TMI Blog2009 (4) TMI 464X X X X Extracts X X X X X X X X Extracts X X X X ..... Appeal dismissed. - CMA NO. 3238 OF 2003 AND CMP NO. 20859 OF 2003 - - - Dated:- 29-4-2009 - MRS. PRABHA SRIDEVAN AND T.S. SIVAGNANAM, JJ. V.K. Sathyamurthy for the Appellant. M. Dhandapani for the Respondent. JUDGMENT 1. Heard Mr. V.K. Sathyamurthy, learned counsel for the appellant and Mr. Dhandapani, learned Standing Counsel for the respondent. The above appeal had been filed by one P.K. Bhanu (since deceased) challenging the order passed by the Appellate Tribunal for Foreign Exchange, New Delhi in Appeal No. 321 of 1982, dated 4-9-2001, confirming the order dated 12-11-1982 passed by the respondent herein, the adjudicating authority. 2. The question of law which has been framed for consideration in the above appeal is as follows : "Whether the Appellate Tribunal is right in relying on the confessional statement of the appellant dated 2-3-1981, which was retracted by him, in his letter dated 6-3-1981 sent from the Central Prison, Madras, which is inadmissible in law and cannot be used against him for any purpose in view of the retraction at the earliest point of time?" 3. For the purpose of the answering the question of law framed, it is nec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... detailed in the Mahazar. It was further stated that Mr. P.K. Bhanu was forced, threatened, unduly harassed to write a statement to the dictation of the officer which was not voluntarily given and that this statement was retracted by the appellant while he was in Central Jail, by his letter dated 6-3-1981 addressed to the Deputy Director of Enforcement despatched on 7-3-1981. It was further stated P.K. Bhanu does not know anything about Hassan Bai, Subramanian, Verma and Chandran nor about their alleged statement. 7. The Adjudicating Authority commenced adjudication and statements of K.B. Chandran, L.A. Verma, Hassan Ibrahim, Mr. B. Kistoor Chand, (Assistant Enforcement Officer), Mr. A. Kalyanasundaram, Assistant Director (Documents), Tamil Nadu Forensic Science Lab., Mr. P. Avinashi, Welfare Officer, Central Prison, Vellore, were recorded in the presence of the counsel for P.K. Bhanu and they were all cross-examined by the counsel. 8. The Adjudicating Authority by an order dated 12-11-1982 held Mr. P.K. Bhanu has not been able to discharge his onus that the Foreign Currency of US$ 40,000 found in possession on 2-3-1981 was acquired by him and was lawfully brought by him fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e has been sufficiently discharged by the appellant by producing the Currency Declaration Form. On behalf of the Department it was contended by the learned Standing Counsel that the provisions of the Evidence Act are not applicable to the Adjudicating proceedings as they are governed by the Adjudication Proceedings and Appeal Rules, 1974. It was further contended that the burden of proof that P.K. Bhanu came into possession of the seized currency in a lawful manner is on him in terms of section 71(3) of FERA, which has not been discharged by the appellant. It was further contended that even a retracted statement can be admitted in evidence if it is found to be true and voluntarily made. On facts it was held that though the appellant had furnished Currency Declaration Form showing that he had brought US$ 80,000 but he went back to Singapore before coming again to India. When he was apprehended, in his statement, the appellant stated that he took back the US$ to Singapore. In response to the appellant s submission during the adjudication proceedings that he encashed US$ 40,000 out of 80,000 and the seized 40,000 are balance of the US$ 80,000 which he brought in India as per the Curre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ments as regards the evidentiary value of the retracted confession : (1) Puran v. State of Punjab AIR 1953 SC 459. (2) Muthuswami v. State of Madras AIR 1954 SC 4. (3) Pangambam Kalanjoy Singh v. State of Manipur AIR 1956 SC 9. (4) Sevanti Lal Karsondas Modi v. State of Maharashtra AIR 1979 SC 705. (5) Abdulla Mohammed Pagarkar v. State (Union Territory of Goa, Daman and Diu) [1980] 3 SCC 110. (6) Kora Ghasi v. State of Orissa [1983] 2 SCC 251. The learned counsel also relied on Chunni Lal Dwarka Nath v. Hartford Fire Insurance Co. Ltd. AIR 1958 Punjab 440, stating that the effect sending a letter to the post office will in general be regarded as presumptively proved. 14. The learned Standing Counsel appearing for the respondent contended that there arises no question of law in the above appeal and as such, the appeal is not maintainable under section 54 of the Act. The learned Standing Counsel submitted that FERA is a self-contained code and the provisions of the Evidence Act has no application to the statements made before the officers and that the confessional statements under section 40 of FERA can be used for proceedings under the Act. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Singapore and that this 40,000 US$ does not form part of the 80,000 US$ shown in the currency declaration form. P.W.2 is one K.V. Chandran. According to him, the statement recorded on 2-3-1981 by the officers of the Department was actually written by him on dictation. He was taken to the office and kept there till 4:00 p.m. on the next day viz., 3-3-1981. He was not allowed to go anywhere. During this time only one statement was recorded and that was on the third morning. He had written a letter subsequently retracting the statement recorded on 3-3-1981 as forced statement. When he was cross-examined, he has stated that he did not remember whether a statement was also recorded from him. On 3-3-1981, according to him except the personal details regarding his name, nationality, profession other details are false. According to him, amongst the documents seized, there were some documents mentioning 80,000 US$. It was an airport form and he did not exactly remember what it was. This witness is re-examined by the Department. He had stated that P.K. Bhanu is his uncle and he had entered the room at the Queens hotel and the Directorate Officer is conducting the search. According to him, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prisoner P.K. Bhanu gave him a letter addressed to the Deputy Director, Enforcement Directorate, Madras. It had been recorded in the "Register of petitions received and disposed of from the prisoners." According to him, the letter of P.K. Bhanu was a hand written one. Jeevarathinam, the Chief Enforcement Officer had stated that P.K. Bhanu, L.A. Verma and K.V. Chandran were taken to the Officer of that Enforcement Directorate, Madras and all the statements were given by them voluntarily. In his cross-examination, he was shown the customs declaration form and he has admitted that it is a genuine and valid declaration. He was asked whether P.K. Bhanu told him that it was part of the 80,000 US$ brought inside India. The answer was he did not tell him that 40,000 US$ recovered from his brief case form part of the 80,000 US$ brought from India under the declaration form. According to him, he did not arrest P.K. Bhanu on 2-3-1981. He was asked as to whether he verified from any of the persons in whose names the passports found in Ex-P3 file stand and whether any of them gave money to P.K. Bhanu. He has admitted that he had not done so because he did not have the address. He has stated tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter should have been delivered. ( ii )In Puran s case ( supra ), it was held that the retracted confession cannot form the base for the conviction unless it is corroborated in material particulars. ( iii )In Muthuswami s case ( supra ), it is stated that a confession should not be accepted merely because it contains a wealth of detail which could not have been invented. Unless the main features of the story are shown to be true, it is unsafe to regard mere wealth of uncorroborated detail as a safeguard of truth. ( iv )In Pangambam Kalanjoy Singh s case ( supra ), it was held that "even if a confession is inculpatory, corroboration is necessary if the confession is retracted". ( v )In Kora Ghasi s case ( supra ), it was held that the retracted confession made before Magistrate, even if voluntary requires corroboration. ( vi )In Rattan Singh v. State of Punjab [1981] 4 SCC 481, it was held that the detention is illegal upon the failure of jail authorities to forward detenue s representation to Central Government either directly or through State Government and lying unattended for several months. 23. We have seen from the decisions cited above that even i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atement of Avanashi who has stated that he had indeed received a letter from the prisoner. This has not reached the directorate. 24. We will assume that there was indeed a retraction. Even if the appellant had made a retraction, it is possible to rely on the retracted statement to convict him if there is corroboration. The retracted statement merely says that a statement was signed by him under threat or force. All the documents referred to in the statement on 2-3-1981 have been seized from him on 2-3-1981 itself as seen from the Mahazar dated 2-3-1981. The retracted statement does not refer to the documents seized. Therefore, the documents seized from the appellant cannot lose their evidentiary value if there is no denial by the appellant regarding the genuineness of the documents. The statement dated 2-3-1981 is of course inculpatory. 25. Next we will look at the evidence of K.V. Chandran. The witnesses K.V. Chandran, L.A. Verma, Hassan Ibrahim also have given their statements. They claim they have retracted them. But there is no evidence of their retraction. The retraction statements have not been received by the Directorate. In K.V. Chandran s statement, he has referred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dran. 27. Now, L.A. Verma and K.V. Chandran also claimed that they had retracted the statement. But for this there is no evidence. Two questions were asked by the Additional Director, Enforcement Directorate of the counsel who appeared for the appellant. One was whether it is possible to produce a copy of the petition dated 6-3-1981 which is the retraction statement and the other question, what happened to the balance of 40,000 US$ out of the 80,000 US$ brought by P.K. Bhanu. 28. As regards the first question, this direction to produce was made because the retracted statement was not available in the office. We may even ignore the fact that the counsel was unable to produce the copy because the prisoner may not have taken a copy of his retraction. But the second question is a crucial one. The case of the appellant is that the 40,000 US$ is the balance out of the 80,000 US$. So he should be able to say how he disposed of the 40,000 US$. The learned counsel for the appellant repeatedly urged that there is no presumption of guilt in proceedings under section 40 and once the authorities had the currency declaration form, which was evidence of the fact that the appellant had bro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ain what he did with the 80,000 US$ and more importantly the balance of 40,000 US$. So the onus had shifted back to the appellant which has not been discharged. The facts as collected from the retracted statement and are corroborated by the statement of L.A. Verma and K.V. Chandran and also by the documentary evidence that he had collected from 22 persons at the rate of Rs. 11,500 per person in the form of US dollars at the rate of Rs. 8.50 per US$ stands proved. Therefore, even accepting the mistaken identity of Subramaniam and Hassan Ibrahim and also accepting that there was a retracted statement, the conviction of the appellant for contravention of FERA is proved by other materials and evidence. There is at least some evidence to show that the appellant handed over the retracted statement to Avanashi. But the retraction of K.V. Chandran and Verma was neither received by the Directorate nor did they have any copy of it. Hassan Ibrahim did not retract his statement but in the evidence, he denied having given any foreign exchange to P.K. Bhanu. The Tribunal was quite correct in, therefore, coming to the conclusion that it is for the appellant to prove that he had lawfully come into ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for an assurance in support of the conclusion deducible therefrom. [ See Haricharan Kurmi v. State of Bihar AIR 1964 SC 1184; Haroom Haji Abdulla v. State of Maharashtra AIR 1968 SC 832 and Prakash Kumar alias Prakash Bhutto v. State of Gujarat [2007] 4 SCC 266. 20. We may, however, notice that recently in Francis Stanly Stalin v. Intelligence Officer, Narcotic Control Bureau, Thiruvananthapuram [2006] 13 SCC 210, this Court has emphasized that confession only if found to be voluntary and free from pressure, can be accepted. A confession purported to have been made before an authority would require a closure scrutiny. It is furthermore now well-settled that the Court must seek corroboration of the purported confession from independent sources. 21. In the Assistant Collector of Central Excise, Rajamundry v. Duncan Agro Industries Ltd. [2000] 7 SCC 53, this Court held : . . . The inculpatory statement made by any person under section 108 is to non-police personnel and, hence, it has noting of inadmissibility in evidence if it was made when the person concerned was not then in police custody. Nonetheless the caution contained in law is that such a state ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n P. Mansoor Mohamed Ali Jinnah s case ( supra ), in paragraph Nos. 19 and 23, it has been stated as follows : "19. A Full Bench of this Court in Roshan Beevi v. Joint Secretary to the Government, Tamil Nadu, Public Department 1984 Crl. L.J. 134 to which one of us. Ratnaval Pandian, J. (as he then was) was a party, while dealing with the question of prolonged custody of a person under the guise of enquiry, interrogation of investigation, held under section 107 or section 108 of the Customs Act, has made the following observation : If, in given case, the Customs Official detains any person required or summoned under the provisions of the Customs Act for a prolonged period, even exceeding twenty-four hours, or keeps him in closed doors as a captive prisoner surrounded by officials or locks him in a room or confines him to an office premises he does so at his peril, because sections 107 and 108 of the Customs Act do not authorise the officer belonging to the Customs Department to detain a person for a prolonged custody and deprive him of the elementary facilities and privileges to which he is entitled. In such a situation, the officer must be held to have over-stepped his ..... X X X X Extracts X X X X X X X X Extracts X X X X
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