TMI Blog2009 (5) TMI 530X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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. - MOOL CHAND GARG, J. Pawan Narang, Anish Dhingra and Pushkar Gogoi for the Appellant. Mayank Goel for the Respondent. JUDGMENT 1. This second appeal raises the following questions of law : ( i )Whether the conviction of the appellant could have been based solely on the basis of retracted confession without there being any other corroborating evidence. ( ii )Once the retraction of a confessional statement takes place then who is to prove that the confession recorded was voluntary. ( iii )Whether the revision petition filed in this case was not within limitation. ( iv )Whether the penalty imposed upon the appellant is justified. 2. This appeal has been filed under section 35 of the Foreign Exchange Management Act ( FEMA ) which superseded Foreign Exchange Regulation Act, 1973 ( FERA ) assailing the order dated 30-11-2006 passed by the Foreign Exchange Appellate Tribunal holding the appellant guilty under s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that there was no compensatory payment made to or for this benefit of Mr. N.N. Gupta. But although the investigating officer was very cordial in his conduct, yet I was however, insisted to make the statement that this payment was made against premium, the legal implication of which I could not comprehend till I was explained by my lawyer, I was also told unless such admission was made, my case would not be closed. I, however, sent my retraction statement immediately refuting any kind of payment to Mr. N.N. Gupta. I, therefore, once again reiterate that I am a small time employee hardly in a position to make both ends meet and such compensatory payments were possible only if I had such substantial funds at my disposal which is next to impossible. In view of the same, how I can enter into a such wrongful deals and vilate the law easy to conclude. I once again submit under oath that I have not made any payment to Mr. N.N. Gupta and therefore request your honour to drop the charges and the proceedings against me and oblige. The case may be decided on the basis of available documents without a personal hearing." ( v )The Adjudicating Officer vide his order dated 21-8-1996, held the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reof alone a judgment of conviction and sentence has been recorded. { See Pon Adithan v. Deputy Director, Narcotics Control Bureau, Madras [1999] 6 SC 1.} (27) Reliance has been placed by the Tribunal on the decision of this Court in State (NCT of Delhi) v. Navjot Sandhu alias Afsan Guru [2005] 11 SCC 600, commonly known as the Parliament Attack case . Therein also this Court held : We start with the confessions. Under the general law of the land as reflected in the Indian Evidence Act, no confession made to a police officer can be proved against an accused. Confession which is a terminology used in criminal law is a species of admissions as defined in section 17 of the Indian Evidence Act. An admission is a statement-oral or documentary which enables the court to draw an inference as to any fact in issue or relevant fact. It is trite to say that every confession must necessarily be an admission, but, every admission does not necessarily amount to a confession. While sections 17 to 23 deals with admissions, the law as to confessions is embodied in sections 24 to 30 of the Evidence Act. Section 25 bars proof of a confession made to a police officer. Section 26 goes a step further an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r a quasi-criminal case but there cannot be any doubt whatsoever that the court is obligated to take into consideration the pros and cons of both the confession and retraction made by the accused. It is one thing to say that a retracted confession is used as a corroborative piece. . . ." [Emphasis supplied] (p. 167) 8. The appellant has also relied upon the case of Noor Aga v. State of Punjab 2008 (3) ICC 135 wherein it was held : "96. We may, at the outset, notice that a fundamental error has been committed by the High Court in placing explicit reliance upon section 108 of the Customs Act. 97. It refers to leading of evidence, production of document or any other thing in an enquiry in connection of smuggling of goods. Every proceeding in terms of sub-section (4) of section 108 would be a judicial proceeding within the meaning of sections 193 and 228 of the Indian Penal Code. The inquiry contemplated under section 108 is for the purpose of 1962 Act and not for the purpose of convicting an accused under any other statute including the provisions of the Act. 98. Appellant contended that the purported confessions recorded on 2-8-1997 and 4-8-1997 were provided by an officer of the Cus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he powers of a Police Officer are conferred on him. 114. A statement made by an accused would become relevant in a prosecution under the Act. Only when, it can be used for the purpose of proving the truth of the facts contained therein. It deals with another category of case which provides for a further clarification. Clause ( a ) of sub-section (1) of section 138B deals with one type of persons and clause ( b ) deals with another. The Legislature might have in mind its experience that sometimes witnesses do not support the prosecution case as for example panch witnesses and only in such an event an additional opportunity is afforded to the prosecution to criticize the said witness and to invite a finding from the Court not to rely on the assurance of the Court on the basis of the statement recorded by the Customs Department and for that purpose it is envisaged that a person may be such whose statement was recorded but while he was examined before the Court, it arrived at an opinion that is statement should be admitted in evidence in the interest of justice which was evidently to make that situation and to confirm the witness who is the author of such statement but does not support ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. Therefore, he is entitled to cross-examine the panch witnesses before the authority takes a decision on proof of the offence. We find no force in this contention. The Customs Officials are not police officers. The confession, though retracted, is an admission and binds the petitioner. So there is no need to call panch witnesses for examination and cross-examination by the petitioner." (p. 509) 10. However, the aforesaid judgment relied upon by the respondents do not apply to the facts of the present case as in the present case there is no admission on the part of appellant that he repaid the amount of cheque paid to him from the persons from whom he had received the gift cheque. 11. The Appellate Tribunal has disposed of the revision petition vide impugned order by holding that since no limitation has been prescribed under the provisions of section 52(4) of FERA for filing of the revision petition is not barred by any limitation. 12. Regarding retraction of confession the Appellate Tribunal held as under : "Merely because the appellant made the confessional statement before the Enforcement Directorate, the confessional statement cannot be ousted from consideration. The pleaded d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions : "There is another factor which is required to be taken into consideration. The respondent has repeatedly argued that payment in lieu of gift cheque is required to be proved to the hilt identifying the recipient in a clear manner. However, we fail to understand that the payment when it was made to whom else it can go when cheque from NRE account of Sh. N.N. Gupta is taken and payment is made in lieu thereof this is a common human conduct which can be taken into consideration while deciding this revision petition as total evidence has been discussed hereinabove so no purpose will be served if the matter is remanded back to the adjudicating authority for fresh adjudication. Therefore, this Tribunal has taken upon itself to decide the matter." 15. These observations in the absence of any evidence showing that the appellant had returned a sum of Rs. 5 lakhs along with interest by making a payment of Rs. 5.60 lakhs are of no effect. In fact, even in his statement recorded under section 40 of the Act, the appellant nowhere states that he has paid a sum of Rs. 5.60 lakhs to Sh. N.N. Gupta. Rather in his communication dated 24-7-1996 he has very categorically stated that he has not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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