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TMI Blog2009 (1) TMI 949X X X X Extracts X X X X X X X X Extracts X X X X ..... and 54 of 1999 Bhavarlal Jain (Bhavarlal) and Pravin Jain (Pravin) and Ashok K. Jugraj Jain (Ashok) respectively. The impugned adjudication order is emanated from 4 SCNs T-4/77/B/96 (SCN I), T-4/78/B/96(SCN II), T-4/79/B/96 (SCN III) and T-4/80/B/96 (SCN IV) all dated 8-11-1996. However, the charges levelled against the noticees under the SCNs I and II were dropped. 3. Shri V.S. Thiageswaran, ld. advocate appearing for the appellants filed written submissions in appeal Nos. 50 and 51/1999 and appeal Nos. 52 to 54/1999 respectively which are taken on record. At the very outset Ld. advocate contended that the adjudication proceedings based on belated SCNs, after expiry period of six months from the date of seizure without extension of time by the authority concerned is illegal. Secondly, it is contended that the SCN Nos. III and IV dated 8-11-1996 are vague, and contain improbable allegations based on involuntary and uncorroborated statements of Ashok K. Jugraj Jain (Ashok) and Chandanmal C. Jain (Chandanmal) i.e., the appellants in appeal Nos. 54/1999 and 50/1999 respectively. Thirdly, referring to the order dated 14-11-1995 passed by Ld. CMM, Mumbai in R.A. 308 of 1995 the Ld. adv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5.Per contra Shri A.C. Singh, DLA, contended that based on revelations made by Devender, established the role of Bhawarlal and searches were conducted at later's business premises of M/s. B.P. Jewellers and thereafter at residential premises of Ashok. It is contended that confirming the statement of Devender, Ashok admitted the connection of his uncle's Bhavarlal (alias Juthibhai) with Iqbal of Dubai for indulging hawala transactions. Further it is contended that while explaining the documents seized the aforesaid Ashok also admitted the payment of Rs. 27.5 lakhs to various persons on 7-11-1995 and 8-11-1995 on instructions of Iqbal alias Kaka of Dubai. Shri A.C. Singh, DLA then contended that in his statement Ashok also admitted that for the purpose of transferring US $ 2 lakhs in Bhavarlal's account by the said Iqbal of Dubai they had collected Rs. 75,10,000 from Navin's N.C. Angadia on 8-11-1995. According to Shri A.C. Singh, DLA the statement of Ashok clearly established contravention of section 9(1)(a), 9(1)(b), 9(1)(d) and 9(1)(f)(i) of FER Act, 1973. 6. As regards appeal Nos. 50 and 51/99 Shri A.C. Singh, Ld. DLA further contended that Chandanmal categorical ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e officer. Section 26 goes a step further and prohibits proof of confession made by any person while he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate. Section 24 lays down the obvious rule that a confession made under any, inducement, threat or promise becomes irrelevant in a criminal proceedings. Such inducement, threat or promise need not be proved to the hilt. If it appears to the court that the making of the confession was caused by any inducement, threat or promise proceeding from a person in authority, the confession is liable to be excluded from evidence. The expression 'Appears' connotes that the court need not go to the extent of holding that the threat, etc., has in fact been proved. If the facts and circumstances emerging from the evidence adduced make it reasonably probable that the confession could be the result of threat, inducement or pressure, the court will refrain from acting on such confession, even if it be a confession made to a Magistrate or a person other than a police officer. Confessions leading to discovery of a fact which is dealt with under section 27 is an exception to the rule of exclusion of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry functionary at the pre-trial stage, must address himself to the issue whether the accused has come forward to make the confession in an atmosphere free from fear, duress or hope of some advantage or reward induced by the persons in authority. Recognizing the stark reality of the accused being enveloped in a state of fear and panic, anxiety and despair while in police custody, the Evidence Act has excluded the admissibility of a confession made to the police officer. 30. Section 164 Cr. PC is at salutary provision which lays down certain precautionary rules to be followed by the Magistrate recording a confession so as to ensure the voluntariness of the confession and the accused being placed in a situation free from threat or influence of the police. 31. Before we turn our attention to the more specific aspects of confessions under POTA, we should have a conspectus of the law on the evidentiary value of confessions which are retracted, which is a general feature in our country and elsewhere. 32. As to what should be the legal approach of the court called upon to convict a person primarily in the light of the confession or a retracted confession has been succinctly summarized in B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ph that retracted confession is a weak link against the maker and more so against a co-accused. With great respect to the eminent Judge, the comment that the retracted confession is 'a weak link against the maker' goes counter to a series of decisions. The observation must be viewed in the context of the fact that the court was concentrating on the confession of the co-accused rather than the evidentiary value of the retracted confession against the maker. 34. Dealing with retracted confession, a four Judge Bench of this Court speaking through Subba Rao, J., in Pyare Lal Bhargava v. State of Rajasthan [[1963] Supp. (1) SCR 689 : AIR [1963] SC [1994] : [1963] 2 Cri. LJ 178] clarified the legal position thus : (SCR pp. 695-96) '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 rule of prudence. It cannot even be laid down as an inflexible rule of practice or prudence that under no circumstances can such a conviction be made without corroboration, for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es not imply that there should be meticulous examination of the entire material particulars. It is enough that there is broad corroboration in conformity with the general trend of the confession, as pointed out in Subramani Goundan case'. The analysis of the legal position in paras 18 and 19 is also worth noting : (SCC p. 788). '18. Having thus reached a finding as to the voluntary nature of a confession, the truth of the confession should then be tested by the court. The fact that the confession has been made voluntarily, free from threat and inducement, can be regarded us presumptive evidence of its truth. Still, there may be circumstances to indicate that the confession cannot be true wholly or partly in which case it loses much of its evidentiary value. 19. In order to be assured of the truth of confession, this Court, in a series of decisions, has evolved a rule of prudence that the court should look to corroboration from other evidence. However, there need not be corroboration in respect of each and every material particular. Broadly, there should be corroboration so that the confession taken as a whole fits into the facts proved by other evidence, in substance, the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uted is not known then how it can be specifically said that admissional statement of either of the appellants is truthful and voluntary. The concept of truthfulness of admissional statement conveys differently, the person resident outside India must be specifically described. Otherwise violation of section 9(1)(b) and 9(1)(d) of FER Act, 1973 cannot happen. 11. When we go to the quantum of money described as having been received or distributed the figure goes abnormally high. At page 39 the figure is described as Rs. 231.50 lakhs so far as appellant in appeal No. 52/1999 is concerned. The other appellant in appeal No. 51/1999 makes the figure as described at page 39 of Rs. 40,50,800. With regard to other appellants the description is similar so far as quantum of figures is concerned but wherefrom this figure has arrived at and how corroborated it is difficult to fathom. The impugned order does not specify anything that how this figure has been arrived at except under the imagination of appellants who made different admissional statements. 12. As the admissional statements by their own nature and character cast doubt on the correctness so necessity of corroboration automatically ari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cipients admitted the fact of receiving payments by or under instructions of any of the alleged persons residents outside India. Omission on the part of Department to produce evidence in this behalf is fatal. 16. Moreover it is also well established that while the order of conviction cannot be made on mere suspicion. In Palvinder Kaur v. State of Punjab AIR 1952 SC 354 the Hon'ble Supreme Court has observed that it is absolutely necessary for the court to safeguard itself against the danger of basing their conclusion on suspicions howsoever strong. In the said judgment the Hon'ble Court referring to its earlier decision in the case of Hanumant Govind Nargundkar v. State of Madhya Pradesh AIR 1952 SC 343 cited following warning given by Baron Alderson in Reg. Hodge, 1838 2 Lewin 227. The mind was apt to take a pleasure in adapting circumstances to one another and even in straining them a little, if need be, to force them to form parts of one connected whole; and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself to supply some little link that is wanting, to take for granted some fact consistent wi ..... 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