9911796707
TMI Blog1992 (7) TMI 358X X X X Extracts X X X X X X X X Extracts X X X X ..... on that certain persons travelling from Dubai to Bombay via Delhi in the said flight were carrying foreign exchange/documents in violation of the provisions of the Act, the passengers were checked at Delhi airport. As a result of the search of the person and baggage of the appellant, Shri Aftab Alam and the seat No. 53-J occupied by him, three gold button shaped pieces lying beneath the seat No. 53-J, one gold ball pen and two gold rings and some documents were recovered from the appellant and seized. The quantity of the seized gold was 225 gms. The appellant disclosed in his statement dated 17-7-1989 that he borrowed from his uncle, Shri Sultan Khan, UAE Dhirams 400 which he spent while he was in Dubai and that he borrowed foreign exchange ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the confessional statement was recorded after the appellant was arrested and that a statement obtained during arrest cannot be said to be voluntary. It was also contended on behalf of the appellant that the appellant's statement dated 17-7-1989 has to be read as a whole as also along with his subsequent statements dated 24-7-1989 and 14-5-1990. The counsel for the appellant also submits that the confessional statement dated 17-7-1989 was retracted by the appellant at the earliest opportunity and it is not legally permissible to rely on a retracted statement unless it is corroborated. The counsel further contends that the entire case is based on a concocted story and that the Adjudicating Officer had not considered the fact that anot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance of the summons issued to him, the appellant cannot be deemed to be under arrest. As such, mere appearance will not amount to taking a person into custody. Further, it may be stated that as the Enforcement Officers are not police officers within the meaning of sections 25 and 26 of the Evidence Act, a confessional statement made before an Enforcement Officer will not become inadmissible in evidence merely because it is made before him. The ratio laid down by the Supreme Court in Kishore Chand's case (supra) would apply to a case where one makes an extra judicial confession before a police officer in terms of section 25 of the Evidence Act or while one is under the police custody in terms of section 26 thereof. 7. There is nothing on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t next day, i.e., 18-7-1989 through his counsel, in which it was stated that the statement was obtained under force, and coercion. It may be stated that a confession cannot be regarded to be involuntary or untrue merely because it is retracted either at the first available opportunity or thereafter if it otherwise appears to be voluntary and true. If a retracted statement is proved to be voluntary and true, it can be acted upon as was held by the Supreme Court in Kishore Chand's case (supra) . 10. The appellant has confessed in his statement dated 17-7-1989 that he borrowed UAE Dhirams 400 from his uncle, Sh. Sultan Khan of Dubai which he had spent while he was in Dubai and that the gold seized from him as also from beneath his seat No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the above on the basis of mere conjectures/assumptions/ presumption such as the gold might be belonging to another passenger who was earlier occupying the said seat, etc., would be legally unsustain able. It appears to me that the above circumstantial evidence also goes to lend corroborative support to the appellant's statement dated 17-7-1989. The retraction of the appellant vide his bail application filed in the Court through his counsel appears to be afterthought. 11. The principle laid down by the Supreme Court in the Hindustan Steel Ltd.'s case (supra) applies where one has acted under a bona fide mistaken impression/belief. Such is not the case here. 12. A perusal of the adjudication order reveals that the appellant was affo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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