9911796707
TMI Blog1987 (1) TMI 105X X X X Extracts X X X X X X X X Extracts X X X X ..... while the third one traced at the Domestic Terminal is the original accused No. 1. These three accused prominently figure in the said episode which occurred at the Air Port on that day. 2. According to the said Officer he noticed accused No. 1 handing over two Passports and two Tickets to the Air India Staff who was on duty at the counter. A query being made as to whether the three suit cases which figured in the incident were to be pooled together and if so, all those would be subjected to examination, accused No. 1 declined and thereafter checked one suitcase in the name of one passenger who happened to be accused No. 2 and two separate suit-cases in the name of other passenger who happened to be accused No. 3. Accused Nos. 2 and 3 were not seen at the counter at that time. The Officer then noticed accused No. 1 leaving the counter after checking baggage and contacting accused Nos. 2 and 3 who were by then waiting in the Departure Hall and he handed over two tickets and two Passports to them, which obviously was indicative of the fact that accused Nos. 2 and 3 and not accused No. 1 who were the passengers traveling the said Flight. The event that occurred at the counter was ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... catch a Flight for Ahmedabad. The Officers rushed there and were able to trace accused No. 1 who was brought back to the spot where accused Nos. 2 and 3 were detained. His baggages were also searched as also his person which revealed certain documents. However, nothing incriminating was found with him. The said Customs Officers and the Air India Staff are alleged to have identified the three accused persons as involved in that episode. 4. Further formalities of the investigation then followed. Statements of these three persons came to be recorded under Section 108 of the Customs Act. The investigation further revealed the participation of some other persons and thus entered the arena accused Nos. 4 to 7. Accused No. 4 is the wife of accused No. 1 and the couple runs a travelling agency known as "Sky Jet Aviation Private Limited" located at Ahmedabad with an office in this metropolis. In due course the statements of accused Nos. 4 to 6 were recorded under the Customs Act while the statement of accused No. 7 was recorded by the officers attached to the Wing under the Foreign Exchange Regulation Act f Shortly FERA'). Some of those statements are alleged to have referred to the acti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of India, praying for the relief to quash the said order and the proceeding and dismiss the complaint against him. 9. To complete the circuit on fact, only a few features need be mentioned at this stage which are prominently reflected in the complaint. According to the complainant, accused No. 1 in his statement under Section 108 of the Customs Act accepted that he came to Bombay from Ahmedabad on 19-3-1985 with accused Nos. 2 and 3 and he is alleged to have accepted the incident at the Air Port as was seen by the Customs Officer and the Air India Staff in that he checked the baggage for accused Nos. 2 and 3, then contacted the said two accused and handed over the Passport and Tickets and further accepted that he was brought back from Domestic Terminal. The complainant alleges that accused No. 1 accepted the Foreign Currency and Travelling Cheques recovered from accused Nos. 2 and 3 as belonging to him which he wanted to send for safe custody to his relation. It is alleged that more or less on the same lines are the statements of accused Nos. 2 and 3 who are alleged to have accepted as to what had transpired at the Air Port and that they were carrying Foreign Currency for an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner and reflected mainly through those statements is to the effect that he paid Indian Currency to be tune of Rs. 4,00,000/- to the said person Millan which was the balance of the amount for the Foreign Exchange when was already acquired by accused Nos. 5 and 6 from Millan Admittedly, even as per those statements the petitioner did not even inferent all figure in the incident that occurred on March 19, 1985 at the Air Port. 11. All these features including the gist of the statements of various accused are boldly reflected in the complaint. Though the petition is directed only by original accused No. 7, reference to the entire incident and the part alleged to have been played by the other accused became necessary by reason of the fact that not only the complaint but even on this forum the prosecution claim to saddle the liability on the petitioner even for the main incident of 19th of March 1985 through the provisions of Section 120B of the Indian Penal Code. In effect the prosecution contend and is reiterated by Shri A.R. Gupte, the learned counsel, that though in the incident of 25th of February 1985 accused Nos. 5 to 7 only figured while in the incident of 19th of March 1985 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd if those are mere statements under Section 108 of the Customs Act containing no confession and not being inculpatory has no relevance as against the other accused and even if those contained confession, still It hardly goes to the rescue of the prosecution while dealing the case against co-accused. 13. However, even assuming otherwise at least in so far as the statement of the petitioner himself is concerned, which admittedly has been retracted and thereby narrowing down further its evidentiary value requiring adequate corroboration, which is missing in the instant case, which by itself would not justify to discard the said statement against the maker at this stage, and even taking the recitals therein which are canvassed by the prosecution as their case at the maximum, still the order of issuing process against the petitioner would be equally assailable. Some of the salient features which are quite relevant in the context of the controversy are apparent even as per the prosecution case and therefore it would be the proper point of time to consider the same while considering the case of the petitioner. The first as stated is that the petitioner is only an employee or the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mount may not be an unusual feature so as to raise suspicion. Further the amount which he was directed to pay to Millan was also not in the shape of Foreign Exchange but was exclusively in the term of Indian Currency. Significantly beyond paying the said amount of Indian Currency as per directions to Millan he did nothing. The significance further lies in the fact that even according to the prosecution it is not at that stage and at that time that any Foreign Exctiange Was given by Millan to accused Nos. 5 and 6 or to the petitioner, but according to the prosecution, the so-called transaction of purchase of Foreign Exchange was complete between accused Nos. 5 and 6 and Millan even prior thereto in which the present petitioner did not figure at all. Even the statements of the petitioner and accused Nos. 5 and 6 do not implicate the petitioner in that behalf. Thus even as per the statement of the petitioner as also as per the prosecution case it is subsequent to the transaction between accused Nos. 5 and 6 and Millan that the present petitioner was asked to pay an amount of Rs. 4,00,000/- to Millan. It is true that his statement suggests as disclosed in the complaint that he made the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on has been introduced Jn the picture for the purpose of prescribing prohibition on Import or Export of Foreign Currency. The said section itself has the title of restrictions on Import and Export of certain currency including Foreign Exchange without the general or the special permission of the Reserve Bank of India. Section 11 of the Customs Act relates to the power to prohibit Importation or Exportation of certain goods which by reason of this deeming feature takes under its fold even the said notification and thus the prohibition for Export or Import of Foreign Exchange is carved out under Section 13(2) of FERA as also Section 11 of the Customs Act, both of which flow out of the said notification. It is however relevant to note that in both these provisions under FERA and Customs Act, the restriction relates to the process of Import or Export. The relevance lies in the fact that these provisions are pressed into service by the complainant because the factual basis is obviously restricted to the act of attempt to export Foreign Exchange. The main offence that is clearly indicated in the complaint relates to the incident that occurred on 19th of March, 1985 when there was an atte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bes the punishment for the said offences. Notwithstanding all the features the bare foot remains which is quite relevant and which is accepted by the Department that at least upto this day admittedly no complaint or prosecution has been launched nor any action taken for any of the offences under FERA and especially an offence for acquisition of Foreign Exchange in contravention of the provisions under the said Act including the prohibitions and restrictions and other allied offences. 16. It is true that the complaint alleges that there is a continuing criminal conspiracy in which there is participation of all the accused though all may not appear on the scene in each of the two incidents. However, it would not be irrelevant to note a very prominent deficiency in the complaint which practically stares in the face which \a to the effect that except making a bald statement that there is a continuing criminal conspiracy to illegally export out of India large Foreign Exchange and a further bold statement that the same was acquired with the help of other accused and was sought to be exported with the help of accused Nos. 2 and 3, there is no indication worth the name as to the circumst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suit-case which contained large amount of Indian Currency and to attend to receiving telephone calls and the petitioner was asked merely to receive the phone calls but not to himself make any call. It is alleged that petitioner received phone call from accused No. 1 inquiring about accused Nos. 5 and 6 and whether they had purchased Foreign Exchange, Shri Gupte also submitted that the Indian Currency in the bag was counted, may be in the presence of the petitioner, when accused Nos. 5 and 6 left. The petitioner subsequently paid more than Rs. 4,00,000/- of Indian Currency to Millan. That the petttioner's in the employment of the travelling agency with which accused Nos. 1 and 4 are associated was also pressed into service. On the basis of these and other circumstances Shri Gupte, the learned counsel, endeavoured to submit that the petitioner could be easily posted with the knowledge that accused Nos. 5 and 6 were on the mission to acquire Foreign Exchange which they did out of the Indian Currency which they had brought from Ahmedabad and thus he had further knowledge that the amount of Rs. 4,00,000/- and odd that he was paying to Millan though subsequently was the balance out of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sis of these circumstances relied upon by the prosecution and even accepting the statement Of the petitioner as if is and also even accepting the recitals in the complaint as they are, it would not be permissible even to inferentially hold that he was or could be the member of a conspiracy to export Foreign Exchange by accused Nos. 1, 2 and 3. It is apparent that at least insofar as the petitioner is concerned, a distinction is writ large even on the basis of the complaint without involving any process of appreciation of evidence or even without discarding or disbelieving the evidence as it is that there is absolutely no material worth the name either to post him with the knowledge that the Foreign Currency which was acquired in Bombay, assuming of course that he knew about the acquisition or purchase, which is denied by the defence, was for the purpose of smuggling it out or exporting which was to be done subsequently. His capacity as a servant or an employee is quite relevant in that behalf and merely because he Is employed not with accused No. 1 but in the travelling agency with which accused Nos. 1 end 4 are associated, though he is posted only in Bombay, cannot raise any presu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... work for the furtherance of the common design of his group only. It is not necessary to reproduce the further observations as the principle is well settled. As stated, merely making a bald statement in the complaint that there has been a continuing conspiracy meaning thereby a single general conspiracy would not suffice. Though this can be established on the basis of inferences from the attendant circumstances as there cannot be any direct evidence and also from the acts themselves, still the inferences first must be based on tangible material and the inferences must be logical, rational and inescapable. As already discussed, even if all the circumstances which are sought to be relied upon by Shri Gupte are considered not itemwise but even in their totality, still the most fundamental and necessary ingredient for constituting such a single general conspiracy is very much wanting. On the contrary, the circumstances taken together strongly indicate that the petitioner had not only participated, had not only not shared the common design of the so-called main conspiracy but was not even aware of the said design and the common object which was to be achieved and he lent his services onl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the legislative intent and the object behind the same. Shri K.M. Desai, the learned counsel, rightly submitted that acceptance of this plea would entail into such un-tenable and un-reasonable consequences that the prosecution can be relieved even of the fundamental duty to establish at least some basic facts. As stated, the acts alleged to have been committed on 25th of February 1985 in the absence of any material, at least insofar as the petitioner is concerned, cannot be tagged with the one which ultimately culminated on 19th March, 1985. Even in this inner circle a distinction is apparent between the-case of the other accused and the present petitioner. Any element of culpable mental state to be pressed into service will have to be restricted in that field, more concentrating on the acts committed on 25th Feburary, 1985 and not any further though Shri K.M. Desai, the learned counsel seeks liberty even to contest that if a proceeding for an offence under FERA is subsequently launched. There is parallel provision contained under Section 59 of FERA about the presumption of culpable mental state which need not be eleborately considered at this state which need not be elaboratel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by expanding the scope of presumption to formulate an offence under the Custms Act about the subsequent attempt to export not by himself, it would tantamount to using the presumption for establishing the conspiracy and the object thereof and thus obviously would exceed the permissible limits and the legislative intent in other words for certain offences under FERA vis-a-vis Foreign Exchange regarding its acquisition, possession, etc. without the permission of the concerned authority, presumption under Section 59 may be invoked to formulate mens rea and for certain offences under the Customs Act where the accused is alleged to be concerned in any manner with the contraband with the knowledge of the evasion of the prohibition, presumption under Section 138A about the mens rea can equally be invoked. However, the field of operation of both is distinct and especially in one the knowledge restricts about there being no permission even to acquire or possess whereas in other the knowledge required is that the same is to be exported. One cannot confuse with the other. Factum of a criminal conspiracy which is an offence under other Act through which liability of the accused is sought to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fences under FERA mainly relating to the said Foreign Exchange that is alleged to have been acquired in Bombay on 25th of February, 1985, Shri Desai, the learned counsel, submits that even in that field no offence could be made out at least against the petitioner. However, as to whether any such action would really be taken for any such offences and if so initiated what would be their impact as against the present petitioner would be a matter which could be properly considered at that stage if an occasion arises and as such at present it would be merely an exercise in speculation. Consequently, therefore, on the basis of propriety no comments are being offered either way and the chapter is left open. 19. In view of this discussion it harmoniously flows out of the circumstances and the allegations even taken at the maximum that there is no sufficient material to proceed against the petitioner in the proceeding arising out of the complaint as it has been filed and the process issued by the learned Magistrate for the said offence which essentially pertain to the allegation of attempt to export the Foreign Exchange. It is the material that is reflected through the complaint that woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... volve any process of appreciation of evidence is close allegations which constitute an offence as alleged but there is either no legal evidence adduced in Its support or alternatively the evidence so adduced manifestly fails to prove the charge. A caution is levelled that this should not be equated with the case where there is legal evidence which only on its appreciation may or may not appear to support the accusation which process would involve appreciation and which cannot be done at the threshold. This obviously could be illustrative and not exhaustive. In Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi and others - A.I.R. 1976 Supreme Court, 1947 wherein the same principles are reiterated and four illustrative categories are carved out for quashing the order of issuance of process which are more or less in consonance with those pronounced in Kapur's case. Thus the first relates to there being no case made out or there is no disclosure of essential ingredients of an offence which would become manifest even by mere reading of the complaint adduced. The second, which is an added illustration is such that the complaint contains allegations which are patently absured and inherently ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to rely are "woefully inadequate for connecting the respondents with the crime, howsoever skillfully one may attempt to weave those bits into a presentable whole". On facts it was indicated that there was no material on which any tribunal can reasonably convict the respondents for the assault though they were sought to be made liable by reason of alleged conspiracy. Then the Supreme Court eloquently observed that this is one of those cases in which a charge of conspiracy is hit upon "for the mere reason that evidence of direct involvement of the accused is lacking". A Division Bench of this Court had an occasion to consider this point in Jacob Harold Aranha and another v. Mrs. Vera Aranha and another -1979 Criminal Law Journal, 974. The learned Judges levelled a caution indicating the limitations and the powers of the Magistrate at the threshold of a proceeding and observed that it is not the duty of the Court at that stage to find out whether the accused will be ultimately convicted or acquitted and the object of consideration of the merits of the case could only be to determine whether there are sufficient grounds for proceeding further or not. It was also indicated that inheren ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held that on the plain reading of the complaint a prima facie case has been made out as the allegations were not vague and those did implicate the Directors attributing active role played by them and their extent of liability. Thus the distinction on facts was made in the context of the ratio in Ram Kishan Rohtagi's case cited (Supra). 24. It is unnecessary to multiply the ratios since the underlined principles are on identical pattern. 25. These rattos make the position quite clear in theory though a difficulty may arise some time in the application of those principles to the facts of each case. Therefore, each case normally with have to be considered on its own merits. The various categories and the contingencies contemplated speak for themselves though the under-current is that there should not be involvement of any process of appreciation of evidence or to undergo an exercise to find out whether the evidence is reliable or not and it would be necessary merely to read the contents of the complaint, still even on that basis there can be a case where the allegations fall short of making out a prima facie case or the necessary ingredients of offence are lacking or the material ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... specific plea of the accused like acting in exercise of self defence or the plea of alibi; which is such that it does not get established ex-facie but requires presentation of proper evidence, will have to be tested on evidence which can be properly done at the trial and not at the threshold. It is not possible to put all these illustrations in a straight jacket so as to lay down a principle of universal application. 26. Reference in this context, though incidentally, to the statements recorded under Section 108 of the Customs Act and under Section 40 of FERA may not be out of harmony. Their admissibility in contrast to similar statements recorded by police officer is well accepted and takes within its fold not only the statement of a witness but even that of a prospective accused. This would also cover the case of judicial confession recorded under Criminal Procedure Code which thus becomes admissible. As against the maker, if it is ex-culpatory, it has hardly any relevance; if inculpatory, it assumes the character of a confession whose admissibility as also the evidentiary value is not diluted much less wiped out at the inception, even if it is retracted. The exercise to consid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... occasion of looking into such confession to lend additional assurance because the basic and fundamental feature the correctness of which is required to be reassured is itself non-existent and therefore such a confession would lie in vacuum. On the same parity, therefore, this ratio can be applied justifiably to the initial stage. Even if as held in Kochra's case (Supra) that such confession of co-accused can be used only to support other evidence when considered, in this context, the situation remains the same as there is no other evidence which is sought to be supported by such item, because such item by itself is not enough at all. Consequently, therefore, if in a given case there is absolutely not a single item of other evidence and the prosecution have no other material whatsoever to unfold at the trial, then the only item of confession of co-accused, which thus lies in isolation or vacuum, cannot by itself and all alone formulate sufficiency of ground to proceed against the accused and, therefore, unlike in the case of a confession against the maker, in an appropriate case the learned Magistrate can well be within the ambit of his powers and jurisdiction to examine that asp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ormal requirement to allow the proceeding to reach the logical destination need be present while dealing with such matters. However, notwithstanding this caution, the permissibility to quash a proceeding and the order of issuance of process even under the inherent powers or jurisdiction for the learned Magistrate concerned for not issuing process is well recognised in firm manner. In that field it would be necessary to undergo the exercise to find out if a proper and prima facie case has been made out or not on the touch stone of those guidelines and the various illustrative categories carved out. The concept of prima facie case or sufficiency of ground contains assorted factors. If a case on facts has been made out which would manifestly indicate that the order of issuing process is wholly unjustified then the Court would step in even under the inherent powers to rectify the error in the interest of justice and also to prevent any further abuse of process of law or avoid waste of public money, energy and time. Just as a genuine litigation with all the requirements of making out a prima facie case being available on the face of the record cannot be short-circuited at the inception ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing to him occurred on 10th of March, 1985. Even the statements of the co-accused are more or less on the same lines though one of the co-accused has added that the Indian Currency that was In the suitcase was counted in the presence of the petitioner though the other accused does not support him on that count. 31. Taking these statements and especially the statement of the petitioner whole himself the author of that statement it becomes clear that it at the most would post him with the knowledge that Foreign Currency was being purchased in Bombay or which purpose Indian Currency was brought by accused Nos. 5 and 6 and may be that the accused No. 1 was interested in that transaction. He is supposed to have paid the balance on 10th of March 1985. Significantly his statement itself indicates that between 10th and 15th of March though one or the other two accused had come to the office they had to talk with him and on the 19th of March though according to his statement accused No. 1 had visited the Travelling Agency's office, he had not met him at all. The statement, therefore, makes it clear that he was not at all knowing the crucial aspect either prior to 25th or subsequent theret ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pra) that the charge of conspiracy is hit upon for the mere reason that evidence of direct involvement is lacking. Case of the petitioner is wholly distinct than that of other accused including accused Nos. 5 and 6. To discard the allegations of main conspiracy against the petitioner, no process of appreciation of any finer shades is involved. It is manifest even on the face of the record. Hence its discarding at this stage itself would be certainly permissible. This is being mentioned only to highlight the fundamental deficiency in the prosecution case that this event of 25th of February, 1985 even accepted on the statement of the petitioner which has been already retracted, cannot make him a co-conspirator in the so-called single general conspiracy and therefore cannot make him liable even prima facie for sharing any common design or common object which was according to the prosecution to export the foreign Exchange in the face of the prohibition. At the maximum, these acts would tend to post him with the knowledge about question of Foreign Exchange in Bombay on that day by accused Nos. 5 and 6 and even doing the said overt-acts with that knowledge. According to Shri Gupte, this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as the petitioner is concerned. Further apart from not making his participation in any manner with any other events either at Ahmedabad or at Bombay those statements on the contrary very strongty inditcate that the petitioner was deliberately excluded from all such other activities including the main incident, even though he was all along working in Bombay office of the Agency and some of the accused used to visit that office. The statements of Millan and other persons may at the most confirm that the balance amount was paid by the petitioner for the purchase of Foreign Exchange by accused Nos. 5 and 6. The most vital link even inferentially is bliss-fully missing and thereby reinforcing the conclusion that the acts done by the petitioner-were in isolation and his participation would be at the maximum with the knowledge that accused Nos. 5 and 6 were to purchase or acquire Foreign Exchange in Bombay on that day. The main object, its knowledge, much less participation therein are not even inferentially reflected in those statements. Therefore, even if these statements are read and relied upon at this stage against the petitioner also, still the Situation remains unchanged. A distinc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing out sufficient ground to proceed against the petitioner in the proceeding arising out of the complaint as it is filed under the Customs Act and it cannot be confused with anything more as an expression of opinion in that field, since everything as yet is in vacuum as there is only a statement on behalf of the Department that a prosecution under FERA is under contemplation and if that is ultimately filed, as to what would be the impact of the items of evidence that are available would be a matter to be examined at the appropriate stage. Recording of any finding either way in that respect which may tend to cause prejudice to either side is required to be deliberately avoided in this proceeding. Any attempt to do so at this stage would be sheerly an exercise in speculation. 32. The learned trial Magistrate no doubt undertook the industry to go through these statements in the complaint and decided to record a speaking order as he was obviously addressing himself to the basic question about the propriety and legality of issuing process; still except reproducing the gist of the allegations as reflected in the complaint he has not applied his mind as to whether a case for issuance o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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