C.Jayachandran, J.

1. This Miscellaneous First Appeal challenges the Order of the Appellate Tribunal for Foreign Exchange, in Revision Petition No.260/2001, which allowed the revision reversing the adjudication order of acquittal in AD/MAS/45/2000 (KSA). The Revisional Authority found the charges levelled against the appellant, of contravention of Sections 9(1)(b) and 9(1)(d), read with Section 64(2), of the Foreign Exchange Regulation Act, 1973 ('FERA', for short) to be proved and directed confiscation of the seized amount of Rs.6,10,000/-, besides imposing a penalty of Rs.5,00,000/-.

2. Heard Sri.Joshi N.Thomas, learned counsel for the appellant and Sri.Jayasankar V.Nair and Smt.Mini Gopinath, learned Standing Counsel for the Enforcement Department (hereinafter referred to as 'the E.D.').

3. In accord with the requirements of Section 35 of the Foreign Exchange Management Act, 1999 (for short, 'FEMA) we re-frame the questions of law, which arise in the instant appeal as here under :

(I) Whether the failure, if any, of the Appellate Tribunal in deciding the question of maintainability of the revision as directed by this Court in O.P.No.27071/2001 vitiates the impugned order

(II) Whether a revision petition is maintainable without exhausting the remedy of appeal provided under the FEMA, 1999

(III) Whether the observations made by the Division Bench of this Court in M.F.A.No.614/2001 about the present appellant's case in paragraph no.4 of the judgment binds the Appellate Tribunal or this Court Whether the order impugned is vitiated for having taken a decision contrary to such observations made by the Division Bench

(IV) In exercise of the revisional powers under Section 19(6) of FEMA, or for that matter, u/s. 52(4) of FERA, whether the Appellate Authority can reverse an order of acquittal to that of conviction

(V) Whether the impugned order is vitiated on the ground of perversity, on the appreciation of the facts and circumstances and the evidence on record

4. Before addressing the points formulated on law, we will refer to the essential facts required for disposal of this appeal.

5. The appellant was apprehended at Karipur Airport on 16.10.1991 by the Customs Preventive Unit and currency notes for Rs.6,10,000/- and a list containing the names of certain persons were seized from him. Suspecting violation of FERA, 1973, the Customs Authorities handed over the seized amount and the document to the E.D. The investigation revealed that the appellant was a carrier in currency, engaged by one Salamath at Mumbai, on the instructions of one Razak at P.O.No.9898, Oman. According to the prosecution, the appellant reached Bombay on 15.10.1991, met Sri.Salamath at Star Hotel in Mohammedali Road, Bombay and as per the telephonic instructions given by Razak to Salamath and the accused in the night, Salamath gave Rs.6,10,000/- to the appellant on 16.10.1991, along with five lists containing the names and addresses of certain persons, to whom the amounts are to be distributed. The understanding was that the appellant will handover the amount to one Mustafa, the younger brother of Razak, who, in turn, will distribute the amounts to the persons named in the lists. The appellant, who reached Karipur on a ticket arranged by Salamath, was intercepted and apprehended by the Customs Officers, who seized the money and documents from him, as referred above. The conduct of the appellant amounts to contravention of Sections 9(1)(a) & 9(1)(d) read with Section 64(2), of the FERA, 1973. A further charge under the same provisions was levelled against the appellant for a similar transaction of Rs.5,00,000/- carried out by him on 06.10.1991, based on his voluntary statement.

6. As per Adjudication Order dated 23.8.2000, the appellant was found not guilty and was acquitted of the charges. The Adjudicating Officer found that the alleged confessional statement of the appellant cannot be acted upon, firstly for the reason that the accused/appellant was coerced to subscribe to such confession, while he was illegally detained from 17.10.1991 to 21.10.1991; and secondly, for the reason that the so-called confession was retracted by the accused on 2.11.91. The Adjudicating Officer also found that the investigation was thoroughly improper, that neither Mustafa, nor Salamath, nor Razak could be apprehended by the investigating agency and that they failed to establish the link, if any, by and between the appellant and the said Razak, on whose order, the appellant received payment so as to constitute the offences alleged. The Adjudicating Authority further held that the amounts seen from the slip seized from the appellant with the names of persons to whom the money was intended was far more than the amount recovered from the appellant.

7. Challenging the Adjudicating Order, the E.D. preferred a revision as R.P.No.260/2001 before the Appellate Tribunal. The present appellant challenged the maintainability of the revision before this Court in O.P.No.27071/2001. The Original Petition was disposed of by order dated 8.7.2003 holding that the present appellant is entitled to raise all contentions before the Tribunal, including the one on maintainability of the revision and directing the Tribunal to consider and dispose of the same in accordance with law.

8. By the impugned order, the Appellate Tribunal allowed the revision, found the appellant/accused guilty of the charges and directed confiscation of the seized amount, besides imposing a penalty of Rs.5,00,000/-, which order is under challenge before us.

9. Having addressed the facts, we will now consider the questions of law framed.

Questions No.I & II:-

On the 1st question framed we are not convinced that the judgment in O.P.No.27071/2001 was placed before the Tribunal. Be that as it may, a preliminary question of maintainability has to be considered by the Tribunal, if raised. That the question was raised is clear from a perusal of the impugned order, which clearly indicates that the Tribunal blandly rejected the ground raised on maintainability, without any reasoning, whatsoever. However, we do not find that the impugned order is vitiated for that reason alone, more so when we proceed to consider the question of maintainability straight away.

10. Incidentally, we may have to observe that the offence, as also the proceedings, were governed by the FERA, 1973 at the time of commission of the offence in the year 1991. However, the adjudication order is dated 23.8.2000, by which time FERA, 1973 was repealed by FEMA, 1999, which was brought into force with effect from 1.6.2000. Learned counsel for the appellant contended that both under the FERA and FEMA, there exists provision for appeal to challenge an adjudication order; which would have been the proper remedy. While Section 52 of FERA provides such appeal, the corresponding provision in FEMA is Section 19. Though Section 52(4) of FERA and Section 19(6) of FEMA contemplates a revision, the scope of such proceeding is limited to examine the legality, propriety and correctness of an order made by the Adjudicating Authority. Inasmuch as FEMA, 1999 was governing the field at the time of delivering the adjudication order, the provision for an appeal to the Special Director (Appeals) under Section 17 ought to have been resorted to by the E.D., the Adjudicating Order being one issued by an officer in the rank of Assistant Director. In short, a revision under Section 19(6) is not maintainable, in view of the appellate provisions afore-referred, is the argument of the learned counsel.

11. We cannot endorse the above submission of the learned counsel for the appellant/accused. We notice that the Appellate Board under FERA was replaced by the Appellate Tribunal constituted under FEMA. Inasmuch as the Adjudication Order was passed after the FEMA came into force, an appeal from an adjudication order has to be filed before the authority constituted under FEMA. It is true that the adjudication order could have been challenged by preferring an appeal under Section 17 before the Special Director (Appeals). However, we are of the opinion that Section 17 does not, in any manner, impinge on or limit the revisional powers of the Appellate Tribunal in terms of Section 19(6) of FEMA. Going by the language employed in Section 19(6), any order passed by the adjudicating authority can be examined by the Appellate Tribunal, with a supplemental power bestowed on it to 'make such order in the case as it thinks fit'. We also notice that the analogy sought to be drawn by the counsel for the appellant by resorting to the revisional powers under the Code of Criminal Procedure is also devoid of any merit or substance. It is only because of a specific embargo contained in Section 401(4) of the Code that a revision is not maintainable in respect of an order, from which an appeal lies and no such appeal is brought in. In the absence of a corresponding bar/embargo in the revisional powers under Section 19(6) of FEMA, it cannot be held that a revision is not maintainable, without exhausting the remedy of an appeal. We therefore reject the appellant's contention that the revision before the Tribunal was not maintainable since the statute provides for an appeal from the adjudication order. Both the questions of law are answered against the appellant.

12. Question No.III:-

M.F.A.No.614/2001 was preferred by one Thiddil Mohammed Kunhi, who was also intercepted and apprehended by the Customs Officials on 16.10.1991 at Karipur Airport and who was also allegedly a carrier of money. When the Adjudication Order acquitting the appellant herein was holding sway, the appellant in M.F.A.No.614/2001 canvassed a contention that the appellant herein was acquitted on similar facts and therefore, he is entitled to a similar treatment. Distinguishing on facts, the contention was rejected by a Division Bench of this Court with the following observations:

”4. Thirdly it was submitted that in a similar case in Appeal No.244 of 1993 of Foreign Exchange Regulation Appellate Board wherein, one Yahutti, who was intercepted on the same day, was found guilty. But, his case was remanded by the appellate authority and he was finally acquitted. Rs.6,10,000/- was seized from Yahutti. He did not claim that it is his own money. He proved the source of money with materials. It was properly accounted. It was the money collected for job visas to be returned to the travel agent. Facts are entirely different.”

13. First of all, reference to Yahutty's case in M.F.A.614/2001 was only for the purpose of distinguishing the facts in the case of Yahutty (present appellant), in juxtaposition with the facts involved in that miscellaneous first appeal, and that too, in answer to a contention that the appellant in the M.F.A. is entitled to be treated similar.

14. Secondly, the Division Bench only took stock of the order of remand and the consequent acquittal of Yahutty; which was passed by the Adjudicating Authority, which had not achieved finality. The Division Bench in that M.F.A. had not considered the merits of the case against Yahutty, the appellant herein, and had merely noticed the findings in the order of the Adjudicatory Authority; for the purpose of distinguishing it. It cannot hence be argued that such observations made would conclude the case against Yahutty and preclude consideration in an appeal or revision filed from that order. The observations in M.F.A.No.641 of 2001 hence cannot have the strength of a binding precedent, especially since as held in Union of India v. Dhanwanti Devi [(1996) 6 SCC 44] [LQ/SC/1996/1324] : “A decision is only an authority for what it actually decides”. Moreover we see from the facts of this case that the contention regarding repayment of money by travel agents to Musthafa was a bland assertion, without any substantiation. There was also no source substantiated by the appellant.

15. The third question of law is also answered against the appellant.

16. Question No.IV:-

Whether the revisional authority can reverse an order of acquittal to one of conviction is the legal issue involved herein. The learned counsel invited the attention of this Court to the revisional powers of the Court under Section 397 Cr.P.C., to argue that an order of acquittal cannot be converted to one for conviction. By parity of reasoning, the Appellate Tribunal, in exercise of the revisional powers under Section 19(6), also cannot do that, is the argument.

17. Here, again, we cannot but reject the appellant's contention. We notice that the power of the High Court, as also the Sessions Court (by virtue of Section 399 Cr.P.C.) is governed by Section 401 of the Code, which contains a specific embargo of converting a finding of acquittal into one of conviction. We extract Section 401(3) herebelow:-

“401. High Court's powers of revision.-

(3) Nothing in this section shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction.”

18. There is no corresponding bar on the revisional powers under Section 19(6) of FEMA, 1999 which also is extracted herebelow:

“19. Appeal to Appellate Tribunal-

(6) The Appellate Tribunal may, for the purpose of examining the legality, propriety or correctness of any order made by the Adjudicating Authority under section 16 in relation to any proceeding, on its own motion or otherwise, call for the records of such proceedings and make such order in the case as it thinks fit.”

[underlined by us for emphasis]

19. The absence of a provision akin to S.401(3) as contained in the Code, coupled with the specific power bestowed on the Tribunal by virtue of Section 19(6) to 'make such order in the case as it thinks fit' expounds the power of the Tribunal to make any order in the fitness of things, including the one converting an order of acquittal to that of a conviction, provided the attendant facts and circumstances justify the same. The fourth question of law is answered thus; again against the appellant.

Question No.V:-

20. The sheet anchor of the appellant's argument is that the conviction made by the revisional authority in the impugned order is solely based on a retracted confession alleged to have been made by the appellant/accused, which is not supported by any corroborative piece of evidence. The adjudicating authority which acquitted the appellant at the first instance refused to take stock of the confessional statement of the accused, finding that he was illegally detained by the Enforcement Directorate from 17.10.91 till he was formally arrested on 21.10.91, wherefore, his statement under Section 40 of FERA recorded on 19.10.91 is hit by Section 24 of the Evidence Act. The relevant findings of the adjudicating authority is extracted herebelow:-

“Shri Yahutty after seizure of documents and money by Central Excise Officers was handed over to Enforcement Directors, Calicut on 17.10.91 with a direction that the seized documents indicated compensatory payments in nature. As per the statement, Shri Yahutty appeared before the Enforcement Officer on 19.10.91 and has given the statement as per the summons under section 40, which means Shri Yahutty was allowed to go scot free without recording statement on 17.10.91 knowing fully well that the documents which were seized related to compensatory payment. But records shows that the residence of Shri Mustafa was searched on 18.10.91 under section 37 of the Foreign Exchange Regulation Act, 1973, which means that Shri Yahutty was examined on 17.10.91 but no statement was recorded. Similarly as per the statement dt. 21.10.91, he was again allowed to go scot free on 19.10.91 and appeared in the Office with respect to summons and his statement was recorded. If Shri Yahutty can be allowed to go scot free without recording the statement on the ground that he would appear again and again with respect to summons, there is no necessity for arresting him on 21.10.91. This only gives reasons to believe that Shri Yahutty was in the custody of the Officers right from 17.10.91 till the date he was produced before the Magistrate at Ernakulam. Shri Yahutty has retracted from his statement on 2.11.91, for which a reply dt. 6.11.91 has been given by the Assistant Director, Enforcement Directorate, Calicut. A perusal of this reply shows that the Assistant Director has failed to answer the contention of Shri Yahutty that he was illegally detained right from 17.10.91 in the Office of the Enforcement Directorate, Calicut.”

21. Per contra, the revisional authority held, as regards the confessional statement, that the appellant/accused failed to prove that the statement was extracted by inducement, threat or promise. The revisional authority relied upon the judgments of the Hon'ble Supreme Court in 1) K.T.M.S. Mohd. v. UOI [(1992) 3 SCC 178] [LQ/SC/1992/363] and 2) K.I.Pavunni v. Asst. Collector [(1997) 3 SCC 721] [LQ/SC/1997/170] to find that even a retracted confession can be relied upon for the purpose of conviction, though practise and prudence requires a court to seek corroboration from other evidence adduced by the prosecution. The Appellate Tribunal found that the confessional statement of the accused is amply corroborated by the statements of intended recipients of the money, as also, by the seizure of documents and recovery of substantial amount from the appellant/accused; the source of which was not established. The Tribunal also placed reliance upon the burden cast on the person proceeded against for contravention under Section 71 of the FERA to prove that he had requisite permission to do the act, in respect of which contravention is alleged.

22. Having heard the learned counsel appearing on both sides and perused the records, we are only inclined to affirm the order impugned of the Appellate Authority. We may first record the legal position that the Enforcement Officer (to whom the appellant gave the confessional statement on 19.10.91) is not having the status of a police officer for the purpose of Section 25 of the Evidence Act, as reiterated in the following judgments:-

1. Badaku Joti Savant v. State of Mysore [AIR 1966 SC 1746 [LQ/SC/1966/69] ]

2. Ramesh Chandra Mehta v. State of West Bengal [AIR 1970 SC 940 [LQ/SC/1968/323 ;] ]

3. Percy Rustomji Basta v. State of Maharashtra [(1971) 1 SCC 847] [LQ/SC/1971/184]

23. The remaining question is whether the confessional statement of the appellant was hit by Section 24 of the Evidence Act, which also takes us to the incidental question, whether the appellant was in illegal detention of the Enforcement Directorate from 17.10.1991 to 21.10.1991. We have carefully gone through the reasons set out in the Adjudication Order answering the above question in the affirmative, to find that such reasons are not at all convincing. The Adjudicating Authority had essentially proceeded on assumptions, instead of proof, sidelining the fact that the accused appeared on 19.10.91 only on summons to give the statement under Section 40 of FERA. The Adjudicating Authority wrongfully assumed that the appellant would not have been allowed to go scot-free without recording his statement on 17.10.91 after seizure of the documents and money. It was fanciful for the Adjudicating Authority to imagine that if the appellant was appearing again and again on summons, there was no necessity for arresting him on 21.10.91. We are of the definite opinion that an allegation, as grave as inducement, threat or promise to extract a confession so as to constitute the vice under Section 24, cannot be found on such surmises and conjectures. The very fact that the appellant appeared on summons on 19.10.91, which remains uncontroverted, itself, is sufficient to hold that he was not under any custody, so as to invite the wrath of Section 26 of the Evidence Act. A perusal of Section 40(3) of the FERA, 1973 indicates that a person summoned shall be bound to state the truth, together with a rigor under Section 40(4) that the proceeding recording the evidence under Section 40 is a deemed judicial proceeding, within the meaning of Sections 193 and 228 of the Penal Code. Here, we notice that, on the one hand, the legal presumption is that what is stated in terms of Section 40 is nothing but the truth. On the other hand, if at all there is a compulsion on the person summoned to speak the truth, the same is statutory in character and not by virtue of a threat made by the Enforcement Officer, who does not come within the scope of Section 24 of the Evidence Act.

24. In the light of the above discussion, we find that the confessional statement of the appellant is not hit by Sections 24, 25 or 26 of the Evidence Act and hence liable to be acted upon for the purpose of conviction, subject to the practical requirement of prudence and practise, to look for other corroborative piece of evidence.

25. We will now refer to the contents of the confessional statement made by the appellant, which is referred to in detail by the Adjudicating Authority in its order dated 23.8.2000 and hence not repeated, for the sake of brevity. Suffice to note that the appellant spoke of having gone to meet Sri.Salamath at Bombay on 03.10.1991 and a sum of Rs.5,00,000/- being handed over to him by the said Salamath on the instructions of one Razak of Oman. The appellant was instructed to handover the amount to Sri.Mustafa, the younger brother of the said Razak. The appellant returned on 06.10.1991 with the entrusted money, reached Karipur Airport and gave Rs.5,00,000/- to Sri.Mustafa. Again, the appellant reached Bombay on 15.10.1991 and met Salamath who entrusted Rs.6,10,000/- to the appellant for being handed over to Mustafa as was done earlier. However, when he reached Karipur Airport on 16.10.1991, he was apprehended by the Customs Preventive Team and Rs.6,10,000/- along with the list of persons to whom the amounts are to be distributed were seized. He also gave a statement to the effect that but for his apprehension by the Customs Officers, he would have entrusted the amount to Mustafa as directed by the above said Razak of Oman.

26. The Adjudicating Authority also recorded that the appellant Yahutty confirmed his statement given on 19.10.91, when he was again examined on 21.10.91 under Section 40 of the FERA.

27. Having gone through the above confessional statement of the appellant, we are of the view that prima facie reliance can be placed upon the same to find the guilt of the appellant, subject, of course, to the corroboration required to be sought for. We are of the view that retraction of the confession by the appellant on 2.11.91 will not seriously impact the legal effect of the confessional statement, which is otherwise found to be credible. It is also very significant that the appellant when produced before the Magistrate, who remanded him to judicial custody, did not speak of any threat or coercion, by the arresting officers or the alleged detention from 16.10.1991. The following observations of a four member bench of the Apex Court in Pyare Lal v. State of Rajasthan [AIR 1963 SC 1094 [LQ/SC/1962/345] ] would amplify the legal position in this regard.

"7. The second argument also has no merits. A retracted confession may form the legal basis of a conviction if the court is satisfied that it was true and was voluntarily made. But it has been held that a court shall not base a conviction on such a confession without corroboration. It is not a rule of law, but is only a rule of prudence. It cannot even be laid down as an inflexible rule of practice or prudence that under no circumstances such a conviction can be made without corroboration, for a court may, in a particular case, be convinced of the absolute truth of a confession and prepared to act upon it without corroboration; but it may be laid down as a general rule of practice that it is unsafe to rely upon a confession, much less on a retracted confession, unless the court is satisfied that the retracted confession is true and voluntarily made and has been corroborated in material particulars. The High Court having regard to the said principles looked for corroboration and found it in the evidence of Bishan Swaroop, P.W.7 and the entry in the Dak Book, Ex PA, 4, and accepted the confession in view of the said pieces of corroboration. The finding is one of fact and there is no permissible ground for disturbing it in this appeal.”

28. We will now seek corroboration to the evidence let in by virtue of the confessional statement.

(1). The accused was caught red handed at 12 midnight on 17.10.1991 at Karipur Airport and recovery of a substantial sum of Rs.6,10,000/- was effected from him, which he could not account for. The appellant had no supporting document or credible explanation for the possession of the currency notes.

(2). Along with the money, a list containing the names and addresses of certain persons was recovered from the appellant when he was intercepted at Karipur Airport. According to the prosecution, the persons referred to in the list are those to whom the money brought in by the appellant were to be handed over. The Adjudicating Authority found that the amounts in the slip and the cash in hand did not tally. The facts disclose the appellant to be a carrier and it cannot be assumed that he would be the sole conduit for the money. The appellant even according to him was not entrusted with the task of reaching the specified amounts to the persons shown in the slip and it is puerile to assume that the carriers would be entrusted with the exact amounts and the slips, to be passed on to the agent, would tally with the amounts seized from the carrier.

(3). Statements of six persons whose names appeared in the list were recorded, all of whom deposed that they were expecting amounts ranging from Rs.25,000/- to Rs.70,000/- from their friends or relatives abroad. Out of the above six, three persons, namely, M.R.Bappu, T.Hamza Haji and K.M.Abdul Kareem were cross-examined by the counsel for the appellant. After examining the said three persons, the appellant's counsel did not press for cross-examination of the other three, as seen recorded in page no.9 of the Adjudication Order. In cross-examination, two out of the three stuck to their version that they were expecting money from their friends/relatives in Muscat, while K.M.Abdul Kareem turned hostile.

29. The offences charged under Section 9(1)(b) & 9(1)(d) read with Section 64(2), of FERA are extracted herebelow:

“9. Restrictions on payment.—

(1)Save as may be provided in, and in accordance with, any general or special exemption from the provisions of this sub-section which may be granted conditionally or unconditionally by the Reserve Bank, no person in, or resident in, India shall-

(a) xxx xxx

(b)receive, otherwise than through an authorised dealer, any payment by order or on behalf of any person resident outside India;

Explanation.—For the purposes of this clause, 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 authorised dealer) without a corresponding inward remittance from any place outside India, then, such person shall be deemed to have received such payment otherwise than through an authorised dealer;

(c)xxx xxx

(d)make any payment to, or for the credit of, any person by order or on behalf of any person resident outside India;

(e)xxx xxx

(f)xxx xxx

(g)xxx xxx

64. Preparation, attempt, etc.-

(1)xxx xxx

(2)Whoever attempts to contravene, or abets any contravention of any of the provisions of this Act [other than section 13, clause (a) of sub-section (1) of [section 18, section 18-A], clause (a) of subsection (1) of section 19, sub-section (2) of section 44 and sections 57 and 58] or of any rule, direction or order made thereunder, shall, for the purposes of this Act, be deemed to have contravened that provision, rule,direction or order, as the case may be.”

30. The cumulative effect of the confessional statement given by the accused, corroborated by 1) the recovery of a whooping amount of Rs.6,10,000/- together with the list of persons and 2) the versions of the persons included in the list that they were expecting money from abroad would unerringly establish the guilt of the appellant. The appellant had a story to explain the source being the repayment of money collected by Musthafa for arranging visa to various persons, handed over by travel agents in Mumbai; which remained a story without any substantiation. Musthafa who is said to have applied through a registered letter dated 09.07.1993 was never before any of the authorities accepting ownership of the amounts or disclosing his source. The fact that the investigating agency could not lay their hands on Salamath or Razak would not mitigate the guilt, as established against the appellant, who was caught red handed with huge money, the possession of which he could not account for. The recovery of the slip with the names of recipients, two of whom confirmed that they were expecting money from abroad clearly attracts the offences alleged.

31. We find no illegality, impropriety or perversity in the order impugned of the revisional authority, with the result, the same is confirmed, affirming the penalty imposed as well. The appeal will stand dismissed.