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TMI Blog2008 (11) TMI 753X X X X Extracts X X X X X X X X Extracts X X X X ..... of penalty within 45 days from that date failing which this appeal will be dismissed on this ground alone. The appellant challenged the pre-deposit order dated 4.10.2007 before Delhi High Court where Hon'ble High Court reduced the amount of pre-deposit of penalty by order dated 7.12.2007 to 10% amount of penalty. The appellant has complied with this modified order by High Court of Delhi. Presently this appeal is taken up for final disposal on merits. 3. We have heard Shri Hemant Sheth, Advocate on behalf of appellant and Shri A.C. Singh, DLA on behalf of respondent. Ld. Counsel has also filed brief facts which are taken on record. 4. According to arguments by Shri Hemant Sheth, Advocate, the search of the shop of the appellant was conducted on 16.11.1993 but nothing in discriminating was found. However, appellant was made to record a confession 17.11.1993 and also certain documents including a fax machine are allegedly recovered from his residence- According to admissional statement, the appellant admitted that Unninappa resident of UAE was sending money for further distribution in India and on his instructions an amount of Rs. 80 lakhs is received out of which Rs. 79,75,000 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an admission, but, every admission does not necessarily amount to a confession. While sections 17 to 23 deal with admissions, the law as to confessions is embodied in sections 24 to 30 of the Evidence Act. Section 25 bars proof of a confession made to a police 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 says 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 refra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntertained by the court that these ingredients are not satisfied, the court should eschew the confession from consideration. So also the authority recording the confession, be it a Magistrate or some other statutory 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 a 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 cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be looked upon with greater concern unless the reasons given for having made it in the first instance are on the face of them false . There was a further observation in the same paragraph 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 Rajastan [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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been clarified in Subramania Goundan case as regards the extent of corroboration required. The above expression does 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 Subramania 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 as 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthority while acting on the inculpatory statement of the maker is not completely relieved of his obligations in at least subjectively applying its mind to the subsequent retraction to hold that the inculpatory statement was not extorted. It thus boils down that the authority or any court intending to act upon the inculpatory statement as voluntary one only. On this principle of law, this Court in several decisions has ruled that even in passing a detention order on the basis an inculpatory statement of a detenue who has violated the provisions of the FERA or the retraction and record its opinion before accepting the inculpatory statement lest the order will be vitiated. 10. Also, the retraction alone cannot wipe out the admissional statements from the scene, especially when this Tribunal has discussed above that the admissional statements are true and voluntary. The, retracted confession can also be made basis of conviction as held in K.I. Pavunny v. Assistant Collector (HQ), Central Excise Collectorate, Cochin, (1997) 3 SCC 721 where the Hon'ble Supreme Court observed as follows :- It would thus be seen that there is no prohibition under the Evidence Act to rely upon the retr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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