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TMI Blog2013 (8) TMI 400X X X X Extracts X X X X X X X X Extracts X X X X ..... n made by the co-accused J.K. Jain, since it is exculpatory qua J.K. Jain, the same cannot be used in evidence against the Petitioner in terms of Section 30 of the Evidence Act. Further, even if this Court comes to the conclusion that it is a confession of the co-accused and admissible against the Petitioner, there is no evidence on record against the Petitioner except the said confession and the same not being substantive evidence, no charge can be framed against the Petitioner merely on the basis of the confession of the co-accused. Reliance is placed on Pakala Narayana Swami v. Emperor AIR 1939 PC 47, Bhuboni Sahu v. King AIR 1949 PC 257, Hari Charan Kurmi & Jogia Hajam v. State of Bihar AIR 1964 SC 1184 Siri Chand Gupta v. Santosh Kumari [CRL M.C. Nos. 5113 of 2005 & Crl. M.A. No. 10193 of 2005, dated 12-3-2008] and Union of India v. Bal Mukund [Criminal Appeal No. 1397 of 2007, dated 31-3-2009]. 3. Learned counsel for the Respondent on the other hand contends that in terms of Section 71(1)(2) & (3) of the FERA, the burden of proof of the acquisition is on the person from whose possession it is recovered. Further when a person is prosecuted for the contravention of any provisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the statement recorded by the Respondent under Section 40 of the FERA. Hence, there is no infirmity in the impugned order and the petition be dismissed. 4. I have heard learned counsel or the parties. 5. Briefly the facts giving rise to the filing of the present petition are that on 20th April, 1991 CBI registered RC No. 5(s)/91-SIU-V. Consequently on 3rd May, 1991, CBI conducted searches at various places including the residential premises of J.K. Jain, the co-accused. During the search, foreign exchange amounting to USD 250 (Travellers Cheque) and foreign currency USD 593, U.K. Pounds 300, D.M. 2,700/-, French Franc (FF) 300, Hongkong HK $ 50, one currency note of Thai Bhatt 10/- and two Chinese currency notes of 10/- were recovered along with Indian currency of Rs. 58,09,000/-. On 17th September, 1993, the officers of CBI recorded the statement of co-accused J.K. Jain wherein he stated that seized foreign currency, Indian currency and the Indira Vikas Patra belong to him. The matter was referred to Enforcement Directorate, who took over the investigation and seized the foreign currency from the CBI vide Panchnama dated 6th October, 1995. On 14th April, 1995, statement of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection (4) deemed to be judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code. A person summoned under Section 108 of the Act is bound to appear and state the truth when giving the evidence. If he does not answer he would render himself liable to be prosecuted under Section 228 IPC. If, on the other hand, he answers and gives false evidence, he would be liable to be prosecuted under Section 193 IPC for giving false evidence in a judicial proceeding. In short, a person summoned under Section 108 of the Act is told by the statute itself that under threat of criminal prosecution he is bound to speak what he knows and state it truthfully. But it must he noted that a compulsion to speak the truth, even though it may amount to a threat, emanates in this case note from the officer who recorded the statement, but from the provisions of the statute itself. What is necessary to constitute a threat under Section 24 of the Evidence Act is that it must emanate from the person in authority. In the case before us there was no such threat emanating from PW 5, who recorded the statement of PW 19, who was guiding the proceedings. On the contrary the officers recordi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ention of smuggling. He is for all purposes an officer of the revenue. 25. For reasons set out in the judgment in Criminal Appeal No. 27 of 1967 and the judgment of this Court in Badku Joti Savant case, 1966-3 SCR 698 = (AIR 1966 SC 1746), we are of the view that a Customs Officer is 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 is arrested or against whom an inquiry is made are not covered by Section 25 of the Indian Evidence Act." 8. One of the grievances of the Petitioner is that in the pre-charge evidence neither the officer who recorded the statement nor J.K. Jain who made the statement has been examined, thus denying the Petitioner a valuable right to cross-examine. It may be noted that in the present case statement of J.K. Jain, co-accused was recorded under Section 40 of FERA by Shri R.K. Rawal, an officer of the Respondent on 17th April, 1995. However, in the pre-charge evidence, the statement of J.K. Jain, co-accused was exhibited by PW-4 M.G. Attri, Assistant Director of Enforcement, the complainant in the present case, though he had not recorded the statement. In this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtificate that he was satisfied that the confession was voluntary. No circumstance has been brought out in the evidence justifying the calling of the Magistrate as a witness. We do not think that the circumstances of the case justify any comment on the alleged failure of the prosecution to examine the Magistrate as a witness." 10. Thus, the statement of the co-accused being admissible in evidence and duly exhibited, it is now to be seen whether there is 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. The statement of J.K. Jain recorded under Section 40 of the FERA admits seizure of incriminating documents Indian currency, Indira Vikas Patra and foreign currency from his house. J.K. Jain also admits that the seized documents were written in his hand-writing. It is a detailed statement wherein he admits number of other transactions including the ledger and the seized files to be in his hand-writing. To see whether a statement is inculpatory or not, the entire statement will have to be looked into. Merely because the co-accused J.K. Jain in his statement besid ..... X X X X Extracts X X X X X X X X Extracts X X X X
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