A ABDULLAH Vs. FOREIGN EXCHANGE REGULATION APPELLATE BOARD

JUDGEMENT

(1.) This civil miscellaneous appeal under S. 54 of the Foreign Exchange Regulation Act, 1973 (hereinafter referred to as 'the Act') is against the concurrent orders of the 2nd respondent and the 1st Appellate Authority, viz., the 1st respondent, levying penalty of Rs. 8000/- under S. 50 of the Act for the contravention under S. 9(1)(b) of the Act and ordering confiscation under S. 63 of the Act, of the Indian currency of Rs. 60,000/- seized from the appellant on the personal search made on him by the 2nd respondent's officers in a lodge on 24-1-1985. Apart from the abovesaid Indian currency recovered, at the same time Singapore $50/-, Japan Yen 100/- and Ceylon currency 200/- were also recovered from his possession. A statement dated 24-1-1985 was also recorded soon after the said recovery. In that statement the appellant admitted that the said amount of Rs. 60,000/- was received by him from a person resident in India under instructions from his relative resident of Singapore Mohd. Jinnah, earlier the same day. On the said basis only, he was charged with the contravention under S. 9(1)(b) of the Act, according to which, inter alia, no person in India, save in accordance with the exemption granted by the Reserve Bank, shall "receive otherwise than through an authorised dealer, any payment by order of on behalf of any person resident outside India."

(2.) A show cause notice dated 14-2-1985 was issued to the appellant regarding the above said contravention. In the said show cause notice reliance was placed on the confessional statement given by the appellant on 24-1-1985, stating further that the said document could be inspected at the office of the Deputy Director, after fixing an appointment to that effect. To the said show cause notice he gave his reply dated 4-6-1985, denying the charge and pleading that the said sum of Rs. 60,000/- was given to him by his brother Asaf Ali for being delivered to his brother Jalal in discharge of the debt due from him and for improvements in their house property. The reply also stated that the alleged confessional statement dated 24-1-1985 was not his voluntary statement and that he was also not aware of any person by name Mohd. Jinnah in Singapore. It must be stated that even as early as 25-1-1985 itself (that is, the very next day after 24-1-1985 when the abovesaid confessional statement was given) a telegram was sent to the Enforcement Officer retracting the abovesaid confessional statement stating that the statement was not voluntary and no copy of the said statement was also given to him. Further, on the same day (25-1-1985) a letter was also sent to the same Enforcement Officer, detailing how the alleged confessional statement was not voluntary in view of the force and torture exercised by him and three other officers. It is also stated therein that he was detained in the office right from 1-30 p.m. on 24-1-1985 till 4-00 p.m. on 25-1-1985 and that on returning from the office he took treatment in the Government hospital as out patient for the injuries caused by the officers. That apart, therein, it was also stated that on 28-1-1985 when he was asked to appear pursuant to the show cause notice, he should be allowed to appear along with his advocate in view of his apprehension of similar ill-treatment. To this telegram and letter dated 25-1-1985, though no reply came from the said Enforcement Officer, a reply came from his higher official, viz., the Assistant Director, Enforcement, stating that the alleged ill-treatment by the Enforcement Officer "appear to be baseless" and that no injury was caused by the officers and that he was allowed to leave the office on 24-1-1985 itself. Further, it is also stated there he should have appeared before the Enforcement Officer on 28-1-1985 and that, however, he is informed that he should appear in the office of the said Assistant Director "for which fresh summons will be issued". It is also added that his advocate cannot be present. It is further stated therein that a copy of his statement dated 24-1-1985 would be given to him after the completion of the investigation.

(3.) The Adjudicating Officer (2nd respondent) came to the conclusion that the charge against the appellant was satisfied, and levied the abovesaid penalty and passed the abovesaid confiscation order. The relevant observations in the said order of the First Authority regarding the abovesaid retracted statement are as follows :"