9911796707
TMI Blog2009 (1) TMI 952X X X X Extracts X X X X X X X X Extracts X X X X ..... ef 2nd appellant) for contravention of Section 9(1)(f)(1), 9(1)(d) and 14 read with Central Government Notification No.F-10/22/90/NRI-Cell dated 17.7.1992 and 8(1) FER Act on the reasons that he made payment of Rs. 45 lakhs to 1st appellant (appellant in appeal No. 420/03) in consideration of receipt of foreign currency US Dollar 908598 and Pound 13000. (c) Rs. 25000/- against appellant in appeal No.456/03 (in brief 3rd appellant) for contravention of Section 8(1) with 64(2) and thus abetting 2nd appellant on the reasons of having aided 2nd appellant to unauthorisedly acquire US Dollar 69973 and unauthorisedly to borrow US Dollar 28000. (d) Rs. 70000/- against appellant in appeal No.457/03 (in brief 4th appellant) for contravention of Section 9(1)(f)(1) read with 64(2) and thus abetted by aiding 2nd appellant in receiving foreign exchange of US Dollar 16723 in lieu of payment of Rs. 7 lakhs. (e) Rs. 25000/- against appellant in appeal No.458/03 (in brief 5th appellant) for contravention of Section 8(1) read with 64(2) for abetting 2nd appellant by aiding in borrowing of foreign currency of US Dollar 28000.08. (f) Rs. 15000/- against appellant in appeal No.459/03 (in brief 6th appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt during January, 1998, borrowed US dollars 28,000/- from Arun B. Bhatia of Dubai and Pound 640/- from one Parmar of UK. (iv) second appellant earned in 1997-98 the foreign currency equivalent to Rs. 2.5 lakhs as commission from M/s. Hilton of UK, which he failed to surrender to authorized dealer but deposited with M/s. Rinco Trading Co. of Dubai. (b) (i) the first appellant received payment of Rs. 45 lakhs from second appellant by order or on behalf of first appellant's brother Vijay @ Harish Bhai, resident of Dubai, in consideration of receipt of foreign currency of US dollars 90898/- and Pound 13,000/- by second and third appellants through aforesaid Vijay @ Harish Bhai of Dubai from second appellant. (ii) first appellant during January, 1998, till July, 1998, made payment of Rs. 45 lakhs to one Gopal, resident of India, by order or on behalf of first appellant's brother Vijay @ Harish Bhai of Dubai. (iii) first appellant, while on visits to foreign countries, acquired and brought in India UAE dirhams 12,200/-, Saudi Riyal 6000/- but failed to offer the same for sale to authorized dealer within prescribed period. (c) ( i)third appellant, during aforesaid period, acquire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt A. Tanna. 10. Statement dated 1.9.1998 of Vijay M. Parikh. 7. The appellants controverted the allegations contained in Show Cause Notice and filed reply but not agreeing the adjudication proceedings are held and the impugned order is passed. 8. The contentions are made that the impugned order is passed after repeal of Foreign Exchange Regulation Act, 1973, w.e.f. 31.5.2000 whereafter the adjudicating officer has no authority or jurisdiction to pass the adjudication order. Further, cross examination of the co-appellants is not allowed despite repeated demands so violation of principles of natural justice has occurred. Moreover, the admissional statements, though retracted, are not supported from the contents of the recovered documents. Therefore, passing of the impugned order without corroboration is totally bad in law, especially when invoice of the spectacle frames has shown arrival of the goods from Italy to London and not from Dubai. Per contra, Shri A.C. Singh, DLA, supported the impugned order. 9. Firstly, we may take up the question of corroboration of retracted admissional statement. /The retraction of the admissional statement hardly comes to the benefit of the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cted 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 court is satisfied from the evidence that it was voluntary, then it is required to 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 inculpatory 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. 11. Though emphasis is laid upon corroboration of an admissional statement in Mohtesham Mohd. Ismail v. Spl. Director, Enfor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dealt with under section 27 is an exception to the rule of exclusion of confession made by an accused in the custody of a police officer. Consideration of a proved confession affecting the person making it as well as the co-accused is provided for by section 30. Briefly and broadly, this is the scheme of the law of evidence vis a vis confessions. The allied provision which needs to be noticed at this juncture is section 162 Cr. PC. It prohibits the use of any statement made by any person to a police officer in the course of investigation for any purpose at any enquiry or trial in respect of any offence under investigation. However, it can be used to a limited extent to contradict a witness as provided for by section 145 of the Evidence Act. Subsection (2) of Section 162 makes it explicit that the embargo laid down in the section shall not be deemed to apply to any statement falling within clause (1) of section 32 or to affect the provisions of Section 27 of the Evidence Act. 28. In the Privy Council decision of Pakala Narayana Swami v. Emperor Lord Atkin (AIR 1939 PC 47:40 Cri LJ 364) elucidated the meaning and purport of the expression confession in the following words: (AIR p.52 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been succinctly summarized in Bhart v. State of U.P. [[1971] 3 SCC 950:1972 SCC(Cri)198] Hidayatullah, C.J., speaking for a three judge Bench observed thus: (SCC p. 953 para 7). Confessions can be acted upon if the court is satisfied that they are voluntary and that they are true. The voluntary nature of the confession depends upon whether there was any threat, inducement or promise and its truth is judged in the context of the entire prosecution case. The confession must fit into the proved facts and not run counter to them. When the voluntary character of the confession and its truth are accepted, it is safe to rely on it. Indeed a confession, if it is voluntary and true and not made under any inducement or threat or promise, is the most patent piece of evidence against the maker. Retracted confession, however, stands on a slightly different footing. As the Privy Council once stated, in India it is the rule to find a confession and to find it retracted later. A court may take into account the retracted confession, but it must look for the reasons for the making of the confession as well for its retraction, and must weigh the two to determine whether the retraction affects the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n a particular case, be convinced of the absolute truth of a confession and prepared to act upon it without corroboration; but it may be laid down as a general rule of practice that it is unsafe to rely upon a confession, much less on a retracted confession, unless the court is satisfied that the retracted confession is true and voluntarily made and has been corroborated in material particulars . 35. As to the extent of corroboration required, it was' observed in Subramani Goundan case that each and every circumstance mentioned in the retracted confession regarding the complicity of the maker need not be separately and independently corroborated. The learned Judges observed: (SCR pp. 440-41) It would be sufficient, in our opinion, that the general trend of the confession is substantiated by some evidence which would tally with what is contained in the confession . 36. Then we have the case of Shankaria v. State of Rajasthan [[1978] 3 SCC 435 1978 SCC (Cri) 439] decided by a three Judge Bench. Sarikaria, J., noted the twin tests to be applied to evaluate a confession: (1) whether the confession was perfectly voluntary, and (2) if so. whether i: is true and trustworthy. The learn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fession was, in fact, voluntary and it must have been true. 12. The admissional statement of both the appellant can be termed as voluntary and true. Further, in a recent judgment of Hon'ble Supreme Court in Kanhaiyalal v. Union of India 2008 (1) Scale 165, the following is observed in para 37:- The law involved in deciding this appeal has been considered by this Court from as far back as in 1963 in Pyare Lal Bhargava's case [1963] Supp. 1 SCR 689. The consistent view which has been taken with regard to confessions made under provisions of Section 67 of the NDPS Act and other criminal enactments, such as the Customs Act, 1962, has been that such statements may be treated as confessions for the purposes of Section 27 of the Evidence Act, but with the caution that the Court should satisfy itself that such statements had been made voluntarily and at a time when the person making such statement had not been made an accused in connection with the alleged offence. In addition to the above, in the case of Raj Kumar Karwal v. Union of India and others [1990] 2 SCC 409, this Court held that officers of the Department of Revenue Intelligence who have been vested with powers of an Offi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the case. 31. The other cardinal principle having an important bearing on the incidence of burden of proof is that sufficiency and weight of the evidence is to be considered -to use the words of Lord Mansfield in Blatch v. Archer [1774] 1 Cowp. 63 at p. 65 according to the proof which it was in the power of one side to prove, and in the power of the other to have contradicted . Since it is exceedingly difficult, if not absolutely impossible for the prosecution to prove facts which are especially within the knowledge of the opponent or the accused, it is not obliged to prove them as part of its primary burden. 32. Smuggling is clandestine conveying of goods to avoid legal duties. Secrecy and stealth being its covering guards, it is impossible for the Preventive Department to unravel every link of the process. Many facts relating to this illicit business remain in the special or peculiar knowledge of the person concerned in it. On the principle underlying Section 106, Evidence Act, the burden to establish those facts is cast on the person concerned; and if he falls to establish or explain those facts, an adverse inference of facts may arise against him, which coupled with the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
