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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.
Issues Involved:
1. Challenge to the order directing framing of charge under Section 8(1) of FERA. 2. Admissibility and use of co-accused's statement. 3. Burden of proof under Section 71 of FERA. 4. Examination of pre-charge evidence and admissibility of documents. 5. Existence of prima facie case and conspiracy. Issue-wise Detailed Analysis: 1. Challenge to the Order Directing Framing of Charge under Section 8(1) of FERA: The Petitioner challenged the order dated 19th March 2007, which directed the framing of charges against him for an offence under Section 8(1) of the Foreign Exchange Regulation Act, 1973 (FERA), punishable under Section 56 of FERA. The Petitioner contended that the foreign exchange was not recovered from him but from a co-accused, and thus, the charges should not be framed against him. 2. Admissibility and Use of Co-accused's Statement: The Petitioner argued that the statement of the co-accused, J.K. Jain, was manipulated and could not be used against him as it was not a confession. Even if considered a confession, it was exculpatory regarding J.K. Jain and thus inadmissible against the Petitioner under Section 30 of the Evidence Act. The Respondent countered that the statement was not exculpatory and was admissible against the Petitioner, as J.K. Jain admitted the recovery of foreign exchange and implicated both himself and the Petitioner. The court noted that the statement of J.K. Jain was admissible under Section 30 of the Evidence Act, as it inculpated both the co-accused and the Petitioner. 3. Burden of Proof under Section 71 of FERA: The Respondent argued that under Section 71(1)(2) & (3) of FERA, the burden of proof regarding the acquisition of foreign exchange lies with the person from whose possession it was recovered. The Petitioner failed to provide any explanation despite being given an opportunity. The court held that Section 71(3) FERA casts a burden on the Petitioner to prove the lawful possession of the foreign exchange by the co-accused on his behalf. 4. Examination of Pre-charge Evidence and Admissibility of Documents: The Petitioner contended that neither the officer who recorded the statement nor J.K. Jain was examined during the pre-charge evidence, denying him the right to cross-examine. The court observed that the statement of J.K. Jain was recorded under Section 40 of FERA and was exhibited by PW-4 M.G. Attri, Assistant Director of Enforcement. The court held that any objection to the mode of proof should have been raised at the earliest opportunity, and since no objection was taken when the document was exhibited, the Petitioner could not raise it now. The court also noted that Section 80 of the Evidence Act raises a presumption as to the documents produced as records of evidence. 5. Existence of Prima Facie Case and Conspiracy: The court examined whether there was any other evidence against the Petitioner besides the statement of the co-accused. It found that the recovery of foreign currency from the co-accused, the employer-employee relationship between the Petitioner and the co-accused, and the documents seized indicated that the co-accused acted on behalf of the Petitioner. The court held that at the stage of framing charges, it only needs to be seen whether a prima facie case exists. The court concluded that there was a strong suspicion that the Petitioner, along with the co-accused, committed the offence, and thus, the impugned order had no infirmity. Conclusion: The Petition and application were dismissed, and the trial court record was ordered to be sent back.
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