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TMI Blog2009 (8) TMI 1120X X X X Extracts X X X X X X X X Extracts X X X X ..... on the statement made by one Surinder Kumar Dhawan, who, as alleged, was arrested by the Customs Authorities at Palam Airport on 13-9-1985 and was found in possession of Saudi Riyals 43,500, DM 12,500 and DHs 2000 while he was moving towards security check at the airport for going to Singapore by KLM Flight and stated that the foreign exchange was received by him from Vinod Kumar Sahadev, the present appellant. 3. As a follow up action, the respondent conducted a search at the residential and business premises of the appellant, Surinder Kumar Dhawan and B.S. Malik. It is the case of the respondents that during the aforesaid search some loose sheets were recovered from the house of Vinod Kumar, which had some calculations and which were described as calculations of dealing in foreign exchange by the petitioner with one Kasturi Lal. 4. The respondent claims to have recorded the statement of the present appellant under Section 40 of the FERA, 1973 on 13-9-1985 alleging that the appellant accepted having handed over foreign exchange in question to Surinder Kumar Dhawan and to Kasturi Lal and his involvement in similar transactions between September, 1984 till 12-9-1985 to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 14-9-1985 itself, receipt of which is not disputed by the respondent, has not been refuted by the respondent inasmuch as none of the officers who recorded the statement of the petitioner has come in the witness box to corroborate the version of the respondent. Even the annexure to the panchnama containing the details of the documents recovered allegedly was also not produced by the department, which makes the recovery of the documents from the residence of the petitioner doubtful. The witnesses who witnessed the alleged recovery of the incriminating documents from the appellant have been examined by the respondent in the course of adjudicating proceedings. In fact, no reply has been filed to the allegation made by the appellant about the exercise of duress and force upon him while recording his alleged statement on 13-9-1985. 8. It is thus submitted that once the recovery of foreign currency has not been proved in accordance with law and there is no corroboration of the documents seized or the statements made by other accused persons, the imposition of penalty on the appellant who is even otherwise not in a position to pay the same cannot be sustained. 9. It would be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 which case corroboration is required on material particulars of the prosecution case. Each case would, therefore, require to be examined in the light of the facts and circumstances in which the confession came to be made and whether or not it was voluntary and true. These require to be tested in the light of a given set of facts. The high degree of proof and probative value is insisted in capital offences. 25. It would thus be seen that there is no prohibition under the Evidence Act to rely upon the retracted confession to prove the prosecution case or to make the same basis for conviction of the accused. Practice and prudence require that the court could examine the evidence adduced by the prosecution to find out whether there are any other facts a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , when irrelevant in criminal proceeding. - A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise, having reference to the charge against the accused person, proceeding from a person in authority and sufficient in the opinion of the Court, to give the accused person grounds, which would appear to him reasonable, for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him. 17. The proceeding under the Act is quasi criminal in nature. Section 50 of the Act is a penal provision prescribing that in the event of contravention of any of the provisions of the Act or of any rule, direction or order made thereunder, a penalty not exceeding five times the amount or value involved in any such contravention may be imposed. 18. Section 71 of the Act provides for burden of proof in certain cases. Sub-section (2) of Section 71 provides that the burden of proving that the foreign exchange acquired by such person has been used for the purpose for which permission to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtment 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 the prosecution although he made a statement in terms of Section 108 of the Customs Act. We are not concerned with such category of witnesses. Confessional statement of an accused, therefore, cannot be made use of in any manner under Section 138B of the Customs Act. Even otherwise such an evidence is considered to be of weak nature. 11. After making the aforesaid observation, taking into consideration the stand of the appellant that he had retracted the confession allegedly relied upon by the Enforcement Directorate, the Apex Court further observed:- 33. In Gulam Hussain Shaikh Chougule v. S. Reynolds, Supdt. of Customs, Marmgoa MANU/SC/0670/2001, this Court refused to exercise its discretionary jurisdiction under Article 136 of the Constitution of India opining that the confession was rightly held by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that confessions were not only untrue but also involuntary. 37. The allegation that he was detained in the Office of Enforcement Department for two days and two nights had not been refuted. No attempt has been made to controvert the statements made by appellant in his application filed on 28-10-1994 before the learned Chief Metropolitan Magistrate. Furthermore, the Tribunal as also the Authorities misdirected themselves in law insofar as they failed to pose unto themselves a correct question. The Tribunal proceeded on the basis that issuance and services of a show cause notice subserves the requirements of law only because by reason thereof an opportunity was afforded to the proceedee to submit its explanation. The Tribunal ought to have based its decision on applying the correct principles of law. The statement made by the appellant before the learned Chief Metropolitan Magistrate was not a bald statement. The inference that burden of proof that he had made those statements under threat and coercion was solely on the proceedee does not rest on any legal principle. The question of the appellant's failure to discharge the burden would arise only when the burden was on him. If ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngements, if any. As no sufficient material much less any material has been placed on record to substantiate the stand of the appellant, the conclusions of the Commissioner as affirmed by the CEGAT cannot be faulted. 41. For the reasons aforementioned, the order of the Tribunal and consequently the impugned judgment and order cannot be sustained. They are set aside accordingly. This appeal is allowed. The amount of Rs. 2,65,000/- which is with the Department shall be refunded to the appellant within four weeks from date. In the facts and circumstances of the case, there shall be no order as to costs. 13. In view of the aforesaid, it is apparent that once the alleged statement made by the appellant on 13-9-1985 was retracted on 14-9-1985 itself with allegations of force and duress upon the appellant, the onus to prove that the said statement was voluntary shifted upon the respondent, which onus has not been discharged by them and it is on that basis even the criminal prosecution resulted in the discharge of the appellant and other accused persons. 14. The learned counsel appearing on behalf of the respondent though submitted a written note opposing the case of the ..... 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