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TMI Blog2008 (7) TMI 1112X X X X Extracts X X X X X X X X Extracts X X X X ..... that these appeals may be decided on merits as per the written submissions, hence, these appeals are finally decided as per the written submissions which are taken on records. 4. The contentions are made that impugned order has not analysed the factual details of payment in Indian currency against reciprocal receipt in foreign currency accept that a credit entry found in the seized documents is interpreted to hold the appellants guilty. It is also argued that statement of appellant in appeal No. 250/01 who is father of another appellant is recorded under threat and coercion on 14-12-1994. Therefore this admissional statement is not acceptable without corroboration especially after retraction of confession. Further the arguments are made that receiving of foreign currency is covered by Remittances of Foreign Exchange Investment in Bonds (Immunities Exemptions) Act, 1991. Therefore the appellants cannot be held guilty, hence, the impugned order is required to be quashed and set aside. Shri A.C. Singh, DLA, supported the impugned order. 5. This is an admitted fact without any controversy that the appellants' name appeared along with another name of Nilesh J. Vadhani who had been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vidence Act and there is not an iota of evidence to suggest that appellant and others made admissional statement under threat and coercion. 10. It is correct that admissional statement before Directorate of Enforcement is admissible. The bald allegation of threat and coercion cannot be taken seriously till the time the appellant by leading some little evidence brings on record the existence of threat and coercion. No doubt the evidence by appellant is only to raise probability but some little evidence is necessary so that burden of proof can be shifted to respondent as held in K.T.M.S. Mohd. v. Union of India [1992] 3 SCC 178 : 34. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at, duress or promise. If court is satisfied from the evidence that it was voluntary, then it is required to examine whether the statement is true. If the court on examination of the evidence finds that the retracted confession is true, that part of the inculpatory portion could be relied upon to base the conviction. However, prudence and practice require that court would seek assurance getting corroboration from other evidence adduced by the prosecution. 12. It is well-settled that admissional statement of a co-noticee is admissible and can be relied upon for arriving at guilt. The appellant himself had admitted the contravention. It is held in Naresh J. Sukhwani v. Union of India 1996 SCC (Cri.) 76, that statements recorded by Customs officials (where provisions are pari materia) is not a statement recorded under section 161, Criminal Procedure Code but is a material piece of evidence which can certainly be used against a co-noticee when the person giving statement is also tarnishing his image by making admission of guilt. Also there is no legal bar against accepting retracted confession as held in State (NCT Delhi) v. Navjot Sandhu @ Afasan Guru [2005] 11 SCC 600 except that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on to prove facts which are especially within the knowledge of the opponent or the accused, it is not obliged to prove them as part of its primary burden. 32. Smuggling is clandestine conveying of goods to avoid legal duties. Secrecy and stealth being its covering guards, it is impossible for the Preventive Department to unravel every link of the process. Many facts relating to this illicit business remain in the special or peculiar knowledge of the person concerned in it. On the principle underlying section 106, Evidence Act, the burden to establish those facts is cast on the person concerned; and if he falls to establish or explain those facts, an adverse inference of facts may arise against him, which coupled with the presumptive evidence adduced by the prosecution or the Department would rebut the initial presumption of innocence in favour of that person, and in the result prove him guilty. As pointed out 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 (unexplaine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lligent reasoning. The doctrine of presumption is not alien to the above rule, nor would it impair the temper of the rule. On the other hand, if the traditional rule relating to burden of proof of the prosecution is allowed to be wrapped in pedantic coverage, the offenders in serious offences would be the major beneficiaries and the society would be the casualty. 32. In this case, when the prosecution succeeded in establishing the afore-narrated circumstances, the court has to presume the existence of certain facts. Presumption is a course recognised by the law for the court to rely on in conditions such as this. 33. Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the court exercises a process of reasoning and reaches a logical conclusion as the most probable position. The above principle has gained legislative recognition in India when section 114 is incorporated in the Evidenc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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