Case Note & Summary
This appeal before the Supreme Court arose from a challenge to summons issued under Section 40 of the Foreign Exchange Regulation Act, 1973 (FERA). The appellant, C. Sampath Kumar, contended that the Enforcement Officer, Enforcement Directorate, Madras, could not compel him to give a written statement in connection with an alleged offence under FERA. After the respondent issued summons, the appellant appeared on 15 May 1996 and his statement was recorded. Further statements were recorded on 9 July 1996 and 12 July 1996. The appellant then filed a writ petition in the High Court challenging the summons; the precise grievance was that he could not be compelled to give a statement in writing. A learned Single Judge dismissed the writ petition after detailed discussion. The appellant's writ appeal was dismissed at the admission stage by a detailed order of the High Court dated 28 March 1996 in Writ Appeal No. 329 of 1996. The appellant then obtained special leave to appeal to the Supreme Court. Before the Supreme Court, learned counsel for the appellant did not dispute that a person summoned under Section 40 of FERA may be called upon to give his statement in writing and sign it, and that such a course is not prohibited either by the statute or the Constitution. The Court held that there is no presumption that such a statement is always involuntary. It relied on the Constitution Bench decision in Amba Lal v. Union of India, AIR 1961 SC 264, which observed that obtaining a written statement under the signature of the maker safeguards the interest of the maker as well as the department and eliminates the possibility of a subsequent complaint that the statement was not correctly recorded. The appellant, however, urged that he could not be compelled to give such a statement. He asserted that the statements were extracted under compulsion, a fact denied by the respondents. The Court noted that apart from the appellant's assertion, there was no other material on record from which any element of compulsion could be assumed. Despite being given opportunities to file copies of the statements to satisfy the Court whether any compulsion was visible, the appellant withheld those copies. The Court observed that copies ought to have been filed with the special leave petition itself. Therefore, it was not possible for the Court to assume that any compulsion was exercised. The Court further held that administration of caution to a person summoned under Section 40 FERA that not making a truthful statement would be an offence cannot by any stretch be construed as use of pressure to extract the statement. Such caution has statutory backing under Section 40(3) of FERA and is actually in the interest of the person making the statement in view of Section 40(4). The Court found no merit in the appeal and dismissed it, vacating the interim direction. The appellant was directed to pay Rs.5,000 as costs.
Headnote
A) Constitutional Law - Right Against Self-Incrimination - Compulsion to Give Written Statement - Foreign Exchange Regulation Act, 1973, Section 40 - The appellant challenged summons under Section 40 FERA alleging he cannot be compelled to give a written statement in connection with an offence; the court held that a person summoned under Section 40 may be called upon to give statement in writing and sign it and such course is not prohibited by the statute or the Constitution. Held that no presumption arises that such statement is always involuntary (Paras 1-2). B) Evidence - Voluntariness of Statement - Presumption of Involuntariness - Foreign Exchange Regulation Act, 1973, Section 40 - The court relied on Amba Lal v. Union of India, AIR 1961 SC 264 to hold that obtaining a written statement under signature safeguards the interest of the maker and the department and eliminates subsequent complaints of incorrect recording. Held that the statement is not presumed involuntary (Paras 1-2). C) Criminal Procedure - Caution to Person Summoned - Statutory Caution Under Section 40(3) FERA - Foreign Exchange Regulation Act, 1973, Sections 40(3), 40(4) - The administration of caution that not making a truthful statement would be an offence could not be construed as use of pressure to extract statement; such caution has statutory backing and operates in the interest of the person making the statement in view of Section 40(4). Held that caution does not amount to compulsion (Paras 1-2). D) Evidence - Burden of Proof - Allegation of Compulsion - Foreign Exchange Regulation Act, 1973, Section 40 - Appellant asserted statements were extracted under compulsion but failed to produce copies of statements despite opportunity; court held no material on record to assume compulsion; copies should have been filed with special leave petition. Held that appeal dismissed with costs (Paras 1-2).
Issue of Consideration
Whether a person summoned under Section 40 of the Foreign Exchange Regulation Act, 1973 can be compelled to give a written statement; whether such statement is presumed involuntary; whether administration of caution amounts to compulsion.
Final Decision
Appeal dismissed; interim direction vacated; appellant directed to pay Rs.5,000/- as costs.
Law Points
- A person summoned under Section 40 FERA may be called upon to give statement in writing and sign it
- such course is not prohibited by statute or Constitution
- no presumption that such statement is always involuntary
- obtaining written statement under signature safeguards interest of maker and department
- administration of caution under Section 40(3) FERA is not compulsion or pressure
- burden lies on person alleging compulsion to place material before court
