9911796707
TMI Blog2015 (5) TMI 368X X X X Extracts X X X X X X X X Extracts X X X X ..... not recover anything from the respondent/accused. (iii) On examination, P.W.1 came to know that the said Haja Mohideen reached the place of occurrence in a car and after searching, he found Rs. 5 lakhs wrapped in news paper and also found two persons by name Munavar Hussain and Syed Mohamed Buhari, who were sitting at the rear side of the car. Nothing could be recovered from Munavar Hussain. But P.W.1 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 Rs. 500/- for the distribution of one lakh rupees. The seized amount of Rs. 4 lakhs from him was received from the respondent herein as per the instructions of Abdul Khader and the seized amount of Rs. 5 lakhs from his car was received by him from an unknown person at Nainiappa Naicken street as per the instruction of Abdul Khader on 10.04.1990. (v) Thereafter, P.W.1 issued Ex.P6 summons for further investigation. The said Ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) 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, the respondent herein has given Ex.P12 statement and on summons under Ex.P13, he appeared on 11.04.1990 and gave another statement Ex.P14, which has not retracted the statement in Ex.P12. But once the accused has accepted the commission of offence, he has to prove that he is innocent, but he has not proved the same. The trial Court has also failed to consider the same. (iii) Further, the trial Court erroneously held that because of non conducting joint trial as per Section 30 of the Indian Evidence 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, l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fected from the respondents. The car from where some seizure of contraband has taken place does not belong to either of the respondents. The case of the petitioners is solely rest upon the statement 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 the materials available on record. 7. It is the case of prosecution that on 10.04.1990, on information, while Enforcement Wing was searching, they caught hold of A1/Haja Mohideen and seized Rs. 4 lakhs from him and in his car, they seized Rs. 5 lakhs and on the basis of his confession, the accused/respondent herein was implicated. At that time, Haja Mohideen has given a statement stating that he received Rs. 4 lakhs from the respondent and on that basis only, respondent was examined and his statement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re is no scope for applying the principle of moral conviction or grave suspicion. In criminal cases where the other evidence adduced against an accused person is wholly unsatisfactory and the prosecution seeks to rely on the confession of a co-accused person, the presumption of innocence which is the basis of criminal jurisprudence assists the accused person and compels the Court to render the verdict that the charge is not proved against him, and so, he is entitled to the benefit of doubt. .. .. " In the above decision, it was specifically held that in dealing 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 above two decisions along with the facts of the present case, I am of the view, confession of co-accused is admissible only if the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ession 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 this Act alleged to have been committed by any person, and such document is tendered in any proceedings under this Act in evidence against him, or against him and any other person who is proceeded against jointly with him, the Court or the adjudicating officer, as the case may be, shall- (a) presume, unless the contrary is proved, that the signature and every other part of such document which purports to be in the handwriting of any particular person or which the Court may reasonably assume to have 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 ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rested and remanded to judicial custody on 11.04.1990. On 16.04.1990, he sent a letter Ex.D10 through the jail authority stating that he was assaulted by the Enforcement Officers and obtained statement from him by force. The respondent/accused has also filed Exs.D12 and D13 medical documents to affirm and fortify Ex.D10. It is clear that the respondent/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, who were sitting in the car. As per the judgment reported in 2010 (252) E.L.T. 57 (Del.) (Directorate of Revenue Intelligence v. Moni),even though statement has been recorded under Section 40 of FERA Act, no recovery was effected from the respondents. This judgment is squarely applicable to the facts of the present case. 17. Whereas P.W.2 in his e ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
