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TMI Blog2013 (8) TMI 400X X X X Extracts X X X X X X X X Extracts X X X X ..... es 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te of Bihar AIR 1964 SC 1184 Siri Chand Gupta v. Santosh Kumari [CRL M.C. Nos. 5113 of 2005 Crl. M.A. No. 10193 of 2005, dated 12-3-2008] and Union of India v. Bal Mukund [Criminal Appeal No. 1397 of 2007, dated 31-3-2009]. 3. Learned counsel for the Respondent on the other hand contends that in terms of Section 71(1)(2) (3) of the FERA, the burden of proof of the acquisition is on the person from whose possession it is recovered. Further when a person is prosecuted for the contravention of any provision, the burden of proving that he has the requisite permission lies on the said person. Despite opportunity notice being given, the Petitioner failed to give any explanation. The statement of J.K. Jain recorded by the Respondent is not exculpatory as only a part of the statement is being looked into by the Petitioner. A comprehensive reading of the entire statement of J.K. Jain shows that he admits recovery of the foreign exchange from his possession and also confesses about his writings in the diary. He only states that the foreign currency, Indian currency and Indira Vikas Patra were owned by the Petitioner. Thus, it is a confession, which is not exculpatory in nature. Since t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hatt 10/- and two Chinese currency notes of 10/- were recovered along with Indian currency of Rs. 58,09,000/-. On 17th September, 1993, the officers of CBI recorded the statement of co-accused J.K. Jain wherein he stated that seized foreign currency, Indian currency and the Indira Vikas Patra belong to him. The matter was referred to Enforcement Directorate, who took over the investigation and seized the foreign currency from the CBI vide Panchnama dated 6th October, 1995. On 14th April, 1995, statement of the Petitioner was recorded under Section 40 of the FERA by the Enforcement Directorate wherein the Petitioner admitted that the co-accused J.K. Jain was his employee. According to learned counsel for the Petitioner, no questions were asked from the Petitioner regarding the foreign exchange seized from co-accused J.K. Jain's residence. On 17th April, 1995, pursuant to summons issued to J.K. Jain under Section 40 of the FERA, his statement was recorded wherein he stated that the seized Indian currency and Indira Vikas Patras belonged to the Petitioner and the seized foreign currency was given to him in an envelope by the Petitioner for keeping with him. On 16th August, 1995, an op ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... must he noted that a compulsion to speak the truth, even though it may amount to a threat, emanates in this case note from the officer who recorded the statement, but from the provisions of the statute itself. What is necessary to constitute a threat under Section 24 of the Evidence Act is that it must emanate from the person in authority. In the case before us there was no such threat emanating from PW 5, who recorded the statement of PW 19, who was guiding the proceedings. On the contrary the officers recording the statement were only doing their duty in bringing to the notice of the appellant the provisions of the statute. Even if PW 5 had not drawn the attention of the appellant to the fact that the inquiry conducted by him is deemed to be a judicial proceeding, to which Section 193 IPC applies, the appellant was bound to speak the truth when summoned under Section 108 of the Act with the added risk of being prosecuted, if he gave false evidence." 7. In Ramesh Chandra Mehta v. State of West Bengal AIR 1970 SC 940, the Constitution Bench while examining the admissibility of a statement recorded under Section 171A of the Sea Customs Act, 1878 (now repealed) corresponding to Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... who made the statement has been examined, thus denying the Petitioner a valuable right to cross-examine. It may be noted that in the present case statement of J.K. Jain, co-accused was recorded under Section 40 of FERA by Shri R.K. Rawal, an officer of the Respondent on 17th April, 1995. However, in the pre-charge evidence, the statement of J.K. Jain, co-accused was exhibited by PW-4 M.G. Attri, Assistant Director of Enforcement, the complainant in the present case, though he had not recorded the statement. In this regard it may be noted that as laid down by the Hon'ble Supreme Court in Phool Kumar v. Delhi Administration AIR 1975 SC 905 any objection as to the mode of proof of a document has to be taken at the earliest opportunity i.e. when the document was exhibited in the presence of the Petitioner. Since 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. 9. Learned counsel for the Respondent has strenuously pressed into service Section 80 of the Evidence Act to say that the statement once exhibited by the Investigating Officer is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 40 of the FERA admits seizure of incriminating documents Indian currency, Indira Vikas Patra and foreign currency from his house. J.K. Jain also admits that the seized documents were written in his hand-writing. It is a detailed statement wherein he admits number of other transactions including the ledger and the seized files to be in his hand-writing. To see whether a statement is inculpatory or not, the entire statement will have to be looked into. Merely because the co-accused J.K. Jain in his statement besides inculpating himself has stated that the seized Indian currency and Indira Vikas Patra belong to the Petitioner and the seized foreign currency was given to him in an envelope by the Petitioner for keeping with him, the statement will not become exculpatory qua J.K. Jain. Since the statement of co-accused J.K. Jain inculpates both himself and the Petitioner, the same is duly admissible under Section 30, Evidence Act. However, the evidentiary value that can be attached to a statement of the co-accused is only that it can be taken into consideration to lend assurance as held by the Constitution Bench in Hari Charan Kurmi Jogia Hajam (supra). This can certainly not b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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