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2009 (5) TMI 530 - HC - FEMAWhether the conviction of the appellant could have been based solely on the basis of retracted confession without there being any other corroborating evidence? Once the retraction of a confessional statement takes place then who is to prove that the confession recorded was voluntary? Whether the revision petition filed in this case was not within limitation? Whether the penalty imposed upon the appellant is justified? Held that - In view of the judgment delivered by the Apex Court in Vinod Solanki s case (2008 (12) TMI 31 - SUPREME COURT) and Noor Aga s case (2008 (7) TMI 853 - SUPREME COURT) and admission of the respondents that the statement made under section 40 of the Act was retracted by the appellant, the conviction of the appellant cannot be sustained. Once the retraction of a confessional statement takes place the burden to prove that the statement was voluntary is on the prosecution which burden has not been discharged. A revision petition can be filed by the Department in view of section 52(4) of the Act and for which no limitation is prescribed. Since the impugned order is not sustainable, in view of answer to the first question the penalty imposed upon the appellant is certainly unjustified and is illegal. Appeal allowed.
Issues Involved:
1. Conviction based solely on retracted confession without corroborating evidence. 2. Burden of proof for voluntary nature of retracted confessional statement. 3. Timeliness of the revision petition. 4. Justification of the penalty imposed. Issue-wise Detailed Analysis: 1. Conviction Based Solely on Retracted Confession Without Corroborating Evidence: The appellant challenged the conviction under section 9(1)(a) of FERA, arguing that it was based solely on a retracted confession without any corroborating evidence. The appellant cited the Supreme Court's rulings in *Vinod Solanki v. Union of India* and *Noor Aga v. State of Punjab*, which held that retracted confessions must be substantially corroborated by independent and cogent evidence. The Tribunal's reliance on the confession without corroboration was deemed insufficient for conviction. 2. Burden of Proof for Voluntary Nature of Retracted Confessional Statement: The appellant argued that once a confession is retracted, the burden of proving that the confession was made voluntarily lies with the prosecution. The Tribunal failed to provide evidence that the confession was voluntary and not obtained under duress. The Supreme Court's rulings emphasized that the prosecution must demonstrate the voluntary nature of the confession, considering the circumstances of retraction, which was not done in this case. 3. Timeliness of the Revision Petition: The appellant contended that the revision petition filed by the respondents was not within the limitation period. However, the Tribunal held that no limitation period is prescribed under section 52(4) of FERA for filing a revision petition, making the petition timely and valid. 4. Justification of the Penalty Imposed: The appellant argued that the penalty of Rs. 3,00,000 imposed by the Tribunal was unjustified, given the lack of corroborative evidence and the retracted confession. The Tribunal's decision to impose the penalty was based on the confession, which was not supported by independent evidence. The High Court found that the penalty was unjustified and illegal due to the reliance on the retracted confession without corroboration. Conclusion: The High Court allowed the appeal, setting aside the impugned order dated 30-11-2006. The appellant's conviction and penalty were deemed unsustainable due to the reliance on a retracted confession without corroborating evidence and the failure of the prosecution to prove the voluntary nature of the confession. The appellant was entitled to all consequential benefits, and the interim orders were made absolute.
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