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TMI Blog2008 (11) TMI 754X X X X Extracts X X X X X X X X Extracts X X X X ..... The main crux of the argument of Shri Mahajan the impugned order is based on the entries recorded in documents seized from residence of third party i.e. P. Popatlal Shah who has not been tried jointly in violation of provison of section 72 of FER Act, 1973. According to Shri V. Mahajan, Ld. advocate the failure to hold joint proceedings make the documents recovered from said P. Popatlal Shah is wholly inadmissible in evidence. It is then submitted that without any corroborative evidence the confessional statement of the appellant cannot is not admissible and be the basis of the order of conviction. Referring to the decision of Hon'ble Supreme Court in Chanderkant Chimanlal Desai v. State of Gujarat JT 191 (5) SC 37 and Mohteshm Mohd. Ismail v. Special Director Enforcement Directorate JT 2007 (12) SC 41 Shri V. Mahajan lastly submitted for quashing and setting aside of the impugned order. 4. Per contra Shri A.C. Singh, DLA contended that appellant admitted in his statement in writing that he had received Rs. 3 lakhs locally in India in 1997 under instruction of his brother in law i.e. Prakash Shah of London for medical treatment of his wife who subsequently expired on 27.4.1998 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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. Sub-section (2) of Section 162 makes it explicit that the embargo laid down in the section shall not be deemed to apply to any statement falli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 a court may, in 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce. 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 court should have assurance from all angles that the retracted confession was, in fact, voluntary and it must have been true. 38. The use of retracted confession against the co-accused however stands on a different footing the use of such confession against the maker. To come to grips with me law on the subject, we do no more than quoting the apt observations of Vivian Bose, J. Speaking for a three Judge Bench in Kashmira Singh v. State of M.P. [192 SCR 526: AIR 1952 SC 159: 1952 Cri LJ 389]. Before clarifying the law, the learned Judge noted with approval the observations of Sir Lawrence Jenkins that a confession can only be used to lend assurance to other evidence against a co-accused . The legal position was then stated thus: (SCR p. 530) Translating these observations into concrete terms they come to this. The proper way to approach a case of this kind is, first, to marshal the evidence against the accused excluding the confession altogether f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... officer admissible in evidence in the trial of such person for the offence under POTA. As regards the confession to the police officer, the TADA regime is continued subject to certain refinements. 43. Now, let us take stock of the provisions contained in Section 32 of POTA. Sub-section (1) of this section starts with a non obstante provision with the words: Notwithstanding anything in the Code (of Criminal Procedure) or in the Indian Evidence Act Then it says Subject to the provisions of this section, a confession made by a person before a police officer not lower in rank than a Superintendent of Police and recorded by such police officer either in wiring or on any mechanical or electronic device... shall be admissible in the trial of such person for an offence under this Act or the rules . By this provision, the ban against the reception of confessional statements made to the police is lifted. That is why the non-obstante clause. This sub-section is almost identical to Section 15(1) of TADA excepting that the words or co-accused, abettor or conspirator occurring after the expression in the trial of such person were omitted. The other four sub-sections (2) to (5) of Section 32 are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 (1990) 2 SCC 409 this court held that officers of the Dept of Revenue Intelligence who have been vested with powers of an Officer-in-Charge of a police station u/s 53 of NDPS Act, 1985, are not 'police officers' within the meaning of section 25 of Evidence Act. Therefore, a confessional statement recorded by such officers in the course of investigation of a person accused of an offence under the Act is admissible in evidence against him. It was also held that power conferred on officers under the NDPS Act in relation to arrest, search and seizure were similar to powers vested on officers under the Customs Act. Nothing new has been submitted which can persuade us to take a different view. Reliance is made on the decision of Hon'ble Supreme court in Chandrakant Chimanlal Desai (Supra) and Mohtesm Mohd. Ismail v. Special Director Enforcement Directorate JT 2007 (12) SC 41 (Supra) in support of the contention that confession alone cannot be relied upon in FER Act proceedings without corroboration. These decisions of Supreme Court c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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