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2009 (5) TMI 530 - HC - FEMAWhether the conviction of the appellant could have been based solely on the basis of retracted confession without there being any other corroborating evidence? Once the retraction of a confessional statement takes place then who is to prove that the confession recorded was voluntary? Whether the revision petition filed in this case was not within limitation? Whether the penalty imposed upon the appellant is justified? Held that:- In view of the judgment delivered by the Apex Court in Vinod Solanki’s case (2008 (12) TMI 31 - SUPREME COURT) and Noor Aga’s case (2008 (7) TMI 853 - SUPREME COURT) and admission of the respondents that the statement made under section 40 of the Act was retracted by the appellant, the conviction of the appellant cannot be sustained. Once the retraction of a confessional statement takes place the burden to prove that the statement was voluntary is on the prosecution which burden has not been discharged. A revision petition can be filed by the Department in view of section 52(4) of the Act and for which no limitation is prescribed. Since the impugned order is not sustainable, in view of answer to the first question the penalty imposed upon the appellant is certainly unjustified and is illegal. Appeal allowed.
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