ORDER The petitioners, who were accused in C.C.No. 28 of 1995 before the Special Judge for Economic Offences, Hyderabad, have been convicted for the offences under Sections 9(1 )(b) and Section 9(1)(d) of Foreign Exchange Regulation Act, 1973 (for short 'the Act'). On both counts, they were sentenced to undergo rigorous imprisonment for a period of one year and had also been fined Rs. 1,000/- in default of payment of fine, they had to undergo simple imprisonment for two months on each count. The sentences of imprisonment had to run concurrently. In appeal, the appellate Court confirmed the conviction and sentence. Therefore, this revision has been filed. 2. The facts leading to filing of the complaint as narrated in the judgments of Courts below are that the enforcement Officer filed private complaint against A-1 to A-3 for having committed the offences under Sections 9(1)(b), 9(1)(d) and 9(3) of he Act, punishable under Section 56(1)(i) of the Act. The complaint reveal that the Hyderabad branch of Enforcement Directorate received credible information that the accused were indulging in the business of receiving foreign currencies and making payments in India under the instructions of a person at United States of America. On receiving this information, the officers of the Enforcement Directorate searched the residential premises of the father of A-1 and A-2 namely Syed. Mohammed Idris Alvi on 27-08-1994 in the presence of mediators. The search resulted in seizure of Indian currency of Rs. 30,000/- and bunch of loose sheets and one note book containing 16 pages. On the same day, the officers also searched the factory premises of M/s. H.P. Confectionery (P) Ltd, Saidabad, which resulted in the seizure of a bunch of documents. On the same day the officers also searched the residential premises of one Md. Anwar Ahmed Alivi at Masab Tank, which resulted in seizure of pocket telephone index containing 28 pages. On 31-02-1994, officers of the Enforcement Directorate searched the houses of A-3 situated at Chandrayanagutta, Hyderabad, which resulted in the seizure of address book containing 45 pages. Subsequently, the officers of the Enforcement Directorate recorded the statements of A-1 and A-2 along with their father Syed. Mohammed Idris Alvi and Md. Anwar Ahmed Alvi under Section 40 of the Act. The statement of A-3 was also recorded with reference to the documents. Subsequently, the officers of the Enforcement Directorate recorded the statements of A-1 and A-2 along with their father Syed. Mohammed Idris Alvi and Md. Anwar Ahmed Alvi under Section 40 of the Act. The statement of A-3 was also recorded with reference to the documents. On the basis of the statements made by A-1 to A-3 and on the basis of the recoveries, the complaint was filed. 3. Charges were framed by the trial Court. A-1 to A-3 were charged separately. A-1 was charged with an accusation that he had received payments totaling to Rs. 87,80,000/- during the period from December 1993 to August 1994 for having remitted/caused to be remitted to the Foreign Exchange totaling to US $ 2,10,000/- from USA into India during the period from December 1992 to December 1993. 4. Accusation against A-2 was that he received the payments totaling to Rs. 20,00,000/- during the period from April and May 1994. 5. A-3 was charged with having received payments totaling to Rs. 35,25,000/- and distributing the same in India and thus, A-1 to A-3 have contravened various provisions of the Act. All the accused pleaded not guilty. 6. At the outset, it is stated by the learned Senior Counsel appearing for the accused persons that the charges themselves are defective. A-1 is accused of having received an amount of Rs. 87,80,000/- in the form of payments from USA, but it is nowhere mentioned as to from whom he received such money, whereas A-2 is charged to have received the payments of Rs. 20,00,000/- in April and May 1994 and A-3 has been accused of having received payments of Rs. 35,25,000/-. It is not stated in the charge as to wherefrom A-2 and A-3 received the money and there is no mention of any foreign currency having been received by A-2 and A-3. Even if it is held to be true that A-2 received Rs. 20,00,000/- and A-3 received Rs. 35,25,000/- within a specific period, it does not contravene any provisions of the Act. In the absence of showing any nexus between A-1 on one side and A-2 and A-3 on the other side, the charges were vague and incomplete. 7. After the accused pleaded not guilty, the Court went ahead with trial. Three witnesses were examined and Exs-P-1 to P-69 were marked on behalf of prosecution. In the absence of showing any nexus between A-1 on one side and A-2 and A-3 on the other side, the charges were vague and incomplete. 7. After the accused pleaded not guilty, the Court went ahead with trial. Three witnesses were examined and Exs-P-1 to P-69 were marked on behalf of prosecution. After the closure of prosecution evidence, the accused were examined under Section 313 Cr.P.C. A-1 appeared as a defence witness being D.W. 1. A-2 was examined as D.W. 5 and A-3 was examined as D.W. 6. Four other witnesses were also examined as D.Ws. 2 to 4 and 7 by the defence. Exs. D-1 to D-5 video cassettes filed by A-1 , were also marked. 8. Number of pleas have been raised by the learned Senior Counsel appearing for petitioner NO.1. He submitted that this case was filed on the basis of the testimony of three witnesses. P.Ws.1 and 2 did not support the case of the prosecution. Therefore, it is only P.W. 3 on whose testimony the petitioners have been convicted. The testimony of P.W. 3 has become doubtful in view of his subsequent conduct and for proving his conduct, video cassettes were produced before the Court as evidence. The contents of the video cassettes have been believed by the Court and action was also ordered against P .W. 3, but conviction is upheld even by the appellate Court. The learned Public Prosecutor, however, submits that even in the absence of testimony by P.Ws. 1 to 3, the accused could have been convicted on the basis of the statements made by them under Section 40 of the Act. He also contends that P.W. 3's evidence cannot be brushed aside or eschewed because some conversation between him and the accused was recorded after he had made the statement in the Court. In the light of these arguments, it will be necessary to have a look at the evidence. 9. P.W.1 was supposed to have witnessed the search. He did not support the case of the prosecution. He was declared hostile and cross-examination by the prosecution. In the cross-examination he accepted that he had put his signatures on Exs. P-1 to P-3, but he submitted that he had put the signatures on 20 to 25 papers including Exs. P-1 to P-3 and also identified his signatures. He did not support the case of the prosecution. He was declared hostile and cross-examination by the prosecution. In the cross-examination he accepted that he had put his signatures on Exs. P-1 to P-3, but he submitted that he had put the signatures on 20 to 25 papers including Exs. P-1 to P-3 and also identified his signatures. He submitted that when he was going in Sultan Bazar locality, 4 or 5 persons came to him and took him to an office situated there and he was forced to put the signatures. In the cross-examination by the accused, he stated that he had studied up to 5th class in Urdu Medium. He could not read or write English. 10. P.W. 2 stated that on 30th of August 1994, he was summoned by Enforcement Officer to the house of A-3. He stated that the Enforcement Officer visited him while he was at his rice mill and asked him to show the residence of A-3. He showed him the premises of A-3 and the officer went into the said premises, but he did not accompany the officer. The Enforcement Officer did not seize any documents from the premises of A-3. However, he admitted his signatures on Ex. P-33, but he submitted he did not know the contents of Ex. P-33. He was also declared hostile. 11. Now comes the Enforcement Officer, who has been examined as P.W. 3. He stated that on 27 -08-1994 he searched the premises of S.M. ldris Alvi father of A-1 and A-2 at Saidabad and found Rs. 30,000/- in Indian currency, 19 sheets of paper and one note book containing 6 written papers. Ex. P-1 was the mahazar dated 27-08-1994, which was prepared in the presence of two independent witnesses, under which Exs. P-3to P-20were seized. One of his subordinate officers namely J. Subramanyam scribed Ex, P-1 to his dictation. Ex. P-1 mahazar contained his signature and that of the father and elder brother of A-1 and A-2 and also of the panch witnesses. His other subordinate officers J. Subramanyam, Bhoopal Rao and R.K. Samuel assisted him. He further stated that on the same day he searched the factory premises of the elder brother of A-1 and A-2 and found 4 incriminating documents Exs.P-21 to P-24. Ex. P-2 mahazar was prepared and Exs. P-21 to P-24 were seized in the presence of two independent witnesses. Ex. He further stated that on the same day he searched the factory premises of the elder brother of A-1 and A-2 and found 4 incriminating documents Exs.P-21 to P-24. Ex. P-2 mahazar was prepared and Exs. P-21 to P-24 were seized in the presence of two independent witnesses. Ex. P-2 was scribed by one of his subordinate officers to his dictation. Ex. P-2 contained his signature and that of the scribe and other witnesses and elder brother of A-1 and A-2. On 30th of August 1994, he searched the residential premises of A-3 at Chandrayanagutta and found address book containing 45 written pages. Ex. P-33 was mahazarnama and seizure was made in the presence of two independent witnesses. Ex. P-33 was scribed by J. Subramanayam to his dictation and it also contained his signature and that of two panch witnesses and also of A.3. On 27 -08-1994 and 28-08-1994, he recorded the statements of A-1 and A-2. On 27 -08-1994, he also recorded the statement of the father and elder brother of A-1 and A-2. On 30lh and 3151 of August 1994, he recorded two statements of A-3, but he stated that the aforesaid statements were not with him at that moment and he undertook to file them later. Thereafter, the Department sent the entire record to the headquarters, New Delhi and the Enforcement Directorate issued a show cause notice to A-1 , A-2 and their elder brother on 22-02-1995 and separate show cause notice was issued to A-3 on 23-02-1995. These show cause notices were issued for the purpose of adjudication under Section 40 of the Act and the same was pending. Exs. P-34 to P-44 were the statements of Osman Ghani, recorded by the Enforcement Directorate in Central Jail, Ahmedabad in Gujarath. Exs. P-45 and P-46 were the statements of A-1 Exs. P-47 and P-48 were the statements of A-2 and EX.P-49 and P-50 were the statements of A-3. Ex. P-51 was the statement of Md. Anwar Ahmed, Ex. P-52 was the statement of Mohd. ldris Alvi, Exs. P-53 and P-54 were the statements of Khaja Nizamuddin Zaki, Ex. P-55 and P-56 were the statements of Smt. Tahera Begum and Ex. P-57 was the diary seized from the residential premises of A-3. 12. Ex. P-51 was the statement of Md. Anwar Ahmed, Ex. P-52 was the statement of Mohd. ldris Alvi, Exs. P-53 and P-54 were the statements of Khaja Nizamuddin Zaki, Ex. P-55 and P-56 were the statements of Smt. Tahera Begum and Ex. P-57 was the diary seized from the residential premises of A-3. 12. The learned counsel for petitioners submit that the statements of five witnesses were recorded by P.W. 3, who included the brother and father of A-1 and A-2 and one Khaja Nizamuddin Zaki and also Smt. Tahera Begum, but these witnesses were not produced before the Court. He also submits that according to the statement of this witness, during the search, he was accompanied by many officers subordinate to him, who were also scribes of the panchanamas, but they were also not produced in the Court as witnesses. In this view of the matter, it is quite clear that the only testimony, which remains against the accused persons, are the statements made by them under Section 40 of the Act. The learned Senior Counsel further submit that alleged statements made by the petitioners cannot form sole basis for conviction as doubt is created by the subsequent events and by the contents of the video cassettes Exs. 0-1 to 0-5. The learned counsel for petitioners also submit that there was an inherent defect in the case of prosecution, where the complainant himself was the investigating officer and as such, the conviction based on the testimony of the person who was the complainant as well as the investigating officer, cannot be upheld. In this connection, reliance is placed on the judgment reported in Bhagwan Singh v. State of Rajasthan' and also on Nathiya v. State of Rajasthan. The Supreme Court, in para 5 of Bhagwan Singh case 1 stated. "Ordinarily, the Supreme Court does not interfere with concurrent findings of fact reached by the trial Court and the High Court on an appreciation of the evidence. But it will interfere in those rare and exceptional cases where it finds that several important circumstances have not been taken into account by the trial Court and the High Court and that has resulted in serious miscarriage of justice." 13. But it will interfere in those rare and exceptional cases where it finds that several important circumstances have not been taken into account by the trial Court and the High Court and that has resulted in serious miscarriage of justice." 13. Their Lordships referred to a circumstance which they termed as 'disturbing feature of the case' and observed, "It is indeed such an unusual feature that it is quite surprising that it should have escaped the notice of the trial Court and the High Court. Head Constable Ram Singh was the person to whom the offer of bribe was alleged to have been made by the appellant and he was the informant or complainant who lodged the first information report for taking action against the appellant. It is difficult to understand how in these circumstances Head Constable Ram Singh could undertake investigation? In fact, Head Constable Ram Singh, being an officer below the rank of Deputy Superintendent of Police, was not authorized to investigate the case butwe do not attach any importance to that fact, as that may not affect the validity of the conviction. The infirmity which we are pointing out is not an infirmity arising from investigation by an officer not authorized to do so, but an infirmity arising from investigation by a Head Constable who was himself the person to whom the bribe was alleged to have. been offered and who lodged the First Information Report as informant or complainant. This is an infirmity which is bound to reflect on the credibility of the prosecution case. 14. The Rajasthan High Court, while referring to this judgment in the case of Nathiya (2 supra), observed in para 11 , "I have considered the rival contentions and have perused the record of the trial Court. One glaring feature of the case is that P .W. 5 Hamir Singh was the person who is said to have recovered the contraband charas from the two appellants. It is surprising that he himself investigated into the offence. Justice and fair play required that the investigation should have been carried out by an independent officer, who was not in any way a party to the recovery proceedings. This principle is no longer res integra. In the case Ronald Markas Goonthar v. State of Rajasthan, 1988 Cri.L.R. (Raj) 678, it was observed........" 15. Justice and fair play required that the investigation should have been carried out by an independent officer, who was not in any way a party to the recovery proceedings. This principle is no longer res integra. In the case Ronald Markas Goonthar v. State of Rajasthan, 1988 Cri.L.R. (Raj) 678, it was observed........" 15. Counsel for petitioners has also placed reliance on ad judgment reported in K. I. Pavunny v. Asst. Collector (HQ), Central Excise Collectorate3. The principles relating to admissibility of the confessional statement made under the Customs Act, 1962 were elaborately discussed in this judgment. After holding that the statement recorded during inquiry under Section 108 of the Customs Act or during confiscation proceedings was not that of an accused within the meaning of Section 24 of the Evidence Act, the Supreme Court considered the question whether such a statement could be the sole basis for conviction. In para 25 of the judgment, it dealt with conviction solely on the basis of confession statement and also in cases in which even such confession was retracted and it held, "It would thus be seen that there is no prohibition under the Evidence Act to rely upon the retracted confession to prove the prosecution case or to make the same basis for conviction of the accused. Practice and prudence require that the court could examine the evidence adduced by the prosecution to find out whether there are any other facts and circumstances- to corroborate the retracted confession. It is not necessary that there should be corroboration from independent evidence adduced by the prosecution to corroborate each detail contained in the confessional statement. The court is required to examine whether the confessional statement is voluntary in other words, whether it was not obtained by threat, duress or promise. If the court is satisfied from the evidence that it was voluntary, then it is required examine whether the statement is true. If the court on examination of the evidence finds that the retracted confession is true, that part of the inclupatory portion could be relied upon to base the conviction. However, prudence and practice require that court would seek assurance getting corroboration from other evidence• adduced by the prosecution." The Court, by this judgment, clearly laid down that such a statement if found voluntary, could be the sole basis for conviction even if it was retracted. However, prudence and practice require that court would seek assurance getting corroboration from other evidence• adduced by the prosecution." The Court, by this judgment, clearly laid down that such a statement if found voluntary, could be the sole basis for conviction even if it was retracted. It also noted a word of caution to get corroboration from other evidence adduced by the prosecution. 16. Other judgments, which "have been relied upon by the counsel for petitioners, generally deal with confessions, but the statement under Section 40 of the Act would not be tested on the principles relating to confessions under the ordinary criminal law. Now, in this case, the direct witnesses who were present at the stage of recoveries, turned hostile. There were number of officers accompanying P.W. 3, but they were not examined as witnesses. P.W. 3 had also examined many other people and they were also not examined in the Court. Besides all these circumstances, an application came to be filed before the trial Court seeking permission to place on record the video cassettes supposed to have been the conversation between one of the accused and P.W. 3, was rejected by the trial Court, but was allowed by the appellate Court and as such, Exs. D-1 to D-5 are on record. The video cassettes were allowed to be taken as evidence by the appellate Court and then a transcript was prepared as Ex. D-7. After the cassettes were played in the Court, the transcript was signed to be the true version by the counsel for both sides. On seeing these cassettes and on perusal of the transcript, the appellate Court gave a finding in para 26 of its judgment, "On perusal of the entire script of Exs. D-3 and D-4 it goes to show that A-1 and A-2 were beaten by enforcement officers when they were taken to office and thereafter their statements were recorded. P.W. 3 in Ex. D-3 video cassette conversation has categorically stated that: "I will do my best. You don't bother. I will do my best. I have not seen you whereas 1 have seen Mustafa thousands of times. Understand that is secondary. Understand Alright then. Alright. Talk to Mustafa. P.W. 3 in Ex. D-3 video cassette conversation has categorically stated that: "I will do my best. You don't bother. I will do my best. I have not seen you whereas 1 have seen Mustafa thousands of times. Understand that is secondary. Understand Alright then. Alright. Talk to Mustafa. 1 will do my best, don't bother."" Then the appellate Court also recorded the following observation, "Thus, in view of the said conversation, it clearly goes to prove the fact that P.W. 3 after he was examined in chief and cross-examiantion A-1 trapped P.W. 3 and paid money to him as seen in Exo D-3 video cassette and thereafter he obliged to all the questions put by A-1 to help the accused. Therefore, considering the said facts and circumstances of the case, even though Exs. D-3 and D-4 video cassettes goes to prove the fact that A-1 to A-3 were beaten by the enforcement officials before recording their confessional statements, the conversation between A-1 and P.W.3 under Exs. D-3 and D-4 cassettes which was translated under Ex. D-7 cannot be taken into consideration that the confessional statements of A-1 to A-3 were obtained by P.W. 3 and their staff by threat, coercion and by using third degree method." 17. This is an absurd and perverse conclusion and even contradictory. The appellate Court accepts that P.W. 3 had made a statement that the confessional statements of accused were taken after beating them, but still, he was of the view that the statements were voluntary. If a statement is result of beating and coercion, it cannot be treated as voluntary. Therefore, this is a circumstance, which makes the statements recorded by P.W. 3 suspicious as to whether they were voluntary or they were the result of "beating" by P.W. 3. Therefore, in my view, in the absence of any other evidence corroborating to the statements made by the accused, the statements could not have been relied upon by the appellate Court for the purpose of conviction. 18. For the reasons given hereinabove, the revision is allowed. The conviction and sentences imposed on the petitioners/accused are set aside. Their bail bonds are cancelled. They are entitled for refund of fine amount paid, if any.