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TMI Blog2007 (12) TMI 557X X X X Extracts X X X X X X X X Extracts X X X X ..... tently in his 16 NRE accounts maintained in different banks from 1992 till 1994. This appeal is filed along with application for dispensation of pre-deposit of the amount of penalty pleading grounds of undue hardship stating that appellant is dependent on his brother-in-law Baldev Raj Arora and a friend Sudesh Kumar Khosla and has no income whatso- ever. While deciding this application this Tribunal repeatedly requested Directorate of Enforcement to file financial status report. Despite these requests, the Directorate of Enforcement could not provide any report on financial status of the appellant. However, the appellant filed an affidavit by his aforesaid friend named Sudesh Kumar Khosla, who stated that whenever money is needed by the appellant, it is provided by him. Similarly, an affidavit is filed by aforesaid brother-in-law named Baldev Raj Arora who deposed that bread and residence to the appellant are provided by him. Looking towards this situation, we thought it fit to grant dispensation of the pre-deposit of penalty to the appellant on the grounds of total financial disability. Thereafter, we proceed to hear this appeal on merits for final disposal. 3. We have heard Shri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g to Counsel, the appellant produced one Currency Declaration Form which by itself is sufficient to predict that foreign currency deposited in 16 NRE accounts is legally brought in Indian territory and deposited. The Adjudicating Officer has wrongly shifted the burden of proof in this regard on the appellant and this posing of wrong question has derailed the course of justice, as per the judgment in Union of India v. Abdul Mohamed [2000] 10 SCC 169 Para 5. 6. The last argument is that the admissional statement must not only be voluntary but also true before the same is acceptable for arriving at guilt. In this regard, reliance is placed on (1) Shankaria v. State of Rajasthan [1978] 3 SCC 435, (2) State (NCT of Delhi) v. Navjot Sandhu @ Afsan Guru [2005] 122 DLT 194 (SC), (3) Pyare Lal Bhargava v. State of Rajasthan AIR 1963 SC 1094, (4) Sarwan Singh v. State of Punjab AIR 1957 SC 637; and (5) Aher Raja Khima v. State of Saurashtra AIR 1956 SC 217. 7. Against above arguments, Shri A.C. Singh, DLA, argued that it is totally impossible for the appellant to make substantial deposits in 16 NRE accounts maintained in different banks intermetently within a period between 1992 till 1994, e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 is only for the maker of the statement who alleges inducement, threat, promise, etc. to establish that such improper means has been adopted. However, even if the maker of the statement fails to establish his allegations of inducement, threat etc. against the officer who recorded the statement, the authority while acting on the inculpatory statement of the maker is not completely relieved of his obligations in at least subjectively applying its mind to the subsequent retraction to hold that the 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 should apply its mind to the retraction and reject the same in writing. It is only on this principle of law, this Court in several decisions has ruled that even in passing a detention order on the basis an inculpatory statement of a detenue w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an 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 prudent man's estimate as to the probabilities of the case. (p. 864) 13. Therefore, the impugned order is correctly passed. There is no error in arriving at guilt against the appellant in the impugned order. The quantum of deposited foreign currency without any proof of Currency Declaration Form whose burden as per section 71 is on the appellant speak by itself. The Latin maxim; res ipsa loquitor, i.e. a thing speaks for itself, is squarely applicable in the particular circumstances of this appeal. The quantum of penalty is also in commensurate with the amount involved in violation and cannot be said as harsh and excessive. Therefore, the appeal is required to be dismissed and the impugned order is required to be affirmed. 14. For the reasons stated herein above, the impugned order is sustained and maintained. The appeal bears no merit and is dismissed. The appellant is permitted to deposit amount of penalty within seven days from the date of receipt of this order failing which the Directorate of Enforcement may recover the sam ..... X X X X Extracts X X X X X X X X Extracts X X X X
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