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TMI Blog2003 (1) TMI 631X X X X Extracts X X X X X X X X Extracts X X X X ..... to the respondents/accused as contemplated under section 61(2)(ii) of the Foreign Exchange Regulation Act, 1973 (hereinafter referred to as "FERA, 1973") vitiates the case of the prosecution ? (ii)Whether the courts below are right in acquitting the respondents/accused, holding that the appellant/complainant has failed to prove the charges, beyond all reasonable doubts, against the respondents/accused that they are guilty of the offences punishable under the provisions of the FERA, 1973 ? (iii)Are the respondents/accused not entitled for the benefit of the enactment of the Foreign Exchange Management Act, 1999 (hereinafter referred to as "FEMA, 1999") whereunder no provision is made for punishment, assuming that the respondents/accused are liable to be convicted for the offences punishable under section 9(1)(b) and 9(1)(d ) of the FERA, 1973 in the respective criminal cases, and could they be punished for the said offences under the FERA, 1973, which stands repealed by the enactment of the FEMA ?" 4. The case of the prosecution in C.C. Nos. 673, 676, 674 and 675 of 1991 is as under. 5. One Khader Sulaiman is the accused in C.C. Nos. 673, 676, 674 and 675 of 1991, which were tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hader Sulaiman submitted his explanation dated August 16, 1988, (exhibit P6). 12. In exhibit P6, Khader Sulaiman stated that he had already, by his letter dated November 11, 1985 (exhibit D1) and his telegram dated February 24, 1986 (exhibit P11), retracted the statements made on November 9, 1985 (exhibit P4) and November 11, 1985 (exhibit P8) and hence they are not binding on him. It was also contended that the onus of proving the receipts and payments, in violation to the provisions of the FERA, 1973 lays on the appellant/complainant. 13. After giving a personal hearing to the accused Khader Sulaiman and his counsel on September 16, 1989, the adjudication authority, viz., Additional Director of Enforcement, by proceedings dated October 11, 1989 (exhibit P7), held that Khader Sulaiman had contravened the provisions of section 9(1)(b) and 9(1)(d ) of the FERA, 1973 and imposed a penalty of Rs. 65,000 and Rs. 60,000 for the said offences respectively, in addition to the confiscation of Rs. 30,000 under section 63 of the FERA, 1973. 14. In the light of the evidence of P.W.1 and the documentary evidence exhibits P4, P8 and P9, the appellant contended that the accused Khader/Sulaima ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ges, holding that : "(a)the statements of the accused Khader Sulaiman were obtained by force and coercion; (b)the statement (exhibit P4) obtained from the accused Khader Sulaiman while he was under illegal custody could not be relied upon; (c )the prosecution failed to prove the charges against the accused Khader Sulaiman by independent witness, satisfactorily; and (d)exhibit P3 series could not be relied upon for want of Mahazar witnesses to the same." 18. Hence, C.A. Nos. 23, 31, 32 and 33 of 1995. 19. Criminal Appeal No. 148 of 1995 is directed against the judgment of acquittal dated June 15, 1994 in C.C. No. 333 of 1993 of the learned Additional Chief Metropolitan Magistrate (E.O.II), Chennai. 20. The case of the prosecution in C.C. No. 333 of 1993, in brief, is stated as follows : 21. P. Krishnasamy and J. Sampath Kumar are the first and second accused respectively in C.C. No. 333 of 1993. 22. P.W.1, equipped with a search warrant (exhibit P1) dated July 9, 1991, issued under section 37 of the FERA, 1973 by the Assistant Director of Enforcement, conducted a search in the business premises of Krishnasamy, viz., Raja Traders at No. 58, Thana Street, Purasawalkam, Madras ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the presence of two independent witnesses and one Muthuraman, managing partner of SRK Bankers. During the search, some incriminating documents, viz., five sheets and Rs. 40,000 were seized under Mahazar report (exhibit P11). Two incriminating documents were seized from Muthuraman and they were marked as exhibit P12 series. Muthuraman gave a statement (exhibit P13) during the search on July 10, 1991, confirming his connection in the dealings of foreign exchange along with the second accused-Sampath Kumar, as per the instructions of Srinivasagam of Colombo. 29. On the direction of the Assistant Director of Enforcement (exhibit P14), the Enforcement Officer, K. Dhandayuthapani (P.W.3), conducted a search in the house of Krishnasamy at No. 6, Diwan Bahadur Shanmugam Salai, Chennai-600 010 on July 9, 1991 and one Bommamani, wife of Krishnasamy, alone was present at the time of search. During the search, some documents, 100 US dollars as travellers cheque and 24 US dollars were seized, under Mahazar report (exhibit P15). The documents and US dollars seized were 12 in number, marked as exhibit P16 series. On the same day, viz., July 9, 1991, the second accused Sampath Kumar appeared be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... RA, 1973 within 15 days of the release and submit proof thereof to the enforcement officer. 35. Based on the above investigation and the evidence collected, a criminal case was lodged against the first accused and second accused in C.C. No. 333 of 1993 on the file of the learned Additional Chief Metropolitan Magistrate (E.O.), wherein the first accused and second accused were tried for the following charges : (i)That they, during the period starting from January, 1991 to July, on the directions of Srinivasakam of Ceylon, received Rs. 1,15,26,000 in India from person who were unauthorized to deal in foreign exchange thereby committed an act contrary to section 9(1)(b) of the FERA, 1973 and punishable under section 56(1)(i) of the abovesaid Act; (ii)That first accused, who was unauthorized to deal with foreign exchange, on the directions of Srinivasakam of Ceylon, delivered Rs. 1,15,26,000 to various persons in India thereby committed an act contrary to section 9(1)(d) of the FERA, 1973 punishable under section 56(1)(i) of the above Act; (iii)That second accused, who was not empowered to deal with foreign exchange, on the directions of Srinivasakam of Ceylon received Rs. 97,40,00 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 31, 32 and 33 of 1995 and the retraction letters (exhibits P19 and P21) in Crl. A. No. 148 of 1995, much less the statements made in the bail application that the statements were obtained by the enforcement officers by using force and coercion are liable to be rejected as untrustworthy, as the respondents/accused did not complain anything about such force and coercion to the magistrates, when they were produced for remand; (d)Since the accused were arrested and produced before the magistrates concerned within 24 hours in the respective cases, the statements made before the respective enforcement officers could not be said to have been obtained during the illegal custody; (e)The non-examination of the persons who either paid or received the money on the instructions of the persons resident outside India, or the bank through which the amounts were disbursed, in the respective cases, is not fatal to the case of the prosecution; (f)Placing reliance on Ramesh Chandra Mehta v. State of West Bengal AIR 1970 SC 940; Issa Yacub Bichara v. State of Mysore AIR 1961 Mys.7 and Barkathali (P.S.) v. Director of Enforcement AIR 1981 Ker. 81, it was contended that the statements of the responde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 24 of the Indian Evidence Act. 41. Both learned counsel for the respondents contended that assuming the respondents/accused could be convicted based on the evidence on record for the respective charges, no punishment can be imposed on them in view of the repeal of the FERA, 1973 and the enactment of the FEMA, 1999, where there is no provision for punishment. In this regard reliance was placed on the decision in State v. Gian Singh [1999] 9 SCC 312 and T. Barai v. Henry Ah Hoe AIR 1983 SC 150. 42. Mr. M. Abdul Razack, learned counsel for the respondents in Crl. A. Nos. 23, 31, 32, and 33 of 1995 emphatically contends that the charge framed in C.C. No. 676 of 1991 is not sustainable in law as the said charge is with reference to the payments made in the month of November, 1985, with reference to which there is no evidence available on record, and on the other hand, the evidence is related to the payments said to be made in October, 1985. 43. In reply, Mr. K. Kumar, learned counsel for the appellant contends that assuming the charge in C.C. No. 676 of 1991 is not based on material evidence, since there are sufficient evidence on record to prove that the accused has committ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... port of the charge levelled against the accused. While framing charges, there is no need to maintain the same standard to be adopted by the court in scrutinizing the evidence at the time of trial, but all due diligence should be taken even at the stage of framing the charge as to whether the charge framed is supported with prima facie and sufficient material evidence. Therefore, the court should satisfy itself that the charge levelled against the accused is supported with prima facie and sufficient material evidence before issuing process to the accused and committing him for trial with respect to the charge framed. Want of such due diligence while framing the charge in C.C. No. 676 of 1991, in my considered opinion, resulted in failure of justice, not only to the appellant/complainant, but also caused much delay in the administration of criminal justice. 48. If and when an error, omission or irregularity is apparent in the charge framed and tried, section 464(2) of the Criminal Procedure Code provides the appellate court to direct a new trial to be had upon a charge framed in whatever manner it thinks fit. Of course, Mr. M.M. Abdul Razack, learned counsel appearing for the accuse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the trial court has acted with material irregularity, by exercising the powers conferred under section 464(2) of the Criminal Procedure Code, I am inclined to allow the appeal, viz., Crl. A. No. 31 of 1995, set aside the judgment of acquittal of the learned Additional Chief Metropolitan Magi-strate, Economic Offences I, Madras, dated April 7, 1994, made in C.C. No. 676 of 1991, remit the matter to the learned Additional Chief Metropolitan Magistrate, Economic Offences I, Madras, and direct a new trial to be held upon a charge framed in whatever manner he thinks fit, and complete the trial expeditiously and pronounce the judgment within six months from the date of receipt of copy of this order. 51. Criminal Appeal No. 31 of 1995 is allowed with the direction indicated above. 52. The contentions raised on behalf of the appellant/complainant and the respondents/accused in rest of the appeals, viz., Crl. A. Nos. 23, 32, 33 and 148 of 1995 are compartmentalized under the following three substantial questions : (i)Whether the non-issuance of opportunity notice to the respondents/accused as contemplated under section 61(2)(ii) of the FERA, 1973 vitiates the case of the prosecution ? ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence punishable under section 56 or section 57, except upon a complaint in writing made by- (a )the Director of Enforcement; or (b)any officer authorized in writing in this behalf by the Director of Enforcement or the Central Government; or (c )any officer of the Reserve Bank authorized by the Reserve Bank by a general or special order : Provided that where any such offence is the contravention of any of the provisions of this Act or of any rule, direction or order made thereunder which prohibits the doing of an act without permission, no such complaint shall be made unless the person accused of the offence has been given an opportunity of showing that he had such permission." 55. Relevant portion of section 23 of the FERA, 1947- "(1) : If any person contravenes the provisions of section 4, section 5, section 9, section 10, sub-section (2) of section 12 or section 17, section 18A or section 18B or of any rule, direction or order, made thereunder, he shall- (a)be liable to such penalty not exceeding three times the value of the foreign exchange in respect of which the contravention has taken place, or five thousand rupees, whichever is more, as may be adjudged by the Director ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... slations, in Shanti Prasad Jain v. Director of Enforcement, Foreign Exchange Regulation Act AIR 1962 SC 1764 held that- ". . . the subject-matter of the legislation, viz., foreign exchange, has features and problems peculiarly its own, and it forms a class in itself. A law which prescribes a special procedure for investigation of breaches of foreign exchange regulations will therefore be not hit by article 14 as it is based on a classification which has a just and reasonable relation to the object of the legislation. The vires of section 23(1)(a) is accordingly not open to attack on the ground that it is governed by a procedure different from that prescribed by the Code of Criminal Procedure. . . Section 23D confers authority on the very officer who has power to try and dispose of a case to send it on for trial to a court, and that too only when he considers that a more severe punishment than what he is authorised to impose, should be awarded. In a judicial system in which there is a hierarchy of courts or Tribunals, presided over by magistrates or officers belonging to different classes, and there is a devolution of powers among them graded according to their class, a provision s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be given. All that the proviso states is that before a court takes cognizance of an offence which relates to the contravention of any provision of the Act, which prohibits the doing of an act without permission, the complainant must have given an opportunity to the accused to show cause that he had such a permission. What follows from this is that at some point of time prior to the filing of the complaint, the accused must have been given opportunity to show cause that he had obtained the requisite permission and he had not contravened the provisions of the Act on any manner. It is, however not necessary that the show-cause notice must have been issued immediately before the filing of the complaint. If a show-cause notice had been issued before adjudication proceedings were started, it would undoubtedly constitute a valid notice under the proviso to section 61(2). I have already held that a criminal prosecution is not a contravention of the adjudication proceedings. As such a prosecution cannot amount to a second stage of the proceeding warranting the issue of a second show- cause notice. It has been held in New India Corporation v. Director, Enforcement Directorate, Government of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The words 'the person accused of an offence' in the proviso, will have to be read, keeping in view the context in which it had been used and the effect of the words in the same proviso has been given an opportunity of showing." 63. In the repealed 1947 Act, section 23D(1) contemplated an initial adjudication and a prosecution only in the event of the Director of Enforcement arriving at an opinion that having regard to the circumstances of the case, the penalty which he was empowered to impose would not be adequate, when instead of imposing any penalty himself, he shall make a complaint in writing to the court. 64. Under the Foreign Exchange Regulation Act, 1973, adjudication as well as prosecution, can ever be initiated simultaneously. This is very clear from the provisions engrafted in sections 50, 51 and 56 of the Act. Hence, when a prosecution is possible even before adjudication, the provisions contained in the proviso to section 61(2)(ii) of the Act will have to be interpreted, in that context. Looked from that angle, it is apparent that before a prosecution is launched, the person accused of an offence must be given an opportunity of showing cause that he had such permissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mplates is that before a prosecution is instituted, the person accused of an offence should have been given an opportunity. The words "had been" used in the section also gives an insight to the object behind the provision. In my view, the words "has been given" denote the furnishing of an opportunity to the person accused of an offence, but does not contemplate issue of a second show-cause notice before the launching of the prosecution. Therefore, the decision of the Supreme Court in Ramesh Chandra Mehta v. State of West Bengal AIR 1970 SC 940, holding that under the Customs Act, 1962, a formal accusation can only be deemed to be made when a complaint is made before a magistrate competent to try the person guilty of the infraction under the provisions of the Customs Act does not affect the interpretation of the proviso to section 61(2)(ii) of the Act, given above. The context in which the words have been used as well as the usage of the words "has been" must be given the full meaning in the background of the object of the Act and the importance of this provision for efficacious implementation of the general scheme of the notice before the prosecution is initiated. To hold that seco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . P. No. 2288 of 1980. 70. The decisions in P. Joseph John's case (supra) and Chintapalli Agency Taluk Arrack Sales Co-operative Society Ltd. v. Secretary (Food and Agriculture) Government of Andhra Pradesh AIR 1977 SC 2313, can have no bearing to the issue involved in these petitions. In the earlier case the Supreme Court held that under article 311 of the Constitution a civil servant was entitled to have a reasonable opportunity to defend himself and show cause, both at the time of enquiry into the charges brought against him and at the stage when definite conclusions have been come to, on the charges and the actual punishment to follow was provisionally determined upon. In the latter case it was held that the minimum requirement under section 77(2) of the Andhra Pradesh Co-operative Societies Act, 1964, which was a mandatory provision was a notice informing the opponent about the application and affording him an opportunity to make his representation against whatever had been alleged in the petition. The principles of natural justice were also considered. The provisions of the section will have to be interpreted, taking note of the context and the principles of natural justice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in foreign exchange and securities, transactions indirectly affecting foreign exchange and the import and export of currency for the conservation of the foreign exchange resources of the country and the proper utilization thereof in the interests of the economic development of the country. 77. Under the scheme of the FERA, 1973, certain special restrictions were introduced with regard to the dealings in the foreign exchange, the object being to see that the country's foreign exchange resources were not wasted under any circumstances and were properly utilized to advance the national interest. 78. Sections 8 and 9 of the FERA, 1973, contemplate a special or general permission of the Reserve Bank of India in dealing in foreign exchange. In this regard, it is relevant to refer to sections 9(1)( b) and 9(1)(d) of the FERA: "Section 9. Restrictions on payments.-(1) Save as may be provided in and in accordance with any general or special exemption from the provisions of this sub-section which may be granted conditionally or unconditionally by the Reserve Bank, no person in, or resident in India, shall : (a)****** (b)receive, otherwise than through an authorized dealer, any payment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 59 of the FERA, 1973, the court shall presume the existence of culpable mental state on the part of the accused and it shall be the burden for the accused to prove the fact that he had such mental state with respect to the act charges as an offence in the prosecution. Section 59 of the FERA, 1973, referred to above makes it clear that no mens rea, viz., culpable mental state has been prescribed for such contravention. In other words, the existence of mens rea shall be presumed by the court, as per section 59 of the FERA, 1973. It is rather clear that the presumption arising under section 59 of the FERA, 1973, may be rebutted by the accused, but the burden that is cast upon the accused to rebut such presumption is quite heavy, because the accused has to prove the absence of culpable mental state beyond reasonable doubt in the same way as is cast upon the prosecution in an ordinary criminal trial. Section 59(3) of the FERA, 1973, further makes it clear that such a burden to prove the absence of culpable mental state beyond reasonable doubt lying on the accused is also applicable to the adjudication proceedings initiated under section 51 of the FERA, 1973, as applicable in relati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt/prosecution, instead of holding that the respondents/accused failed to discharge their burden contemplated under sections 59 and 71 of the FERA, 1973, referred to above, particularly in the context of the statements of the respondents/accused in respective cases (exhibits P4, P8 and P9 in Crl. A. Nos. 23, 31, 32 and 33 of 1995 and exhibits P5, P7, P8 and P9 in Crl. A. No. 148 of 1995). 88. It is settled law that the statements recorded by the enforcement officers, viz., the appellant herein, under the FERA, 1973, either during investigation or during adjudication proceedings are not that of an accused within the meaning of section 24 of the Indian Evidence Act, as the enforcement officer under the FERA, 1973, is not a police officer, an authority within the meaning of section 24 of the Indian Evidence Act. 89. When a confessional statement is recorded by reason of statutory compulsion or given voluntarily by the respondents/accused, pursuant to their appearance against summons during the adjudication proceedings, the same cannot be said to have been obtained by force, threat, inducement or promise and therefore, such statements are admissible in evidence for prosecution, as he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting the accused in the commission of crime. Confession is one of the species of admission dealt with under sections 24 to 30 of the Indian Evidence Act and section 164 of the Criminal Procedure Code. It is an admission against the maker of it, unless its admissibility is excluded by some of those provisions. But, when it is retracted by the accused. The burden is on the accused to prove that the statement was obtained by threat, duress and promise. 94. A Full Bench of the Apex Court in Muthuswami v. State of Madras AIR 1954 SC 4, held that no hard and fast rule can be laid down regarding the necessity of corroboration in the case of a retracted confession in order to base a conviction thereon. But apart from the general rule of prudence where the circumstances of a particular case cast a suspicion on the genuineness of the confession, it would be sufficient to require corroboration of the retracted confession, as it is well settled law that the confession should not be accepted merely because it contains the wealth of detail which could have been invented and unless the main features of the story are shown to be true, it is unsafe to regard mere wealth of uncorroborated detail as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed before the magistrates concerned within twenty four hours from the time of the arrest, which itself would prove that the respondents/accused were subjected to harassment and ill-treatment and therefore, the letter of retraction (exhibit D1) and retraction telegram (exhibit P11) in Crl. A. Nos. 23, 31, 32 and 33 of 1995 and the retraction letters (exhibits P19 and P21) in Crl. A. No. 148 of 1995, have to be accepted as there is a suspicion on the very genuineness of the legal custody of the respondents/accused when they were said to have made the confessional statement vide in respective cases (exhibits P4, P8 and P9 in Crl. A. Nos. 23, 31, 32 and 33 of 1995 and exhibits P5, P7, P8 and P9 in Crl. A. No. 148 of 1995). 99. There cannot be a prolonged custody or deprival of freedom of life and liberty or property attracting articles 21 and 22 of the Constitution of India, for a period more than twenty four hours from the time of arrest, either under the guise of enquiry, interrogation or investigation whatsoever, as held by a Full Bench of this court in Roshan Beevi v. Joint Secretary to the Govt. of Tamil Nadu, Public Deptt. (Law and Order) [1983] TLNJ 422. 100. A prolonged custo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ath Kumar averred that the enforcement officers had extracted the statement from him, and the same were not binding on him. However, when the accused were produced at 3.30 p.m. on July 10, 1991, for remand, the learned Additional Metropolitan Magistrate (E.O. II), Madras, remanded them till July 24, 1991, after recording that no complaints of ill-treatment by the officers of Enforcement Wing. 105. The respondents/accused, when they were produced before the magistrates concerned, at the very earliest point of time, viz., immediately after the statements were said to have obtained by threat, force, coercion or ill-treatment, had not expressed grievance of any such threat, force, coercion or ill-treatment to the magistrates concerned, and as a result, the magistrates concerned recorded that the respondents/accused had not complained of any ill-treatment. Hence, it may not be proper for this court to doubt that the respondents/accused were not subjected to any ill-treatment. The averments stated in the bail applications of the respective respondents/accused that the statements were obtained from them by force, threat, coercion or ill-treatment does not merit my consideration and hence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing funds to his friends and relatives in India, in May 1985, requiring Khader Sulaiman to disburse the funds to persons in India and directed by S. K. Haja Mohideen for a commission of Rs. 300 for every Rs. 1,00,000 as per the code words viz., "cold finger" which denotes as follows : C 1 O 2 L 3 D 4 F 5 I 6 7 G 8 E 9 R 0 viz., C=1, O=2, L=3, D=4, F=5; I=6, N=7, G=8; E=9 and R=0. 111. It was explained that, if the accused - Khader Sulaiman was required to pay an amount of "CR" to a person as directed by S.K. Haja Mohideen, it would mean that Khader Sulaiman should add three zeros to "CR", i.e., C=1, R=0 + 3 Zeros, which would denote Rs. 10,000. It was stated in exhibit P4, that Khader Sulaiman received Rs. 1,03,000 in May 1985 and again Rs. 1,17,000, in August 1985, from unknown persons, at the instance of S.K. Haja Mohideen, for which the accused - Khader Sulaiman was charged for the offence punishable under section 9(1)(b) read with section 56(1)(i) of the FERA, in C.C. No. 674 of l991 on two co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of six persons with a number "45"; the second sheet contains the names and addresses of six persons with a number "52"; and the third sheet contains names and addresses of five persons with a number "57". The total of 45+52+57 works out to 154, which would mean Rs. 1,54,000. The total amount mentioned by way of code in all the said three sheets works out to Rs. 1,24,000, which were said to have been disbursed by Khader Sulaiman, keeping a balance of Rs. 30,000, which was seized at the time of search on November 9, 1985. Sheets 4 and 5 are the letter and envelope received from S.K. Haja Mohideen. Khader Sulaiman further stated that S.K. Haja Mohideen wrote that he would be sending a sum of Rs. 10,000 to Khader Sulaiman through an unknown person in India and required Khader Sulaiman to deliver the same to the sister of S.K. Haja Mohideen at Keezhakarai. Since the said Rs. 10,000 was not delivered to Khader Sulaiman, S.K. Haja Mohideen, replied by a letter dated October 20, 1985, that he had directly sent the amount to his sister, letter and envelope, are marked as sheets 4 and 5 in exhibit P3 series. The sixth sheet was a letter dated August 7, 1985, addressed to LKM Hussain, the br ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i Road, Thillai Nagar, Trichy, in the presence of two independent witnesses and one Muthuraman, managing partner of SRK Bankers and seized some incriminating documents, viz., five sheets and Rs. 40,000 under mahazar report (exhibit P11) and two incriminating documents were seized from Muthuraman and they were marked as exhibit P12 series and the statement of Muthuraman (exhibit P13 was obtained during the search on July 10, 1991. 124. Another search was conducted by P.W. 3, in the house of Krishnasamy at No. 6 Diwan Bahadur Shanmugam Salai, Chennai-600 010 on July 9, 1991, and some documents, 100 US$ as travellers cheque and 24 US$ (12 in number, marked as exhibit P16 series) were seized, under mahazar report (exhibit P15) and on the same day, viz., July 9, 1991, the second accused Sampath Kumar appeared before P.W. 3 and gave a statement marked as exhibit P17 and another statement of Sampath Kumar (exhibit P9) was obtained on July 29, 1991. 125. In exhibit P5, the first accused Krishnasamy stated that Srinivasagam of Colombo, when he came to Chennai, contacted him in January 1991, and asked him to assist in money transactions on commission basis. According to their arrangement, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mount and Rs. 6,00,000 given by Sampath Kumar, i.e., up to July 8, 1991, in July 1991. He received Rs. 1,40,000 from Sampath Kumar on July 8, 1991 and the same was delivered to Basheer on July 9, 1991 and he had not written anything about this transaction. He is not aware of the address of Basheer. He confirmed that what all he had stated were true. 128. The first accused - Krishnasamy, in another statement exhibit P8 dated July 10, 1991, which was made after identifying one Roshan of Madras, clarified his statement given on July 9, 1991 (exhibit P5) that he delivered Rs. 20,000 to one Roshan. The statement of one Perumal, partner of Raja Traders, Madras, was recorded on July 16, 1991, and the same was marked as exhibit P10. 129. M. Perumal, partner of Raja Traders in exhibit P10 stated that on July 9, 1991, the Enforcement Officers searched their provision shop by name Siram Traders and seized file for the telephone number 661577 in his presence and in the presence of Krishnasamy and Sampath Kumar. Sampath Kumar belonged to Trichy. Sampath Kumar brought Rs. 1,40,000 on July 8, 1991, and the same was received by Basheer on July 9, 1991. He knew Sampath Kumar and Muthuraman of SRK ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nses, he did not receive any commission for the above money transactions and he only assisted his brother-in-law Srinivasagam in the above transactions. 132. The statement of the co-accused can be used as a substantive evidence connecting with the petitioner with contravention of illegal export of foreign exchange, as held by the Apex Court in Morarji Goculdas B&W Co. Ltd.'s case (supra). 133. As per section 72 of the FERA, 1973, where any document is produced or furnished by any person or has been seized from the custody or control of any person and such document is tendered in any proceedings under the FERA, 1973, the court shall presume the signature and every other part of the document was executed or attested by the person by whom it purports to have been so executed or attested, unless the contrary is proved. Therefore, the presumption of correctness of the documents recovered and seized from the custody or control of the person accused is also against the accused and heavy onus lies on the accused to prove the contrary. 134. As long as the appellant/enforcement officers are empowered to search and seize the material evidence from the respondents/accused, by exercising the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner. So there is no need to call panch witnesses for examination and cross-examination by the petitioner." 136. The above view is also supported by a decision of this court in A. Mallick v. State by Asstt. Director of Enforcement (FERA), Shastri Bhawan, Madras (CRL. R.C. No. 128/93 dated 20-4-1998). 137. On the contrary, as rightly pointed out by learned counsel for the appellant, there is no proper explanation from the respondents/accused for having used the code for the receipt and disbursement of the amounts in question. If the amounts were received and disbursed of in the course of normal transactions which are not in violation of any law, argued that there would not be any necessity for any secretive description or codes being used for disbursement of the amounts, which were explained in the statement of the respective accused and also corroborates with the documentary evidence. Hence, the accused-Khader Sulaiman, having failed to discharge his burden as contemplated under sections 56 and 71 of the FERA, 1973, is held to be guilty of the charges framed against him. 138. Hence, the materials and the documentary evidence and the reco-very of currencies, both Indian Rupees and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellate Board, the person appointed as Chairman of the Appellate Board and every other person appointed as Member and holding office as such immediately before such date shall vacate their respective offices and no such Chairman or other person shall be entitled to claim any compensation for the premature termination of the term of his office or of any contract of service. (3) Notwithstanding anything contained in any other law for the time being in force, no court shall take cognizance of an offence under the repealed Act and no adjudicating officer shall take notice of any contravention under section 51 of the repealed Act after the expiry of a period of two years from the date of commencement of this Act. (4) Subject to the provisions of sub-section (3) all offences committed under the repealed Act shall continue to be governed by the provisions of the repealed Act as if that Act had not been repealed. (5) Notwithstanding such repeal,- (a )anything done or any action taken or purported to have been done or taken including any rule, notification, inspection, order or notice made or issued or any appointment, confirmation or declaration made or any licence, permission, authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he offence said to have been committed by the respondents/accused under the FERA, 1973, for which the respondents/accused are convicted, should be dealt with only under the provisions of the repealed Act, FERA, 1973, even though there is no provision for punishment in the replaced enactment, FEMA, 1999. 147. The sheet anchor of the argument of learned counsel for the respondents/accused is that when the repeal of a statute is followed by a fresh legislation on the same subject, the court would undoubtedly have to look to the provisions of the new Act, unless a different intention appears in the new legislation. 148. Argued on behalf of the respondents/accused that, just as a person accused of the commission of an offence has no right to trial by a particular court or to a particular procedure, the prosecutor equally has no right to insist upon that the accused be subjected to an enhanced punishment under the repealed Act, based on the decision In re Hale's Patent [1920] 2 Ch 377. 149. The above dictum, in any considered opinion, is applicable only when a later statute again describes an offence created by an earlier statute and imposes a different punishment, or varies the proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entence under the Terrorist and Disruptive Activities (Prevention) Act, 1987 for same offence that was punishable under the Terrorist and Disruptive Activities (Prevention) Act, 1985, the scope and overriding effect of the saving clause provided under the Terrorist and Disruptive Activities (Prevention) Act, 1987 came for consideration before the Apex Court in Gian Singh's case (supra), and the Apex Court thereupon held as follows: "...if any subsequent legislation would downgrade the harshness of the sentence for the same offence, it would be a salutary principle for administration of criminal justice to suggest that the said legislative benevolence can be extended to the accused who awaits judicial verdict regarding sentence." (p. 322) 155. In the instant case, the new enactment is provided with a repeal and saving clause, namely section 49(3) and 49(4) of the FEMA, 1999, referred to above. That apart, section 49(6) of the FEMA, 1999 specifically provides for the general application of section 6 of the General Clauses Act, 1897 (10 of 1897) with regard to the effect of the repeal, except as otherwise provided under sub-sections (2), (3), (4) and (5) of section 49 of the FEMA, 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hem on the sentence to be imposed. Accordingly, the matter is adjourned to February 3, 2003, for questioning the accused with respect to the punishment to be imposed. 159. The respondents/accused appeared on February 3, 2003 and pray for lesser punishment on the following grounds : (1)Khader Sulaiman-Accused in C.A. Nos. 23, 31, 32 and 33 of 1995 submits that : (a)he is 53 years old ; (b)he is suffering from Tuberculosis ; (c)he had not involved in any crime, directly or indirectly, much less in an offence contravening any of the provisions of law; and (d)he is the sole bread winner of the family which consists of wife, two sons and a daughter. (2)Krishnasamy-First accused in C.A. No. 148 of 1995 submits that: (a)he is 63 years old ; (b)he is not keeping good health. He has hypertension, blood pressure and is also a diabetic patient ; (c)since the date of occurrence eleven and half years have lapsed and he had not indulged in any prejudicial activity nor any case was instituted against him ; (d)in any event, he was detained under the COFEPOSA, in which the subject-matter in the appeal was considered as a ground case, and had undergone 118 days imprisonment. (3)J. Sampat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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