TMI Blog1998 (3) TMI 685X X X X Extracts X X X X X X X X Extracts X X X X ..... . On appeal before the learned Principal Sessions Judge, Chennai, the finding of the trial court has been reversed and the respondent/accused has been acquitted. It is against this judgment, the Enforcement Directorate has come forward with this appeal. 4. P.W. 1 who is the Enforcement Officer, has spoken about the search conducted in the business premises of the respondent/accused viz. Economic Air and Auto Travels, Parsn Complex, Chennai-6 on 22-6-1981 between 2.20 p.m. and 4.45 p.m. and seizure of certain documents including Exs. P. 1 to P. 4. Thereafter, on the memo served on the respondent/accused, he appeared before the Enforcement Officer P.W. 2, in Shashtri Bhavan, Chennai, where, it is stated that he gave the statement Ex. P. 7 attested by two witnesses. In this statement Ex. P. 7, he has narrated the manner in which the offences under the above provisions viz. Sections 8 and 9 of FERA, were committed for which, the appellant prosecuted the respondent. 5. Mr. K. Kumar, Special Public Prosecutor appearing for the respondent, submitted that the trial court has analysed the entire evidence and the documents, which are proving the commission of the offence, and therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd also material particulars corroborating that what he had stated is true, such retracted confession would not be acted upon. But under Section 40 of FERA, the Enforcement Directorate have powers to issue summons to any person for the purpose of any violation under the said Act and sub-section 3 reads, All persons so summoned shall be bound to attend either in person or by authorised agents, as such officer may direct; and all persons so summoned shall be bound to state the truth upon any subject respecting which they are examined or make statements and produce such documents as may be required. Sub-section 4 reads. Every such investigation or proceeding as aforesaid shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code, 1860 (45 of 1860). Therefore, as rightly argued by the learned Special Public prosecutor, there is a compulsion by the statute to a person, when summoned by the authorities under the Act, to speak the truth, otherwise, he is liable to be punished for pernury, this provision cannot be compared with Section 164 Code of Criminal Procedure, which is only optional. This difference has not been un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Apex Court in K.I. Pavunny v. Asst. Collector (HQ) Central Excise Collectorate - 1997 (90) E.L.T. 241 (S.C.) = 1997 S.C.C. (Crl.) 444, wherein it is held that if a confession is proved by evidence and if it is of voluntary nature, when retracted, is entitled to high degree of value as its maker is likely to face the consequences of confession in a statement affecting his life, liberty or property and burden is on the accused to prove that the statement was obtained by threat, duress of promise like any other person as was held in Bagwan Singh v. State of Punjab (AIR 1952 S.C. 214). The Apex Court in paragraph 25 of the judgment, has held as follows : It would thus be seen that there is no prohibition under the Evidence Act to rely upon the retracted confession to prove the prosecution case or to make the same basis for conviction of the accused. Practice and prudence require that the Court could examine the evidence adduced by the prosecution to find out whether there are any other facts and circumstances to corroborate the retracted confession. It is not necessary that there should be corroboration from the independent evidence adduced by the prosecution to corroborate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t patent from the records especially for the payment of ₹ 2 Lakhs to Hassan, which could be easily detectable by perusal of the accounts. Therefore, we cannot expect such evidence so conspicuous for the commission of the offence. But some times, certain materials are unconsciously left by the offenders and in this case, some such materials are available, especially, the visiting card Ex. P. 3 and the address of the person, who supplied the foreign exchange, namely Dheen. Ex. P. 3 the visiting card, contains the name of Hassan on the reverse side along with his phone number and the petitioner has not given the reason for taking down the name of Hassan in this visiting card along with his phone number. Similarly, the diary Ex. p. 4, seized from the premises of the respondent accused contains several addresses including that of the Toko Devi Construction Co. Pvt. Ltd., and Dheen. It is pertinent to mention that below the name Dheen, High Street Centre, it is also mentioned `for exchange . The trial court has very much stressed upon this word for exchange as the connecting link for the transaction by way of foreign exchange with the said Dheen in Singapore. When such a word, `for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Excise [1992 (60) E.L.T. 24 (S.C.) = AIR 1992 S.C. 1795] has considered that when a person was summoned to appear before the officers under FERA, he cannot be treated as an accused and under such circumstances, he is not entitled to the presence of his lawyer when he was examined by the officers. Therefore, refusal to allow the presence of lawyer in such cases, would not be violative of protection under Article 20(3) of the constitution. When the Apex Court itself has held so clearly that a person, who was summoned to appear before the Enforcement Directorate for interrogation, is not entitled to seek the presence of the Advocate, the Lower Appellate Court cannot make use of this as a circumstances in favour of the accused to arrive at the conclusion that his statement could not be voluntary. 13. Therefore, taking into consideration of the reasons given by the court below, I find that the lower Appellate Court has erred in coming to a wrong conclusion that the statement Ex. P. 7 has not been corroborated. Hence, the order of acquittal passed by the learned Principal Sessions Judge Madras, is not sustainable and the same is liable to be set aside and the order of 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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