The Deputy Director, Enforcement ... vs P. Mansoor Mohamed Ali Jinnah And Ors. on 11 November, 1988

[Cites 57, Cited by 8]

Madras High Court

The Deputy Director, Enforcement ... vs P. Mansoor Mohamed Ali Jinnah And Ors. on 11 November, 1988

Equivalent citations: 1989(20)ECC147

1. The above three writ appeals are directed against the common order dated 10-2-1988 made by Venkataswami J. in W.P. Nos. 5794 to 5796 of 1987 respectively. The prayer in all these writ petitions is common, in that the writ petitioners (respondents herein) have sought the issue of a writ of mandamus directing the respondent in the writ petition (appellant herein), viz., the Deputy Director, Enforcement Directorate, Madras, or any other officers acting under or on behalf of him to forbear from taking any further proceedings against the writ petitioners under Sections 35 and 40 of the Foreign Exchange Regulation Act (hereinafter referred to as FERA) or any other Act on the basis of the statements of the writ petitioners obtained by the appellant's officials under S. 40 of the FERA.

2. It is seen from the records that from the writ petitioner Mansoor Mohammed Ali Jinnah, statements were recorded on 12-5-1987 and 4-6-1987, whereas from the other two 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 at door No. 35, Gafoor Sahib Street, Royapettah, Madras-14, was searched by the Enforcement Officials, which resulted in the seizure of the Indian currency and some documents. During the course of the said search, from Mansoor Mohammed Ali Jinnah (respondent in W.A. No. 891 of 1988), Indian Currency of Rs. 5,000/- and some Bank drafts were seized. Again on 14-5-1987, the residential premises of the said Mansoor Mohammed Ali Jinnah was searched, resulting in the seizure of some Indian currency and Bank drafts. Pursuant to the search resulting in the seizure of currency notes and documents, all the respondents in the appeals were examined on 12-5-1987. It is stated in the counter affidavit filed by the appellant that the respondents were arrested on 12-5-1987 at about 11 p.m. and produced before the Magistrate on 13-5-1987 at about 4 p.m. i.e., within 23 hours from the time of arrest, and that all the respondents were remanded to judicial custody. The respondents (writ petitioners) would contend that they were forcibly taken to the office of the Enforcement Directorate where they were compelled by the Enforcement Officers to write down statements containing false averments against their will, by using force and threat, that, therefore, the involuntary statements so obtained from them on 12-5-1987 under S. 40 of the FERA are against all legal norms, and that as such, the appellant - Enforcement Directorate - should be restrained from making use of such involuntary statements obtained under threat, coercion and duress in any contemplated proceedings that might be taken either under the provisions of Sections 35 and 40 of the FERA or under any other Act, either by the appellant or any officers acting under or on behalf of the appellant.

5. It is seen from the Annexures filed along with counter-affidavit in C.M.P. Nos. 9280 to 9282 of 1988 in these writ appeals that the respondents were released open bail on 26-5-1987 subject to certain conditions. On the next day, i.e. on 27-5-1987, Mansoor Mohammed Ali Jinnah and Seeni Mohammed sent two letters to the Directorate of Enforcement, New Delhi, stating that the statements were obtained from them on 12-5-1987 under torture and threat, and that they, being unable to bear the beating and to stand the threat, wrote the statements as dictated by the Enforcement Officers, by name Rangan and Vijayaraghavan, and that 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 the directions given by this court on two different occasions, I do not think that interests of justice would require that the benevolent provision of bail should be extended to them".

It is stated in paragraph 9(3) of the reply affidavit dated 24th January 1988 shorn to by Mansoor Mohammed Ali Jinnah that the arrest warrants issued after the cancellation of the bail, were hovering over their heads, and there is no alternative remedy. During the hearing of the writ appeals, to a query from the Court, learned counsel for the respondents admitted that, though the respondents could not appear before the appellant for the purpose of interrogation, as per order in Crl.M.P. No. 5330 of 1987 for some reason or other, now they are not absconding. To a follow up question, Learned counsel would admit that the respondents have made themselves available after the disposal of the writ petitions.

7. All the affidavits in support of the writ petitions were sworn to by the respondents on 7th June, 1987. Sivasubramaniam, J., who admitted these writ petitions, by order dated 9th June, 1987, in W.M.P. Nos. 8320 to 8322 of 1987, granted interim stay restricting it only to the arrest of the respondents. Ratnam J. subsequently vacated the interim stay granted by Sivasubramaniam J. by allowing W.M.P. Nos. 12249 to 12251 of 1987, filed for vacating the interim stay. The respondents preferred appeals in W.A. Nos. 1571 to 1573 of 1987 against the order of Ratnam J., but they were dismissed. On being aggrieved by the dismissal of the writ appeals, the respondents preferred Special Leave petitions before the Supreme Court, but they were also dismissed by the supreme Court, observing that the respondents could move the High Court for early deposal of the writ petitions.

8. Thereafter, the respondents filed three W.M.Ps. viz. W.M.P. Nos. 18812 to 18814 of 1987, for fixing an early date for hearing the writ petitions, and the affidavit accompanying W.M.P. No 18812 of 1987 (for fixing the date) was sworn to by Mansoor Mohammed Ali Jinnah on 8th December 1987, and the other two affidavits in W.M.P. Nos. 18813 and 18814 of 1987 on the 9th December 1987 by Buhari and Seeni Mohammed respectively. In paragraph 2 of all the three affidavits, it is averred that all the three respondents (writ petitioners) were detained in the office of the appellant, locked up in three rooms for two days 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 before the Magistrate within 24 hours for judicial remand. The appellant denies the allegation that threat and coercion were used while recording the statements from the respondents. The appellant also emphatically denies the allegation that Seeni Mohammed was in India during January, 1987, to April, 1987, and he was compelled to write that he was in Madras. He adds that Seeni Mohammed has not produced his passport till date to substantiate his statement. According to the appellant, adjudication proceedings are yet to be completed, and in the event of the respondents not getting a favourable order from the adjudicating officer, he can avail the alternative remedy provided under S. 52 of the FERA and further approach this court under S. 54 on questions of law, and therefore, without exhausting the alternative remedy, the respondents cannot invoke Art. 226 of the Constitution of India. To this counter, a reply affidavit was filed by one of the respondents, Mansoor Mohammed Ali Jinnah on his behalf and on behalf of the other respondents. Learned Additional Central Government Standing Counsel at this juncture brought to the notice of the Court that the respondents were absconding till the disposal of the writ petitions, that though orders of detention under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (for short, COFEPOSA Act) have been passed on the basis of the materials inclusive of the statements of the respondents, those orders could not be implemented on account of the order restraining the authorities from making use of the statements of the respondents in any contemplated action against them under the law, and that in fact, there were notifications under S. 7(1)(b) of the COFEPOSA Act. This representation seems to have been made before the learned single Judge, as found in paragraph 6 of the common order in the writ petitions.

10. Venkataswami J., by common order, held that the statements recorded from the respondents on 12-5-1987 were not voluntary, and further found as follows :-

"It may be noted that the fact that the petitioners were arrested at 11.00 p.m. on 12-5-1987 kept in three rooms separately in the office of the respondent till 4.00 p.m. on 13-5-1987 when they were produced before the Magistrate and during that period and even prior to 11.00 p.m. On 12-5-1987, statements were obtained, is 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 violations of the provisions of S. 9 of the FERA to the tune of Rs. 2.25 crores. A further search made on 14-5-1987 also resulted in the seizure of some more documents and currency notes from the residential premises of Mansoor Mohammed Ali Jinnah. On the same day, separate statements were recorded from the responents, in which the respondents have incriminated themselves in the activities amounting to violations of the provisions of FERA, and have admitted the receipt of monies and making payments in India under instructions from Ahmed Ibrahim of Dubai. On the seizure of those documents and currency notes, the respondents were arrested at 11 p.m. On 12-5-1987 under S. 35 of the FERA and produced before the Additional Chief Metropolitan Magistrate, at 4 p.m. on 13-5-1987, and remanded, as found in the affidavit of the appellant filed in the C.M.Ps. in the present appeals. In respect of the seizure made on 14-5-1987, another statement was recorded from Mansoor Mohammed Ali Jinnah on 4-6-1987. In pursuance of the statements given by the respondents, about 32 persons residing in different parts of Tamil Nadu and Kerala were examined by the Enforcement Officers on different dates and their statements were recorded. The respondents were released on bail on 26-5-1987 subject to the condition that they should appear before the Directorate officials for interrogation. On the very next day, i.e., 27-5-1987, Mansoor Mohammed Ali Jinnah and Seen Mohammed sent two letters retracting from their statements, to the Directorate of Enforcement, New Delhi, and complaining that those statements were obtained from them under torture and threat, to which the Department sent replies stating that the allegations in the representations are false and baseless. To further two letters of representation dated 5-6-1987, the Director had sent a reply, denying the allegations of the respondents as baseless. The Directorate moved for cancellation of bail before this High Court on the ground that the respondents did not strictly comply with the directions given by the Magistrate attached to the bail order, but this court in one of the Crl.M.Ps., viz, Crl. M.P. No. 5330 of 1987, further directed the respondents to appear before the Directorate officials and dismissed the petition filed by the Directorate officials for cancellation of the bail, but posted two other Crl M.Ps., one filed by the Department 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 meanwhile orders of detention under the provisions of COFEPOSA Act have been issued against the respondents; but the orders of detention could not be implemented as the respondents have absconded themselves. The detaining authority has issued notifications under S. 7(1)(b) of the COFEPOSA Act; but now, as admitted by learned Counsel for the respondents, the respondents are not absconding and made themselves available, admittedly after the disposal of the writ petitions by which order the appellant was prevented from making use of the statements of the respondents for taking any action against the respondents on the basis of their statements recorded on 12-5-1987 and 4-6-1987 from Mansoor Mohammed Ali Jinnah and on 12-5-1987 from Buhari and Seeni Mohammed.

12. Mr. Suryaprakasam, learned counsel appearing on behalf of the appellant, assailed the order of the learned single Judge on the ground that the learned single judge has erred in holding that the statements were not voluntary, without considering the averments made in the affidavit and the later developments and embellishments made in the subsequent affidavits filed by them. According to him, there is absolutely no material worth mentioning to arrive at the precise conclusion that the respondents were kept in three separate cells and the statements were recorded out of office hours, and that too, while they were kept as captives. He states that there is no illegality in asking the respondents to write down the statements in their own hands, and by virtue of S. 40(3) of the FERA, any person summoned is bound to state the truth upon any subject respecting which they are examined or make statements and produce such documents. Relying on the decision of the Supreme Court in Pushpadevi v. M. L. Wadhavan , learned Counsel would contend that if the statement is relevant, the court is not concerned with the method by which it was obtained. In support of his contention, he relied upon certain decisions of the Supreme Court, as well as a decision of the Full Bench of this court, about which we shall refer at the appropriate places.

13. A very lengthy argument was advanced by Mr. Abdul Kareem supporting the judgment of the learned single Judge and also adding some more contentions in support of which he placed reliance on a number of decisions. The main contentions of Mr. Kareem are : (1) the retracted statement cannot 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 were obtained from these three respondents on 12-5-1987 under duress, torture and coercion, by keeping them in separate rooms as captives without affording even the elementary facilities. The learned judge has restrained the appellant from making use of the statements of the respondents, holding.

"..... I do not find any difficulty in coming to the conclusion that the statements obtained from the petitioners were not only contrary to the provisions of the Act but also contrary to the rulings of various courts and, therefore, it must be held that those statements were not voluntary."

that the three respondents were kept in separate rooms in the office of the appellant from 11 p.m. on 12-5-1987 till 4 p.m. on 13-5-1987 during which time statements were obtained illegally, and that the assertion of the appellant that the respondents gave their statements voluntarily cannot at all be believed.

15. The case of the appellant is that these three respondents were arrested at 11 p.m. on 12-5-1987 after the seizure of certain incriminating documents, currency notes, Bank drafts, etc., and the statements were given by the respondents under their hands incriminating themselves in the illegal activities of receiving amounts from abroad and paying the said amounts in India to various persons. According to him, the respondents were not ill-treated and their statements were voluntary.

16. Mr. Abdul Kareem would submit that though no positive proof is required with regard to the compulsion, if there is any circumstances creating even a barest suspicion that the statement was obtained under compulsion, it is sufficient to reject the statement. He would urge very vehemently that in the absence of any counter by the appellant denying the complaint of the respondents that they were confined in separate rooms, the Court had to take the complaint of the respondents as unrebutted and hold that the statements were recorded only under compulsion.

17. Now, we shall examine the complaint of the respondents with reference to the various documents and see how far the respondents have become successful in establishing their case. The fact that the respondents were produced before the Court at 4 p.m. on 13-5-1987 cannot be disputed. The appellant has stated that the respondents were actually arrested only at 11 p.m. Venkataswami, J., in paragraph 7 of his order, has found 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 denied even the elementary facilities or their statements having been recorded out of office hours. In the affidavits sworn in the first week of June, 1987, and filed in support of the writ petitions except the allegation that the appellant used force as against the respondents and compelled them to write statements admitting their involvement in the transactions of receiving money from abroad and paying the said amount in Madras during 1987, no averment is made that the respondents were kept in separate rooms and denied of facilities, etc. Though the respondents filed writ appeals against the order of Ratnam, J., vacating the interim injunction granted at the initial stage by Sivasubramaniam, J. and went up to the Supreme Court by filing Special Leave Petitions, after having become unsuccessful in the writ appeals, the respondents have not placed before us any document to show that they have made such a complaint of isolation denial of facilities, etc., before the appellate court or before Supreme Court by placing any of their affidavits filed before the respective Courts. But from the typed set of papers, we find that for the first time the respondents came with such allegations only in the affidavit filed in support of the W.M.Ps. for fixing an early date for disposal of the writ petitions. This was in the month of December 1987. It may be noted that these respondents, in spite of the conditions attached to the bail order granted by the Additional Chief Metropolitan Magistrate and also a subsequent direction of this court in Crl. M.P. No. 5330 of 1987, did not comply with the condition or direction to appear before the officials of the Enforcement Directorate, but jumped bail and absconded till the writ petitions were disposed of. It is evident that the allegations that they were detained and locked up in three rooms for two days and one night continuously and were compelled to give statements in their hands incriminating themselves in violation of the provisions of the FERA and the statements were obtained out of office hours, etc., were all made five months after they obtained bail. It is clear to our mind that the respondents are making embellishments from stage to stage evidently with the ulterior motive of marking a plea that these statements should not be made use of against them.

18. The counter-affidavit filed by the appellant to the writ petitions 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 stages at which this kind of complaints were made with development one after the other, has simply accepted those averments on the grounds that they have not been controverted in the counter. As we have already pointed out, the counter was filed only to the main affidavit and the complaints of solitary confinement, denial of facilities, etc. were all made at a very late stage and the respondent have not whispered nay such complaint in their earlier representations and also in the affidavits filed in support of the main writ petitions. Hence, we are unable to agree with the finding of the learned judge that the respondents were kept in separate rooms and compelled to give statements out of office hours, which finding are based only on the averments in W.M.P. Nos. 18812 to 18814 of 1987 at very belated stage.

19. A Full Bench of this Court in Roshan Beevi v. Joint Secretary to the Government, Tamil Nadu, Public Dept. 1984 Cri LJ 134 to which one of us, Ratnavel Pandian, J. (as he then was) was a party, while dealing with the question of prolonged custody of a person under the guise of enquiry, interrogation or investigation, held under S. 107 and 108 of the Customs Act, has made the following observation (at p. 153 of Cri LJ) :

"If, in a given case, the Customs Officials detains any person required or summoned under the provision of the Customs Act for a prolonged period, even exceeding twenty four hours, or keeps him in closed doors as a captive prisoner surrounded by officials or locks him in a room or confines him to an office premises, he does so at his peril, because Sections 107 and 108 of the Customs Act do not authorise the officer belonging to the Customs Department to detain a person for a prolonged custody and deprive him of the elementary facilities and privileges to which he is entitled. In such a situation, the officer must be held to have over-stepped his limits, and any confessional statement obtained from such a person by keeping him in a prolonged custody has to be regarded with grave, suspicion, because there is always room for criticism that such a confession might have been obtained from extorted mal-treatment or induced by improper means. As pointed out by the Supreme Court in Nathu v. State of Uttar Pradesh , the prolonged custody may stamp the confessional statement so obtained as involuntary one and the intrinsic value of such 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 contention of Mr. Kareem is that all the statement were recorded out of office hours under compulsion from the respondent while they were detained in isolation in three separate rooms from 11 p.m. on 12-5-1987 till they were remanded at 4 p.m. on 13-5-1987. This argument in our view has to be rejected for the reason to be mentioned presently. We have already pointed out in the preceding paragraphs of this judgment that the respondents were remanded only at 11 p.m. on 12-5-87. The learned single Judge has also held so. Therefore the question is whether the statements were recorded before 11 p.m. on 12-5-1987 or thereafter. The case of the appellant is that all the statement were recorded from the three respondents then and there immediately after the search and seizure of the incriminating documents before 11 p.m. on 12-5-87 and only thereafter they were remanded and that after their arrest no statement was recorded. The case of the appellant is supported even by the averments made in paragraph 3 of the affidavits to the main writ petitions which are identical. The relevant portion reads thus :

"The statement have been recorded from as under S. 40 of the Foreign Exchange Regulation Act on 12-5-1987 ......"

The very prayer in all the three writ petitions is to forbear the appellant or their officers from taking any proceedings against the respondent on the basis of their statements dated 12-5-1987. The prayer in the W.M.Ps. for fixing an early date for the disposal of the writ petitions is also the same. So when the respondent themselves have admitted that the statements were recorded on 12-5-1987 (and not on 13-5-87) the question of recording the statement after their arrest and while they were in custody does not arise at all. On the other hand the present contention that the statements were recorded only after their arrest is contradicted by the very averments made in the affidavits to the main writ petitions as well as the prayer in the writ petitions. Neither of the respondents Mansoor Mohamed Ali Jinnah and Seeni Mohammed has made any allegation in their earlier representations dated 27-5-87 addressed to the Director of Enforcement New Delhi, that the statements were recorded from them on 13-5-87. What they had stated in their representation is that their statements recorded on 12-5-87 are not true. Therefore, the argument that they were kept in three 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 judgment by referring to all the decisions with reference to Section 24 of the Evidence Act, as it is settled law that a confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the court to have been caused by any inducement, threat or promise having reference to the charge against the accused person, proceeding from a person in authority.

22. The expression "accused person" in S. 24 of the Evidence Act and the expression "a person accused of any offence" in S. 25 of the said Act have the same connotation and describe the person against whom evidence is sought to be lend in a criminal proceeding. (See State of U.P. v. Deoman ). At the outset we may state that in these writ appeals the matter does not deal with any criminal proceedings against the respondents. Nor are the respondents standing before us as "accused persons" within the meaning of Section 24 of the Evidence Act. At the risk of repetition we may state that we had concluded, for the reasons mentioned supra, that the confessional statements of the respondents were not got by any inducement, threat or promise.

23. We shall now proceed to consider whether a Customs Officer or an authority under the FERA can be equated to a police officer. In state of Punjab v. Barkat Ram , the question of applicability of S. 25 of the Evidence Act to the statements made before the Customs Officers was raised. In this case, the Supreme Court held that the words "police officer" are not to be construed in a narrow way, but should be construed in a wide and popular sense, with a further rider that the expression has not such a wide meaning as to include persons on whom certain police powers are conferred. The Supreme Court observing that the Customs Officer is not primarily concerned with the detection and punishment of crime committed by a person, but is mainly interested in the detection and prevention of smuggling of goods and safeguarding the recovery of customs duties and that he is more concerned with the goods and customs duty, than with the offender, held that the duties of the Customs officers are very much different from those of the Police Officers and, therefore, S. 25 of the Evidence Act cannot apply to statements recorded by them. The ratio of this decision is that though a Customs Officer may, in order to enable him to discharge his duties efficiently, 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 referring to the various decisions of the Supreme Court inclusive of the decisions in State of Punjab v. Barkat Ram, (supra) and Badaku Joti Savant v. State of Mysore (supra), and the other High Courts, observed that neither the enquiry under S. 107 of the Customs Act nor the enquiry under S. 108 of the said Act (which are analogoues to Sections 39 and 40 of the FERA), can in any way, in a substances or in law, be considered to be the same as an investigation into criminal offense, by an officer in charge of police station under Chapter XIV Cr.P.C., which is the primary test for the application of S. 25 of the Evidence Act and held that the statements recorded by the enquiry officers of the Customs Department under Sections 107 and 108 of the Customs Act, 1962, do not become inadmissible in evidence in a criminal trials by reasons of bar under S. 25 of Evidence Act. The full Bench also found that where in the course of an investigation under S. 107 and 108 of the Customs Act, 1962, certain statements are recorded, at the time when statements are recorded, at the time when the statements are recorded the investigation cannot be said to have reached the stage when particular persons have been accused of an offense, within the meaning of Art. 20(3) of the Constitution of India, and, therefore, the constitutional protection thereunder cannot be availed of in respect of such statements. See also State of Bombay v. Kathi Kalu . A Division Bench of the Bombay High Court in Pukhraj v. K. K. Ganguly relying upon the abovesaid three decisions, viz., State of Punjab v. Barkat Ram , Badaku Joti Savant v. State of Mysore and Collector of Customs v. Kotumal (FB), his pointed out that the Customs Officers are not equated with Police officers acting under the Criminal Procedure Code, and hence, statements recorded by them under S. 108 of the Customs Act cannot be hit by S. 25 of the Evidence Act. One of the objects of the FERA, as laid down in its preamble, is to regulate and control dealings in foreign exchange. A reading of the preamble to the Customs Act would show that the whole purpose of the said Act is to safeguard the revenues of the country and its economy.

26. It is clear from the principles enunciated by the judicial pronouncements of the Supreme Court and the various High Courts that the expression "an accused person" occurring in S. 24 of the Evidence Act connotes 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 solely the basis for a conviction unless the same is corroborated, but it dose not necessarily mean that each and every circumstance mentioned in the confession regarding the complicity of the accused must be separately and independently corroborated. In the present writ appeals, we think that it is unnecessary for us to deal at length with the admissibility or otherwise of the confession, but suffice to say that if it is shown to the satisfaction of the court that a person was subjected to inducement or threat to make a false confessional statement implicating himself with the commission of an offence, it should not be admitted in evidence, and it must be excluded from consideration. But, so far as the present case is concerned, as we have already stated, the respondents are not standing before us accused persons. Therefore, the argument of Mr. Kareem that their statement are hit by S. 24 of the Evidence Act has no legs to stand. In this context, it may be stated that even the statement of a person made under S. 161 Cr.P.C. can be the basis for passing an order of detention, as pointed out by the Supreme Court in K. Aruna Kumari v. Govt. of A.P. We have also referred to certain decisions falling under S. 25 of the Evidence Act only for the purpose of showing that the authorities under the FERA and Customs Act are not equated with police officers. Secondly, even if the confession is retracted by the respondents, it need not be totally rejected, but it has to be considered in the context of various factors, such as whether the confession was untrue and whether there is any independent corroboration for the confession in its general particulars, etc. There is no material before us as to the nature of the contemplated proceedings against the respondents based of the confessions made by them to the appellant, except that orders of detention are passed against the respondent under the COFEPOSA Act. The action taken under the provisions of the COFEPOSA Act is not punitive in character, but only preventive. Regarding the reliance to be placed on the confessional statement of a person in passing an order of detention, the rule is well laid down by the Supreme Court in a number of cases. Therefore, it is for the respondents to raise objections if the confessional statement are relied upon by the detaining while passing the order of detention, without considering their 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 certain circumstances; (4) that Sections 107 and 108 of the Customs Act and the analogous provisions, viz., Sections 39 and 40 of the FERA and Sections 63 and 64 of the Gold Control Act, are only investigating provisions gathering any and every information, whether good or bad or true or false, and whether the persons who supply the information are innocent or not, and the object of the investigation is not to pin anybody to admit his guilt and obtain written admission or confession to be used subsequent stages against him; and (5) the such written admission is only evidence in subsequent proceedings, which evidence is always prohibited as being against notions of justice and fair play. In support of the last reasoning, he placed reliance on Abdul Kareem Hajee v. Director, Enforcement Directorate (1977) 2 Mad LJ 47. We are unable to understand as to how the above argument would be relevant for the purpose of disposal of these writ appeals.

28. However, we may state that S. 39 of the FERA deals with the power to examine persons, and S. 40 of the FERA deals with the power to summon persons and to produce documents. Sub-section (4) of S. 40 of the FERA reads that every such investigation or proceeding falling under sub-sections (1) to (3) of S. 40 shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code. Once it becomes a judicial proceedings, then the Evidence Act applies to such proceedings, which proceedings has to satisfy two conditions, viz., (1) the proceedings must be judicial; and (2) it must be in or before any court. If may be pointed out that the Supreme Court in Shanti Prasad Jain v. Director of Foreign Exchange Regulation Act has held that the proceedings under Foreign Exchange Regulation Act are governed by the Indian Evidence Act. As such, the admissibility of the statement as evidence is authorised by the statute itself. As repeatedly pointed out above, we are not examining the case with reference to any proceeding before court or any proceeding of adjudication before an authority. Further, no finding could be given in the writ proceedings with regard to the admissibility or otherwise of the statement in a judicial proceeding before court or in a proceeding for adjudication before an authority. If any such question arises in such proceedings, it is open to the respondents to raise the objection 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 read thus :

"This clauses seeks to insert two new Sections 138A and 138B in the Customs Act, 1962. The new S. 138A raises a presumption as to the culpable mental state on the part of the accused when he is prosecuted in a court of law. The new S. 138B provides for the relevancy under certain circumstances of the statements which are not made before a court. This section also provides that such statements will be relevant not only where a person is prosecuted in a Court of law but also in departmental adjudication proceedings".

Much reliance was placed by Mr. Kareem on the abovesaid objects and reasons. It has to be remembered that as per the objects and reasons, S. 138-B provides that such statements will be relevant not only where a person is prosecuted in a Court of Law but also in departmental adjudication proceedings. S. 59 of the FERA of 1973 is analogous to S. 138-A of the Customs Act. But, no provision in the FERA was brought to our notice analogous to that of S. 138-B of the Customs Act. Be that as it may, since it has been held in Shanti Prasad Jain v. Director of Foreign Exchange Regulation Act , that proceedings under Foreign Exchange Regulations Act are governed by the Indian Evidence Act, it cannot be said that the statements given by the respondents are not expressly authorised to be admitted by statutory provisions. Hence, the argument advanced by learned Counsel that applying the principle underlying in S. 138-B of the Customs Act, statements of the respondents are to be held inadmissible has to be rejected. All other arguments advanced regarding the admissibility of the statements recorded under the Customs Act in the face of S. 138-B of the said Act, which are only academic, have no relevance in the present case in which the statements have been recorded under the provisions of the FERA. As such, we are not inclined to deal with those arguments.

30. Continuing his arguments, Mr. Kareem submitted that summoning a person to the office and detaining him for interrogation under Ss. 39 and 40 of the FERA affects the personal liberty enshrined in Art. 21 of the Constitution of India, and as the Central Government, which is empowered to make rules prescribing the manner in which the inquiry should be conducted under the Act as required under S. 79(2)(c) of the FERA, has not framed any such rules, that therefore, in the absence of such rules 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. K. Munuswamy Mudaliar and Co. v. State of Madras, 7 STC 1 : (AIR 1956 Mad 101); Madanlal v. State of Rajasthan, ; Pich Rowther v. The Pampady Panchayath, AIR 1957 Trav. Co. 2 : (1957 Cri LJ 105) and Julius v. Bishop Oxford, (1880) 5 AC 214. For the proposition that procedural safeguards are the indispensable essence of liberty, he cited M. H. Hosket v. State of Maharashtra, , and for the other submission that every act of an executive authority, there must be legislative sanction, he relied upon State of M.P. v. Thakur Bharat Singh, AIR 1967 SC 1170. In our view, the above arguments are in no way related to the question that arises for consideration in the present writ appeals. Further, this Court is not inclined to make a roving inquiry and render its finding on the various submissions which are totally unrelated and unconnected with the question that arises for consideration in the writ appeals. It is always open to the respondents to raise the relevant legal questions in the appropriate proceedings, if any, initiated against the respondents under the provisions of the FERA or the Customs Act, as the case may be. But the respondents have no justification in requesting this Court to express its views with regard to the validity of any detention orders passed or to be passed under the COFEPOSA Act based on the statements recorded under the respective Acts. This can be done only in the appropriate proceedings.

31. Drawing the attention of this Court to an observation made by a Division Bench of this Court in Writ Appeal No. 1015 of 1987 batch (Vittalanathan v. The Collector of Customs, Coimbatore - Judgment dated 30-11-1987) reading, "We have not been able to find any authority in any provision of law which can compel a witness to write down his own statement. It is open to the Customs Officer to ask questions and whatever answers are given by the witness can be taken down by the officer".

it has been submitted that in the present case, the statements should be excluded from consideration since the respondents have been made to write down statements in their own hands. Though there is no provision of law under the Customs Act requiring a person to write down his own statement, at the same time there is no prohibition to a person giving his statement in writing in his own hand. In fact, it would be better if the authorities under the Customs Act and the 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 statements were recorded out of office hours. The observations of the Supreme Court in Balkrishna Chhaganalal Soni v. State of West Bengal, answers this contention. In that case, the Supreme Court has pointed out thus (at p. 284 of Cri LJ) :

"The provision (S. 107 of the Custom Act) is plain that an authorised Customs Official is entitled to examine any person at and time, at any place, in the course of an enquiry".

See also Roshan Beevi v. Joint secretary to the Government, Tamil Nadu, Public Dept., 1983 Mad LW (Cri) 289 : (1984 Cri LJ 134).

33. Before concluding the judgment, we would meet one more point stressed by Mr. Kareem, stating that Mohan, J., in a batch of writ petitions, viz., W.P. Nos. 3943 of 1987 etc., batch (R. Vittalnathan v. The Superintendent of Central Excise, Head Quarters Preventive, Coimbatore - order dated 18-6-1987) has held that the statement of a person recorded under S. 108 of the Customs Act could not be used for arresting a person. We have carefully gone through the order, but we find nowhere such a proposition has been laid down. What Mohan J., has stated in paragraph 23 of his order is :

"In short, therefore, a person summoned under S. 108 of the Act is told by the statute itself that under threat of criminal prosecutions, he is bound to speak what he knows and state the same truthfully. In view of these, I am unable to see how the petitioners could even urge that if they were to go, the statements are likely to be used against them and they are likely to be arrested".

From the above sentence, it cannot be inferred by any stretch of imagination that Mohan, J., has held that the statement recorded under S. 108 of the Customs Act could not be used for arresting the person making it.

34. For the reasons stated above, we are of the view that this is not a fit case for issuing a write of mandamus or any other appropriate writ directing the appellant or any other officers acting under or on behalf of him to forbear from taking any further proceedings against the respondents under the provisions of the FERA or any other Act on the basis of the statements recorded from the respondents, i.e., on 12-5-1987 and 4-6-1987 from Mansoor Mohamed Ali Jinnah and on 12-5-1987 from Seeni Mohamed and Bhuhari. Hence, we are unable to agree with the view taken by the learned single Judge.

35. In the result, we set aside the order of the learned single Judge and allow the appeals with costs (Rs. 500/- in each writ appeal).

36. After the judgment has been pronounced, Mr. Abdul Kareem, learned counsel appearing on behalf of the respondents made an oral application for the grant of a certificate for leave to appeal to the Supreme Court. As we are of the view that no substantial question of law of general importance, to be decided by the Supreme Court, is involved in these cases, leave is refused.

37. Then a further representation was made by the learned counsel requesting to suspend the operation of the order for a period of one month. Having regard to the facts and circumstances of the case, we see no reason to suspend the operation of the order as prayed for.

38. Appeals allowed.

Unlock Advanced Research with PRISMAI

Madras High Court