Enforcement Officer vs Laxmi Narayan Roy
2022 Latest Caselaw 424 Cal

Form J(2)        IN THE HIGH COURT AT CALCUTTA
                    Criminal Appellate Jurisdiction
                            Appellate Side

Present :
The Hon'ble Justice Bibek Chaudhuri

                          C.R.A. 46 of 2021

            Enforcement Officer, Enforcement Directorate
                                Vs.
                       Laxmi Narayan Roy


For Appellant:          Mr. Ranjan Roy

For the Respondent:     Mr. Mritunjoy Chatterjee
                        Mr. Debapriya Majumder


Heard on                : 07.02.2022 & 09.02.2022


Judgment On             : 09.02.2022


Bibek Chaudhuri, J.

This is an appeal filed by the competent officer of Enforcement

Directorate under Foreign Exchange Regulation Act, 1973 assailing

the judgment and order of acquittal passed by the learned

Metropolitan Magistrate, 11th Court at Calcutta from the charge

punishable under section 56 of Foreign Exchange Regulation Act

(hereafter described as FERA) for violation of Section 9(1)(b) and 9(1)

(d) and 63 of the said Act.

One D.N. Poddar in his official capacity as Enforcement Officer,

Enforcement Directorate of FERA lodged a complaint before the

learned Chief Metropolitan Magistrate at Calcutta alleging, inter alia,

that on 24th April, 1996, on the basis of a source information the

officers of the Enforcement Directorate conducted a search at the

residence and office of the respondent and recovered Indian currency

notes amounting to Rs.21.80 lakhs. They also seized some other

documents under proper seizure list at the spot in presence of

independent witnesses. It is further stated by the complainant that in

pursuance to a notice under Section 40 of FERA the accused gave

voluntary statements on 24th April, 1996 stating, inter alia, that he

was engaged in receiving and making payments from and to different

persons in India on commission basis at the rate of Rs.200/- on each

one lakh rupees against Bangladeshi currency notes under the

instruction of Bangladeshi nationals namely, Osman Ali Lomex, Chand

Ali Sk. and Nirmal Kumar Saha. The accused also admitted that he is

not an authorized dealer in foreign exchange. He was doing such

business without any licence required under FERA. It is further stated

by the complainant that during the period between September, 1995

to 23rd April, 1996 the accused received a sum of Rs.91,12,300/- from

different persons and made payments of Rs.69,32,300/- under the

instruction of the above named three Bangladeshi nationals. Thus,

the accused illegally accumulated a sum of Rs.21.80 lakhs from the

commission for conversion of Bangladeshi currency notes to Indian

currency notes and payment of the same to different persons.

On the basis of the said complaint the learned Chief Judicial

Magistrate took cognizance of offence under Section 56 of the FERA

for violation of the provisions of Section 9(1)(b) and 9(1)(d) and 63 of

the said Act and sent the case record to the 11 th Court of the learned

Metropolitan Magistrate, Calcutta for trial and disposal.

The learned Magistrate, 11th Court at Calcutta framed charge

against the accused. He pleaded not guilty when the charge was read

over and explained to him. Subsequently, trial of the case

commenced. During trial three witnesses were examined on behalf of

the complainant. The accused was examined under Section 313 of

the Code of Criminal Procedure. He also adduced evidence as D.W.1.

It is the specific defence of the accused that he was engaged in

construction business at the relevant point of time. He was

developing a plot of land by raising construction. The amount which

was seized by the officers of the Enforcement Directorate was earned

by him by carrying on construction business.

The learned Magistrate on consideration of the evidence on

record and the respective cases of the parties held that the

complainant failed to establish the charge against the accused and,

therefore, he passed an order of acquittal.

The said judgment and order of acquittal passed in Complaint

Case No.1479 of 2001 is assailed in the instant appeal.

Mr. Roy, learned advocate on behalf of the Enforcement

Directorate, the appellant herein, has made a very short but pertinent

submission, which requires due consideration of this Court. According

to Mr. Roy, the accused made a confessional statement before the

competent officer under FERA in his own hand writing admitting his

guilt that he was engaged in conversion of foreign currency notes and

used to receive commission at the rate of Rs.200/- per lakh. It is also

admitted by him that he is carrying on such business under the

instruction of three Bangladeshi nationals. It was his job to convert

Bangladeshi currency notes to Indian currency notes and make

payment of such money to different persons. He also used to

maintain a record of payment of money by his own hand writing in a

notebook. In the same notebook payment of money to different

persons was recorded by him in symbolic manner which he mentioned

before the Enforcement Directorate. It is submitted by Mr. Roy that

the said document was marked exhibits during trial of the case. The

learned trial Judge failed to appreciate the extra judicial confession

made by the accused and the explanation given by the accused in his

statement before the Enforcement Officer stating the manner in which

the money was transacted and payment was made to different

persons.

It is further submitted by Mr. Roy that the accused undoubtedly

retracted from his previous confessional statement in course of his

examination under Section 313 of the Code of Criminal Procedure. On

the other hand, he took a specific plea that he earned the said money

which was seized by construction business. According to Mr. Roy,

when the accused took the specific alibi of receipt of money from

construction business and not as commission for foreign exchange in

violation of FERA, it was the duty of the accused to prove such alibi

during trial of the case. However, the accused failed to discharge his

prudence to prove such alibi.

Learned trial Judge acquitted the accused relying on the defence

plea that the accused had earned the seized money by construction

business.

Mr. Roy further submits that the Learned Magistrate refused to

rely on the evidence of the witnesses on behalf of the complainant on

the ground that they are the Officers and Police personnel attached to

Enforcement Directorate. Placing reliance of a decision of the Hon'ble

Supreme Court in the case of C. Ronald & Anr. -Vs.- U.T. of

Andaman & Nicobar Islands reported in AIR 2011 SC (Supp.)

673 it is submitted by Mr. Roy that there is no principle of law that a

statement made in Court by a Police personnel has to be disbelieved.

It may or may not be believed. It is not that all Policemen will tell lie.

There are good and bad people in all walks of life. There are good or

bad Police men as well. We cannot assume that every statement of a

Policeman is necessarily false. Coming to the instant case, it is

submitted by Mr. Roy that the defence failed to show that the

witnesses on behalf of the complainant were making false statement

in the Court. They had no previous enmity with the

accused/respondent. Therefore, the Learned Trial Court erred in law

in disbelieving the evidence of the Officers and personnel of

Enforcement Directorate.

Mr. Roy also relies on another decision of the Hon'ble Supreme

Court in State of Haryana -Vs.- Sher Singh & Ors. reported in

AIR 1981 SC 1021. In the said report, it is held that when an

accused pleads alibi, the burden is on him to prove it under Section

103 of the Evidence Act. In the instant case, the accused failed to

prove the alibi which he took during trial after retracting his previous

confessional statement. Thus, it is submitted by Mr. Roy, Learned

Counsel for the appellant that the Learned Magistrate erred both in

law and fact in recording the order of acquittal in favour of the

respondent.

The Learned Advocate for the respondent, on the other hand,

submits that the case of the complainant was that a sum of Rs.21.80

lakh was seized from the possession of the accused in presence of

independent witnesses. During trial, prosecution failed to examine in

all the independent witnesses to prove search and seizure. The

offence under FERA is essentially based upon search and seizure of

currency notes. Under such circumstances, non-examination of

independent witnesses is fatal for the prosecution.

Learned Advocate for the respondent further submits that the

accused while examination as D.W. 1 has proved by filing series of

documents that he was engaged in construction business. Exhibit -

'A' to 'L' are the documents from which it was proved beyond all

shadow of doubt that the accused entered into an agreement of

development of land. He purchased the land with other persons.

Thereafter, it was developed. He accumulated money for

development of land by selling ornaments of his wife and other near

relations. The sale receipt of the ornaments were exhibited during

trial of the case as Exhibit - 'H' to Exhibit - 'L' and accordingly, he was

able to prove by filing statement of account, the source of money

amounting to Rs.21.80 lakh which was seized by the Enforcement

Directorate.

Section 9(1)(b) of FERA, 1973 prohibits any person in, or

resident in, India to receive, otherwise than through an authorized

dealer any payment by order or on behalf of any person resident

outside India. Clause (d) of Sub-Section 1 of Section 9 prohibits a

person in, or resident in India to make payment to or for the credit, of

any person by order or on behalf of any person resident outside India.

Section 63 of the said Act speaks of confiscation of currency, security

etc.

At the risk of repetition, let me recapitulate the complaint case.

It is alleged by the Enforcement Directorate that the accused under

the instruction of Bangladeshi nationals made payment of Indian

currency notes to various persons and received commission at the

rate of Rs.200/- per one lakh. In order to prove such offence under

Section 9(1)(a) of the said Act it was incumbent upon the complainant

to produce the persons to whom such payment was allegedly made.

The complainant did not take any attempt to produce the persons to

whom payment was allegedly made by the accused persons under the

instruction of three Bangladeshi nationals.

Prosecution case is entirely based on confessional statement. It

is submitted by Mr. Roy that the accused not only made the

confessional statement before the Enforcement Directorate but he

made a statement in writing where he clearly admits his guilt. It is

needless to say that the authorities under the FERA are not Police

Officers and in confessional statement made by an accused before the

Enforcement Directorate is admissible in evidence.

However, admissibility and probative value of a particular

statement are two different aspects which requires to be considered in

the instant appeal. It is needless to say that confessional statement

is not a substantive piece of evidence. It is corroborative in nature.

Moreover, when a confessional statement is retracted its evidentiary

value loses in view of the fact that the Court is required to weigh the

probative value of two statements - one in the nature of confession

and another in the nature of retraction. During trial of the case, the

accused took a plea that his confessional statement was recorded by

force and coercion. It is also specifically pleaded by the accused that

he accumulated the seized money from his construction business. In

order to prove that he is engaged in construction business, the

respondent submitted series of documents during trial of the case.

The Learned Trial Court accepted the defence version.

It is needless to say that in the instant case two views are

apparent on the face of the record. First, the allegation of

accumulation of money by way of illegal foreign exchange and

payment of money illegally to different persons and secondly, the

accused accumulated money by way of construction business.

It is no longer res integra that when two views are possible, the

view that help the accused and in favour of him shall be accepted.

For the reasons stated above, I do not find any merit in the

instant appeal. Accordingly, the appeal is dismissed on contest. The

judgment and order of acquittal passed by the Learned Magistrate,

11th Court at Calcutta is affirmed.

The accused is discharged from his bail bond.

Let the Lower Court Record be sent to the Learned Court below.

Office is directed to supply the urgent certified copy of this

order to the Learned Advocates for the parties on the usual

undertakings.

(Bibek Chaudhuri, J.)

Suman/Srimanta A.Rs. (Court)