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TMI Blog2008 (12) TMI 847X X X X Extracts X X X X X X X X Extracts X X X X ..... ith the confiscation of the seized amount of Rs. 54,000 to the Central Government Account in terms of section 63 of the FER Act which amount was found involved in the contravention of the FER Act. The written submission is filed by the appellant which is taken on record. The appellant has made payment of Rs. 2,00,000 in compliance of the order of this Tribunal dated 9-9-2008 where presently this appeal will be taken up for final disposal on merits. 2-3. Under Show Cause Notice-I, Munilal H. Shah has been charged for contravention of the provisions of section 8(1) and 8(2) to the extent of U.S.$ 30,000. The appellant was held guilty by the Adjudicating Officer where being aggrieved this appeal has been preferred by the appellant for setting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 95 where he admitted having purchased foreign currency worth Rs. 4,40,000 from Rajkumar Jain in June, 1995. He further admitted that he had intended to purchase foreign currency of Rs. 1,50,000 on 21-8-1995 from Rajkumar Jain which could not materialize because he did not clear the earlier credit of Rs. 1,00,000 with Rajkumar Jain. When the appellant was confronted with the documents P.B3 during statement he admitted that it was record of purchase of U.S.$ 1104 worth of cigarette cartons. 6. I have carefully considered the rival submissions of both the parties and gone through the record, relevant Law carefully. Ld. Advocate vehemently argued that the reliance was place on the confessional statements of the appellant and co-noticee which we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f which he has not been able to discharge. KTMS Mohd. v. Union of India [1992] 197 ITR 1961 can be referred here wherein the Supreme Court observed as follows: We think it is not necessary to recapitulate and recite all the decisions on this legal aspect. But suffice to say that the core of all the decisions of this Court is to the effect that the voluntary nature of any statement made either before the Customs authorities or the officers of Enforcement under the relevant provisions of the respective Acts is a sine qua non to act on it for any purpose and if the statement appears to have been obtained by any inducement, threat, coercion or by any improper means that statement must be rejected brevi manu. At the same time, it is to be noted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffender provided there is sufficient corroboration to prove the charge against the offender. To quote the relevant para : (25) It would, thus, be seen that there is no prohibition under the Evidence Act to rely upon the retracted 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd, I may have the reliance in the ruling of Naresh J. Sukhawani v. Union of India AIR 1996 SC 522 where the Apex Court observed that where statement made by a co-noticee inculpates not only himself but also another person, it can be used as substantive evidence against that another person connecting him in contravention of the provisions of the Act. The retraction of the confessional statements is, thus, nothing but an afterthought without any basis. These statements contain wealth of information and minute details which were within exclusive knowledge of the appellant and could not be a result of tutoring or compulsion. Moreover the appellant have not been able to give the legitimate source of money seized from him where the explanation f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IR 1974 SC 859 case in relation to smuggling of tools which are as under: (30)...the burden of proving that the goods are smuggled goods, is on the Department. This is a fundamental rule relating to proof in all criminal or quasi-criminal proceedings, where there is no statutory provision to the contrary. But in appreciating its scope and the nature of the onus cast by it, we must pay due regard to other kindred principles, no less fundamental, of universal application. One of them is that the prosecution or the Department is not required to prove its case with mathematical precision to a demonstrable degree; for, in all human affairs absolute certainty is a myth and as Prof. Brett felicitously puts it - 'all exactness is a fake'. E ..... X X X X Extracts X X X X X X X X Extracts X X X X
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