Anup Chaturvedi vs Uniion of India & Ors.

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The petitioner assails a show cause notice, an order in original and order in appeal issued under the pro-visions of Foreign Exchange Management Act,

19-99.

Learned Advocate for the petitioner submits that, the impugned ord-er of the appellate authority suffers from the breach of the principles of natural

justice. The Adjudicating Authority as also the Appellate Authority had proceeded on the basis of socalled admission made by the petitioner. The

socalled admission was extracted fr-om the petitioner. It has no evidentiary value.Â- The prosecution ought to have established its case by

independent evidence. In this case, the prosecution has not done so. The prosecution did not examine the enforcement officer in support of the

case for the prosecution. The petitioner was denied a right of cross examination of the enforcement officer. The prosecution has not identified the

person to whom, the petitioner as an importer, had paid for the imports of the goods. Therefore, no case of violation of the provisions of the Act of

1999 has been made out in the show cause notice. Therefore, the impugned show cause notice, the order in original as also the appellate

authority’s order should be quashed. In support of his contentions, learned Advocate for the petitioner relies upon AIR 1977 Madras 23

(M.S.M. Syed Mohammad Bukhari vs. The Director of Enforcement, New Delhi & Ors.), 2015 (4) SCC 435 (A. Tajudeen vs. Union of India) and

2008 (16) SCC 537 (Vinod Solanki vs. Union of India and Anr.).

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The respondents are represented. -

It appears that, the authorities had received a complaint under Section 16(3) of the Act of 1999 for contravening the provisions of Section 3(b) of the

Act, 1999. A show cause notice was issued on the basis of such complaint after investigation. The show cause notice is dated April 16, 2003.Â

The petitioner participated in the proceedings emanating out of the show cause notice. An order in original dated June 20, 2004 was passed. In

the order in original, the Adjudicating Authority takes into consideration, the fact that, the goods were imported in the name of the petitioner in India.Â

He takes into consideration the consignment notes issued by the Air India Authorities and the person carrying the goods and other documentary

evidences. He finds that, the goods were imported into India by the petitioner. He, however, does not find corresponding payment being made by

the petitioner to the exporter through regular banking channels. He infers that, the payment was made through the Hawala mechanism. He,

therefore, finds that, the petitioner is guilty of violation of Section 3 (b) of the Act, 1999. He proceeds to impose the penalties as required under the

Act of 1999. An appeal was carried by the petitioner against the order in original. The Appellate Authority by the impugned order has concurred

with the view expressed by the Adjudicating Authority. No new material was placed before the Appellate Authority, by the petitioner to establish

that, he has paid for the imports through the regular mechanism. The charge of violation of Section 3 (b) of the Act of 1999, therefore, stands

established against the appeal. It is not a case that, the confessional statement of the petitioner was the sole basis to invoke the provisions of Section

3 (b) of the Act of 1999. Cogent documentary evidences apart from the confessional statement were considered both the Adjudicating Authority as

also by the Appellate Authority. The confessional statement was found to be corroborated by the independent documentary evidence.Â

Considering such corroboration, the Adjudicating Authority and the Appellate Authority returned the finding as noted in the impugned order. As a

Writ Court, I am not called upon to sit in appeal over the order passed by the Appellate Authority, reappraise the evidence and substitute my wisdom

with that expressed by the Adjudicating Authority and the Appellate Aut-hority in the impugned orders.

There is an allegation of violation of principles of natural justice against the authorities. In the present case, the petitioner contends that, the

enforcement officer was not examined. In fact, the prosecution did not call the enforcement officer for evidence. Therefore, since a witness was

not called for by the prosecution, the question of giving the right of cross examination of such witness does not arise. If the petitioner was so

inclined, it could have called the enforcement officer as his witness in the proceeding, which it chose not to do. Therefore, it does not lie in the

mouth of the petitioner to contend that, there is a breach of principles of natural justice by not examining the enforcement officer in the adjudicating

process.

M.S.M. Syed Mohammad Bukhari (supra) is of the view that, there is no provision in the Act of 1999 or the rules framed therein to find a person

guilty on his own plea. The fact scenario of the present case is different. The petitioner is found guilty not only on his own confessional statement

but also his other cogent documentary evidences made available to the Adjudicating Authority. None of those cogent material evidences has been

substantiated to be without evidentiary value in the present writ petition.

Vinod Solanki (supra) is of the view that, a person accused of commission of offence is not expected to prove to the hilt that the confession had been

obtained from him by any inducement, threat or promise by a person in authority. The burden is on the prosecution to show that the confession is

voluntary in nature and not obtained as an outcome of threat, if the same is to be relied upon solely for the purpose of securing a conviction. A.

Tajudeen (supra) after considering the fact scenario of the case before it, is of the view that confessional statement was not sufficient to punish the

accused. Again, in the fact scenario of the present case, the confessional statement is backed up by corroborative documentary evidence. The

confessional statement by its own has not been relied upon either by the Adjudicating Authority or the Appellate Authority to impose the penalties.

There is a bank guarantee subsisting in this writ petition by virtue of the order dated April 20, 2006. Since the amount of penalty imposed is equal to

the amount of bank guarantee furnished, it would be appropriate to direct the department to invoke such bank guarantee and adjust the receipts

thereof towards pro tanto satisfaction of its claim.

In such circumstances, I find no reason to interfere in the present writ petition.

W.P. 4876 (W) of 2006 is disposal of without any order as to costs.

Urgent website certified copies of this order, if applied for, be made available to the parties upon compliance of the formalities.