9911796707
TMI Blog2008 (6) TMI 645X X X X Extracts X X X X X X X X Extracts X X X X ..... ) appellant paid foreign currency equivalent Rs. 2,82,000 to a person resident of Zeddah as consideration and in lieu of receiving through a local person of a sum of Rs, 1,25,000 and (ii) appellant received Rs. 23,000 when he was in India from a local person by order or on behalf of one Hamza of Saudi Arabia. In this appeal the penalty amount is appropriated from the recovered currency from the appellant, hence, question of pre-deposit of penalty is not available so we proceeded to dispose of this appeal on merits. 3. We have heard Shri K.M. Sureshchandran, Advocate for the - appellant and Shri A.C. Singh, DLA, for respondent. Learned counsel has also filed written submissions which are taken on record. 4. This is an admitted position India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In this regard observations of Hon'ble Supreme Court in K.T.M.S. Mohd. v. Union of India (1992) 3 SCC 178 : 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 same time, it cannot be recorded as involuntary or unlawfully obtained. It i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Section 167 to which Section 178-A 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 u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 (unexplained) possession of stolen property , though the latter is only a presumption of fact. Thus the burden on the prosecution or the Department ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was abducted by them. The learned Sessions Judge after referring to the law on circumstantial evidence had observed that there was a missing link in the chain of evidence after the deceased was last seen together with the accused persons and the discovery of the dead body in the hospital and had concluded that the prosecution had failed to establish the charge of murder against the accused persons beyond any reasonable doubt. This Court took note of the provisions of Section 106 of the Evidence Act and laid down the following principle in paras 31 to 34 of the reports : The pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a fossilised doctrine as though it admits no proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant hardly makes a dent in favour of the appellant. This is but a self-credit evidence which can be rejected easily. Hence, the contentions are not plausible. The appellant when was in India has either accepted or paid money either in lieu of payment of foreign currency or on the instructions of non-resident persons. These facts certainly amount to a contravention of the provisions contained in Section 9 where words clearly specifying in the opening sentence itself that no person in or resident in India shall receive money by order or on behalf of non-resident person by order or on behalf of non-resident person. Similar situation is available against the appellant on the allegations of contravention of 9(3) FER Act. 9. Therefore this appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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