THIDDIL MOHAMMED KUNHI Vs. SPECIAL DIRECTOR ENFORCEMENT DIRECTORATE

JUDGEMENT

(1.) On 16.10.1991, the appellant was intercepted by the officers of Special Customs, Preventive Unit, Calicut, at Calicut Airport, when he arrived from Bombay by flight. On search of the baggage, Indian Currency of Rs.15,50,000/- and some incriminating documents were seized by the Customs Officers. On interrogation, the appellant stated that the amount of Rs. 15,50,000/- was received byhim at K.K. Hotel 7 Jamayat, Bombay as per the agreement of his uncle's son Abdul Salam in Sharjah and out of this amount, Rs.5,00,000/- was to be paid to one Abdullakutty of Everest Apartments, Tellicherry and Rs. 10.5 lakhs to K.P. Musthafa, Sara Manzil, Payyangadi. Since the transaction attracted the provisions of Foreign Exchange Regulation Act, 1973 (FERA 1973), the matter was transferred to Enforcement Directorate, Calicut for investigations under the Foreign Exchange Regulation Act, 1973. He was issued with summons to appear on 19.10.1991. The appellant was Examined under section 40 of FERA, 1973 and his statements were recorded on 19.10.1991 and 21.10.1991 by the Enforcement Officer, Calicut. He was arrested on 21.10.1991 and produced before the Magistrate as can be seen from remand report. The incriminating documents seized from him included paper slips containing name, address and telephone number of Abdullakutty and K.P. Musthafa. After issuing show cause notice, case was finally adjudicated by Special Director of Enforcement. He found that the appellant had contravened the provisions of Sections 9 (1) (b) & 9 (1) (d) read with 64 (2) of FERA, 1973. Sections 9 (1) (b) & 9 (1) (d) read as follows:

(2.) First contention is that statements were taken from persons namely Abdullakutty, K.P. Mustafa, B. Mohd. Hazi and C.Prabhakaran. but, they were not made available for cross examination. They did not state anything against the appellant. They only stated that they were expecting money from their relatives abroad. Copies of the statements were given. Therefore, non examination of them did not cause any prejudice to the appellant.

(3.) Second contention is that the statements given by the appellant on 19.10.1991 and 21.10.1991 cannot be relied on. They are retracted admissions and those statements were made while he was under illegal custody. For that he relief on the bail order granted by this court in Crl. M.C. No. 1335 of 1991. While granting bail on 8.11.1991, this court noted the contention of the appellant that recovery has already been effected and he was in custody from 16th October, 1991. But, that will not prove that he was detained from 16.10.1991 and statements were taken while he was under illegal custody. According to the respondent the appellant was not arrested and detailed from 16th October. Of course, he was searched on 16th and currency and documents were seized. He was issued with summons to appear on 19.10.1991 and later on 21.10.1991. He was subsequently arrested, produced before the Magistrate and remanded to custody. Therefore, those statements were not taken while he was under illegal custody. Apart from the above, he was not denied that contents of the statements or what is stated therein are untrue. His statements that he has no money to complete the construction of his house, case against him while he was in Gulf etc. were not denied in the retracted statement. He only denied his acquaintance with Abdulkutty and K.P. Mustafa. If that be so, why their names and addresses were being carried by the appellant has not been explained by the appellant. The seized documents provide necessary corroboration to the retracted statement that they are the persons to whom the money was to be paid as stated in the statement otherwise there was no reason for the appellant to carry the slip with him when he was neither knowing nor was having any transaction with them. Coupled with this, the seized amount too by itself provides necessary corroboration of the said statement. The appellant failed to give any explanation as to how he came into possession of such huge amount while his own financial position was not sound enough. With regard to retracted confession, a four member Bench of the Apex Court in Pyare Lal v State of Rajasthan (AIR 1963 SC 1094) held as follows: