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TMI Blog2008 (1) TMI 1010X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant received and further made payment to different persons in India on the instructions of a person resident outside India named Avtar Singh of Abu Dhabi. In this appeal this Tribunal while disposing off application for dispensation of pre-deposit of the penalty, by order dated 15-9-2005 directed the appellant to make pre-deposit of Rs. 30,000 after dispensing with the remaining amount of penalty. The appellant has complied with this order. Presently this appeal is taken up for final disposal on merits. We have heard Shri Rajesh Gulati, Advocate on behalf of the appellant Shri A.C. Singh, DLA on behalf of respondent. Learned counsel Shri Rajesh Gulati has also filed written submissions which are taken on record. 3. In this appeal a Sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss of the contents of the documents recovered from other persons cannot be taken under section 72 FER Act. It is also contended that SCN-II and SCN-III are issued separately two other persons, hence, passing of impugned order against the appellant as well as other person where SCN-II and SCN-III are not joint; it cannot be held that proceedings are held jointly. Another argument is that appellant was never paid any money by other person named Sanjeev Kumar and another who are allegedly smuggling gold from outside India. Moreover, payment to the appellant of a hefty amount of Rs. One crore thirty lakhs on the instructions of somebody resident outside India is difficult to imagine when it is not known how those paying persons reposed such hea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... According to section 27, so much of the information which leads to recovery of a fact can be proved. 6. It is well settled legal position that confession is an admission made at any time by a person charged with crime stating or suggesting the inference that he committed the crime. The law of the confession is contained in sections 24 to 30 of the Indian Evidence Act, 1872 and section 164 of Criminal Procedure Code, 1973. All confessions can be classified in two categories. The confession recorded by a magistrate under section 164 is classified as judicial confession and any other confession is named as extra judicial confession except those recorded by police. According to section 24 a confession is irrelevant if it has been caused by indu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icers the advantage of proving such extorted confessions during the trial of accused person.... It required no vivid imagination to picture what too often takes place when two or three of these not very intellectual or highly-paid police officials are called away to a village to investigate a grave crime, of which there are no very clear traces. Naturally it is much the easier way for them to begin by endeavouring to obtain a confession from the suspected person or persons, instead of by searching out the clues to the evidence from independent sources, and seeing what extraneous proof there is. It continually happens that, while the police have been occupying themselves in getting the confession, many of the traces of the crime, which, if a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is relevant. In this regard the judgment of Privy Council in Pulukuri Kotayya v. King Emperor AIR 1947 SC 67 can be referred which has been approved by Hon'ble Supreme Court in Aghnoo Nagesia v. State of Bihar AIR 1966 SC 119. 9. The recording of statement under section 40 by Enforcement Director-ate when appellant was in their custody cannot be termed as a confession recorded under the provisions of section 164 of Cr. P.C. Neither such recording can be called as extra judicial confession because the person has not come voluntarily before the Enforcement Directorate and made a statement but was under arrest when he made that statement before Enforcement Directorate. This statement cannot assume the character of a confession recorded und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isters the caution or the warning embodied under section 164(2) Cr. P.C. before recording a statement of confessional nature, from the person summoned, the statement so recorded will be inadmissible in evidence for any purpose in other words, the impugned statements recorded by the authority under section ..... of the Customs Act are inadmissible in evidence and liable to be eschewed from consideration for any purpose, as no caution or warning embodied under section 164(2), Cr. P.C. was administered to the person from whom the said statements were recorded. The defect is not curable under section 463, Cr. P.C. 10. Looking towards above factual position, the adjudication order cannot be termed as having been passed wrongly. There is no error ..... X X X X Extracts X X X X X X X X Extracts X X X X
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