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TMI Blog2009 (12) TMI 514X X X X Extracts X X X X X X X X Extracts X X X X ..... hole case of the prosecution is based upon the statement of Sudesh Saxena dated 9-7-1998 which was recorded under section 40 of FERA, 1973, who deposed that the total value of export was US$ 6,00,000, out which US$ 4,00,000 were realised and the balance amount of US$ 2,00,000 is pending realization. The total export value which was shown as US$ 6,00,000 for numbers of ball pens of 1714285 approximate exported to M/s. Triwood Limited, Hongkong was not a correct value. The real value was US$ 3,00,000. The difference between the real value and inflated value is US$ 1,00,000 and the said amount was paid back to the overseas buyer through hawala. The petitioner received remittances to the tune of US$ 2,07,232.90 equivalent to Rs. 77,80,807 against the said export which were adjusted by the authorized dealer against the GR Forms in question. According to the petitioner, this indicate that the export value of the consignment was US$ 6,11,200.90 as declared by the petitioner in the GR Forms and other relevant documents whereas the actual value of the said shipment was US$ 3,03,968.00 and thus, the shipments were over invoiced by an amount of US$ 6,11,200.90. It is also alleged against the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der instruction of overseas buyer are baseless as no evidence substantiating the aforesaid allegations was adduced by the respondent. It is also submitted that quantity, quality, description and the value of the goods is checked by the Customs Authorities under the Customs Act at the time of export and in this case Customs Authorities have not alleged over invoicing. Those allegations qua the petitioners are untenable. It is also submitted that the value declared for the export stands realized in foreign exchange through proper banking channels and, therefore, the case against the petitioners is contrary to the documentary evidence showing the value of the export coupled with remittances received. It is also submitted that the retracted statement of the petitioner does not satisfy the test of a confession as per law as the same is vague and loose. There is a distinction between "confession" and "admission" as the confession must either admit in terms of the offence or at any rate substantially all the facts which constitute the offence. Since the statement of the petitioner is not a confession, the same cannot be relied upon for the purpose of framing the charges against the peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cient material to frame charge against the accused for the offence under section 56 of FERA for the alleged violation under section 9(1)( f )( i ) and section 8(1) of FERA read with section 64(2) of FERA, 1973." 7. A bare reading of the aforesaid order does not show as to how offence under section 56 of the FERA is made out. 8. In the case of Vinod Solanki v. UOI [2009] 92 SCL 157 (SC), it has been held : "22. It is a trite to say that evidences brought on record by way of confession which stood retracted must be substantially corroborated by other independent and cogent evidences, which would lend adequate assurance to the court that it may seek to rely thereupon. We are not oblivious of some decisions of this Court wherein reliance has been placed for supporting such contention but we must also notice that in some of the cases retracted confession has been used as a piece of corroborative evidence and not as the evidence on the basis whereof alone a judgment of conviction and sentence has been recorded. [ See Pon Adithan v. Deputy Director, Narcotics Control Bureau Madras [1999] 6 SCC 1]. 27. Reliance has been placed by the Tribunal on the decision of this Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e purpose of securing a conviction. With a view to arrive at a finding as regards the voluntary nature of statement or otherwise of a confession which has since been retracted, the Court must bear in mind the attending circumstances which would include the time of retraction, the nature thereof, the manner in which such retraction has been made and other relevant factors. Law does not say that the accused has to prove that retraction of confession made by him was because of threat, coercion, etc. but the requirement is that it may appear to the court as such. 35. In the instant case, the Investigating Officers did not examine themselves. The authorities under the Act as also the Tribunal did not arrive at a finding upon application of their mind to the retraction and rejected the same upon assigning cogent and valid reasons therefor. Whereas mere retraction of a confession may not be sufficient to make the confessional statement irrelevant for the purpose of a proceeding in a criminal case or a quasi-criminal case but there cannot be any doubt whatsoever that the court is obligated to take into consideration the pros and cons of both the confession and retraction made by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he contrary. 101. It may also be of some interest to note the decision of this Court in State of Punjab v. Barkat Ram AIR 1962 SC 276, holding : 17. There has, however, arisen a divergence of opinion about officers on whom some powers analogous to those of Police Officers have been conferred being Police Officers for the purpose of section 25 of the Evidence Act. The view which favours their being held Police Officers, is based on their possessing powers which are usually possessed by the Police and on the supposed intention of the Legislature at the time of the enactment of section 25 of the Evidence Act to be that the expression Police Officer, should include every one who is engaged in the work of detecting and preventing crime. The other view is based on the plain meaning of the expression and on the consideration that the mere fact that an officer who, by no stretch of imagination is a Police Officer, does not become one merely because certain officers similar to the powers of a Police Officer are conferred on him. 114. A statement made by an accused would become relevant in a prosecution under the Act. Only when, it can be used for the purpose of proving the tru ..... X X X X Extracts X X X X X X X X Extracts X X X X
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