K S BAWA Vs. DIRECTOR OF ENFORCEMENT

JUDGEMENT

(1.) This appeal has been brought under Section 23EE of the Foreign Exchange Regulation Act, 1947 (hereinafter referred to as 'the Act') against the order of the Appellate Board made under Section 23 E of the Act by which the Appellate Board had reduced the penalty from Rs. 42,900 to. Rs. 42,100. Under Section 23D of the Act. the Director of Enforcement after giving show cause notices to the appellant and after holding inquiry in the prescribed manner had imposed the penalties on the appellant as the appellant had stated to have violated the provisions of Section 5(1)(a) and fur and Section 12 of the Act. Section 5(1)(a) and (aa) of the Act lays flown that save as otherwise provided in accordance with any general or special exemption, no person shall make any payment to or for the credit of any person resident outside India and receive otherwise than through an authorised dealer any payment by order or on behalf of any person resident outside India.

(2.) The case of the Department against the appellant was that the appellant had received certain payments in India at the instance of one Mr. Paul Telco, non-resident Indian and had passed on those payments to certain other persons in India. It was also pleaded against the appellant that the appellant had exported certain goods to said Paul Telco, non-resident and had given inflated invoice and had received less amount. through normal banking chancel than indicated and had received the balance amounts in India at the instance of Mr. Telco in conraevention of Section 12 of the Act.

(3.) One of the pleas raised before the Appellate Board was that no evidence has been collected to show that Mr Telco was resident outside India. The Appellate Board has limned the finding of fact arrived at by the Directed of Enforcement based on admission of appellant himself that Mr. Telco was a person sesiding abroad who used to visit India occasionally for the purposes of his business and that Mr. Telco had seized to he Director of Indian company much earlier in May 1963 and was running a business in London. This finding of fact has not been assailed before me by the learned counsel for the appallant. It is evident that the Director of Enforcement and the Appellate Board had brought home the contraventions of the said Section 5 and Section 12 of the Act to the Appellant on the basis of appellant's statement made to the officers of the Directorate of Entroecmet based on certain documents seized from the appellant himself. A contention was raised before the first Appellate Board that the enforcement officers should be treated as police officers and any statements recorded by them are hit by the provisions of Section 25 of the Indian Evidence Act. This contention was negatived by the first Appellate Board by relying on the ratio laid down by the Supreme Court in the case of Illias v. Collector of .Customs, Madras, AIR 1970 SC 1065.(1) Another contention raised betore the first Appellate Board was that the statements recorded by the said eanforcement officers also are hit by the provisions of Article 20(3) of the Constitution of India as the appellant should be deemed to be an accused, person and he has been compelled to be a witness against himself by making confessional statements. This contention was negatived by the first Appellate Board placing reliance on the pronouncement of the Supreme Court in Ramesh Chandra Mehta v. State of West Bengal, AIR 1970 SC 940(2). The learned counsel for the appellant has not been able to show how the ratio laid down by the Supreme Court in the aforesaid two cases does not cliach the issue on both the point against the appellant. Hence, I endorse the order of the Appellate Board in this connection.