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TMI Blog2008 (8) TMI 1033X X X X Extracts X X X X X X X X Extracts X X X X ..... ;s prayer of dispensation but rejected the prayer of the other appellant-Director. However, the appellants are allowed them to deposit their respective 50 per cent or full penalty. Both the appellants have complied with the pre-deposit order dated 24-11-2005. Presently, these appeals are taken up for final disposal on merits. 3. A Show Cause Notice No. T-4/41/B/DD/RKP/2002 dated 20-5-2002 was issued to the appellants asking them to show cause why adjudication proceedings should not be held against them on the reasons that appellants by over-invoicing of four export consignments received US dollars 64184 in lieu of payment of Rs. 25,00,000 from M/s. Hezmans, Netherland, in violation of section 9(1)(f)(i) read with section 68 Foreign Exchange Regulation Act, 1973. While issuing this Show Cause Notice, reliance is placed on three pages of document recovered from one Rajesh Shroff who allegedly abetted the appellants herein including the statement of aforesaid Rajesh Sharoff and statement of appellant-Director in Appeal No. 659/2005. In reply to the Show Cause Notice, the appellants sought more time which was not granted but adjudication proceedings were held when the appellants were r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r that the appellants over-invoiced export price whereafter received the foreign currency described with over-invoiced price but simultaneously returned back the differential-amount equivalent to Rs. 25,00,000. This is a clinching piece of evidence which is required to be explained by the appellants who have failed to do so. 7. The appellants have made admissional statement before Enforcement Directorate under section 40 Foreign Exchange Regulation Act. The retraction of the admissional statement hardly comes to the benefit of the appellant unless it is clearly shown that admissional statement is untrue and made under threat and coercion. There is nothing on record that admissional statement of the appellants made before as Enforcement Directorate is under threat and coercion. Mere bald allegations can hardly benefit the appellant as held in K.T.M.S. Mohd. v. Union of India [1992] 3 SCC 1781 where Hon'ble Supreme Court made following observations:- 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 eith ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter referring to various judgments on this subject in State (NCT) Delhi v. Navjot Sandhu alias Afsan Guru [2005] 122 DLT 194 as follows : 27. We start with the confessions. Under the general law of the land as reflected in the Evidence Act, no confession made to a police officer can be proved against an accused. 'Confessions' which is a terminology used in criminal law is a species of 'admissions' as defined in section 17 of the Evidence Act. An admission is a statement, oral or documentary which enables the court to draw an inference as to any fact in issue or irrelevant fact. It is trite to say that every confession must necessarily be 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 indu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ake admission against his interest unless prompted by his conscience to tell the truth. 'Deliberate and voluntary confessions of guilt, if clearly proved are among the most effectual proofs in law.' (Vide Taylor's Treatise on the Law of Evidence, VI. I) However, before acting upon a confession the court must be satisfied that it was freely and voluntarily made. A confession by hope or promise of advantage, reward or immunity or by force or by fear induced by violence or threats of violence cannot constitute evidence against the maker of the confession. The confession should have been made with full knowledge of the nature and consequences of the confession. If any reasonable doubt is entertained 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rrant its user. All the same, the courts do not act upon the retracted confession without finding assurance from some other sources as to the guilt of the accused. Therefore, it can be stated that a true confession made voluntarily may be acted upon with slight evidence to corroborate it, but a retracted confession requires the general assurance that the retraction was an afterthought and that the earlier statement was true. This was laid down by this Court in an earlier case reported in Subramania Goundan v. State of Madras [1958 SCR 428 : 1958 Cri. LJ 238].' 33. The same learned Judge observed in Haroon Haji Abdulla v. State of Maharashtra [(1968) 2 SCR 641 : 1968 Cri. LJ 1017] that a 'retracted confession must 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 mus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refully examine the confession and compare it with the rest of the evidence, in the light of the surrounding circumstances and probabilities of the case. If on such examination and comparison, the confession appears to be a probable catalogue of events and naturally fits in with the rest of the evidence and the surrounding circumstances, it may be taken to have satisfied the second test.' 37. In Parmananda Pegu v. State of Assam [(2004) 7 SCC 779 : 2004 SCC (Cri.) 2081] this Court while adverting to the expression 'corroboration of material particulars' used in Pyare Lal Bhargava case clarified the position thus : (SCC p. 790, para 20) 'By the use of the expression corroboration of material particulars the Court has not laid down any proposition contrary to what has 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 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt 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. 11. Lastly, it is argued that proof beyond reasonable doubt is not reached. Here, it can be said that though proof beyond doubt is a burden on Enforcement Directorate under section 59(2) FER Act, but this burden cannot be stretched to mathematical precision or imaginary heights, otherwise, task of prosecuting agency will become unreachable. In this regard, we may refer to the observations of Hon'ble Supreme Court in Collector of Customs v. D. Bhoormull AIR 1974 SC 859 which are as under : 30. It cannot be disputed that in proceedings for imposing penalties under clause (8) of section 167, to which section 178A does not apply, 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 pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t by Best in 'Law of Evidence', (12th Edn. Article 320, page 291), the presumption of innocence is, no doubt, presumptio juris; but every day's practice shows that it may be successfully encountered by the presumption of guilt arising from the recent (unexplained) possession of stolen property , though the latter is only a presumption of fact. Thus the burden on the prosecution or the Department may be considerably lightened even by such presumption of fact arising in their favour. However, this does not mean that the special or peculiar knowledge of the person proceeded against will relieve the prosecution or the Department altogether of the burden of producing some evidence in respect of that fact in issue. It will only alleviate that burden to discharge which very slight evidence may suffice. (p. 864) 12. There is an admissional statement of co-noticee named Rajesh Shroff who involved the appellants along with himself. Further, the statement of the appellant H.M. Shah is being read by Ld. Counsel in piecemeal which is not permissible in law. As per the judgment in Palvinder Kaur v. State of Punjab AIR 1952 SC 354 the confession is required to be read as a whole, incl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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