CRL. REV. PET. Nos. 1110/2023 & connected cases (Sunitha K.S.; Lekha S.S.; Suresh Kumar T.S.; J. Sivadasan Pillai; Harikumar K.S. vs Government of India (Enforcement Directorate))

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.SOMARAJAN ``` ``` TUESDAY, THE 12[TH] DAY OF MARCH 2024 / 22ND PHALGUNA, 1945 ``` ``` CRL.REV.PET NO. 1110 OF 2023 ``` ``` AGAINST THE ORDER DATED 05.08.2023 IN CRMP 2897/2022 IN SC NO.329 OF 2017 OF SPECIAL C SPE/CBI- II & 4 ADDITIONAL DISTRICT COURT, ERNAKULAM ``` ## **`REVISION PETITIONER/PETITIONER/ACCUSED NO.3:`** ``` SUNITHA K.S AGED 46 YEARS W/O. HARIKUMAR K.S., GEETHANJALI, EDAKODE, KORANI P.O., THIRUVANANTHAPURAM, PIN - 695104 ``` ``` BY ADVS. V.JOHN SEBASTIAN RALPH VISHNUMAYA M.B. VISHNU CHANDRAN RALPH RETI JOHN APPU BABU GIRIDHAR KRISHNA KUMAR APOORVA RAMKUMAR GEETHU T.A. ``` ## **`RESPONDENT/RESPONDENT/COMPLAINANT:`** ``` GOVERNMENT OF INDIA REPRESENTED BY ASST. DIRECTOR, DIRECTORATE OF ENFORCEMENT, KOCHI, REPRESENTED BY STANDING COUNSEL, HIGH COURT OF KERALA AT ERNAKULAM, PIN - 682031 ``` ``` BY ADV JAISHANKAR V.NAIR, SC, ENFORCEMENT DIRECTORATE ``` ``` THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON ``` ``` 12.03.2024,ALONGWITHCrl.Rev.Pet.1111/2023,1114/2023AND Crl.R.P.No.1116/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 Crl.Rev.Pet Nos.1110/2023 & Connected cases ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE P.SOMARAJAN`** ``` TUESDAY, THE 12[TH] DAY OF MARCH 2024 / 22ND PHALGUNA, 1945 ``` ``` CRL.REV.PET NO. 1111 OF 2023 ``` ``` AGAINST THE ORDER DATED 05.08.2023 IN CRMP 2896/2022 IN SC NO.329 OF ``` ``` 2017 OF SPECIAL C SPE/CBI- II & 4 ADDITIONAL DISTRICT COURT, ``` ``` ERNAKULAM ``` ## **`REVISION PETITIONER/PETITIONER/ACCUSED NO.2`** ``` LEKHA S.S AGED 50 YEARS W/O SHRI K.S SABU SIVASANNIDHI, KIZHUVILLAM PO, ATTINGAL, TRIVANDRUM, PIN - 695104 ``` ``` BY ADVS. V.JOHN SEBASTIAN RALPH VISHNU CHANDRAN RALPH RETI JOHN APPU BABU GIRIDHAR KRISHNA KUMAR VISHNUMAYA M.B. GEETHU T.A. APOORVA RAMKUMAR ``` ## **`RESPONDENT/RESPONDENT/COMPLAINANT:`** ``` GOVERNMENT OF INDIA REPRESENTED BY ASST. DIRECTOR, DIRECTORATE OF ENFORCEMENT, KOCHI, REPRESENTED BY STANDING COUNSEL, HIGH COURT OF KERALA AT ERNAKULAM, PIN - 682031 ``` ``` BY ADV Jaishankar V.Nair ``` ``` THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 12.03.2024, ALONG WITH Crl.Rev.Pet.1110/2023 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` Crl.Rev.Pet Nos.1110/2023 & Connected cases 3 ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE P.SOMARAJAN`** ``` TUESDAY, THE 12[TH] DAY OF MARCH 2024 / 22ND PHALGUNA, 1945 ``` ``` CRL.REV.PET NO. 1114 OF 2023 ``` ``` AGAINST THE ORDER DATED 05.08.2023 IN CRMP 2900/2022 IN SC NO.329 OF 2017 OF SPECIAL C SPE/CBI- II & 4 ADDITIONAL DISTRICT COURT, ``` ## **`ERNAKULAM`** ## **`REVISION PETITIONER/PETITIONER/ACCUSED NO.7:`** ``` SURESH KUMAR T.S. AGED 59 YEARS S/O. LATE THANKAPPAN NAIR, CHANDRAKANTHAM, NSS COLLEGE ROAD, NEERAMA KARA, THIRUVANANTHAPURAM, PIN - 695040 ``` ``` BY ADVS. V.JOHN SEBASTIAN RALPH VISHNU CHANDRAN APPU BABU RALPH RETI JOHN VISHNUMAYA M.B. GIRIDHAR KRISHNA KUMAR GEETHU T.A. APOORVA RAMKUMAR ``` ## **`RESPONDENT/RESPONDENT/COMPLAINANT:`** ``` GOVERNMENT OF INDIA ``` ``` REPRESENTED BY ASST. DIRECTOR, DIRECTORATE OF ENFORCEMENT, KOCHI, REPRESENTED BY STANDING COUNSEL, HIGH COURT OF KERALA AT ERNAKULAM, PIN - 682031 ``` ## **`BY ADV Jaishankar V.Nair`** ``` THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ``` ``` ADMISSION ON 12.03.2024, ALONG WITH Crl.Rev.Pet.1110/2023 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` Crl.Rev.Pet Nos.1110/2023 & Connected cases 4 ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.SOMARAJAN ``` ``` TUESDAY, THE 12[TH] DAY OF MARCH 2024 / 22ND PHALGUNA, 1945 ``` ``` CRL.REV.PET NO. 1116 OF 2023 ``` ``` AGAINST THE ORDER DATED 05.08.2023 IN CRMP 2899/2022 IN SC NO.329 ``` ``` OF 2017 OF SPECIAL C SPE/CBI- II & 4 ADDITIONAL DISTRICT COURT, ERNAKULAM ``` ## **`REVISION PETITIONER/PETITIONER/ACCUSED NO.6:`** ``` HARIKUMAR K.S. AGED 56 YEARS S/O. SREEDHARAN NAIR, GEETHANJALI, EDAKODE, KORANI P.O., THIRUVANANTHAPURAM, PIN - 695104 ``` ``` BY ADVS. V.JOHN SEBASTIAN RALPH VISHNU CHANDRAN RALPH RETI JOHN APPU BABU GIRIDHAR KRISHNA KUMAR VISHNUMAYA M.B. GEETHU T.A. APOORVA RAMKUMAR ``` ## **`RESPONDENT/RESPONDENT/COMPLAINANT:`** ``` GOVERNMENT OF INDIA REPRESENTED BY ASST. DIRECTOR, DIRECTORATE OF ENFORCEMENT, KOCHI, REPRESENTED BY STANDING COUNSEL, HIGH COURT OF KERALA AT ERNAKULAM, PIN - 682031 ``` ``` BY ADV Jaishankar V.Nair ``` ``` THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 12.03.2024, ALONG WITH Crl.Rev.Pet.1110/2023 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 5 Crl.Rev.Pet Nos.1110/2023 & Connected cases ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE P.SOMARAJAN`** ``` TUESDAY, THE 12[TH] DAY OF MARCH 2024 / 22ND PHALGUNA, 1945 ``` ``` CRL.REV.PET NO. 1117 OF 2023 ``` ``` AGAINST THE ORDER DATED 05.08.2023 IN CRMP 2898/2022 IN SC NO.329 OF 2017 OF SPECIAL C SPE/CBI- II & 4 ADDITIONAL DISTRICT COURT, ``` ## **`ERNAKULAM`** ## **`REVISION PETITIONER/PETITIONER/ACCUSED NO.5:`** ``` J. SIVADASAN PILLAI AGED 85 YEARS S/O. JANADHANAN PILLAI, GURUVAYOORAPPAN VILLA, KIZHUVILAM P.O., MAMOM, ATTINGAL, THIRUVANANTHAPURAM, PIN - 695304 ``` ``` BY ADVS. V.JOHN SEBASTIAN RALPH RALPH RETI JOHN VISHNU CHANDRAN GIRIDHAR KRISHNA KUMAR APPU BABU VISHNUMAYA M.B. GEETHU T.A. APOORVA RAMKUMAR ``` ## **`RESPONDENT/RESPONDENT/COMPLAINANT:`** ``` GOVERNMENT OF INDIA REPRESENTED BY ASST. DIRECTOR, DIRECTORATE OF ENFORCEMENT, KOCHI, REPRESENTED BY STANDING COUNSEL, HIGH COURT OF KERALA AT ERNAKULAM, PIN - 682031 ``` ## **`BY ADV Jaishankar V.Nair`** ``` THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 12.03.2024, ALONG WITH Crl.Rev.Pet.1110/2023 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 6 Crl.Rev.Pet Nos.1110/2023 & Connected cases ## **`CR`** ## **`ORDER`** These five revision petitions are against the order of dismissal of discharge applications submitted by accused No.2,3 and 5 to 7 in a case registered alleging offence under Section 3 of the Prevention of Money Laundering Act, 2002 (hereinafter referred to as 'the Act') A complaint was lodged alleging offence under Section 3 of the Act by the Enforcement Directorate after conducting a raid in the house of accused No.1. Earlier, the Central Bureau of Investigation had registered a crime on account of disproportionate assets. 2. The learned Senior Counsel appearing for the petitioners Sri.S.Sreekumar submitted that the only material that was taken up against accused No.2, 3 and 5 to 7 is the statement Crl.Rev.Pet Nos.1110/2023 & Connected cases 7 alleged to have been recorded by the officials under Section 50(2) of the Act from the respective accused persons and it is submitted that it will not constitute a valid confession, but will stand hit by the embargo under Section 25 of the Evidence Act. It is also submitted that the trial court found that the documents produced by the prosecution prima facie are not sufficient to bring home the guilt of accused,if proved, but the discharge applications were dismissed on the ground that the statement provided by the accused under Section 50(2) and 50(3) of the Act would show grave suspicion as against the accused. 3. Section 50 of the Act is extracted below for reference: ## “ **Powers of authorities regarding summons, production of documents and to give evidence, etc** (1) The Director shall, for the purposes of section 13, have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:-- Crl.Rev.Pet Nos.1110/2023 & Connected cases **==> picture [8 x 9] intentionally omitted <==** - (a) discovery and inspection; (b) enforcing the attendance of any person, including any officer of a [reporting entity] and examining him on oath; (c) compelling the production of records; (d) receiving evidence on affidavits; (e) issuing commissions for examination of witnesses and documents; and (f) any other matter which may be prescribed. (2) The Director, Additional Director, Joint Director, Deputy Director or Assistant Director shall have power to summon any person whose attendance he considers necessary whether to give evidence or to produce any records during the course of any investigation or proceeding under this Act. (3) All the persons so summoned shall be bound to attend in person or through authorised agents, as such officer may direct, and shall be bound to state the truth upon any subject respecting which they are examined or make statements, and produce such documents as may be required. (4) Every proceeding under sub-sections _2)_ and _(3)_ shall be deemed to be a judicial proceeding within the meaning of section 193 and section 228 of the Indian Penal Code (5) Subject to any rules made in this behalf by the Central Government, any officer referred to in sub-section _(2)_ may impound and retain in his custody for such period, as he thinks fit, any records produced before him in any proceedings under this Act: Provided that an Assistant Director or a Deputy Director shall not-- (a) impound any records without recording his reasons for so doing; or (b) retain in his custody any such records for a period exceeding three Crl.Rev.Pet Nos.1110/2023 & Connected cases 9 months, without obtaining the previous approval of the Joint Director.” 4. There are five sub-sections to Section 50 of the Act. All these sub-sections though interlinked and incorporated under one section i.e. Section 50, sub-section (1) has got its own separate entity and is independent by its nature as it is dealing with the powers conferred upon the Director for the purpose of Section 13 of the Act. All the powers of a civil court while dealing with certain matters were given to the Director under sub-section (1) for the purpose of Section 13 of the Act. In fact, sub-section (1) is exclusively incorporated for the purpose of Section 13 of the Act, by which the Director alone is empowered to do the acts which are narrated under that sub-section. On the other hand, sub-sections (2) to (5) are standing on a different pedestal and are unique in its nature as to its purpose apart from sub-section (1). Crl.Rev.Pet Nos.1110/2023 & Connected cases 10 Sub-section (2)says that the Director, Additional Director, Joint Director, Deputy Director or Assistant Director shall have the power to summon any person whose attendance he considers necessary whether to give evidence or to produce any records during the course of any investigation or proceeding under this Act. A bare reading of sub-section (2) would convey the meaning that the officials stated therein will have the power to summon any person for the purpose of giving any evidence or to produce any records during the course of any investigation or proceeding under the Act. Sub-section (3) says that all the persons so summoned shall be bound to attend in person or through authorised agents, as such officer may direct, and shall be bound to state the truth upon any subject in which they are examined or make statements, and produce such documents as may be required. It will carry an authority to direct any such Crl.Rev.Pet Nos.1110/2023 & Connected cases 11 person to disclose the truth upon any subject respecting which they are examined or make statements and produce such documents as may be required. Sub-section (4) says that every proceeding under sub-sections ( _2)_ and _(3)_ shall be deemed to be a judicial proceeding within the meaning of Section 193 and Section 228 of the Indian Penal Code. Sub-section (2) enables not only the Director, but also Additional Director, Joint Director, Deputy Director and Assistant Director to summon any person to give evidence or to produce any document during the course of investigation and they are duty bound to state the truth upon the subject in which they are examined or to give statement and to produce such documents as may be required. The proceedings if any initiated/conducted either under sub-section(2) or (3) would be deemed to be a judicial proceeding within the meaning of Sections 193 of the Indian Penal Code, the Crl.Rev.Pet Nos.1110/2023 & Connected cases 12 provision imposing punishment for false evidence, which may extend to imprisonment for seven years and fine and also under Section 228 IPC, the provision for the offence of insulting or interrupting public servant sitting in judicial proceeding with the punishment of imprisonment which may extend to six months or with fine which may extend to one thousand rupees. From this, it is clear that the legislative intention is to empower the authority under sub-section (2) of Section 50 with the jurisdiction to punish any such person for the offence punishable under Section 193 and 228 IPC and the proceeding before such officer shall be deemed to be a judicial proceeding within the meaning of the abovesaid penal provisions. Sub-section (3) casts a statutory duty to reveal the truth before such officer. 5. A conjoint reading of Section 50(2), 50(3) and 50(4) of the Act with Section 193 and Crl.Rev.Pet Nos.1110/2023 & Connected cases 13 228 IPC would make it clear that the statement recorded either confession or otherwise would fall under the ambit of “evidence”, otherwise there cannot be any prosecution for giving false evidence or even extending any criminal liability for the insult or interruption of the officer concerned (as if sitting in judicial proceeding). Any information or statement given would assume the character of evidence and if it is found to be false or not truthful, the person who had given such statement would be liable to be prosecuted for the offence under Section 193 and 228 IPC. The necessary corollary is that such statement or document produced would fall under the purview of “evidence”, but subject to the rules governing its probative value. As per the mandate under sub-section(2) and (3), both the accused and the witnesses are bound to state the truth upon any such subject, in which they are examined and to make statement and produce Crl.Rev.Pet Nos.1110/2023 & Connected cases **==> picture [15 x 8] intentionally omitted <==** such document as may be required and violation, if any would attract the penal consequences under Section 193 and 228 IPC. 6. The next question to be addressed is whether such statement recorded from the accused either by way of confession or otherwise would stand hit by Section 25 of the Evidence Act. Unless the designated officer enjoys all the powers of a police officer for the purpose of an investigation and to lay a final report as mandated under Section 173 Cr.P.C., he cannot be termed as a police officer for the purpose of Section 25 of the Evidence Act. The legal position was summarised by the Constitution Bench of the Apex Court in **Ramesh Chandra Mehta** **v. State of West Bengal (1968 KHC 263 = AIR 1970** **SC 940)** and held that a Customs officer is not a police officer for the purpose of Section 25 of the Evidence Act on the reason that though he may have the power to detain, arrest and obtain Crl.Rev.Pet Nos.1110/2023 & Connected cases **==> picture [15 x 9] intentionally omitted <==** a search warrant, to produce the person arrested before a Magistrate and to obtain an order for remand or to keep him in custody with the view to collect evidence under the Act, may not get a deemed status of a police officer. This Court in **Gopi v. State of Kerala (2024 (1) KHC 223)** had laid down the legal position that the statement recorded by an officer, who is empowered to investigate the crime under Section 50(1) or 50(8) of Wildlife Protection Act, 1972 will not stand hit by the embargo under Section 25 of the Evidence Act, but the statement so recorded would stand a weak piece of evidence and can be used for corroboration on the reason that the forest officer cannot be termed as a police officer as he was not conferred with all powers of a police officer. The very same rationale can be applied in the present case as the officers empowered under Section 50(2) and 50(3) of the Act are not police officers as they are Crl.Rev.Pet Nos.1110/2023 & Connected cases **==> picture [15 x 9] intentionally omitted <==** not empowered with all powers of a police officer. Necessarily, the embargo under Section 25 of the Evidence Act cannot be extended to a Director, Additional Director, Joint Director, Deputy Director or Assistant Director under the Prevention of Money Laundering Act, 2002. The authority and the rationale applied by the Constitution Bench in **Ramesh Chandra Mehta** 's case (supra) is squarely applicable to the officers made mentioned under Section 50(2) of the Prevention of Money Laundering Act, 2002. Necessarily, the statement recorded either confession or a mere statement would acquire the character of “evidence” and will not stand hit by the embargo under Section 25 of the Evidence Act, hence admissible. The probative value of such evidence is a matter to be adjudicated at the trial stage. 7. Yet another question also came up at this stage as to whether the confession Crl.Rev.Pet Nos.1110/2023 & Connected cases 17 statement recorded by the officer empowered under Section 50(2) of the Act can be taken as a confession given voluntarily by the accused in view of the legal position settled by the Apex Court in **Pawan Kumar Chourasia v. State of Bihar** **(2023 KHC 6253),** wherein it was held that “implicit faith” with the person to whom the confession statement was given is a factor to be taken into consideration while dealing with the evidentiary value of extra-judicial confession. It is submitted that going by the abovesaid decision, the evidentiary value of the statement recorded would be very less and may not be sufficient to bring home the guilt of accused, even if it is proved as such. But the wording and language employed under Section 50(2) and 50(3) of the Prevention of Money Laundering Act, 2002 and the mandate imposed that all the persons so summoned shall be bound to state the truth upon any subject in which they are Crl.Rev.Pet Nos.1110/2023 & Connected cases 18 examined or make statement or produce such document would acquire the character of a “admission” made before a judicial proceeding going by the mandate under Section 50(4) of the Act. It cannot be treated as mere confession, but would fall under the ambit of 'admission' before a deemed judicial authority. Such statement given, tendered and recorded would acquire the character of an 'admission', but with the statutory compulsion which is unknown to law in the realm of admission. The cardinal ingredient which would constitute an “admission” that it should be voluntary is really lacking. But if it is before a court or a deemed judicial authority, the question whether it is under compulsion or not would pale into insignificance. It is submitted by the learned senior counsel Sri.S.Sreekumar at this juncture that all these questions have not been addressed by the trial court and the question of Connected cases 19 subjective satisfaction as to proceed further with the matter was not tested under the abovesaid perspective, hence pressed for a remand of the matter to the trial court. 8. In the said circumstances, it is fit and proper to grant an opportunity. Hence, the order of the trial court dismissing the discharge applications will stand set aside and the matter is remanded back to the trial court for fresh consideration in the light of the abovesaid discussion, for which the parties shall appear before the trial court on 08/04/2024. The Criminal Revision Petitions will stand allowed in part accordingly. Sd/- ``` P.SOMARAJAN JUDGE ``` ``` SV ```