2015 (5) TMI 368 - HC - FEMA

Appeal Dismissed, Acquittal Upheld Due to Lack of Proof. Co-Accused's Confession Unreliable.

The High Court upheld the trial court's judgment of acquittal, dismissing the appeal. The accused was acquitted as the prosecution failed to prove guilt ... Recovery of large amount of cash - contravention of the provision of Section 9(1)(b) and 9(1)(d) of FERA Act, 1973 - Offence under Section 56(1)(i) of FERA Act and Sections 49(3) and (4) of FEMA Act, 1999 - Reliability on co-accused's statement - Held that:- confession of co-accused is admissible only if the case of other co-accused has been tried jointly as per Section 30 of Indian Evidence Act. In such circumstances, no reliance can be placed on Exs.P5 and P7/statements of Haja Mohideen - It is true, statement of respondent/accused was recorded under Section 40 of FERA Act. Once the respondent has admitted his guilty, he ought to have proved his innocence. There is presumption under Section 59 of the FERA Act and burden is shifted on the accused to prove that he is innocent as per Sections 71 and 72 of the FERA Act - Ex.D13 shows that the respondent was alleged to have been hit by some persons (i.e.) Enforcement Officers on 11.04.1990 and 10.04.1990 and that the respondent was complained of eye pain for six days and the accused was given treatment for the injuries. So Ex.D10 is affirmed and fortified by Exs.D12 and D13, which shows that Exs.P12 and P14/statements of the accused are obtained by coercion. 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 [2009 (12) TMI 251 - DELHI HIGH COURT] (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. - the respondent has proved his innocence by way of examining himself as D.W.1 and marking Exs.D1 to D14. The trial Court has also rightly held the respondent has proved that he is innocent by way of marking documents and hence, acquitted the respondent/accused for offences under Sections 9(1)(b) and 9(1)(d) of FERA Act, 1973 and Section 56(1)(i) of FERA Act, 1973 read with subsections 3 and 4 of FEMA Act, 1999. So the judgment of acquittal passed by the trial Court does not suffer any perversity and it is hereby confirmed. - Decided against Revenue. Issues Involved:1. Whether the accused contravened the provisions of Section 9(1)(b) and 9(1)(d) of FERA Act, 1973 and was guilty under Section 56(1)(i) of FERA Act and Sections 49(3) and (4) of FEMA Act, 1999.2. The reliability of the confession made by the co-accused and its admissibility.3. The validity of the retracted statements made by the accused.4. The burden of proof on the accused to prove innocence under Sections 59, 71, and 72 of the FERA Act.5. The trial court's judgment of acquittal and whether it was justified.Detailed Analysis:1. Contravention of FERA and FEMA Provisions:The prosecution alleged that the accused violated Section 9(1)(b) and 9(1)(d) of the FERA Act, 1973, and was guilty under Section 56(1)(i) of the FERA Act and Sections 49(3) and (4) of the FEMA Act, 1999. The trial court acquitted the accused, finding no evidence to support these allegations. The prosecution's case was primarily based on the statements of the co-accused, Haja Mohideen, and the accused's own statements, which were later retracted.2. Reliability and Admissibility of Co-Accused's Confession:The court examined whether the confession made by Haja Mohideen was reliable and admissible. According to Section 30 of the Indian Evidence Act, a confession by a co-accused can only be considered if the accused are tried jointly. The court referred to the Supreme Court's judgment in Haricharan Kurmi v. State of Bihar, which stated that a co-accused's confession cannot be treated as substantive evidence and can only be used to support other evidence. The court found that no independent witnesses corroborated Haja Mohideen's confession, making it unreliable.3. Validity of Retracted Statements:The accused retracted his statements (Ex.P12 and Ex.P14), claiming they were obtained under coercion. The defense provided medical evidence (Exs.D12 and D13) showing that the accused was assaulted by enforcement officers, which supported the claim of coercion. The court found this evidence credible and concluded that the statements were not voluntarily made.4. Burden of Proof Under Sections 59, 71, and 72 of FERA Act:The court acknowledged that under Sections 59, 71, and 72 of the FERA Act, the burden of proof shifts to the accused to prove innocence once a prima facie case is established. However, the accused successfully demonstrated his innocence by providing evidence of his legitimate business activities and the purpose for possessing the money (Exs.D1 to D14). The court found that the accused had adequately rebutted the presumption of guilt.5. Justification of the Trial Court's Judgment:The trial court's judgment of acquittal was based on the lack of substantive evidence against the accused. The court noted that no independent witnesses were examined, and the prosecution's case relied heavily on the retracted statements and the confession of the co-accused. The court affirmed the trial court's decision, stating that the acquittal did not suffer from any perversity and was justified based on the evidence presented.Conclusion:The High Court dismissed the appeal, confirming the trial court's judgment of acquittal. The court concluded that the prosecution failed to provide sufficient evidence to prove the accused's guilt beyond a reasonable doubt. The accused successfully proved his innocence, and the trial court's decision to acquit was upheld.