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TMI Blog2009 (8) TMI 1120X X X X Extracts X X X X X X X X Extracts X X X X ..... nce of probability has not been discharged by the respondent. Moreso, they have also not been able to lead evidence before the adjudicating authority that the alleged confessional statement, on which reliance has been placed by the respondents, was made voluntarily and was not recorded by using any force upon him as alleged by the appellant in his written communication sent on 14-9-1985. Thus no ground for imposition of penalty upon the appellant in this case and consequently, the penalty imposed by respondent No. 3 vide order dated 10-4-1991, upheld by respondent No. 2 though by reducing the penalty amount, is not sustained. - Crl. A. No. 315 of 2007 - - - Dated:- 17-8-2009 - Mool Chand Garg, J. Ms. Sangita Bhayana, Advocate, for the Appellant. Shri Deepak Anand with Ms. Rajdipa Behura, Advocates, for the Respondent. ORDER The appellant had filed a writ petition impugning the order dated 23-3-2007 passed by the Appellate Tribunal for Foreign Exchange (hereinafter referred to as respondent No. 2 ) which writ petition was converted as an appeal under Section 35 of the Foreign Exchange Regulation Act, 1973 (hereinafter referred to as the FERA, 1973 ). By t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted his alleged voluntary statement recorded by the respondent, on 14-9-1984 itself. According to him the said statement was not given by him voluntarily but was given under duress and that the same was obtained by using force by the officers of the respondent. It is in these circumstances, the appellant has assailed the order of the Tribunal dated 23-3-2007 on the following grounds :- (i) There is no evidence against the appellant that he contravened the provisions of Section 8(1) and 8(2) of the FERA, 1973. (ii) The statements which the respondents rely upon and states was voluntary statements made by the appellant, Surinder Kumar Dhawan, B.S. Malik, stand retracted and was obtained under duress and fraud and there is no corroboration of those statements by any independent witness. (iii) The stand of the respondent that the recovery of foreign currency is corroborated by the voluntary statements of appellant, Surinder Kumar Dhawan and B.S. Malik is not correct. (iv) No corroborative evidence has been led by the respondent to prove the retracted confessional statement inasmuch as no opportunity was granted to cross-examine the officials who recorded the sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rial punishable under the provisions of the IPC it is now well-settled legal position that confession can form the sole basis for conviction. If it is retracted, it must first be tested whether confession is voluntary and truthful inculpating the accused in the commission of the crime. Confession is one of the species of admission dealt with under Sections 24 to 30 of the Evidence Act and Section 164 of the Code. It is an admission against the maker of it, unless its admissibility is excluded by some of those provisions. If a confession is proved by unimpeachable evidence and if it is of voluntary nature, it when retracted, is entitled to high degree of value as its maker is likely to face the consequences of confession by a statement affecting his life, liberty or property. Burden is on the accused to prove that the statement was obtained by threat, duress or promise like any other person as was held in Bhagwan Singh v. State of Punjab (I) (AIR para 30). If it is established from the record or circumstances that the confession is shrouded with suspicious features, then it falls in the realm of doubt. The burden of proof on the accused is not as high as on the prosecution. If the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rroboration from other evidence adduced by the prosecution. 10. Reliance has also been placed on a judgment delivered in the case of Vinod Kumar Solanki v. Union of India and Anr. [2009 (233) E.L.T. 157 : 2009 JT (1) S.C. 1 : 2008 (16) SCALE 31 = 2009 (13) S.T.R. 337 (S.C.)], wherein the Apex Court has discussed the effect of the retracted confession for the purpose of levy of penalty under the FERA, 1973. The relevant portion of the judgment is quoted below :- 14. As indicated heretobefore, the courts below proceeded on the premise that a confession was made by appellant, although retracted later, that he had acquired foreign exchange during the period 1993-94 on the basis of forged import documents where after he got the same transferred to his bank account Nos. 564-000-4888-5 and No. 96300- 1254-9 in Standard Chartered Bank, Asian House VI Branch and American E, Bank, Central Branch, at Hongkong and misutilized the said foreign exchange and failed to import any rough diamonds for which purpose the same was acquired. 15. The questions which would arise for our consideration are: (1) whether the appellant had made bald statement at the time of retraction alleging threat a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ivil and Political Rights (1966)] 20. Sub-section (2) of Section 71 places the burden of proof upon an accused or a proceedee only when the foreign exchange acquired has been used for the purpose for which permission to acquire it was granted and not for mere possession thereof. The Parliament, therefore, advisedly did not make any provision placing the burden of proof on the accused/proceedee. 21. The Act, thus, does not provide for a 'reverse burden'. No presumption of commission of an offence is raised under the Act. Even in a case where the law provides for a burden on the accused having regard to the aforementioned presumption of innocence as a human right, this Court in Noor Aga v. State of Punjab and Anr. 2008 (9) SCALE 681 held as under : 114. Only when these things are established, a statement made by an accused would become relevant in a prosecution under the Act. Only then, it can be used for the purpose of proving the truth of the facts contained therein. It deals with another category of case which provides for a further clarification. Clause (a) of Sub-section (1) of Section 138B deals with one type of persons and Clause (b) deals with another. The Le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 accused. It is one thing to say that a retracted confession is used as a corroborative piece of evidence to record a finding of guilt but it is another thing to say that such a finding is arrived at only on the basis of such confession although retracted at a later stage. 36. Appellant is said to have been arrested on 27-10-1994; he was produced before the learned Chief Metropolitan Magistrate on 28-10-19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t such arrangement was in reality made. There was no material brought on record to show that the respondents had any role to play in such matters as alleged. Even the show cause notice did not refer to any particular material to come to such a conclusion. Therefore, the Commissioner and the CEGAT were justified in holding that the respondents were entitled to the benefits. 13. We find that in the show cause notice there was nothing specific as to the role of the respondents, if any. The arrangements as alleged have not been shown to be within the knowledge or at the behest or with the connivance of the respondents. Independent arrangements were entered into by the respondents with the franchise holder (sic franchiser). On a perusal of the show cause notice the stand of the respondents clearly gets established. 14. There is no allegation of the respondents being parties to any arrangement. In any event, no material in that regard was placed on record. The show cause notice is the foundation on which the department has to build up its case. If the allegations in the show cause notice are not specific and are on the contrary vague, lack details and/or unintelligible that is suff ..... X X X X Extracts X X X X X X X X Extracts X X X X
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