9911796707
TMI Blog2008 (8) TMI 1036X X X X Extracts X X X X X X X X Extracts X X X X ..... on merits. 2-3. We have heard Shri Anurag Kumar Agarwal on behalf of the appellant and Shri A.C. Singh, DLA, on behalf of Enforcement Directorate. Ld. Counsel Shri Anurag Kumar Agarwal has also filed written submissions which are taken on record. 4. It is contended by Ld. Counsel Shri Anurag Kumar Agarwal that allegations of payment of Rs. 12,98,800 to Devkinandan Karel, who is younger brother of Jagdish Prasad Karel, on the instructions of Dilip Shah of Bangladesh are totally wrong. These allegations are supported only by admissional statement of Jagdish Prasad Karel and the appellant's admissional statement which are retracted immediately because appellant's admissional statement was recorded under threat, duress and coercion when he was called to the office on 6-9-1996 at 9:20 p.m. Thereafter, the appellant was detained throughout night. Because of torture at the night, the appellant was made to confess receipt of Rs. 26,00,000 in three instalments of Rs. 10,00,000, Rs. 3,00,000 and Rs. 13,00,000 from an unknown person on the instructions of non-resident Dilip Shah of Bangladesh and further this very amount appellant admitted as handed over on the similar instructions o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of 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. 6. Further, the retraction alone cannot wipe out the admissional statements from consideration. The retracted confession can also be made basis of conviction as held in K.I. Pavunny v. Assistant Collector (HQ), Central Excise Collectorate [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 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion 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 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 vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 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 Bharat 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 Rajasthan 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. 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 confessi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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'. 8. The admissional statement of the appellant as well as other person named Jagdish Parshad Karel can be termed as voluntary and true in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mposing 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 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'. El Dorado of absolute proof being unattainable, the law, accepts for it, probability as a working substitute in this work-a-day world. The law does not require the prosecution to prove the impossible. All that it requires is the establishment of such a degree of probability that a prudent man may, on its basis, believe in the existence of the fact in issue. Thus, legal proof is not necessarily perfect proof; often it is nothing more than a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Supreme Court in Transmission Corporation of AP Ltd. v. Ramakrishna Rice Mills 2006 (2) JT 516 observing that the demand of cross-examination must be supported with sound reasons otherwise denial of such demand can hardly cause prejudice to the appellant and is not in violation of the principles of natural justice. The appellant has not been able to show any sound reasons recorded in their demand of cross-examination. The principles of natural justice are not rigid rules but are flexible to meet the exigency of particular facts and circumstances. 11. Now coming to the penalty, the amount involved is certainly more than the quantum of penalty. Therefore, we do not find that the quantum of penalty imposed is excessive and harsh, hence, the same is required to be sustained. Here, we are reminded of the observation of Hon'ble Supreme Court in Chairman, SEBI v. Sriram Mutual Fund [2006] 68 SCL 216 where Apex Court has observed as follows: . . . In our view, the impugned judgment of the Securities Appellate Tribunal has set a serious wrong precedent and the powers of the SEBI to impose penalty under Chapter VI-A are severely curtailed against the plain language of the statute which ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
