Supreme Court of India
A. TAJUDEENversusUNION OF INDIA
- Citation
- 2014 INSC 702
- Decided
- 10 October 2014
- Disposal
- Appeal(s) allowed
- Bench
- S KHEHAR
Holding
The Enforcement Directorate’s reliance on the unproduced 20‑April‑1989 statement was impermissible, and the retracted statements of the appellant and his wife, lacking independent corroboration, cannot alone establish a violation of s.9(1)(b) of the Foreign Exchange Regulation Act, 1973.
Summary
The appellant A. Tajudeen was prosecuted under the Foreign Exchange Regulation Act, 1973 for allegedly receiving foreign exchange without an authorized dealer. The Enforcement Directorate relied on a purported statement made on 20‑April‑1989, statements recorded during a raid on 25‑Oct‑1989 and while in custody on 26‑Oct‑1989, a "mahazar" document, and newspaper sheets. The appellant denied making the 20‑April statement and retracted the later statements, claiming they were obtained under coercion. The Supreme Court held that the Directorate could not rely on the unproduced 20‑April statement, and that the retracted statements, without independent corroboration, could not be the sole basis for a finding of guilt. The "mahazar" and newspaper sheets were also deemed insufficient. Consequently, the High Court’s judgment was set aside and the Enforcement Directorate was ordered to refund the confiscated amount and penalty.
Issues considered
- The Enforcement Directorate’s reliance on an alleged statement dated 20‑April‑1989 that was not placed in the memorandum and was denied by the appellant.
- Whether statements recorded during a raid and while in custody, later retracted, can be treated as primary evidence to establish a violation of s.9(1)(b) of the FERA without independent corroboration.
- The evidentiary value of a "mahazar" attested by two witnesses without cross‑examination.
- The relevance of newspaper sheets showing the money wrapped as proof of contravention of the Act.
- The allocation of the burden of proving the voluntariness of confessional statements under the Indian Evidence Act.
Legislation cited
- Foreign Exchange Regulation Act, 1973s. 50, s. 54, s. 9(1)(b)
- Indian Evidence Act, 1872s. 24
Subjects
Foreign Exchange Regulation ActSection 9(1)(b)Enforcement Directorateretracted statementsvoluntary confessionprimary evidencecorroborationmahazarconfiscationpenaltyburden of proof
Judgment
[2014] 10 S.C.R. 864
A A TAJUDEEN
v.
UNION OF INDIA
(Civil Appeal No. 5773 of 2009)
OCTOBER 10, 2014
B
[JAGDISH SINGH KHEHAR AND C. NAGAPPAN, JJ.]
Foreign Exchange Regulation Act, 1973:
c ss. 9(1 )(b) and 50 - Proceedings initiated against
appellant for violation of provisions of s.9(1)(b) - Authorities
relying upon a statement alleged to have been made by
appellant before officers of Enforcement Directorate - Held:
No reliance was placed on the said statement in .. the
impugned memorandum - Per se, therefore, it was not open
0
to the authorities to place reliance on the said statement, while
proceeding to take penal action against appellant, in
furtherance of the impugned memorandum - Besides, as
appellant had refuted having executed any such statement,
E it was imperative for Enforcement Directorate to establish
through cogent evidence that appellant had made such a
statement, and having failed to do so, it was not open to them
to place reliance on the alleged statement, for establishing
charges against appellant in impugned memorandum.
F ss.9(1)(b) and 50 - Proceedings initiated against
appellant for violation of provisions of s.9(1)(b) - Statements
of appellant and his wife recorded by officers of Enforcement
Directorate - Held: The said statements are not to be referred
to as corroborative pieces of evidence, but as primary
G evidence to establish the guilt of appellant - In the absence
of any independent corroborative evidence, the said
statements of appellant and his wife recorded during the raid
and while appellant was under detention, which, immediately,
on release, were retracted, could not constitute the exclusive
H 864
A. TAJUDEEN v. UNION OF INDIA 865
basis to determine the culpability of appellant - The entire A
action taken by Enforcement Directorate against appellant in
furtherance of the impugned memorandum is set aside -
Evidence.
Evidence: B
Execution of 'mahazar' in respect of recovery of money
- Held: Merely because the "mahazar'' was attested by two
independent witnesses would not lead credibility to the same
- Such credibility would attach to the "mahazar'' only if the
said two independent witnesses were produced as witnesses, C
and the appellant was afforded an opportunity to cross-
examine them - Such a procedure was not adopted in the
instant case - Besides, the said 'Mahazar is insufficient to
establish violation of s.9(1)(b) of the 1973 Act - Thus, the
execution of 'mahazar' is inconsequential for the D
determination of guilt of appellant.
Allowing the appeal, the Court
HELD: 1.1. There is no doubt that no reliance has
been placed on the alleged statement made by the E
· appellant on 20.4.1989 before the officers of the
Enforcement Directorate, in the memorandum dated
12.3.1990. Per se, therefore, it was not open to the
authorities to place reliance on the said statement, while
proceeding to take penal action against the appellant, in F
furtherance of the said memorandum dated 12.3.1990.
Additionally, it is apparent from the reply (Annexure P-9)
furnished by the appellant to the memorandum dated
12.3.1990, that he clearly and expressly refuted having
executed any statement on 20.4.1989. It was, therefore, G
imperative for the Enforcement Directorate to establish
through cogent evidence that the appellant had indeed
made such a statement on 20.4.1989. It also cannot be
overlooked that no action was initiated against the
H
866 SUPREME COURT REPORTS [2014] 10 S.C.R.
A appellant on the basis of the statement dated 20.4.1989.
[para 9) [878-H; 879-A-C]
1.2. Therefore, the statement dated 20.4.1989 could
not be relied upon by the Enforcement Directorate to
establish the allegations levelled against the appellant
8
through the memorandum dated 12.3.1990. Further, in the
absence of having established through cogent evidence,
that the appellant had made the statement dated
20.4.1989, it was not open to the Enforcement Directorate
to place reliance on the same, for establishing the
C charges levelled against the appellant in memorandum
dated 12.3.1990. Even before this Court, the alleged
statement made by the appellant on 20.4.1989 could not
be produced, which seems to be a fictitious creation of
the Enforcement Directorate. [para 9-10) [880-A-C; 881-E]
D
1.3. The innocence or guilt of the appellant will have
to be determined on the basis of the statements made by
the appellant and his wife (on 25.10.1989 and 26.10.1989)
to the officers of the Enforcement Directorate. Therefore,
E for the case in hand, the said statements are not to be
referred to as corroborative pieces of evidence, but as
primary evidence to establish the guilt of the appellant. It
is significant to note that the said statements were all
made either at the time of the raid, which was carried out
F by the officers of the Enforcement Directorate at the
residence of the appellant, or whilst the appellant was in
custody of the Enforcement Directorate. Immediately after
the appellant was released on bail on 27.10.1989, on the
same day itself, both the appellant and his wife addressed
G communications to the Director, Enforcement Directorate,
New Delhi resiling from the above statements, by clearly
asserting that they were recorded under coercion and
undue influence, and would not be binding on them. The
statements of the appellant and his wife were not
corroborated by independent evidence. This Court is of
H
A. TAJUDEEN v. UNION OF INDIA 867
the considered view, that the officers of the Enforcement A
Directorate were seriously negligent in gathering
independent evidence of a corroborative nature.
Therefore, the retracted statements dated 25.10.1989 and
26.10.1989 made by the appellant and his wife could not
constitute the exclusive basis to determine the culpability B
of the appellant. [paras 15 and 18] [887-E-H; 890-A-B]
K. T.M.S. Mohd. v. Union of India, 1992 (2) SCR 879 =
(1992) 3 SCC 178; Vinod Solanki v. Union of India 2008
(17) sCR 1010 = (2008) 16 sec 537 - cited.
c
1.4. Merely because the "mahazar" was attested by
two independent witnesses would not lead credibility to
the same. Such credibility would attach to the "mahazar"
only if the said two independent witnesses were
produced as witnesses, and the appellant was afforded D
an opportunity to cross-examine them. Such a
procedure was not adopted in the instant case. Besides,
even if the "mahazar" is accepted as valid and genuine,
the same is wholly iosufficient to establish that the
amount recovered from the residence of the appellant E
was dispatched by a resident of Singapore, through a
person who is not an authorised dealer in foreign
exchange. Even, in response to the memorandum dated
12.3.1990, the appellant had acknowledged the recovery
of money from his residence, but that acknowledgment F
would not establish violation of s.9 (1)(b) of the 1973 Act.
Thus, execution of the "mahazar" on 25.10.1989 is
inconsequential for the determination of the guilt of the
appellant. [para 19] [890-D-H; 891-A-B]
1.5. Therefore, the impugned judgment passed by G
the High Court is set aside. Resultantly, the entire action
taken by the Enforcement Directorate against the
appellant in furtherance of the memorandum dated
12.3.1990, is also set aside. [para 21] [891-E-F]
H
868 SUPREME COURT REPORTS [2014) 10 S.C.R.
A Case Law Reference:
1992 (2) SCR 879 cited para 13
2008 (17) SCR 1070 cited para 13
B CIVIL APPELLATE JURISDICTION : Civil Appeal No.
5773 of 2009.
From the Judgment and Order dated 28.09.2006 in CMA
No. 1282 of 1994 of the High Court of Judicature at Madras]
C R. Nedumaran for the Appellant.
K. Radhakrishnan Arijit Prasad, Kiran Bhardwaj (For B.V.
Balaram Das), for the Respondent.
The Judgment of the Court was delivered by
D
JAGDISH SINGH KHEHAR, J. 1. Through memorandum
dated 12.3.1990 it was alleged, that the appellant herein -A.
Tajudeen, without any general or special exemption from the
Reserve Bank of India, had received an-amount of Rs.8,24,900/
E - in two installments, at the behest of Abdul Hameed, a person
resident in Singapore. The first installment was allegedly
received on 23.10.1989 which comprised of Rs.4,00,000/-. The
remaining amount was allegedly received in the second
installment on 25.10.1989. As per the memorandum the
F aforesaid amounts had been received from a local person, who
was not an authorised dealer in foreign exchange.
2. Based on the factual position noticed hereinabove, the
allegation against the appellant was, that he had violated
G Section 9(1)(b) of the Foreign Exchange Regulation Act, 1973
(hereinafter referred to as, the 1973 Act). Section 9(1 )(b)
aforementioned, is being extracted hereunder:-
"9. Restrictions on payments - (1) Save as may be
provided in, and in accordance with any general or
H
A. TAJUDEEN v. UNION OF INDIA 869
[JAGDISH SINGH KHEHAR, J.]
special exemption from the provisions of this sub- A
section which may be granted conditionally or ·
unconditionally by the Reserve Bank, no person in,
or resident in, India shall -
(a) xxx xxx xxx
B
(b) receive, otherwise than through an authorized
dealer, any payment by order or on behalf of any
person resident outside India;
Explanation - For the purposes of this clause, c
where any person in, or resident in, India receives
any payment by order or on behalf of any person
resident outside India through any other person
(including an authorized dealer) without a
corresponding inward remittance from any place D
outside India, then, such person shall be deemed
to have received such payment otherwise than
through an authorized dealer;" ·
Based on the aforesaid statutory provision, and the factual
position noticed hereinabove, the Enforcement Directorate E
initiated proceedings against the appellant under Section 50
of the 1973 Act.
3. Before adjudicating upon the merits of the controversy,
it is essential to narrate the factual position leading to the F
issuance of the aforesaid memorandum dated 12.3.1990. The
facts as they emerge from the pleadings, and the various orders
leading to the passing of the impugned judgment rendered by
the High Court of Judicature at Madras (hereinafter referred to
as, the High Court) on 28.9.2006, are being chronologically G
narrated hereunder::::.
(i) The appellant -A Tajudeen is alleged to have made a
statement to the Enforcement Directorate on 20.4.1989,
wherein he acknowledged, that he had received a sum of H
870 SUPREME COURT REPORTS [2014] 10 S.C.R.
A Rs.1,40,000/- from Abdul Hameed. Out of the above amount,
he paid a sum of Rs.60,000/- through his shop boy - Shahib,
to Shahul Hameed (a relative of Abdul Hameed) of Village
Pudhumadam. A further amount of Rs.20,000/- was paid to
some friends of Abdul Hameed at Keelakarai, and remaining
B amount was retained by appellant himself. In the statement
made on 20.4.1989, it was allegedly acknowledged by the
appellant that Abdul Hameed was a resident of Singapore, and
was running a shop located at Market Street, Singapore.
c (ii) On 25.10.1989, the officers of the Enforcement
Directorate raided the residential premises of the appellant,
namely, no. 6, Dr. Muniappa Road, Kilpauk, Madras. At the
time of the raid, which commenced at 1.00 pm, his wife T.
Sahira Banu was at the residence. The appellant - A. Tajudeen,
D also reached his residence at 1.30 pm, whilst the officers of
the Enforcement Directorate were still conducting the raid.
During the course of the raid, a sum of Rs.8,24,900/- in Indian
currency was recovered from under a mattress from a bedroom
of the appellant's residence.
E (iii) A mahazar was prepared on 25.10.1989, depicting the
details of the currency recovered from the raid. The said
mahazar was prepared in the presence of two independent
witnesses, namely, R.M. Subramanian and Hayad Basha. The
above independent witnesses also affixed their signatures on
F the mahazar.
(iv) At the time of the raid itself, the statement of the
appellant - A. Tajudeen was recorded (on 25.10.1989). The
relevant extract of the aforesaid statement of the appellant is
G being reproduced hereunder. It needs to be expressly noticed,
that the appellant now allegedly disclosed the address of Abdul
Hameed, as no. 24, Sarangoon Road, Singapore.
"Today your officers searched my aforesaid house and
seized a sum of Rs.8,24,900/- as set out in the Mahazar.
H
A. TAJUDEEN v. UNION OF INDIA 871
[JAGDISH SINGH KHEHAR, J.]
I wanted to establish a jewellery shop in Madras. I A
commenced a jewellery shop in the name and style of "M/
s. Banu Jewellers" on 19.10.1989 at No. 12, Ranganathan
Road, Nungambakkam, Madras-34. It is a partnership
business wherein my wife T. Sahira Banu is a partner. For
that I sold my wife's gold jewels and also taken hand loans B
from my friends. The said business was started with a
capital of Rs.2,20,000/- in my wife's name. The other
partner Mr. S. Muthuswamy of No. 20, Indira Nagar, Adyar
(I do not remember his address) has contributed to the
capital a sum of Rs.30,000/-. c
For expanding the said shop and for improving the
business. I required about Rs.9,00.000/-. My relatives are
working in Singapore and Malaysia. One Abdul Hameed
from my native place is carrving on business for the past
15 years at no. 24. Sarangoon Road. Singapore. He is D
dealing in clothes, VCRs etc. He came down to Madras
about 2 months back. At that time. he met me at my
residence. I told him that a jewellerv business to be
commenced and that I require about Rs.9,00.000/- for the
said business and to discharge certain small loans. Further E
I requested him to help me by providing the said mone~
assuring to repay the same in 2 or 3 years' time with smalr
interest during his visit to India.
He assured to contact me over phone, House telephone F
no. 666611 on reaching Singapore. The said Abdul
Hameed. about 2 months back. called me over phone from
Singapore and told me that as I requested to him. he had
made arrangements for sending the sum of Rs.9.00.000/
- and that he will inform me about the mode of transmitting G
the same. Thereafter during the 2nd week of this month.
the said Abdul Hameed contacted me over phone. At that
time he told me that he would send Rs.8.25.000/- in two
installments being Rs.4,00.000/- and Rs.4.25.000/- and
that the said money would be delivered at my house in the H
8"12 SUPREME COURT REPORTS [2014] 10 S.C.R.
A 3rd week or 4th week of this month through unknown
person. Pursuant thereto. on 23.10.1989 around 9.00 pm
an unknown person came to my house inquiring about me
and gave me Rs.4.00.000/- stating that he is delivering the
same on the instruction of Abdul Hameed of Singapore.
B Similarly another unknown person came to my house at
8.00 am on 24.10.1989 and delivered to me Rs.4.25.000/
- claiming to be on the instructions of the said Singapore
Abdul Hameed. I was keeping the said Rs.4,00,000/- and
Rs.4,25,000/-, totaling to Rs.8,25,000/-, in my house which
c was received on the instruction of Abdul Hameed.
The Enforcement Officer who searched the house seized
. the sum of Rs.8,24,900/- which I got in the aforesaid
manner. The said Abdul Hameed who is residing at
D Singapore is my distant relative on the paternal side. He
is living with his family at Singapore. He used to come
down to my native lace. Pudhumadam Village. once in a
year to visit his relatives. He is aged 45 years and of the
height of about 5Y:i feet, fair complexion and medium built.
E The person who delivered the sum of Rs.4,00,000/- on the
instructions of said Abdul Hameed did not disclose his
name and address. He was about 35 years old and with
medium height and medium built. He was wearing pants
and shirt. He left within few minutes on delivering the sum
F of Rs.4,00,000/- to me and hence I could not notice other
identifiable marks. Similarly the other person who came
on 24.10.1989 and delivered the sum of Rs.4,25,000/- on
the instructions of said Abdul Hameed also did not
disclose his name and address. He must be around 40
G years old. He is also medium built and also medium height.
Since both of them left my house within a few minutes on
delivering the said sums, I could not notice their identifiable
marks. I was making arrangements to export readymade
garments. In respect thereof, I required the place apart
H from my house to meet my customers. For that I have taken
P.. TAJUDEEN v. UNION OF INDIA 873
[JAGDISH SINGH KHEHAR, J.]
on rent room no. 402, in Ganpat Hotel, Nungambakkam A
High Roaq__aboum months back from its owner one M.R.
Prabhakaran. I am using the telephone no. 477409 in the
said shop, A/C machine and fridge available in the said
room. Since Export business did not suit me, I left it. The
said room is in my possession." B
(emphasis is ours)
(v) During the course of the raid conducted on 25.10.1989,
the appellant - A. Tajudeen, was detained by the officers of the
Enforcement Directorate. His statement was again recorded C
on 26.10.1989 by the Chief Enforcement Officer, whilst he was
in custody. Relevant portion of his above mentioned statement
is being extracted hereunder:-
"! have earlier given statement before you on 25.10.1989. D
In that I have disclosed that by searching my house on
25.10.1989 your officers have seized a sum of
Rs.8.24.900/- which I received from unknown persons on
23.10.1989 and 25.10.1989 on the instructions of Abdul
Hameed of Singapore. This is true. On 25.10.1989, the E
said officers searched the jewellery shop "Banu Jewellers"
in which my wife is a partner. At that time I was also there.
In the said search no documents were seized. The other
partner Mr. Muthusamy who is looking after the seized sum
of Rs.8,24,900/- is not related to the said business. As F
stated by him, there is no connection between the said
business and the sums seized.
Today your officers searched my room at No. 402, Ganpat
Hotel, Nungapakkam High Road, Madras-34 which I have
taken on rent. I was there during the search. Since I have G
lost the key it was opened by a lock repairer. Pursuant to
the said search a quotation from AL. Textiles Mills dated
15.4.1989 was seized.
Hereinbefore, in April last, I appeared before the officers H
874 SUPREME COURT REPORTS [2014] 10 S.C.R.
A and gave a statement. Today I was shown the statement
which I have given before the officers on 20.4.1989. I have
stated about the receipt of a sum of Rs.1,40,000/- through
my shop boy, Shahib, on the instructions of said Abdul
Hameed of Singapore and out of the same, I have
B disbursed Rs.60,000/- on the instructions of the said Abdul
Hameed to Shahul Hameed at Pudhumadam and the
payment of Rs.20,000/- to a friend in Keelakarai through
my shop manager, Hasan. The said Shahul Hameed
mentioned in the statement dated 20.4.1989 and Abdul
C Hameed disclosed in the statement dated 25.10.1989 is
one and the same person. In the said statement dated
24.10.1989 I have stated that Abdul Hameed is running a
fancy store in Market Street in Singapore. In the statement
dated 25.10.1989. I have stated that Abdul Hameed is
D running a shop at Sarangoon Road. Singapore. Few
months back. he has shifted his business from the Market
Street to Sarangoon Road. In the statement dated
20.4.1989, I have stated that I am running a textile shop
"Seemati Silks" at Periyakadai Veethi, Ramanathapuram.
E In the statement dated 25.10.1989 I have stated that I am
the proprietor of "Seemati Silks" at Salai Street.
Periyakadai Veethi is used to be called as Salai Street.
All that I stated in this statement are true."
(emphasis is ours)
F
(vi) Whilst the appellant - A Tajudeen was under detention
of the Enforcement Directorate, the statement of his wife T.
Sahira Banu was also recorded on 26.10.1989. The same was
allegedly scribed by M.J. Jaffer Sadiq, a nephew, and then
G signed by T. Sahira Banu. In the above statement, T. Sahira
Banu, the wife of A. Tajudeen admitted the recovery of
Rs.8,24,900/- by the officers of the Enforcement Directorate,
from the residence of the appellant i.e., no. 6, Dr. Muniappa
Road, Kilpauk, Madras.
H
A. TAJUDEEN v. UNION OF INDIA 875
[JAGDISH SINGH KHEHAR, J.]
(vii) On 27.10.1989, A. Tajudeen and T. Sahira Banu A
retracted their earlier statement(s), alleging that the same had
been recorded against their will and under the threat and
compulsion of the officers of the Enforcement Directorate.
4. In response to the memorandum dated 12.3.1990, the
B
appellant filed a reply (which is available on the record of the
present case as Annexure P-9). In his reply, he denied having
made any statement on 20.4.1989. He asserted, that a copy
of the aforesaid statement dated 20.4.1989 had never been
furnished to him, nor had been relied upon in the memorandum
dated 12.3.1990. He also denied the factual contents of the c
statements dated 25.10.1989 and 26.10.1989. He denied
having ever met Abdul Hameed. He also denied, that there was
any occasion for him to ask for any loan from the said Abdul
Hameed. He denied any acquaintanceship with the said Abdul
Hameed. Insofar as the statements recorded on 25.10.1989 D
and 26.10.1989 are concerned, his specific assertion in his
reply was, that he was compelled to make the above
statements at the dictation of the officers of the Enforcement
Directorate. He also asserted, that the said statements had
been made under threat, coercion and undue influence. He E
highlighted the fact, that on the very day of his release from
detention, i.e., on 27.10.1989, he had addressed a letter to the
Enforcement Directorate, repudiating the factual position
indicated in the statements made by him on 25.10.1989 and
26.10.1989. He also asserted, that a similar course of action F
had been adopted by his wife T. Sahira Banu, inasmuch as,
she too had repudiated the statement recorded by her on
26.10.1989 at the office of the Enforcement Directorate through
a separate communication dated 27.10.1989. Insofar as the
currency recovered from his residence is concerned, his G
explanation was, that he had an established business under
the trade name of Seemati Silks, which had an annual turnover
of Rs.25 to 30 lacs. He also asserted, that his wife T. Sahira
Banu had also business establishments including Seemati
Matchings and Banu Jewellers, from which she was earning H
876 SUPREME COURT REPORTS [2014] 10 S.C.R.
A income. Besides the aforesaid business establishments, it was
, the contention of the appellant - A. Tajudeen, that he had several
other business projects, from which he was also earning
independent income. In addition to his financial status reflected
hereinabove, it was also the case of the appellant, that he had
B taken hand loans. The amount which was recovered by the
officers of the Enforcement Directorate from his residence on
25.10.1989, was comprised of all the above sources. He clearly
and expressly denied, having received the aforesaid currency
(Rs. 8,24,900/-) from a person resident in India, at the behest
C of a person not resident in India.
5. Having examined the response of the appellant, the
Additional Director of Enforcement, Southern Zone, Madras, by
an order dated 22.4.1991, arrived at the conclusion, that the
D appellant was guilty of violating Section 9( 1)(b) of the 1973 Act.
Having so concluded, the seized amount of Rs.8,24,900/- was
ordered to be confiscated. In addition, the appellant was
imposed a penalty of Rs.1,00,000/- for contravening the
provisions of Section 9( 1)(b) of the 1973 Act. Dissatisfied with
E the order dated 22.4.1991 passed by the Additional Director
of Enforcement, Southern Zone, Madras, the appellant
preferred an appeal before the Foreign Exchange Regulation
Appellate Board (hereinafter referred to as, the Appellate
Board). The aforesaid appeal bearing number 316of1991 was
allowed by an order dated 31.12.1993. While allowing the
F appeal, the Appellate Board directed the refund of penalty of
Rs.1,00,000/- imposed on the appellant. The Appellate board
also quashed the direction pertaining to the confiscation of
Rs.8,24,900/- seized from the residence of the appellant.
G 6. Aggrieved by the order passed by the Appellate Board,
the Union of India through the Director of Enforcement preferred
an appeal under Section 54 of the 1973 Act, before the High
Court. The High Court allowed the above appeal being C.M.A.
NPD no. 1282 of 1994 by an order dated 28.9.2006. While
H allowing the aforesaid appeal, tlie High Court placed reliance
A. TAJUDEEN v. UNION OF INDIA 877
[JAGDISH SINGH KHEHAR, J.]
on the statement made by the appellant, before the officers of A
the Enforcement Directorate on 20.4.1989. The aforesaid
statement was referred to, as having been voluntarily made by
the appellant. The High Court expressed the view, that the
statements recorded by the appellant on 25.10.1989 and
26.10.1989 were voluntarily made by him, and as such, the B
retraction of the said statements, was not accepted. Likewise,
the High Court accepted the statement of T. Sahira Banu made
at the office of the Enforcement Directorate at Madras on
26.10.1989, as voluntary. Her retraction of the said statement
was also not accepted by the tligh Court. The High Court placed C
reliance on the fact, that the appellant had been produced
before the Additional Chief Metropolitan Magistrate, Madras,
during the course of his detention, but he had not indicated to
the Magistrate during his production, that he and his wife were
compelled to make the above statements, by the officers of the D
Enforcement Directorate. This was the primary reason for the
High Court, in rejecting the retractions made by the appellant
and his wife.
7. Insofar as the veracity of name and identity of Abdul E
Hameed is concerned, the High Court expressed the view, that
the name and identity of the person who had dispatched the
money in question, was in the personal knowledge of the
appellant alone, and therefore, his disclosure about the name
and identity of Abdul Hameed could not be doubted. Insofar as
F
the different addresses of Abdul Hameed indicated in the
statements dated 20.4.1989 and 25.10.1989/26.10.1989 are
concerned, the High Court was of the view, that the appellant
had himself disclosed the address of the above mentioned
Abdul Hameed, and as such, he cannot be permitted to use G
the said statements to his own benefit. The High Court was also
of the view, that merely because the statements had been
recorded at the time of the raid at the residence of the
appellant, and whilst he was under detention, it could not be
inferred, that the same were not voluntary.
H
878 SUPREME COURT REPORTS [2014] 10 S.C.R.
A 8. During the course of hearing, the first contention
advanced at the hands of the learned counsel for the appellant
was, that it was not open to the Enforcement Directorate to rely
on the alleged statement dated 20.4.1989, which the appellant
is stated to have mad~ before the officers of the Enforcement
B Directorate. Insofar as the instant aspect of the matter is
concerned, it was the vehement contention of the learned
counsel for the appellant, that no reference was made to the
above statement dated 20.4.1989 in the memorandum dated
12.3.1990. It was further submitted, that a copy of the aforesaid
C statement dated 20.4.1989 was never furnished to the
appellant. In fact it was the vehement contention of the learned
counsel for the appellant, that no such statement was ever made
by the appellant - A. Tajudeen, to the officers of the Enforcement
Directorate. Learned counsel for the appellant, in fact
D emphatically invited our attention to the fact, that the High Court
in para 16 of the impugned judgment had inter alia, observed
as under:-
"16. . .... Referring to the explanation given by the officer
that they had no record of the statement made on
E
20.4.1989 at the time when the statement was
made by Tajudeen on 26.10.1989 ..... "
It was also submitted, that if the appellant had made any such
statement on 20.4.1989, as was now being relied upon by the
F Enforcement Directorate, he would have most definitely been
proceeded against for violation of the provisions of Section
9(1 )(b) of the 1973 Act. The very fact that he was not proceeded
against, shows that no such earlier statement may have been
recorded by the appellant on 20.4.1989.
G
9. We have given our thoughtful consideration to the first
contention advanced at the hands of the learned counsel for the
appellant. There is no doubt whatsoever, that no reliance has
been placed on the alleged statement made by the appellant
H on 20.4.1989 before the officers of the Enforcement
A. TAJUDEEN v. UNION OF INDIA 879
[JAGDISH SINGH KHEHAR, J.]
Directorate, in the memorandum dated 12.3.1990. Per se, A
therefore, it was not open to the authorities to place reliance
on the aforesaid statement, while proceeding to take penal
action against the appellant, in furtherance of the aforesaid
memorandum dated 12.3.1990. Additionally, it is apparent from
the reply (Annexure P-9) furnished by the appellant to the B
memorandum dated 12.3.1990, that the appellant clearly and
expressly refuted having executed any statement on 20.4.1989.
It was, therefore, imperative for the Enforcement Directorate,
to establish through cogent evidence, that the appellant had
indeed made such a statement on 20.4.1989. It also cannot be c
overlooked, that no action was initiated against the appellant
on the basis of the aforesaid statement dated 20.4.1989. A
perusal of the aforesaid statement, in the terms as are apparent
from the pleadings of the case, leaves no room for any doubt,
that if the appellant had made any such statement, he would D
have been proceeded against under Section 9(1)(b) of the
1973 Act. The mere fact that he was not proceeded against,
prima facie establishes, in the absence of any evidence to the
contrary, that the assertion made by the appellant to the effect
that he never made such statement, had remained unrefuted. E
The reason depicted. in the paragraph 16 of the impugned
judgment passed by the High Court extracted in the foregoing
paragraph is clearly a lame excuse. Even though the aforesaid
excuse may have been valid, if the allegation was, that the
record of the statement made on 20.4.1989, was not available F
with the officers of Enforcement Department at the time of the
raid on 25.10.1989, yet to state that the aforesaid record was
not available when the second statement was made on
26.10.1989 at the office of the Enforcement Directorate, is quite
ununderstandable. It is pertinent to mention, that the second G
statement was recorded by the Chief Enforcement Officer when
the appellant - A. Tajudeen was in custody of the Enforcement
Directorate. At that juncture if the record, as alleged, was not
available with the authorities, it must lead to the inevitable
inference, that the record was not available at all. For the H
880 SUPREME COURT REPORTS [2014] 10 S.C.R.
A reasons recorded hereinabove, we are satisfied in holding,
firstly, that the statement dated 20.4.1989 could not be relied
upon by the Enforcement Directorate to establish the allegations
levelled against the appellant through the memorandum dated
12.3.1990. And secondly, in the absence of having established
B through cogent evidence, that the appellant had made the
above statement dated 20.4.1989, it was not open to the
Enforcement Directorate to place reliance on the same, for
establishing the charges levelled against the appellant in
memorandum dated 12.3.1990.
c 10. With reference to the statement of the appellant dated
20.4.1989, it is also necessary to record, that we had an
impression during the course of hearing, that the above
statement would lead us to a clearer understanding of the truth
D of the matter. After the hearing concluded on 6.6.2014, we
required the learned counsel for the respondent to hand over
to us the record of the case. We had clearly indicated to
learned counsel, that the purpose for this was, that we wished
to examine the alleged statement of the appellant dated
E 20.4.1989, along with the record connected therewith. In
compliance, the summoned record was presented at the
residential office of one of us (J.S. Khehar, J.) on 7.6.2014. A
perusal of the record revealed, that the same did not comprise
of the appellant's alleged statement dated 20.4.1989, or the
record connected therewith. 11The said record was therefore
F
returned forthwith (on 7.6.2014 itself), by making the following
remarks:
"Mr. A.B. Rawi, Assistant Legal Advisor, Directorate of
Enforcement, Ministry of Finance, Government of India,
G Chennai office, alongwith Mr. B. Naveen Kumar, Assistant
Legal Advisor, Directorate of Enforcement, Ministry of
Finance, Government of India, Headquarters at New Delhi,
have visited the Residential office of Hon'ble Mr. Justice
Jagdish Singh Khehar, Judge, Supreme Court of India, 6,
H Moti Lal Nehru Marg, New Delhi - 110011, today on 7th
A. TAJUDEEN v. UNION OF INDIA 881
[JAGDISH SINGH KHEHAR, J.]
June, 2014 at about 1.30 pm to deliver a file containing A
original papers in the matter - Civil Appeal no. 5773 of
2009 (A. Tajudden vs. Union of India). Since the file does
not contain document dated 20.4.1989 (statement of the
appellant in the matter), for which the same was
summoned, the file is being returned herewith, as per the B
directions of the Hon'ble Judge.
Sd/-
(Deepak Guglani)
Court Master
7.6.2014 c
File received by:-
Sd/-
[Mr. A.B. Rawi]"
Needless to mention, that despite the above remarks no further D
record was ever brought to our notice. This is a seriously
unfortunate attitudinal display, leaving us with no other option
but to conclude, that the alleged statement made by the
appellant on 20.4.1989, may well be a fictitious creation of the
Enforcement Directorate. In such circumstances, reliance on
the appellant's alleged statement dated 20.4.1989, just does · E
not arise.
11. Having arrived at the aforesaid conclusion, we shall
now examine the veracity of the remaining evidence available
with the Enforcement Directorate, for substantiating the charges F
levelled against the appellant through memorandum dated
12.3.1990. Having discarded the statement dated 20.4.1989,
what remains is, the statements of the appellant - A. Tajudeen
recorded on 25.10.1989 and 26.10.1989, as also, the
statement of his wife T. Sahira Banu recorded on 26.10.1989. G
Besides the aforesaid statements, the remaining evidence
against the appellant is, in the nature of a "mahazar" prepared
on 25.10.1989, which was signed by two independent
witnesses, namely, R.M. Subramanian and Hayad Basha. In
addition to the above, the Enforcement Directorate also relied H
882 SUPREME COURT REPORTS [2014] 10 S.C.R.
A upon the newspaper sheets of the Hindu and Jansatha, in which
the bundles of notes recovered from the residence of the
appellant, were wrapped. Insofar as the Hindu newspaper
sheets are concerned, they were of the Delhi and Bombay
editions dated 19.2.1989, 14.4.1989, 23. 7.1989 and
B 4.10.1989. The sheets of the Jansatha newspaper also pertain
to its Delhi and Bombay editions of February, 1989 and
23.10.1989.
12. Insofar as the aforesaid remaining evidence is
c concerned, it was the vehement contention of the learned
counsel for the appellant, that the same was not sufficient to
discharge the onerous responsibility of the Enforcement
Directorate, to establish the charge levelled against the
appellant. It was the submission of the learned counsel for the
D appellant, that reliance could not be placed on the statements
made by the appellant, as also, his wife (on 25.10.1989 and
26.10.1989). In this behalf, it was sought to be cautioned, that
if this manner of establishing charges was affirmed, the officers
of the Enforcement Directorate, could easily compel individuals
E through coercion, threat and undue influence, as they had
allegedly done in this case, and then proceed to punish them,
on the strength of their own statements. It was submitted, that
in the facts and circumstances of this case, there was ample
opportunity available with the Enforcement Directorate, to
F establish the veracity of the statements made by the appellant
-A. Tajudeen and his wife T. Sahira Banu. In this behalf it was
pointed out, that the appellant has allegedly indicated, that
Abdul Hameed, the dispatcher of the funds, was originally from
his Village Pudhumadam in District Ramanathapuram. He also
G stated, that the said Abdul Hameed was related to him from
his paternal side. In the statements relied upon by the
Enforcement Directorate, the appellant had allegedly- also
disclosed, that Abdul Hameed had contacted him over the
telephone from Singapore. It was submitted, that all the above
H facts were verifiable. It was submitted, that it could not be
believed, that officers of the Enforcement Directorate did not
A. TAJUDEEN v. UNION OF INDIA 883
[JAGDISH SINGH KHEHAR, J.]
verify the authenticity of the factual position in respect of Abdul A
Hameed. It was further submitted, that the appellant in the
statement dated 20.4.1989 had mentioned, that the appellant,
on the instructions of Abdul Hameed of Singapore, dispatched
a sum of Rs. 60,000/- (out of total amount of Rs. 1,40,000/-) to
Shahul Hameed at Pudhumadam through his shop boy - B
Shahib. According to the learned counsel, the Enforcement
Directorate could have confirmed the aforesaid factual position
through Shahib. It is apparent, according to learned counsel,
that the aforesaid factual position was found to be incorrect,
and therefore, no further statements were recorded by the c
Enforcement Directorate, in connection therewith. It was also
submitted, that the appellant had produced before the Assistant
Director of Enforcement, a communication from the Revenue
Department of Singapore, dated 2. 9.1990 stating that, there
was no such address at no. 24, Sarangoon Road, Singapore, D
and as such, the very foundational basis of the statements made
by the appellant on 25.10.1989 and 26.10.1989 were rendered
meaningless. It was also submitted, that an Advocate had
enclosed a copy of the certificate issued by the Controller of
Property Tax, Singapore, depicting that no such address was E
there at Sarangoon Road, where the said Abdul Hameed was
alleged to be running his business.
13. In order to contend that the statements made by the
appellant - A. Tajudeen and his wife T. Sahira Banu could not
be relied upon in law, learned counsel for the appellant, placed F
reliance on K.T.M.S. Mohd. v. Union of India, (1992) 3 SCC 178
and invited our attention to the observations made in paragraph
34. The same is extracted hereunder:
34. We think it is not necessary to recapitulate and recite G
all the decisions on this legal aspect. But suffice to say that
the core of all the decisions of this Court is to the effect
that the voluntary nature of any statement made either
before the Custom Authorities or the officers of
Enforcement under the relevant provisions of the H
884 SUPREME COURT REPORTS [2014) 10 S.C.R.
A respective Acts is a sine quo non to act on it for any
purpose and if the statement appears to have been
obtained by any inducement. threat, coercion or by any
improper means that statement must be rejected brevi
manu. At the same time. it is to be noted that merely
B because a statement is retracted, it cannot be recorded
as involuntary or unlawfully obtained. It is only for the maker
of the statement who alleges inducement, threat, promise
etc. to establish that such improper means has been
adopted. However, even if the maker of the statement fails
c to establish his allegations of inducement. threat etc.
against the officer who recorded the statement. the
authority while acting on the inculpatory statement of the
maker is not completely relieved of his obligations in at
least subjectively applying its mind to the subsequent
retraction to hold that the inculpatory statement was not
D
·extorted. It thus boils down that the authority or any Court
intending to act upon the inculpatory statement as a
voluntary one should apply its mind to the retraction and
reject the same in writing. It is only on this principle of law,
this Court in several decisions has ruled that even in
E passing a detention order on the basis of an inculpatory
statement of a detenu who has violated the provisions of
the FERA or the Customs Act etc. the detaining authority
should consider the subsequent retraction and record its
opinion before accepting the inculpatory statement lest the
F order will be vitiated. Reference may be made to a
decision of the full Bench of the Madras High Court in
Roshan Beevi v. Joint Secretary to the Govt. ofT.N., Public
Deptt., [1983] LW (Crl.) 289, to which one of us (S.
Ratnavel Pandian, J.) was a party.
G
(emphasis is ours)
In order to supplement the legal position expressed in the
above extracted judgment, learned counsel for the appellant
H also placed reliance on Vinod Solanki v. Union of India, (2008)
A. TAJUDEEN v. UNION OF INDIA 885
[JAGDISH SINGH KHEHAR, J.]
16 SCC 537, by inviting our attention to the following conclusion A
recorded therein:-
"36. A person accused of commission of an offence is not
expected to prove to the hilt that confession had been
obtained from him by any inducement. threat or promise
B
by a person in authority. The burden is on the prosecution
to show that the confession is voluntarv in nature and not
obtained as an outcome of threat. etc. if the same is to
be relied upon solely for the purpose of securing a
conviction.
c
37. With a view to arrive at a finding as regards the
voluntary nature of statement or otherwise of a confession
which has since been retracted. the court must bear in
mind the attending circumstances which would include the
time of retraction. the nature thereof. the manner in which D
such retraction has been made and other relevant factors.
Law does not say that the accused has to prove that
retraction of confession made by him was because of
threat, coercion, etc. but the requirement is th~t it may
appear to the court as such. E
38. In the instant case, the investigating officers did not
examine themselves. The authorities under the Act as also
the Tribunal did not arrive at a finding upon application of
their mind to the retraction and rejected the same upon F
assigning cogent and valid reasons 18herefore. Whereas
mere retraction of a confession may not be sufficient to
make the confessional statement irrelevant for the purpose
of a proceeding in a criminal case or a quasi criminal case
but there cannot be any doubt whatsoever that the court is G
obligated to take into consideration the pros and cons of
both the confession and retraction made by the accused.
It is one thing to say that a retracted confession is used
as a corroborative piece of evidence to record a finding
of guilt but it is another thing to say that such a finding is H
886 SUPREME COURT REPORTS [2014] 10 S.C.R.
A arrived at only on the basis of such confession although
retracted at a later stage.
39. The appellant is said to have been arrested on
27.10.1994; he was produced before the learned Chief
8 Metropolitan Magistrate on 28.10.1994. He retracted his
confession and categorically stated the manner in which
such confession was purported to have been
obtained. According to him, he had no connection with any
alleged import transactions, opening ·of bank accounts, or
floating of company by name of M/s Sun Enterprises,
c export control, bill of entry and other documents or alleged
remittances. He stated that confessions were not only
untrue but also involuntary.
40. The allegation that he was detained in the Office of
D Enforcement Department for two days and two nights had
not been refuted. No attempt has been made to controvert
the statements made by appellant in his application filed
on 28.10.1994 before the learned Chief Metropolitan
Magistrate. Furthermore. the Tribunal as also the
E authorities misdirected themselves in law insofar as they
failed to pose unto themselves a correct question. The
Tribunal proceeded on the basis that issuance and
services of a show-cause notice subserves the
requirements of law only because by reason thereof an
F opportunity was afforded to the' proceedee to submit its
explanation. The Tribunal ought to have based its decision
on applying the correct principles of law.
41. The statement made by the appellant before the
G learned Chief Metropolitan Magistrate was not a bald
statement. The inference that burden of proof that he had
made those statements under threat and coercion was
solely on the proceedee does not rest on any legal
principle. The question of the appellant's failure to
H discharge the burden would arise only when the burden
A. TAJUDEEN v. UNION OF INDIA 887
[JAGDISH SINGH KHEHAR, J.]
was on him. If the burden was on the Revenue. it was for A
it to prove the said fact. The Tribunal on its independent
examination of the factual matrix placed before it did not
arrive at any finding that the confession being free from any
threat. inducement or force could not attract the provisions
of Section 24 of the Indian Evidence Act." B
(emphasis is ours)
· 14. The aforesaid submissions were sought to be refuted
by the learned counsel representing the Union of India, by
placing reliance on the findings recorded by the High Court, in C
the impugned judgment.
15. First and foremost, we shall endeavour to examine the
veracity of the statements made by the appellant-A. Tajudeen
and his wife T. Sahira Ba nu on 25.10.1989 and 26.10.1989 to D
the officers of the Enforcement Directorate. Before proceeding
with the factual controversy, it is essential to record, that from
the view we have taken in the ultimate analysis, the innocence
or guilt of the appellant will have to be determined on the basis
of the statements made by the appellant and his wife (on E
25.10.1989 and 26.10.1989) to the officers of the Enforcement
Directorate. Therefore, for the case in hand, the above
statements are not to be referred to as corroborative pieces
of evidence, but as primary evidence to establish the guilt of
the appellant. It is in this background, that we shall endeavour F
to apply the legal position declared by this Court, to determine
the veracity and reliability to the statements, which later came
to be retracted by the appellant and also by his wife. Insofar
as the above statements are concerned, there is no doubt
whatsoever, that they were all made either at the time of the G
raid, which was carried out by the officers of the Enforcement
Directorate at the residence of the appellant, or whilst' the'
appellant was in custody of the Enforcement Directorate.
Immediately after the appellant was released on bail by th~'
Additional Chief Metropolitan Magistrate, Madras /on H
888 SUPREME COURT REPORTS [2014] 10 S.C.R.
A 27 .10 .1989, on the same day itself, both the appellant - A
Tajudeen and his wife T. Sahira Banu addressed
communications to the Director, Enforcement Directorate, New
Delhi resiling from the above statements, by clearly asserting
that they were recorded under coercion and undue influence,
B and would not be binding on them.
16. Having given our thoughtful consideration to the
aforesaid issue, we are of the view that the statements dated
25.10.1989 and 26.10.1989 can under no circumstances
C constitute the sole basis for recording the finding of guilt against
the appellant. If findings could be returned by exclusively relying
on such oral statements, such statements could easily be thrust
upon the persons who were being proceeded against on
account of their actions in conflict with the provisions of the
D 1973 Act. Such statements ought not to be readily believable,
unless there is independent corroboration of certain material
aspects of the said statements, through independent sources.
The nature of the corroboration required, would depend on the
facts of each case. In the present case, it is apparent that the
E appellant -A Tajudeen and his wife T. Sahira Banu at the first
opportunity resiled from the statements which are now sought
to be relied upon by the Enforcement Directorate, to
substantiate the charges levelled against the appellant. We shall
now endeavour to examine whether there is any independent
F corroborative evidence to support the above statements.
17. According to the learned counsel representing the
appellant, there was an effective opportunity to the officers of
the Enforcement Directorate to produce evidence with
reference to a number of important facts, disclosed by the
G appellant while making the aforesaid statements, yet the
officers of the Enforcement Directorate chose not to
substantiate the same through independent evidence. He cited
a few instances where such evidence could have been easily
gathered by the officers of the Enforcement Directorate. In the
H absence of any corroboration whatsoever, it was submitted, that
A. TAJUDEEN v. UNION OF !NOIA 889
[JAGDISH SINGH KHEHAR, J.]
retracted statements made by the appellant -A. Tajudeen and A
his wife T. Sahira Banu, could not be used to record findings
against the appellant.
18. We have no doubt, that evidence could be gathered
to substantiate that Abdul Hameed, the person who is alleged
8
to have dispatched the money from Singapore, was a resident
of Village Pudhumadam in District Ramanathapuram, to which
the appellant also belongs. Material could also have been
gathered to show, whether he was related to the appellant from
his paternal side. Furthermore, the Enforcement Directorate c I
could have easily substantiated whether or not, as asserted by
the appellant, the aforesaid Abdul Hameed had contacted him
over telephone from Singapore, to inform him about the delivery
of the amount recovered from his residence on 25.10.1989.
Additionally, the Enforcement Directorate could have led
D
evidence to establish that the aforesaid Abdul Hameed with
reference to whom the appellant made statements on
20.4.1989, 25.10.1989 and 26.10.1989, was actually resident
of Singapore, and was running businesses there, at the
location(s) indicated by the appellant. Still further, the officers
of the Enforcement Directorate could have ascertained the
E
truthfulness of the factual position from Shahib, the shop boy
of the appellant -A. Tajudeen, whom he allegedly sent to hand
over a sum of Rs. 60,000/- to Shahul Hameed (a relative of
Abdul Hameed) of Village Pudhumadam. Had the statements
of the appellant and his wife been corroborated by independent F
evidence of the nature indicated hereinabove, there could have
been room for accepting the veracity of the statements made
by the appellant - A. Tajudeen and his wife T. Sahira Banu to
the officers of the Enforcement Directorate. Unfortunately, no
effort was made by the Enforcement Directorate to gather any G
independent evidence to establish the veracity of the allegations
levelled against the appellant, through the memorandum dated
12.3.1990. We are of the considered view, that the officers of
the Enforcement Directorate were seriously negligent in
H
890 SUPREME COURT REPORTS [2014] 10 S.C.R.
A gathering independent evidence of a corroborative nature. We
have therefore no hesitation in concluding that the retracted
statements made by the appellant and his wife could not
constitute the exclusive basis to determine the culpability of the
appellant.
B
19. We shall now deal with the other independent evidence
which was sought to be relied upon by the Enforcement
Directorate to establish the charges levelled against the
appellant. And based thereon, we shall determine whether the
C same is sufficient on its own, or in conjunction to the retracted
statements referred to above, in deciding the present
controversy, one way or the other. First and foremost, reliance
was placed on "mahazar" executed (at the time of the recovery,
from the residence of the appellant) on 25.10.1989. It would be
pertinent to mention, that the appellant in his response to the
0
memorandum dated 12.3.1990 had expressly refuted the
authenticity of the "mahazar'' executed on 25.10.1989. Merely
because the "mahazar" was attested by two independent
witnesses, namely, R.M. Subramanian and Hayad Basha, would
E not led credibility to the same. Such credibility would attach to
the "mahazar'' only if the said two independent witnesses were
produced as witnesses, and the a·ppellant was afforded an
opportunity to cross-examine them. The aforesaid procedure
was unfortunately not adopted in this case. But then, would the
preparation of the "mahazar" and the factum of recovery of a
F sum of Rs. 8,24,900/- establish the guilt of the appellant, insofar
as the violation of Section 9(1)(b) of the 1973 Act is
concerned? In our considered view, even if the "mahazar'' is
accepted as valid and genuine, the same is wholly insufficient
to establish, that the amount recovered from the residence of
G the appellant was dispatched by Abdul Hameed, a resident of
Singapore, through a person who is not an authorised dealer
in foreign exchange. Even, in response to the memorandum
dated 12.3.1990, the appellant had acknowledged the recovery
of Rs. 8,24,900/- from his residence, but that acknowledgment
H
A. TAJUDEEN v. UNION OF INDIA 891
[JAGDISH SINGH KHEHAR, J.]
would not establish the violation of Section 9(1 )(b) of the 1973 A
Act. In the above view of the matter, we are of the opinion that
the execution of the "mahazar" on 25.10.1989, is
inconsequential for the determination of the guilt of the appellant
in this case.
20. The only other independent evidence relied upon by B
the Enforcement Directorate is of pages from the Hindu and
the Jansatha newspapers, in which the bundles of money were
wrapped, when the recovery was effected on 25.10.1989. In
view of the position expressed in the foregoing paragraph, we .
are satisfied that the charge against the appellant under Section C
9(1 )(b) of the 1973 Act, cannot be established on the basis of
newspaper sheets, in which the money was wrapped. The
newspaper sheets relied upon, would not establish that the
amount recovered from the residence of the appellant - A.
Tajudeen was dispatched by Abdul Hameed from Singapore, D
through a person who was not an authorized dealer.
21. Based on the above determination, and the various
conclusions recorded hereinabove, we are satisfied, that the
impugned judgment passed by the High Court deserves to be E
set aside. The same is accordingly hereby set aside.
Resultantly, the entire action taken by the Enforcement
Directorate against the appellant in furtherance of the
memorandum dated 12.3.1990, is also set aside. As a
consequence of the above, the Enforcement Directorate is F
directed to forthwith refund the confiscated sum of Rs.8,24,900/
-, to the appellant, as also, to return the amount of Rs.1,00,000/
-, which was deposited by the appellant as penalty.
22. The instant appeal is, accordingly, allowed in the
G
abovesaid terms.
Rajendra Prasad Appeal allowed.
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