The Punjab and Haryana High Court, quashed a patently wrong enhanced sentence which was passed without making out special case, the petitioner, Muneesh Suneja, being found guilty under the Foreign Exchange Regulation Act (FERA), 1973.
A Bench of Justice Arvind Singh Sangwan observed that “The judgment passed by the lower Appellate Court, enhancing six months Rigorous Imprisonment (R.I.) and fine of Rs.5,000, as awarded by the Trial Court, to 02 years R.I. and to pay a fine of Rs.5,000 and in default thereof, to further undergo R.I. for two months, is set aside and that of the trial Court is restored.”
Challenge in this revision petition is to the judgment passed by the Lower Appellate Court, vide which appeal filed by the petitioner against the judgment of conviction and order of sentence holding him guilty of offence under Section 8(1) and 8(2) of FERA and sentencing him to undergo imprisonment for a period of six months and to pay a fine of Rs.5,000 and in default of payment of fine, to further undergo R.I. for a period of three months.
Whereas another appeal filed by the complainant for enhancement of the sentence was allowed and the petitioner was directed to undergo R.I. for a period of two years and to pay a fine of Rs.5,000. In default of payment of fine, to further undergo R.I. for a period of two months under Section 56 of FERA.
The Counsel for the petitioner brought into light the following facts that no evidence has come forth to establish beyond doubt that there was nexus between purchased gold and use of foreign exchange, therefore, the petitioner cannot be held guilty of violating the provisions under Sections 8(1) and 8(2) of FERA.
It is also argued that the lower Appellate Court failed to appreciate that the petitioner was in custody and was forced to make confessional statement regarding the recovery, whereas DM 5300 were not proved to be recovered from the residential premises of the petitioner. It is submitted that except the voluntary statement of the petitioner, which was later on retracted by him at the first available opportunity, there is no other evidence on record.
It is further submitted that while enhancing the sentence of the petitioner, the lower Appellate Court has not appreciated the legal proposition, as held by the Supreme Court in Govind Vs. The State of M.P, that in an appeal seeking enhancement of the sentence, the Court is to make special grounds for enhancement.
The Counsel concluded by contending that the petitioner has already undergone more than 07 months of sentence; he is facing protracted trial since 1997, therefore, being first offender, he may be granted the concession of probation of good conduct or in the alternative, impugned judgment passed by the lower appellate Court be set aside.
The Coram noted that “After hearing learned counsel for the parties, considering the limited scope of an appeal against acquittal filed under Section 378 Cr.P.C., this Court finds that the lower appellate Court has patently erred in enhancing the sentence without making out a special case.”
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