FERA: Mere diary entry without any credible corroborative evidence being produced by Enforcement Directorate, could not be held to be pertained to foreign exchange transactions
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[2014] 48 taxmann.com 407 (Delhi)
HIGH COURT OF DELHI
S.K. Jain
v.
Union of India
S. MURALIDHAR, J.
CRL. A. NO. 340 OF 2008†
MAY 29, 2014
Section 8, read with sections 9, 14, 39, 40, 56 and 71, of the Foreign Exchange Regulation Act, 1973 [Corresponding to sections 3, 4 and 9 of the Foreign Exchange Management Act, 1999], read with article 20(3) Constitution of India and sections 18, 21, 34 and 106 Indian Evidence Act, 1872 - Appeal to High Court - Restrictions on dealing in foreign exchange - CBI searched residential and office premises of an employee of appellant wherein some Indian and foreign currencies as well as certain documents were recovered - At time when statements of accused appellant and his employee were initially recorded, no proceedings under FERA against them had commenced - Whether in FERA proceeding subsequently initiated, accused could justifiably invoke their right against self incrimination under Article 20(3) of Constitution - Held, yes - Whether merely because employee of appellant stated that entries in diaries were made at behest of appellant, by invoking analogy of section 106 of Evidence Act, burden could not be shifted to appellant to show that those entries did not pertain to foreign exchange transactions, particularly when Enforcement Directorate itself had failed to produce credible evidence to prima facie show that appellant had contravened provisions of FERA - Held, yes [Paras 34, 35, 39 & 43 to 47]
__._,_.___
■■■
[2014] 48 taxmann.com 407 (Delhi)
HIGH COURT OF DELHI
S.K. Jain
v.
Union of India
S. MURALIDHAR, J.
CRL. A. NO. 340 OF 2008†
MAY 29, 2014
Section 8, read with sections 9, 14, 39, 40, 56 and 71, of the Foreign Exchange Regulation Act, 1973 [Corresponding to sections 3, 4 and 9 of the Foreign Exchange Management Act, 1999], read with article 20(3) Constitution of India and sections 18, 21, 34 and 106 Indian Evidence Act, 1872 - Appeal to High Court - Restrictions on dealing in foreign exchange - CBI searched residential and office premises of an employee of appellant wherein some Indian and foreign currencies as well as certain documents were recovered - At time when statements of accused appellant and his employee were initially recorded, no proceedings under FERA against them had commenced - Whether in FERA proceeding subsequently initiated, accused could justifiably invoke their right against self incrimination under Article 20(3) of Constitution - Held, yes - Whether merely because employee of appellant stated that entries in diaries were made at behest of appellant, by invoking analogy of section 106 of Evidence Act, burden could not be shifted to appellant to show that those entries did not pertain to foreign exchange transactions, particularly when Enforcement Directorate itself had failed to produce credible evidence to prima facie show that appellant had contravened provisions of FERA - Held, yes [Paras 34, 35, 39 & 43 to 47]
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