9911796707
TMI Blog1988 (11) TMI 350X X X X Extracts X X X X X X X X Extracts X X X X ..... wo writ petitioners, viz, Buhari and K. M. Seeni Mohammed, statements were recorded on 12-5-1987. Venkataswami J., by common order, allowed all the writ petitions and granted the relief as sought for. On being aggrieved by the said common order, these three appeals are preferred by the respondent to the writ petitions. Along with the appeals, the appellant filed C.M.P. Nos. 9280 to 9282 of 1988 seeking an order of stay of the operation of the order of the learned single Judge dated 10-2-1988 in all the writ petitions opening disposal of the writ appeals. Though initially, we were inclined to hear the C.M.Ps. Mr. M. R. M. Abdul Kareem, learned Counsel for the respondents herein, expressed his desire to advances his arguments even on the writ appeals, to which course, learned counsel for the appellant also agreed. Hence, with the consent of the parties, the main appeals themselves were taken up and arguments were heard. 3. For a proper understanding of the facts of the case, we will refer to the parties as arrayed in the appeals. 4. The facts of the case, which led to these three appeals, briefly stated, are as follows : On 12-5-1987, the residential premises of the respondents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... those statements should not be relied upon by the Department to take any action against them. The Enforcement Directorate sent a reply dated 20th August 1987, to these representations, stating. The allegations made therein have been looked in to and the same are found to be false and baseless . These two respondents viz., Mansoor Mohammed Ali Jinnah and Seeni Mohammed, appear to have sent two other letters dated 5-6-1987, to which also the Enforcement Directorate sent replies dated 1-7-1987 starting that the allegations contained in the letters are baseless. 6. It seems that the appellant moved this Court by filing a criminal miscellaneous petition, viz, Crl.M.P. No. 10473 of 1987, to cancel the bail granted to the respondents, and this court by order dated 6-11-1987, cancelled the bail. Padmini Jesudarai J. while cancelling the bail in the above Crl.M.P., and dismissing the petition, Crl.M.P. No. 10448 of 1987, filed by the respondents to condone their non-appearance before the appellant, as directed by the High Court, On earlier occasion in Crl.M.P. No. 5330 of 1987, observed thus : Now that the respondents have not appeared before the petitioner in pursuance of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ys and one night continuously and they were compelled to give statements written under their own hand incriminating themselves as having violated provisions of FERA. 9. The Deputy Director of Enforcement Directorate, the appellant herein, filed a counter-affidavit sworn to on 20th January 1988, (which counter was evidently filed in respect of the averments made in the affidavit accompanying the main writ petitions) in which the appellant has denied the allegations of the respondents that the statements made by them were involuntary and added that the respondents voluntarily gave the statements containing the various particulars and details with regard to the seizure of the documents which particulars were exclusively within their knowledge, and that none of the respondents at the time when they were produced before the Magistrate for remand made any complaint that they met with any ill-treatment at the hands of the appellant. According to the appellant, the remanding Magistrate has noted in the remand order that there was no complaint by the respondents of ill-treatment. According to the appellant, the respondents were arrested only at 11 p.m. on 12-5-1987 and were produced befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not and cannot also be disputed. Likewise, it is not disputed that the long statements in question are in the handwriting of the petitioners. The assertion on the port of the respondent that the petitioners came to the office of the respondent on their own accord and wrote down the statements voluntarily, in the facts and circumstances of the case, cannot at all be believed. On the above finding, the learned Judge allowed the writ petitions restraining the appellant from making use of the statements recorded from the respondents against them in the proceedings under the FERA or under any other Act/Acts. On being aggrieved by the said order of the learned single Judge, these three appeals are now preferred by the appellant. 11. Before launching on a discussion on the submissions and counter submissions made by the respective learned counsel, we would like to point out certain salient features appearing in this case. On 12-5-1987, the Officers of the Enforcement Directorate searched the premises of the three respondents situate at No. 35, Gafoor Sahib Street, Madras-14, and seized certain incriminating documents, which documents, according to the appellant, disclose violati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... partment and another filed by the respondents for condonation of their non-appearance before the appellant. When these two Crl.M.Ps., came up before the Court on 6-11-1987, this court cancelled the bail as the respondents were found to have not complied with the directions given by this court also. It seems that the moment the bail granted by the Additional Chief Metropolitan Magistrate was cancelled, the respondents absconded. Meanwhile, in the month of June, 1987, the three respondents filed the abovesaid writ petitions making some allegations against the Department and stating that the statements were involuntarily made and they were obtained under torture. Subsequently, when the respondents filed petitions for fixing early date for hearing of the writ petitions after the disposal of the Special Leave Petitions in the Supreme Court, they made further allegations complaining that the statements were recorded from them out of office hours and they were all confined in three separate rooms and were denied even the elementary facilities and were treated as captives and compelled to write statements as narrated by some of the officials of the Directorate. It appears that in the meanw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... annot be used for taking any action against the maker of the statement; (2) the respondents in this case have been compelled to write statements under their hands by coercion and threat (3) all the three respondents were kept in three separate rooms as captives and the statements were obtained from them out of office hours; (4) the involuntary statements obtained from the respondents are hit by S. 24 of the Evidence Act, and as such inadmissible and irrelevant; (5) the statements recorded under sections 39 and 40 of the FERA, which provisions are analogous to Sections 107 and 108 of the Customs Act and Sections 63 and 64 of the Gold Control Act, are not admissible in any proceedings and (6) in view of S. 138(b) of the Customs Act, the statements recorded from the respondents cannot be made use of against them and also against the other persons. 14. Though Mr. Abdul Kareem made a very lengthy, elaborate and roving argument relating to the use of the statements in the proceedings under the Customs Act, FERA and in the proceedings while passing the order of detention under the COFEPOSA Act, the question that arises for decision in this case is, whether the statements ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the respondents were arrested at 11 p.m. on 12-5-1987. Therefore, it follows that the respondents were produced before the magistrate within 24 hours. According to the appellant at the time when the respondents were remanded, they did not make any complaint of ill-treatment to the magistrate, and the remanding magistrate also noted on the remand report that there was no complaint of ill-treatment. Immediately, after the release on bail, the respondents Mansoor Mohammed Ali Jinnah and Seeni Mohammed have sent two representations dated 27-5-1987 to the Director of Enforcements, New Delhi, stating that the appellant tortured them without causing any visible injuries, threatened and forced them to give statements as dictated by the appellant and therefore the statements given by the respondents out of fear, are involuntary. These two representations are given as Annexures I and II to the counter-affidavit filed by the respondents in C.M.P. Nos. 9280 to 9282 of 1988 in these writ appeals. In these two representations, except the vague allegation that they were tortured and compelled to write statements as dictated, there is absolutely no mention of having been kept separately or d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons is only with reference to the allegations made in the writ petitions, but not with reference to the allegations made in the writ miscellaneous petitions filed for fixing for fixing an early date for the disposal of the writ petitions. In the main counter the appellant has emphatically denied in more than one place that at no point of time the respondents were ill-treated or coerced to write down their statement containing false allegations; but would add that the respondents themselves gave the statements containing various details which were in the exclusive knowledge of the respondents, and that all these statements were made voluntarily. Therefore, in our view the absence of a specific denial of the complaint made in the affidavit filed in support of the W.M.Ps. in the month of December 1987 for fixing of an early date for the disposal of the writ petitions, cannot in any way be the reasons for holding that these respondents were confined in three separate rooms and they were denied all elementary facilities and compelled to write down the statement as dictated by some of the officials of the Enforcement Directorate. The learned single judge, without adverting to the various ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a statement may be vitiated . Of course, this observation could be adopted in an enquiry made under the provisions of the FERA also. But as pointed but in the same ruling, the question whether person has been kept in prolonged custody is a questions of fact which has to be carefully considered against the background of circumstances disclosed in each case. In the present case, as there is no complaint at the earliest stage, viz., either in the representations made by the respondents to the Directorate, New Delhi, or in the affidavit initially filed in support of the writ petitions that the statements were recorded out of office hours while they were in the Customs Office, the allegation made in the affidavit filed in the W.M.Ps. for fixation of an early date for the hearing of the writ petitioner, that they were kept in isolation in three separate rooms, denied of facilities and compelled to write statement as directed, cannot be accepted for holding that the statement are vitiated. Once we have factually come to the conclusion that the statement cannot be termed as involuntary then all other arguments as to the non-acceptance of those statements have to fail. 20. The next c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hree separate rooms as captives and forced to give the statements out of office hours and as such, those involuntary statements which are now retracted cannot be made use of has to be thrown overboard lock, stock and barrel. In view of the above factual finding we hold that the various decisions relied on by the learned single Judge for the proposition that the statements were made under duress cannot be relied upon, have no relevance. Evidently the learned single Judge has been misled to arrive at such a finding only on account of the averments made in the subsequent affidavits filed in support of the W.M.Ps. for fixing an early date for the hearing of the writ petitions. 21. We shall now pass on to the next elaborate submission made by Mr. Kareem that all the statement obtained from the respondents under compulsion by use of illegal methods are hit by S. 24 of the Evidence Act and that they are irrelevant and inadmissible. The learned counsel cited a number of decisions in support of the proposition that the confessions got by inducement or threat are irrelevant and cannot be made use of in any proceeding against the maker. We think that it is not necessary to swell this judgm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iciently, be invested with some powers, which may have similarity with these of Police Officers, yet since the primary purpose of investing of such powers in him is not for the purpose of maintaining law and order but for a specific purpose such as, safeguarding the revenues of the State or its economy, he will not fall within the expression police officer and the statement recorded by him would not be hit by S. 25 of the Evidence Act. 24. Later on, the Supreme Court in Raja Ram v. State of Bihar, held by a majority that Excise Officer under the Bihar and Orissa Excise Act, 1915, was a Police Officer within the meaning of S. 25 of the Evidence Act. Thereafter, the Supreme Court in Badaku Joti v. State of Mysore distinguished the decision in Raja Ram v. State of Bihar, (Supra) with reference to the specific provisions of the Bihar and Orissa Excise Act, 1915, and reaffirmed the view taken in State of Punjab v. Barkat Ram, while examining the validity of a statement made by an accused to the Deputy Superintendent of Customs and Excise. 25. A Full Bench of this court in Collector of Customs v. Kotumal had occasions to consider this question in detail. The Full Bench after refe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the person against whom evidence is sought to be led in criminal proceeding and includes any person who subsequently becomes in accused provided that at the time of making the statement, criminal proceedings were in prospect, and it does not predicate a formal accusation against him at the time of making the statement sought to be proves as a condition of its applicability. It is the settled principle of law that confessional statement which is made voluntarily is relevant, and that if the confession is voluntary, it may be relied upon. See Abdul Rahman v. State of Karnataka, B. S. Tani v. State of Assam 1977 Cri LJ 296 (Gauh) and State v. Mitu 1977 Cri LJ 1018 (Orissa). If the confession is made under coercion, it is irrelevant and as such it is inadmissible See Sevanti Lal v. State of Maharashtra and Brij Lal v. State of M.P. . A retracted confession is statements made by a person the trial of a case begins by which he admits to have committed the offense, but which he repudiates at a latter stage at the trial. The settled view of the Supreme Court is that as a matter of prudence and caution, which has sanctified itself into a rule of low, a retracted confession cannot be made s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... retraction, only in proceedings arising out of the detention orders, and not in the present writ appeals. The other contention of Mr. Kareem that the confessional statements which are retracted now, should not be used for taking any action against the respondents in any proceedings has to fail. 27. The further submission of Mr. Kareem is that the confessional statement of the respondents recorded under Sections 39 and 40 of the FERA, which are analogous to the provisions of Sections 107 and 108 of the Customs Act and Sections 63 and 64 of the Gold Control Act, are not admissible in evidence for the reasons, (1) that the admissibility of any evidence has to be authorised by statute which has to declare that the statement is admissible and relevant, and that no court or authority can admit a statement which is not expressly authorised by a statutory provisions; (2) that the confessional statement of the respondents do not fall within the provision of Sections 17 to 32 of the Evidence Act prescribing the circumstances etc., for admissibility of statements; (3) that S. 138-B of the Customs Act has been introduced for admission of statements obtained under the Customs Act only in ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion before the said Court or authority. If it is a proceeding under the COFEPOSA Act, it is not a judicial proceeding, and the detaining authority while passing the order of detention has to subjectively satisfy himself whether there is sufficient material before him for passing such orders of detention. Hence, the present argument has no relevance at all to the present writ proceeding. 29. Then, Mr. Kareem, drawing the attention of the court to S. 138-B of the Customs Act, submitted that the effect of the section is to totally exclude a statement obtained under S. 107 of the said Act, which is in pari materia with S. 39 of the Foreign Exchange Regulation Act, and that since the appellant has asserted in Ground No. 86 of the memorandum of grounds that the statements of the respondents were obtained under S. 39 of the FERA (but not under Section 40 of the FERA), which provisions are analogous to Sections 107 and 108 of the Customs Act, these statements should be held not admissible, applying the principles laid down under S. 138-B of the Customs Act. S. 138-A and S. 138-B of the Customs Act were inserted by S. 9 of Act 36 of 1973. The objects and reasons of these two provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les laying down the guidance, any statement recorded from any person should be ignored, as there is no safeguard in such a situation against obtaining involuntary statements, that the respondents were kept in separate cells and where not allowed to see their Pleader and their relations and to contact anybody outside including their family members or friends, not to speak of lawyers, in violation of Arts. 14, 21 and 22 of the Constitution of India, that the COFEPOSA Act has no independent existence, but is inter-connected with the Customs Act and the FERA, that the multifarious provisions of the Customs Act and the FERA dealing with minute details of the powers and duties of the authorities do not contain any power to frame of send proposal to any authority to detain a person under the COFEPOSA Act nor does the COFEPOSA Act contain any provision to make proposals by such officer for detention, and that the initiation of the COFEPOSA proceedings itself is absolutely without jurisdiction since the executive action affecting the life and property of a person is not based on legislative authority. In support of this argument, several decisions were relied upon by learned Counsel viz. A. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... FERA take the statements of a person in his own hand, so that there may not be any complaint subsequently that the authorities have not recorded the statements property. We draw strength for the above view from the observation made by the Supreme Court in the judgment in Amba Lal v. Union of India, AIR 1961 SC 264 : (1961 (1) Cri LJ 326), reading as follows (Para 10) : It would have been better if the customs authorities had taken that admission in writing from the appellant, for that would prevent the retraction of the confession on second thoughts. That apart, it is more satisfactory if a body entrusted with functions such as the customs authorities are entrusted with, takes that precaution when its decision is mainly to depend upon such admission . See also State of Bombay v. Kathi Kalu, . In view of the above decisions of the Supreme Court, this argument cannot be availed of. 32. A further argument was advanced that the statements have been recorded out of office hours, and as such, as rightly pointed out by the learned single Judge, no reliance can be placed on these statements. We have already held that there is no material in the present case to show that the s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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