TMI Blog2009 (7) TMI 783X X X X Extracts X X X X X X X X Extracts X X X X ..... re, no question of law is involved in the present appeal. Appeal dismissed. - FERA APPEAL NO. 39 OF 2009 - - - Dated:- 9-7-2009 - F.I. REBELLO AND J.H. BHATIA, JJ. Bhagwan Raichandani for the Appellant. S.S. Pakale, H.V. Mehta and Kiran J. Kondpile for the Respondent. JUDGMENT J.H. Bhatia, J. - By Order-in-original dated 9-7-1996, the Special Director, Enforcement held the present appellant guilty of contravention of the provisions of sections 8(1), 8(2) and 9(1)( b ) of Foreign Exchange Regulation Act, 1973 (FERA) for purchase and sale of foreign exchange unauthorisedly and imposed a penalty of Rs. 10 lakh and Rs. 75,000 respectively. The appellant challenged that order in Appeal No. 95 of 1999 before the Appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame to Narendra Mirani. Thus, he had sold foreign currency to Narendra Mirani on 8 to 9 occasions and that the foreign currency thus sold by him to Narendra Mirani was worth Rs. 30 to 40 lakh. He also admitted that during last 10 to 12 days prior to the date of search, he had sold foreign exchange worth Rs. 5 lakh to Narendra Mirani and he also received about of Rs. 3 lakh by hawala from one Manoj. The premises of Kapoor Jewellers owned by Manoj Jain were searched but nothing was found. Manoj Jain himself was not available at the premises searched nor he made himself available afterwards. As per the confessional statement of Narendra Mirani, the foreign exchange seized from him during the search was purchased by him from the present appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prove that the retracted confession was made by him under threat, coercion, etc. Their Lordships observed in paras 34 and 35 as under : "34. A person accused of commission of an offence is not expected to prove to the hilt that confession had been obtained from him by any inducement, threat or promise by a person in authority. The burden is on the prosecution to show that the confession is voluntary in nature and not obtained as an outcome of threat, etc., if the same is to be relied upon solely for the purpose of securing a conviction. With a view to arrive at a finding as regards the voluntary nature of statement or otherwise of a confession which has since been retracted, the Court must bear in mind the attending circumstances which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthority. However, when confession had been retracted, the Court must bear in mind the attending circumstances and other relevant factors to come to conclusion whether the confession was voluntary and was not obtained by any inducement, threat or force. At the same time, mere retraction of the confession may not be sufficient to make confessional statement irrelevant for the purpose of quasi-criminal proceedings and the Court is obligated to take into consideration the pros and cons of confession and retraction made by the accused. 5. In K.I. Pavunny v. Asstt. Collector (Headquarter), Central Excise Collectorate, Cochin 1997 (90) ELT 241 (SC). Three Judge Bench of the Supreme Court observed as follows in para 20 : "20. . . . ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ined by threat, coercion or inducement etc., the burden would be on the prosecution to prove that the confession was made by the accused voluntarily. If the Court believes that the confession was voluntary and believes it to be true, then there is no legal bar on the Court for ordering conviction. However, rule of prudence and practice does require that the Court seeks corroboration of the retracted confession from other evidence. The confession must be one inculpating the accused in the crime. It is not necessary that each fact or circumstance contained in the confession is separately or independently corroborated. It is enough if it receives general corroboration. The burden is not as high as in the case of an approver or an accomplice in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion dated 14-4-1989. It means he had taken more than two days to retract the statement even after production before the Magistrate. The recovery of foreign exchange of 13 countries worth Rs. 6 lakh was recovered during the search of the premises of Narendra Mirani. Naturally, he was called upon to explain wherefrom he had received that foreign currency. Immediately after that Narendra Mirani made the confessional statement inculpating himself as well as the present appellant. The present appellant made the confessional statement on the same day. In view of these circumstances, we are satisfied that the confessional statements were not made under any force, duress, coercion or because of any inducement from any person in authority. There is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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