G.S. Nair v. T. Abdul Salam Thoppil and Shabeer Manzil

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER MONDAY, THE 11TH FEBRUARY 2008 / 22ND MAGHA 1929 CRL.A.No. 950 of 2001(C) CC.328/1994 of ADDL.CHIEF JUDICIAL MAGISTRATE (E & O),ERNAKULAM .................... ## APPELLANT: G.S.NAIR ENFORCEMENT OFFICER ENFORCEMENT DIRECTORATE THYCAD THIRUVANANTHAPURAM BY ADV. SRI.TOMY SEBASTIAN SRI.P.K.RAMKUMAR RESPONDENT: T.A.ABDUL SALAM THOPPIL, SHABEER MANZIL NEAR ST.THOMAS CHURCH CHANGANASSERY BY ADV. SRI.R.ANIL PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **A.K.BASHEER, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A.950 OF 2001 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 11[th] day of February 2008 ## **JUDGMENT** Appellant is the Enforcement Officer attached to the Enforcement Directorate, Thiruvananthapuram. This appeal is directed against the judgment of acquittal passed by the Additional Chief Judicial Magistrate (Economic Offences, Ernakulam). The court below acquitted respondent/accused of the charge under Section 56 of the Foreign Exchange Regulation Act, 1973 (for short “The Act”). 2. The case of the appellant/complainant before the court below was that on March 18, 1993, he along with other officers of the Enforcement Directorate, Thiruvananthapuram had searched the business and residential premises of the accused and recovered “34 sheets of documents” from the business premises of the accused. During the said search and recovery, the accused was present. Later in the evening on the same day, the accused had given Ext.P1 statement before PW1 under Section 40 of the Act confessing that he had been dealing with foreign currency of various countries without obtaining requisite Crl.A.950 OF 2001 :: 2 :: permission or authority from the Reserve Bank of India or other competent authorities. After recording the statement, the accused was arrested and on the next day he was produced before the competent court. 3. The prosecution had examined PWs 1 to 4 before the trial court and Exts.P1 to P3 were also marked in the case. DW1 was examined on the side of the defence though no document was produced. The trial court, after evaluating the oral and documentary evidence on record, found that the prosecution had not satisfactorily established that the accused had committed the offence punishable under Section 56 of the Act. The learned Magistrate noticed that the prosecution had entirely relied on Ext.P1, confession statement allegedly given by the accused. The prosecution had not produced any other supporting or corroborative evidence to substantiate the charge against the accused. It was further noticed by the learned Magistrate that no document was produced by the prosecution to show that the accused had any connection with the business premises from Crl.A.950 OF 2001 :: 3 :: where recovery of the documents (Ext.P2 series) was allegedly made. 4. In this context, it is necessary to refer to the oral and documentary evidence adduced by the prosecution in order to find out whether any interference is warranted with the order of acquittal passed by the trial court. PW1, who was working as the Chief Enforcement Officer under the Directorate at Thiruvananthapuram at the relevant point of time, had deposed that his officers had searched the residential and business premises of the accused on March 18, 1993 under his supervision. Though nothing was recovered from the residence of the accused, the officers were able to recover 34 documents from the business premises bearing Door No.25/318 II, situated at Puthurpally Road in Changanachery. 5. According to PW1, he had questioned the accused and recorded Ext.P1 statement under Section 40 of the Act with the help of PW2. Since PW1 did not know Malayalam, the statement given by the accused was translated into English by PW2 who Crl.A.950 OF 2001 :: 4 :: acted as the interpreter. In the statement given by the accused, he confessed that he had purchased and sold currencies of different countries between September 1992 and January 1993 without obtaining permission from the Reserve Bank of India. The accused admitted that he had had transactions for about Rs.22 lakhs in this manner. According to PW1, the accused had stated the rates at which he had made purchase and sale of foreign currencies. It was further asserted by PW1 that the rates mentioned by the accused were different from those prescribed by the Reserve Bank. In his cross-examination, PW1 conceded that he did not remember the exact time when the accused was questioned. According to him, it might have been after 6 p.m. He further stated that he had supervised the search conducted at the residential and business premises of the accused. He had come back to Trivandrum by about 5.30 p.m. and questioning of the accused was completed by about 10.40 p.m. He had served summons to the accused directing him to appear before him on the same day. He further stated that he Crl.A.950 OF 2001 :: 5 :: had arrested the accused at about 11.00 p.m. immediately after completing the questioning. PW2, who was the Assistant Enforcement Officer under the Directorate at the relevant point of time, stated that accused had produced 34 'paper chits' during the search of his business premises. Ext.P2 series paper chits (8 in number) were marked through this witness. Ext.P3 mahazar was prepared in the presence of the accused and the witnesses. PW2 and the witnesses apart from the accused had signed in Ext.P3, mahazar. He further stated that Ext.P1 statement given by the accused was recorded in the office of PW1 at Trivandrum in his presence. 6. In cross examination PW2 admitted that he did not see any document to show that the business in the premises stood in the name of the accused. But according to PW2, the accused was found conducting the business there. In the statement put on behalf of the accused, there is no indication about it. PW4, the independent witness who had allegedly witnessed the search and recovery had turned hostile. But he admitted his signature Crl.A.950 OF 2001 :: 6 :: in Ext.P3 and also in Ext.P8 series. But PW4 asserted that he had put his signature in the Police Station. In this context, it is pertinent to note that PW4 was present at the shop when the search of the business premises was made and Ext.P2 series documents were recovered. 7. It is vehemently contended by learned counsel for the appellant that the court below was not justified in refusing to place reliance on Ext.P1 statement given by the accused under Section 40 of the Act. It is pointed out by the learned counsel that the decision relied on by the trial court in **Assistant Collector V. Pavunni [1988 (2) KLT 194]** was no longer good law in view of the dictum laid down by the apex court in **Pavunny v. Assistant Collector [1997 (1) KLT 489 (SC)]** . In the above decision, their Lordships had laid down that “there is no prohibition under the Evidence Act to rely upon the retracted confession to prove the prosecution case or to make the same basis for conviction of the accused.” It was further held that” the practice and prudence require that the Court could examine Crl.A.950 OF 2001 :: 7 :: the evidence adduced by the prosecution to find out whether there are any other facts and circumstances to corroborate the retracted confession. It is not necessary that there should be corroboration from independent evidence adduced by the prosecution to corroborate each detail contained in the confessional statement. The Court is required to examine whether the confessional statement is voluntary; in other words, whether it was not obtained by threat, duress or promise.” 8. In the case referred to above, it was alleged by the prosecution that 200 gold biscuits with foreign marking were recovered from the compound of the accused in his presence after a “digging operation” carried out by the customs officials and other witnesses. The gold biscuits were found concealed in a wooden box under the ground a little away from the bed room of the accused. In his confession statement, he had admitted that he had buried the gold biscuits there. 9. But in the case on hand, it is pertinent to note that the enforcement officials had not recovered any foreign currency ## Crl.A.950 OF 2001 :: 8 :: either from the residential or business premises or from the body of the accused. It is admitted by PW2 that a body search was also effected. What had been recovered was only about 34 small bits of paper with some scribblings. Of course the accused had admitted that he had written those figures in those pieces of paper. Curiously, the prosecution had withheld production of all the 34 pieces of paper allegedly recovered from the business premises. Only eight of them were produced as Ext.P2 (series). Why the other pieces of paper were withheld has not been explained by the prosecution. It is submitted by learned counsel for the appellant at the Bar that they were produced in the departmental proceedings. 10. More importantly, the prosecution had not bothered to establish that the scribblings in those papers were made by the accused in his own hand. This could have been done by the prosecution without any difficulty. PW4, the independent witness had asserted that he had put his signature in Exts.P2 and P3 at the Police Station. As mentioned earlier, PW2, the ## Crl.A.950 OF 2001 :: 9 :: Assistant Enforcement Officer, had admitted that Police personnel were present at the business premises when the search and seizure were effected. According to PW4, he was taken to the Police Station where he was asked to sign some papers. The court below had adverted to all the relevant material pieces of evidence which were produced by the prosecution. The learned Magistrate found that no reliance can be placed on the oral or documentary evidence adduced by the prosecution. 11. Having heard learned counsel for the appellant and having perused the materials on record, I am not satisfied that this is a fit case warranting interference. It is true that Ext.P1 cannot be overlooked or ignored in toto. It is also true that the court while analysing the evidence adduced by the prosecution can accept the confession statement as a material piece of evidence as any other. But in the case on hand, the prosecution had failed to produce any other piece of evidence to corroborate the main plank of the case. Though it was suggested that the ## Crl.A.950 OF 2001 :: 10 :: accused had had dealings in foreign currency with several people, not even a single foreign currency was recovered from the accused, nor was the name of any person with whom he had had such dealing in the past revealed. Having regard to the totality of the facts and circumstances, I do not find any reason to interfere with the order of acquittal. Therefore, the appeal fails and it is accordingly dismissed. **(A.K.BASHEER, JUDGE)** jes ## Crl.A.950 OF 2001 :: 11 :: ## **A.K.BASHEER, J.** - - - - - - - - - - - - - - - - - - - - **Crl.A.950 OF 2001** - - - - - - - - - - - - - - - - - - - - **JUDGMENT** Dated 11[th] Feb. 2008