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2015 (5) TMI 368 - MADRAS HIGH COURT

2015 (5) TMI 368 - MADRAS HIGH COURT - 2016 (335) E.L.T. 416 (Mad.) - Recovery of large amount of cash - contravention of the provision of Section 9(1)(b) and 9(1)(d) of FERA Act, 1973 - Offence under Section 56(1)(i) of FERA Act and Sections 49(3) and (4) of FEMA Act, 1999 - Reliability on co-accused's statement - Held that:- 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 reli .....

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ficers 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 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 .....

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t 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 subsections 3 and 4 of FEMA Act, 1999. So the judgment of acquittal passed by the trial Court does not suffer any perversity and it is her .....

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ion witnesses is as follows:- (i) On the side of the prosecution, P.W.1 and P.W.2 were examined and Exs.P1 to P14 were marked. (ii) On 10.04.1990, P.W.1/Enforcement officer along with team officers was proceeding near Dadha Pharmaceutical and Co., Nainiappa Naicken Street, intercepted two persons by name Haja Mohideen and Lalchand/accused herein at 4.00 p.m. While intercepting Haja Mohideen, P.W.1 found ₹ 4 lakhs wrapped in a newspaper kept in a polythene bag and two chits from his pocket .....

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recovered two letters on search of Syed Mohammed Buhari. The total currency of nine lakhs and other documents were seized under a mahazar Ex.P1 dated 10.04.1990. (iv) The said Haja Mohideen in his statement Ex.P5 admitted that he had been doing the business of receiving and making compensatory payments on behalf of one Abdul Khader of Dubai for a commission of ₹ 500/- for the distribution of one lakh rupees. The seized amount of ₹ 4 lakhs from him was received from the respondent her .....

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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 .....

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instruction, P.W.2 recorded Ex.P12 statement of the present accused. During the course of the statement, the accused surrendered one rupee currency note which was taken over by him. Ex.P13 summons was issued to the accused under Section 40 of FERA Act, 1973 for his appearance on 11.04.1990 at 11.00 hours. On 11.04.1990, the accused appeared and gave further statement before P.W.2 in his own handwriting in Hindi and translated version was marked as Ex.P14. The accused was arrested by P.W.1 on 11 .....

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osecutor has submitted the following points for consideration: (i) The trial Court has erred in acquitting the accused on the ground that the accused has not contravened the provision of Section 9(1)(b) and 9(1)(d) of FERA Act, 1973 and not guilty of any offence under Section 56(1)(i) of FERA Act and Sections 49(3) and (4) of FEMA Act, 1999. (ii) On the basis of statement given by the first accused Haja Mohideen under Exs.P5 and P7, the accused/respondent herein was implicated. On 10.04.1990, th .....

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e Act, statement given by A1/Haja Mohideen cannot be taken as an evidence. He has drawn attention of this Court through Sections 59, 71 and 72 of the FERA Act and submits that the respondent/accused has to prove that he is innocent and hence, burden is shifted upon the accused to prove the same. Therefore, 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 th .....

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14 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 decisio .....

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), in para-21 and 22, it was held that retracted confessional statements of the co-accused in the same case cannot be acted upon to convict the accused without corroboration as to the connection of the accused with the crime. If two views are possible, the view favouring the accused should be taken into consideration. There is no evidence to show that the accused has retracted his statement. (iii) In the judgment of Delhi High Court reported in 2010 (252) E.L.T. 57 (Del.) (Directorate of Revenue .....

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tatement of the accused recorded under Section 108 of the Customs Act which stands retracted and which is not supported by any other evidence led by the prosecution. (iv) In 2013 (288) E.L.T. 366 (Del.) (Krishan v. R.K.Virmani, Air Customs Officer), in para-19, it was held that as per Section 30 of Evidence Act, confession of co-accused is not an admissible in evidence when the deponent is not tried jointly with other co-accused. 6. Considered the rival submissions made on both sides and perused .....

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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 offe .....

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the provisions contained in S. 30, the confession has no doubt to be regarded as amounting to evidence in a general way. Because whatever is considered by the Court is evidence; circumstances which are consider by the court as well as probabilities do amount to evidence in that generic sense. Thus, though confession may be regarded as evidence in that generic sense because of the provisions of S. 30, the fact remains that it is not evidence as defined by S. 3 of the Act. The result, therefore, .....

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ed, it, has been a recognised principle of the administration of criminal law in this country for over half a century that the confession of a co-accused person cannot be treated as substantive evidence and can be pressed into service only when the court is inclined to accept other evidence and feels the necessity of seeking for an assurance in support of its conclusion deducible for the said evidence. In criminal trials, there is no scope for applying the principle of moral conviction or grave .....

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g with a case against an accused person, the Court cannot start with the confession of a co-accused person, it must begin with other evidence adduced by the prosecution. In the case on hand, except the evidence of co-accused Haja Mohideen and his statements under Exs.P5 and P7, no other independent witness was examined. 10. The above proposition was followed in para-17 to 19 of the judgment reported in 2013 (288) E.L.T.366 (Del.) (Krishan v. R.K.Virmani, Air Customs Officer). 11. Considering the .....

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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 .....

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probability. (3) The provisions of this section shall, so far as may be, apply in relation to any proceeding before an adjudicating officer as they apply in relation to any prosecution for an offence under this Act. 71.Burden of proof in certain cases.-(1)Where any person is prosecuted or proceeded against for contravening any of the provisions of this Act or of any rule, direction or order made thereunder which prohibits him from doing an act without permission, the burden of proving that he h .....

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he foreign exchange came into his possession lawfully shall be on him. 72. Presumption as to documents in certain cases.-Where any document,- (i) is produced or furnished by any person or has been seized from the custody or control of any person, in either case, under this Act or under any other law, or (ii) has been received from any place outside India (duly authenticated by such authority or person and in such manner as may be prescribed) in the course of investigation of any offence under th .....

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e been signed by, or to be in the handwriting of, any 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 t .....

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cement 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 P14/statements of the accused are obtained by coercion. 14. Furthermore, the accused, who was examined as D.W.1, deposed that he is doing business of purchasing goods in auction and selling the same, for which, he filed Assessment order of Commercial T .....

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rt Trust for inspection of goods and signed in the catalogue and received auction list Ex.D3. Ex.D4 is the entry in Day book and Ex.D5 is the translation of Ex.D4. Ex.D2 is the cash receipt which shows that the accused is doing business in the name and style of M/S.S.Lalchand and Sons and its date is 30.03.1989. It shows that the respondent is doing business prior to this occurrence. So it is clear that the respondent is doing business on the date of occurrence on 10.04.1990 and to participate i .....

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dent/accused has not only taken treatment in jail hospital and he has also taken treatment before Eye hospital, Egmore. 16. As already stated supra, 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, w .....

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