1998 (3) TMI 685 - HC - Customs

Summary

Issues Involved:
1. Legality of the retracted confession.
2. Applicability of legal provisions u/s 164 CrPC vs. u/s 40(3) FERA.
3. Adequacy of corroborative evidence.
4. Right to legal assistance during interrogation.
5. Appropriateness of the appellate court's judgment.

Summary:

1. Legality of the Retracted Confession:
The respondent/accused was prosecuted for offences u/s 8(1) read with 56(1)(i) and 9(1)(f)(i) of FERA, based on a search conducted on 22-6-1981 and a statement made by him (Ex. P. 7). The trial court found the accused guilty, but the appellate court acquitted him, citing lack of corroboration for the retracted confession. The High Court noted that the appellate court misunderstood the difference between a confession u/s 164 CrPC and a statement u/s 40(3) FERA. The High Court emphasized that under FERA, individuals are compelled to speak the truth, unlike the optional nature of confessions u/s 164 CrPC.

2. Applicability of Legal Provisions u/s 164 CrPC vs. u/s 40(3) FERA:
The High Court clarified that the appellate court wrongly applied the dictum in State of U.P. v. Boota Singh, which pertains to judicial confessions u/s 164 CrPC. Under FERA, individuals summoned are bound to state the truth, and their statements are deemed judicial proceedings. The High Court held that the appellate court failed to recognize this distinction.

3. Adequacy of Corroborative Evidence:
The High Court found that the trial court rightly appreciated the evidence, including documents seized during the search (Exs. P. 3 and P. 4), which corroborated the respondent's statement (Ex. P. 7). The High Court noted that economic offences often lack direct evidence, but circumstantial evidence, such as the visiting card and diary entries, provided sufficient corroboration.

4. Right to Legal Assistance During Interrogation:
The appellate court's observation regarding the absence of an advocate during the respondent's statement was addressed by the High Court. Citing the Supreme Court's decision in Poolpandi v. Superintendent, Central Excise, the High Court held that individuals summoned under FERA are not entitled to legal assistance during interrogation, and refusal of such presence does not violate Article 20(3) of the Constitution.

5. Appropriateness of the Appellate Court's Judgment:
The High Court concluded that the appellate court erred in acquitting the respondent based on the misapplication of legal principles and insufficient consideration of corroborative evidence. The High Court set aside the appellate court's judgment and restored the trial court's conviction.

Sentence:
Considering the lapse of over sixteen years since the offence, the High Court modified the sentence to six months rigorous imprisonment for each offence, in addition to the fine of Rs. 2,000/- for each offence, with sentences to run concurrently. The trial court was directed to issue an arrest warrant and ensure the respondent's imprisonment.