TMI Blog2015 (5) TMI 368X X X X Extracts X X X X X X X X Extracts X X X X ..... s affirmed and fortified by Exs.D12 and D13, which shows that Exs.P12 and P14/statements of the accused are obtained by coercion. Except the statement of co-accused, no other independent witness was examined. Even though there are two attestors for the seizure mahazar, no one was examined and no reason has been assigned for non examination of those two independent witnesses, who were present at the time of searching A1/Haja Mohideen, Munavar Hussain and Syed Mohammed Buhari, who were sitting in the car. As per the judgment reported in [2009 (12) TMI 251 - DELHI HIGH COURT] (Directorate of Revenue Intelligence v. Moni),even though statement has been recorded under Section 40 of FERA Act, no recovery was effected from the respondents. This judgment is squarely applicable to the facts of the present case. - the respondent has proved his innocence by way of examining himself as D.W.1 and marking Exs.D1 to D14. The trial Court has also rightly held the respondent has proved that he is innocent by way of marking documents and hence, acquitted the respondent/accused for offences under Sections 9(1)(b) and 9(1)(d) of FERA Act, 1973 and Section 56(1)(i) of FERA Act, 1973 read with subsec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hereafter, P.W.1 issued Ex.P6 summons for further investigation. The said Haja Mohideen appeared before him on 11.04.1990 and gave further statement Ex.P7. (vi) On 05.08.1990, the accused/respondent herein retracted his confession made in Ex.P7 and the reply of Additional Director was marked as Ex.P8. (vii) According to P.W.1, Haja Mohideen received more than one crore and made payments on behalf of said Abdul Khader of Dubai to various persons in India and the present accused received ₹ 4 lakhs from an unknown person and paid the same to Haja Mohideen. Hence, Ex.P9 show cause notice was issued to the said Haja Mohideen and to the respondent herein by the Special Director of Enforcement, New Delhi. (viii) The Additional Commissioner of Customs adjudicated the matter and imposed a penalty of ₹ 1,00,000/- on Haja Mohideen and ₹ 75,000/- on the respondent and the copy of the Adjudication order was marked as Ex.P10. But both of them did not pay the penalty. The seized amount of ₹ 9 lakhs was ordered to be confiscated to the Central Government by the Adjudication Authority. (ix) P.W.2/Enforcement Officer was called by the Assistant Director of Enforce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herefore, he prayed for conviction of the accused/respondent and allowing this appeal. 5. Resisting the same, learned counsel for the respondent/accused submits that there is no evidence to show that the seized amount of ₹ 4 lakhs from A1 was paid by the respondent. The ingredients of Sections 9(1)(b) and 9(1)(d) of FERA Act, 1973 have not been made out. There is no evidence to show that on the instruction of non resident of India namely, Abdul Khader, the accused herein received amount and handed over to A1. The statements alleged to have given by the accused under Exs.P12 and P14 are retracted by him and to prove the same, respondent was himself examined as D.W.1 and marked Exs.D1 to D14 on his side. He has also deposed that the statements were obtained by threat and coercion and he was beaten by the Enforcement Wing during enquiry. It is further submitted that the evidence of co-accused cannot be looked into unless the case has been tried jointly. The trial Court has considered all the aspects in proper perspective and rightly acquitted the respondent/accused and hence, he prayed for dismissal of the appeal. To substantiate his arguments, he relied upon the following de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en a statement stating that he received ₹ 4 lakhs from the respondent and on that basis only, respondent was examined and his statement Ex.P12 was recorded. Then Ex.P13 summons was issued to the respondent and Ex.P14 statement was recorded on 11.04.1990. 8. Now this Court has to decide whether the confession given by Haja Mohideen is reliable? It is appropriate to consider Section 30 of Evidence Act, which read as follows: 30.Consideration of proved confession affecting person making it and others jointly under trial for same offence: - When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the court may take into consideration such confession as against such other person as well as against the person who makes such confession. 9. In the judgment of the Apex Court reported in AIR 1964 SC 1184 (Haricharan Kurmi and another v. State of Bihar), in para- 12 and 16(portions marked), it was specifically held as follows: 12... .. It would be noticed that as a result of the provisions contained in S. 30, the confession has no doubt to be regarded a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er). 11. Considering the above two decisions along with the facts of the present case, I am of the view, confession of co-accused is admissible only if the case of other co-accused has been tried jointly as per Section 30 of Indian Evidence Act. In such circumstances, no reliance can be placed on Exs.P5 and P7/statements of Haja Mohideen. 12. It is true, statement of respondent/accused was recorded under Section 40 of FERA Act. Once the respondent has admitted his guilty, he ought to have proved his innocence. There is presumption under Section 59 of the FERA Act and burden is shifted on the accused to prove that he is innocent as per Sections 71 and 72 of the FERA Act. Now it is appropriate to incorporate Sections 59, 71 and 72 of the FERA Act, which read as follows: 59.Presumption of culpable mental state.-(1) In any prosecution for any offence under this Act which requires a culpable mental state on the part of the accused, the Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution. Explanation.-In this sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y particular person, is in that person's handwriting, and in the case of a document executed or attested, that it was executed or attested by the person by whom it purports to have been so executed or attested; (b) admit the document in evidence notwithstanding that it is not duly stamped, if such document is otherwise admissible in evidence; (c) in a case falling under clause (i), also presume, unless the contrary is proved, the truth of the contents of such document. 13. As per Ex.D10/letter sent by the accused through the jail authority dated 16.04.1990, he was taken into custody on 10.04.1990 at 3.30 p.m. and he was taken to the Magistrate on 11.04.1990. Before that, he was assaulted by the enforcement officers. He also filed Ex.D12/O.P.chit issued by the Medical officer, jail hospital and Ex.D13/slip issued by Ophthalmic hospital. Ex.D13 shows that the respondent was alleged to have been hit by some persons (i.e.) Enforcement Officers on 11.04.1990 and 10.04.1990 and that the respondent was complained of eye pain for six days and the accused was given treatment for the injuries. So Ex.D10 is affirmed and fortified by Exs.D12 and D13, which shows that Exs.P12 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... though statement has been recorded under Section 40 of FERA Act, no recovery was effected from the respondents. This judgment is squarely applicable to the facts of the present case. 17. Whereas P.W.2 in his evidence deposed as follows: During the course of the statement he surrendered one rupee currency note which was taken over by me. It shows that the accused/respondent herein has surrendered one rupee currency note, but that note was not seized, which falsifies the case of the Enforcement Wing. Because on 10.04.1990, while P.W.1 intercepting both the accused, P.W.1 stated that he could not recover anything from the accused/respondent herein. Furthermore, on perusal of Exs.P2 to P4, it reveals that two small chits, two letters, old paper and polythene cover have been seized. But no explanation has been assigned by the Enforcement Wing that once they seized papers from A1/Haja Mohideen as to why they have not seized one rupee currency note from the accused/respondent herein. 18. Considering the aforestated circumstances of the case, I am of the view, the respondent has proved his innocence by way of examining himself as D.W.1 and marking Exs.D1 to D14. The trial Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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