Allowed

FPA-FE-217/DLI/2008 of Shri Jaswinder Singh v/s The Special Director Directorate of Enforcement, Delhi

ATFP10 Jul 2018FPA-FE-217/DLI/2008

Case brief

AI extract

What is this about?

Appellant appealed a penalty order under FERA imposed for alleged hawala transactions. The tribunal allowed the appeal, finding the evidence inadequate and the adjudication process flawed. Key issues involved admissibility of statements, failure to grant cross-examination, and prima facie improbability of the department's case.

What did the court decide?

The impugned order imposing a penalty of Rs. 1 crore was set aside and the appeal was allowed.

FPA-FE-217/DLI/2008 of Shri Jaswinder Singh v/s The… — Writ and Judicial Review | ATFP (2018)

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APPELLATE TRIBUNAL, FOREIGN EXCHANGE MANAGEMENT ACT AT NEW DELHI

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Date of Decision: 10.07.2018

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FPA-FE-217/DLI/2008

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Shri Jaswinder Singh … Appellant Versus The Special Director Directorate of Enforcement, Delhi … Respondent

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Advocates/Authorized Representatives who appeared

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For the appellant	: Shri Shailendra Bhardwaj, Advocate
For the respondent	: Shri Pankaj Yadav, Legal Consultant
JUDGEMENT
JUSTICE MANMOHAN SINGH	: CHAIRMAN
SHRI G.C. MISHRA	: MEMBER

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FPA-FE-217/DLI/2008

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The above-mentioned appeal has been filed under section 19 of Foreign Exchange Management Act, 1999 against the order dated 27^th June, 2008. By the impugned order, the penalty was imposed upon the appellant to the tune of Rs. 1,00,00,000/- (Rupees One crore only) under Section 50 of the FERA.

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Jaswinder Singh who is an Indian origin although he happens to be an Afghan national. His parents were Indian citizens who had shifted to Afghanistan after partition of the country in the year 1947. However, after the turmoil in Afghanistan, the appellant shifted to India in the year 1992 and started his business of export of articles of hosiery, woolen FPA-FE-217/DLI/2008 Page 1 of 15

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shawls, sweaters, etc. from India to Afghanistan under the name and style M/s Bhatia & Co. Delhi and Raju Trade co. (Ltd.) Afghanistan. The appellant married in India in the year 1997. He intends to return to India and permanently.

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The above-mentioned appeal is pending for the last 10 years.

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The brief facts of the matter are mentioned about the appellant in para 13 to 16 of the impugned order. The same is read as under:-

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“13. On conclusion of investigation, a Memorandum No. T- 4/80-D/98 2001 dated 10-1-2001 was issued to:-

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a) Shri Jaswinder Singh @ Raju i.e. noticee No. 1 on the ground that by making payment to Mohd. Muslim @ Gullu @ Sharma i.e. Noticee No. 2, a sum of Rs. 2.85 Crores by order or on behalf a person resident outside India he had contravened the provisions of Section 9(1)(d) of FERA, 1973 and had rendered himself liable to be proceeded against under Section 50 of FERA, 1973.

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b) Shri Mohd. Muslim @ Gullu @ Sharma i.e. noticee No. 2 on the ground that by receiving and making payment of Rs. 2.85 Crores by order or on behalf a person resident outside India he had contravened the provisions of Section 9(1)(b) and 9(1)(d) of FERA, 1973 respectively and had rendered himself liable to be proceeded against under Section 50 of FERA, 1973.

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c) Shri Musta Ahmed Gilkar @ Haider, Mustaq Ahmed Bhatt, Fiyaz Ahmed Paddar and Sohail Idrish i.e. noticee No. 3 to 6, on the ground that they aided and abetted to notices No. 1 and 2 in receiving and making payments of Rs. 2.85 crores, they had thus contravened the provisions of Section 9(1)(b) and (d) of FERA, 1973 in terms of Section 64(2) of the said Act and had rendered themselves liable to be proceeded against under Section 50 of FERA, 1973.

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14. The Noticees S/Shri Jaswinder Singh @ Raju and Mohd. Muslim @ Gullu @ Sharma, Mustaq Ahmed Gilkar @ Haider, Mustaq Ahmed Bhatt, Fiyaz Ahmed Paddar and Sohai Idrish were asked to show cause in writing as to why adjudication proceedings as contemplated in Section 51 of FERA, 1973 should not be held against them for the said contravention and as to why the seized currencies lying with police staff should not be confiscated as per the provisions of Section 63 of FERA, 1973.

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15. Vide letter dated 25.10.2001, Shri Shailendra Bhardwaj, Advocate on behalf of Shri Jaswinder Singh had submitted that his client never had any business

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FPA-FE-217/DLI/2008

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Page 2 of 15

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transaction with Shri Mohd. Muslim @ Gullu and denied that his client ever received Rs. 60,000 from Shri Quzan Ali @ Kazi in Feb., 1998 or that he said money was utilized by his client or that his client handed Rs. 50,000 to Shri Mohd. Muslim @ Gullu. He further denied that his client received any amount much less Rs. 35 lakhs from various persons in India for Kazi or the said amount was sent to Kazi through Shri Mohd. Muslim by way of hawala. He requested to supply the photocopies of relied upon document as alleged in the memorandum.

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16. Vide letter dated 9.11.2001 in response to the memorandum, Shri Mohd. Muslim furnished the reply and interalia stated that he denied each and every allegation levelled against him in the memorandum. He stated that it was alleged in said memorandum that on 1.9.98 reference was received from the office of the Deputy Commissioner of Police, North Distt. Delhi that he himself and Raju @ Jaswinder Singh were involved in the Hawala Transaction, that accordingly it was alleged that an application was moved before the court of ACMM, New Delhi for his interrogation as well as for the interrogation of Raju at Central Jail, Tihar, New Delhi. Accordingly on 8.9.98, a statement of Jaswinder Singh @ Raju was recorded in Jail. Similarly his alleged statement was also recorded in Jail which was written by the Enforcement Officials though the contents were not informed to him, his signatures were obtained in the said statement. He stated that Shri Mustaq Ahmed Gilkar in his statement has stated that Sharma was involved in Hawala Transaction for distribution among all Terrorist outfits. He stated that all the persons whose statements were recorded by the Police, in Police custody had not tendered any statement before the Enforcement Officials. He stated that he had not been supplied the photocopies of the relied upon documents and requested that the same may be supplied to him for making effective and purposeful reply to the memorandum. He further stated that he would like to cross examine the co-noticees and would like to cross examine all the official witnesses who had recorded certain statements and conducted the searches and the panch witnesses of various panchnames relied upon the memorandum and would also like to produce defence witnesses and would like to had a personal hearing in the matter.”

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It is evident that the allegation against the appellant Jaswinder Singh is that he had contravened Sections 9 (1) (d) of FERA allegedly on the ground that he had allegedly made payments of Rs. 2.85 Crore to persons in India on behalf of persons residing outside India.

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The appellant submits that he is a respectable businessman who was carrying on the business of export of articles of hosiery. Woolen

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FPA-FE-217/DLI/2008

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Page 3 of 15

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shawls, sweaters, etc. from India to Afghanistan under the name and style M/s Bhatia & Co. Delhi and Raju trade Co. (ltd.) Afghanistan. The appellant had exported goods worth more than three crore in a year and had brought back valuable foreign exchange into India.

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The case of the appellant is that he is absolutely innocent and he is being falsely implicated in the present case. The appellant has not contravened any provision of law as alleged.

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The respondent mainly relying upon his diary-entries, co-accused statement and his own confessional statement in support the impugned order where the penalties were imposed after deciding the matter on merit.

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There is no denial on the part of the respondent that the cross examination of the hand writing expert PW Harsh Vardhan before the Magistrate‟s Court amply makes it clear that all the entries of telephone number were made by a single pen and similarly all entries of alleged payments were made by another single pen. The case of the Respondent is that the said diary allegedly contains the details of the payment made by the appellant Jaswinder Singh for the period of January, 1998 onwards to various persons named therein.

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Counsel for the appellant in support of his submission has argued that the said diary is false, fabricated and manufactured as it is on the face of established from a bare glance at the passport of the appellant Jaswinder Singh. The passport bearing no. SE 096161 was issued by the Afghanistan Passport Office of Ningrahar province on 1.1.1998. The appellant applied for Indian visa on 20.1.1998 in Islamabad. On 26.1.1998 the appellant reached India and remained India until

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FPA-FE-217/DLI/2008

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Page 4 of 15

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27.3.1998. Thereafter, the appellant again came to India on 22.5.1998 and remained in India till his arrest in connection with the above case. The appellant submits that the said concocted manufactured diary contains the purported details of payment made in India even for the period when he was not in India was in Afghanistan. As a result, it has been established that the appellant is innocent and has been falsely implicated in the above case.

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It is a matter of fact that the appellant was discharged of the charges/offences alleged against him in the said case under Sections 121/121A/122/120B IPC vide judgment and order dated 20.09.1999 passed by Hon‟ble ASJ, New Delhi. It was observed at Page 19 as under:-

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“Thus, in my considered opinion there is no prima facie evidence on record to show that the entries mentioned in the pocket diaries allegedly recovered from the possession of appellant no. 5 & 6 represent honest and real transactions and that money was paid in accordance with these entries.”

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The finding of fact which has become final and according to rule of issue estoppel this cannot be reopened. Therefore, the present case which is solely based upon these entries in the diary allegedly recovered from the appellant fails and on that basis the appellant cannot be convicted for any offence under FERA. A reference may be made to (1969) 2 SCR 526 TITLED „LALITA AND ORS. VERSUS STATE OF UP.‟

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The appellant was taken into custody by the police on 27.8.1998 at about 6.30 p.m. form his office premises situated at 138/1, IInd floor, Tilak Bazar, Khari Baoli, Delhi along with his two brothers namely Avtar Singh and an employee Revoshto Ram.

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On 28.8.1998 the father of the appellant namely Shri Jeet Singh sent a telegram to the Hon‟ble Prime Minister, Hon‟ble the Chief Justice of Delhi High Court and the Hon‟ble Home Minister. Again on 29.8.1998

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FPA-FE-217/DLI/2008

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Page 5 of 15

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the said Shri Jeet Singh sent a reminder telegram to the commissioner of Police, the Lt. Governor, Hon‟ble Chief Justice and the Finance Minister.

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He was kept in custody by the police for a period of about four days starting from 27.8.1998 till he was shown to be arrested on 31.8.1998.

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The case of the appellant from the very beginning is that during this unauthorized and illegal detention, the appellant Jaswinder Singh was made to write a diary which was later shown to have been recovered from him at the time of his arrest on 31.8.1998 and he was made to write the name and telephone numbers of the persons whom he had never met and the alleged details of the payment made to various persons mentioned therein.

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In nut-shell, as per appellant the entire incriminating evidence against the appellant Jaswinder consists of the following: i) Inadmissible disclosure statement of the appellant Jaswinder Singh before Police in an earlier police case under Sections 121/121A/122/120B IPC.

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ii) Contents of a pocket diary allegedly recovered from the possession of appellant Jaswinder Singh (Rejected by the Court of ASJ vide Judgement and Order dated 20.09.1999 while discharging the appellant)

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iii) Retracted statement of Co-appellant under section 39 of FERA.

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iv) Tampered/manipulated Statement of appellant Jaswinder Singh allegedly recorded on 8.9.1998 under Section 39 of FERA.

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It is alleged that the appellant was not furnished with the relied upon documents despite a number of requests and a number of visits to

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FPA-FE-217/DLI/2008

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Page 6 of 15

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the office of the ED that would be evident from Para 2c, d & e at Page 3 and 4 of the Memorandum of Appeal.

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The appellant submits that he is an exporter and that he had never imported any thing into India and that it would be highly improbable on the face of it that the appellant would pay any money in India to be delivered outside India in contravention of FERA or any other law for the time being in force. No evidence has been led by the department to show that the appellant ever made any imports. The entire case of the department is false and concocted. The appellant submits that since he does not import anything into India and there is no reason as to why he would credit any amount with any person resident outside India as alleged, therefore, the entire averments made against the appellant in this regard are false and unbelievable on the face of it.

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It is submitted with regard to entries mentioned in the pocket diaries recovered from the possession of the appellant as well as from Shri Mohd. Muslim @ Gullu @ Sharma, the said entries are admissible in evidence as FERA, 1973, which is a Special Act. The provision of Section 72 mandates the presumption as to documents in certain cases. Counsel states that in view of presumption couple with the disclosure statement, the respondent has discharged its burden to prove it case.

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It is also submitted that the appellant has made the disclosure statement before Police is admissible in evidence. It is stated on behalf of the respondent that the statement dated 08.09.1998 of the appellant was recorded under Section 39 of FERA, 1973 in Judicial Custody wherein he interalia admitted that he went to Pakistan several times and met Quzan Ali @ Kazi at Akhri Mandi Tang Bazar, Lahore, Pakistan; that during business conversation, Quzan Ali @ Kazi told him that he can enter a

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Page 7 of 15

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business with him and he would give some money to him in Pakistan for his business in Afghanistan and when he will go to India, that money will be given to agent Gullu, 31, Meena Bazar, Jama Masjid and for which he will get a premium; that when he agreed to this proposal, kazi gave him pak Rs. 60,000 in the month of Feb. 1998; that the said money had been utilized by him for his business in Afghanistan and after coming to India in the month of May, 1998, he handed over Indian Rs. 50,000 to Gullu as per instruction of Kazi of Pakistan and got a profit of Rs. 8,000/-

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Thus, it is apparently, the appellant has confessed that apart from the above he received Rs. 35 Lakhs from various persons in India for Kazi sometimes in the year 1997-98 and gave the same to Gullu of Jama Masjid at a premium of Rs. 500/- per one lakh.

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It is further submitted on behalf of respondent that the above observations made by the Ld. Additional Session Judge is nowhere discard the evidentiary value under Special enactment like FERA. More so, the provisions of Section 72(i)(c ) of FERA, 1973 provides base of additional evidence to make the appellant liable to what they have admitted in their statements in judicial custody in connection with hawala transactions by the aid and abatement of other notices of the adjudication order.

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With regard to retracted statement of Co-appellant under Section 39 of FERA, Counsel for the respondent has referred the statement of Mohd. Muslim @ Gullu. It is stated that in his statement that Shri Mohd. Muslim @ Gully had admitted to have received in India Rs. 2.85 crores on various occasions from the appellant and made payments of identical amount of Rs. 2.85 crores to several persons on the instructions of one Kazi a person resident of Pakistan without any RBI permission. The

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Page 8 of 15

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statement of the appellant regarding his receipt of Rs. 36.1 lakh as per the instructions of Kazi of Pakistan without RBI permission also corroborates the statement given by Shri Gullu.

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As regard o issue of cross examine of the witnesses, it is submitted by the respondent that the Adjudicating Authority has to follow the rules of principles of natural justice while conducting the proceedings, but there is no requirement to follow strict rules of evidence or crossexamination, and it cannot be sought as a matter of right. Crossexamination is alien to the adjudication proceedings.

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It is a matter of record that the appellant was arrested in connection with another case on 31.8.1998 by the police allegedly on the ground that he was involved in International Hawala transactions and that he had received money illegally from Pakistan and Dubai in Delhi and that on the instructions of a Pakistan based ISI agent namely Kazim Ali he had supplied more than three Crore Rupees to Kashmiri militants through Co-appellant Mohd. Muslim @ Gullu @ Sharma for militant activities in India. The appellant submits that as per the challan dated 30.10.1998 filed in the Court, the police allegedly arrested Mohd. Muslim on 27.8.1998 at the instance of four accused namely Mustaq Ahmed Bhatt, Mustaq Ahmed Gilkar, Fayaz Ahmed Paddar and Suhail Idrish who were arrested in connection with the above case on 17.8.1998 on the ground that thes four accused persons had disclosed that he was a Hawala operator and had supplied a sum of Rs. 2 Crore to them for carrying out militant activities in India. Later, the accused Mohd. Muslim allegedly disclosed that he had links with Pakistan based Kazim Ali and Rizwan who were handed over the money in Lahore which was to be sent to militants in India. These two persons then purchased cloth and other articles that were sent to India through passengers and petty smugglers.

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FPA-FE-217/DLI/2008

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Page 9 of 15

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Mohd. Muslim allegedly further disclosed that he and appellant Jaswinder Singh used to sell these cloth and other articles in the market and collect the money which was then delivered to the various persons in Delhi at the instructions of above said two persons. He allegedly further disclosed that appellant Jaswinder Singh was involved with him and the Pakistan ISI in the said Hawala Business.

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Hon‟ble High Court while granting bail to the appellant Jaswinder Singh and Mohd. Muslim vide an order dated 3.1.2003 passed in Crl. M.M. 2922 & 2968 of 2002 has observed as under:

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“The question regarding petitioner’s link with the alleged terrorist group or their involvement in any such conspiracy has been examined by the Learned Additional Sessions Judge, Delhi in his detailed order dated 20.9.99 whereby the appellant persons were discharged. Petitioners are not being prosecuted for any offence under any anti terrorist law. Therefore, shadow of terrorist link should not blue the vision of this Court while considering the petitioners bail application for offences under FERA. The entries contained in the pocket diaries allegedly recovered at the time of arrest of the petitioners and the probative value of disclosure statements of the appellant persons which forms the basis for launching this prosecution under FERA have been extensively analyzed and adversely commented upon by the Learned Additional Sessions Judge in his detailed order dated 20.9.99 which has attained finality. The petitioners were in jail for about 13 months in earlier case and they are again in custody for several months in the present case under FERA. The matter is still at the stage of pre charge evidence.”

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With regard to Retracted statement of co-appellant under Section 39 of FERA. It is rightly submitted that the alleged statement of coaccused which allegedly incriminates the appellant is not admissible in law in view of the settled law that before relying on the statement of coaccused against other accused, it requires independent corroboration from some other evidence which is clearly lacking in the present case. In any event no reliance can be placed on the said statement as it stands retracted.

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FPA-FE-217/DLI/2008

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Page 10 of 15

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Pertaining to disclosure statement of appellant Jaswinder Singh recorded on 8.9.1998 under section 39 of FERA. The statement of the appellant recorded by the officials of the enforcement Directorate on 8.9.1998 while he was in judicial custody in connection with the Case No. 3/99 in FIR No. 600/98 P.S. Ambedkar Nagar is admissible in evidence. We have one of the copy of the statement of the appellant which is available on record. It appears to us very clearly that the corrected at various places. There were no initial of the officer who recorded the same. As a matter of fact it appears to be tampered with and is suspicious on the face for following reasons:-

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a) that the said statement dated 8.9.1998 was admittedly recorded while the appellant was in judicial custody at Tihar Jail, however, the said statement has not been attested by the Jail Superintendent.

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b) That it is clearly established before the Magistrate‟s Court and according to the department itself three officials of the Enforcement Directorate namely PW 2 Sudhukhan, Shri G.K. Dutta And Shri Pratam Singh were present in Jail when the appellant‟s alleged statement was recorded but the appellant‟s statement has been signed only by the official PW2 J.P. Sadhukhan.

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c) That the statement is of four pages and the first three pages do not bear the signatures of the appellant and only the last page bears the signatures of the appellant which were fraudulently obtained on some blank papers.

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d) That there are material corrections in the said statement which have not been initiated by any official not even Pw2 Sadhukhan.

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Page 11 of 15

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e) That in any event the contents of the said statement are contrary to the documentary evidence placed on record in as much as while the appellant was in India during February 1998 he is alleged to have met one Kazi in Pakistan and taken Rs. 60,000/from him in February, 1998.

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It is the case of the appellant that he never had any transaction with Shri Mohd. Muslim @ Gullu as alleged and the appellant never received an amount of Rs. 60,000/- from Shri Quzan Ali in Feb. 1998. He further never gave Rs. 50,000/- to Shri Mohd. Muslim as alleged. He never utilized any money as alleged and he never received money much less Rs. 35 Lacs from any one residing out of India as alleged by the department. The appellant submits that the entire case of the department in that regard is false and incorrect. The appellant has not contravened any provisions of law as alleged.

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It is settled law that a statement has to be read and accepted as a whole in entirely or rejected in entirety as it would be incorrect to accept a party of the statement especially when the remaining portion is not acceptable & false on the face of it. As mentioned earlier, the alleged concocted & manufactured diary contains the purported details of payment made in India even for the period when the appellant was admittedly not in India and was Afghanistan. Therefore, his alleged statement dated 8.9.1998 under section 39 FERA is to be rejected in toto and no reliance can be placed on it. In the Judgment of Hon‟ble Supreme Court reported as (1953) Supreme Court Reports Page 94 titled „Palvinder Kaur Vs. The State of Punjab‟ and (1952) Supreme Court Reports Page 1091 titled „Hanumant Vs. The State of Madhya Pradesh‟.

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Page 12 of 15

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In any event, the case of the department is improbable on the face of it as the allegation of the department that the appellant indulged in hawala business is falsified from the fact that the said diary allegedly contains the details of the payment made by the appellant Jaswinder Singh for the period of January 1998 onwards to various persons named therein while he was not in India. There was no recovery from the appellant. Counsel for the appellant says that due to long passing of time and harassment, the appellant has compounded his offence and he was accordingly discharge by imposing costs and the same was deposited.

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Even otherwise the entries in the diary is not admissible in evidence in view of law settled in 66 (1997) Del. Law Times 618 L.K. ADVANT VS. CBI. A reference may also be made to Judgment of Hon‟ble Supreme Court reported as AIR 1992 SC 1831 titled ‘K.T.M.S. Mohd. And and Vs. Union of India .‟

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With regard to Disclosure statement of the appellant Jaswinder Singh before Police. The statement of appellant and the co-accused before police is not admissible in evidence and as such no reliance can be placed on this inadmissible piece of evidence.

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The other important issue is that dispute contravention facts which are contrary to the evidence available on record such as pass-port entries as well as entries made in diary with one pen, he was also denied permission to cross examine witnesses notwithstanding a specific request in writing in this regard. It is submitted that the statements made by the co-accused or the officers of the ED cannot be taken as corroboration.

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Page 13 of 15

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The statements should be corroborated from the independent facts and statements are not reliable till their veracity and genuineness is not tested by cross examination.

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Therefore, under the established principles of natural justice, the appellant requested before the Adjudication Authority for permission to cross examine the witnesses so as to enable them to establish his innocence and to state and/or explain his case.

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The cross examination of the officers who recorded his statement dated 08.09.1998 (in jail) and that of the IO is imperative in order to arrive at the truth of the matter, it was a perfect case where the crossexamined should have been allowed.

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In the judgment reported as MANU/SC/1250/2015 titled “Andaman Timber Industries Vs. Commissioner of C.Ex., Kolkata-II” Hon‟ble Supreme Court has observed as under:

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“5. According to us, not allowing the Assessee to crossexamine the witnesses by the Adjudicating Authority though the statements of those witnesses were made the basis of the impugned order is a serious flaw which makes the order nullity inasmuch as it amounted to violation of principles of natural justice because of which the Assessee was adversely affected. It is to be borne in mind that the order of the Commissioner was based upon the statements given by the aforesaid two witnesses. Even when the Assessee disputed the correctness of the statements and wanted to cross-examine, the Adjudicating Authority did not grant this opportunity to the Assessee. It would be pertinent to note that in the impugned order passed by the Adjudicating Authority he has specifically mentioned that such an opportunity was sought by the Assessee. However, no such opportunity was granted and the aforesaid plea is not even dealt with by the Adjudicating Authority. As far as the Tribunal is concerned, we find that rejection of this plea is totally untenable. The Tribunal has simply stated that cross-examination of the said dealers could not have brought out any material which would not be in possession of the appellant themselves to explain as to why their exfactory prices remain static. It was not for the Tribunal to have guess work as to for what purposes the appellant wanted to cross-examine those dealers and what extraction the appellant wanted from them.”

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Thus ED has failed to prove its case even by way of preponderance of probability and the allegations made by the ED are improbable that no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the appellant. The finding of the Adjudicating Authority was wholly perversed, contrary and those suffer many infirmities.

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