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2013 (8) TMI 400 - HC - FEMAOfficer u/s 25 of Evidence Act - Customs Officer was under the Act of 1962 not a police officer within the meaning of Section 25 of the Evidence Act and the statements made before him by a person who was arrested or against whom an inquiry was made were not covered by Section 25 of the Indian Evidence Act - Badku Joti Savant case[1966 (3) TMI 17 - SUPREME COURT OF INDIA] Right to Cross examination – Whether the petitioner was denied the right to Cross examination – Held that:- statement of the co-accused was recorded u/s 40 of FERA by an officer of the department in the pre-charge evidence, the statement of co-accused was exhibited by Assistant Director of Enforcement - the complainant had not recorded the statement – Phool Kumar v. Delhi Administration [1975 (3) TMI 129 - SUPREME COURT] - any objection as to the mode of proof of a document had to be taken at the earliest opportunity i.e. when the document was exhibited in the presence of the Petitioner - no objection was taken at that stage, the Petitioner cannot take such an objection now - Further Section 80 of the Evidence Act raises a presumption as to the documents produced as record of evidence. Framing of Charges - Offence u/s 8(1) of FERA - Whether there was any other evidence on record against the Petitioner or in the absence of any other evidence on record whether charge can be framed merely on the statement of the co-accused - statement of the co-accused being admissible in evidence and duly exhibited – Held that:- There was a recovery of foreign currency from the co-accused - the statement of the co-accused and the other documents seized show that the co-accused was acting on the behest of the Petitioner - At this stage, the Court will not dissect the evidence against each accused and come to the conclusion that the only evidence against the Petitioner was the statement of the co-accused and that being not substantive evidence, no charge can be framed against him. Relevant fact U/s 10 of Evidence Act - In a case a conspiracy if there was reasonable ground to believe that two or more persons have conspired together to commit an offence then by virtue of Section 10 of the Evidence Act, anything said, done or written by one of such persons in reference to their common intention, was a relevant fact as against each of the persons believed to be so conspiring, as well for the purpose of proving the existence of the conspiracy, as for the purpose of showing that any such person was a party to it - At this stage, it had only to be seen whether a prima facie case exists against the Petitioner - prima facie a strong suspicion arises that the Petitioner along with the co-accused committed the offence as alleged - Whether the said evidence is sufficient for sustaining a conviction would be seen after the witnesses are examined and the entire evidence is adduced – there was no infirmity in the order – Decided against petitioner.
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