up action, the respondent conducted a search at the residential and business premises of the appellant, Surinder Kumar Dhawan and B.S. Malik. It is the case of the respondents that during the aforesaid search some loose sheets were recovered from the house of Vinod Kumar, which had some calculations and which were described as calculations of dealing in foreign exchange by the petitioner with one Kasturi Lal. 4. The respondent claims to have recorded the statement of the present appellant under Section 40 of the FERA, 1973 on 13.9.1985 alleging that the appellant accepted having handed over foreign exchange in question to Surinder Kumar Dhawan and to Kasturi Lal and his involvement in similar transactions between September 1984 till 12.9.1985 to the tune of Rs.30 lakhs. 5. It is also the case of the respondents that the statement of Kasturil Lal was also recorded where he has denied his involvement in any such transaction, yet three show cause notices were issued to all, besides launching of prosecution against the present appellant. 6. The criminal complaints were also filed by the respondent in respect of the same facts. However, the appellant and Kasturi Lal were discharged in one of the complaint case by the learned ACMM, New Delhi on 3.12.1998. In the second complaint, the appellant, B.S.Malik and Kasturi Lal were also discharged by the learned ACMM, New Delhi on 8.3.1999. 7. According to the appellant, he had retracted his alleged voluntary statement recorded by the respondent, on 14.9.1984 itself. According to him the said statement was not given by him voluntarily but was given under duress and that the same was obtained by using force by the officers of the respondent. It is in these circumstances, the appellant has assailed the order of the Tribunal dated 23.3.2007 on the following grounds:- (i) There is no evidence against the appellant that he contravened the provisions of Section 8(1) and 8(2) of the FERA, 1973. (ii) The statements which the respondents rely upon and states was voluntary statements made by the appellant, Surinder Kumar Dhawan, B.S. Malik, stand retracted and was obtained under duress and fraud and there is no corroboration of those st