FERA - Belated retraction of Confession rejected - Penalty upheld: High Court
By TIOL News Service
NEW DELHI, JAN 15, 2015: ONE Dinesh Kumar Goel @ Titu was found to be engaged in receiving and selling gold sent by one Ummu from Dubai. The sale proceeds were then distributed to several persons under the instructions of Ummu. One of the persons whose name was disclosed by Dinesh Kumar Goel as the recipient was the appellant. Dinesh Kumar Goel had stated in his statement recorded before the officers of the Enforcement Directorate (ED) on 16.11.1994 under Section 40 of the FERA that in the morning of 16.11.1994, he had received instructions from Ummu of Dubai to distribute the payments to 17 persons, including the appellant - of Rs.5 Lakhs. He had also stated that on the day of search, i.e. 16.11.1994, he had made payment, inter alia, of Rs.5 Lakhs to the appellant. Follow up action was taken at the residential premises of the appellant on the following day, i.e. 17.11.1994 and his statement was recorded, in which he stated that on 16.11.1994, he had received a payment of Rs.5 Lakhs from some unknown persons under instructions of Ubaidullah of Dubai - his brother. He also admitted having received earlier payments of Rs.3 Lakhs and 5 Lakhs in a similar manner, and stated that he had distributed the payments under instructions of Ubaidullah of Dubai.
On the aforesaid basis, a show-cause notice dated 15.05.1995 was issued, inter alia, to the appellant for receiving, and thereafter distributing, the amount of Rs.13 Lakhs on the instructions of the said Ubaidullah, which tantamounts to contravention of Sections 9(1)(b) and 9(1)(d) of FERA. In the proceedings, Dinesh Kumar Goel sought to retract his statement by claiming that he was physically tortured and pressurized to write an involuntary statement under Section 40 of FERA. He claimed that he was forced to give the names of various persons regarding whom he had already received instructions from Ummu for payment of Indian currency. The appellant also sought to retract from his statement recorded on 17.11.1994 under Section 40 of FERA during the course of the personal hearing.
In his statement recorded on 15.12.2004, the appellant stated to the effect that his brother Ubaidullah was situated at Dubai, who had sent money for household expenses. To establish his relationship with Ubaidullah, he stated that he can produce the ration-card and photocopy of passport of Sh.Ubaidullah, which would show that the father's name is Sh. Rahimutullah Siddique. He claimed that he had given his earlier statement in his own hand-writing as per dictation of the officers of Enforcement, as he did not have knowledge of legal implications of his earlier statement. He further stated that he was not aware that receiving money from abroad at the instance of person staying abroad was an offence and that, subsequently, he had been receiving money from his brother in rupees through demand drafts by Rakji Bank at Saudi Arabia through his cousin brother.
The adjudicating authority found him guilty and the appellate tribunal rejected his first appeal.
The submission of the appellant that his retracted statement could not form the basis of his being held guilty, was considered and rejected by the Appellate Tribunal by observing that a retracted confessional statement may be a sufficient ground for conviction of the offender, provided there is sufficient corroboration to prove the charges against the offender.
The matter is before the High Court.
The High Court observed,
The retraction of the confessional statement containing admission of wrong-doings by the appellant came after more than ten years, at the stage of personal hearing only, and not before that. Had the appellant been subjected to threat, coercion or pressure - as alleged by him rather belatedly, he would have retracted his confessional statement soon after making the same, once the alleged threat, coercion or pressure ceased to influence the action of the appellant. It is not his case that the said factors continued to influence him for 10 long years. Moreover, the appellant failed to disclose as to how he was pressurized, coerced, or tortured, and by whom, when he made the earlier confessional statement. The confessional statement was also duly corroborated by the aforesaid independent evidence viz. the list of persons to whom the monies had to be distributed, received by fax from Ubaidullah of Dubai.
Thus, the plea of the appellant, founded upon his so-called highly belatedly retraction of his confessional statement, has to be rejected.
The appellant has been let off rather lightly considering that he had admitted to having received Rs.13 Lakhs in all, i.e. Rs.5 Lakhs on 16.11.1994 and Rs.8 Lakhs in all, on two earlier occasions. The maximum fine, in these circumstances, could have been to the tune of Rs.65 Lakhs. However, the appellant has been let off with a nominal fine of Rs.1.5 Lakhs.
(See 2015-TIOL-108-HC-DEL-FEMA)
