TMI Blog2015 (11) TMI 77X X X X Extracts X X X X X X X X Extracts X X X X ..... ed confession cannot be trusted and form basis to maintain the charge that the appellant had contravened the provisions of Section 9 (1) (b) of the Foreign Exchange Management Act 1999. Since the Directorate of Enforcement has miserably failed to substantiate their case, presumptions has to be drawn as contemplated under Section 114 of the Evidence Act in favour of the appellant. Impugned order set aside - Decided in favour of Appellant. - C. M. A. No. 1982 of 2010, M. P. No. 1 of 2010 - - - Dated:- 7-10-2015 - V. Ramasubramanian And T. Mathivanan, JJ. For the Petitioner : Mr. J Raja Kalifulla, Senior Counsel for Mr. J Jayendra Krishnan For the Respondent : Mr. M Dhandapani JUDGMENT ( Judgment of the Court delivered by T. Mathivanan, J. ) 1. Final order dated 04.02.2010 and made in Appeal No.593 of 1992 on the file of the Appellate Tribunal for Foreign Exchange, New Delhi, confirming the order of adjudication No.DD-MAS/304/92 dated 12.11.1992 on the file of the first respondent viz, the Deputy Director of Enforcement has been challenged in this appeal. 2. Heard, Mr.J.Raja Kalifulla, learned Senior Counsel appearing for the appellant and Mr.M.Dhandapani, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he respondents are justified in ordering confiscation on the basis of alleged inculpatory statement without any corroborative material, especially when the statement has been retracted and a positive assertion made that the same was obtained under coersion, duress, threat of arrest and humiliation in public? (4) Whether the respondents are justified in taking proceedings against the appellant herein based on the alleged documents seized from Juhubar Nissar, when a specific question was raised before the Tribunal as regards the absence of opportunity to examine Jahubar Nissar? (5)Whether the Appellate Tribunal is right in imposing penalty on the appellant? 7. The facts which are germane to the present case are as under: Based on the documents seized from the premises of one Mr. Jahubar Nissar (document serial No.35, sheet No.11 of bunch A), the Officers of the Directorate of Enforcement, Chennai had searched the premises of the appellant Kamal Batcha, bearing Door No.35, Easwari Nagar, Thanjavur on 30.04.1991. While so, they had seized a sum of ₹ 1,20,000/- under the cover of a Mahazer. The Officers had also recorded his statement. In his statement, the appellant i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 (1) (b) of Foreign Exchange Management Act, without any corroboration from any independent evidence. 12. Admittedly, the document(document serial No.35, sheet No.11 of bunch A), said to have been seized from the premises of Mr. Jahubar Nissar was neither put to the appellant nor its contents were disclosed to him. No penal action was initiated against the above said Jahubar Nissar, nor any statement was obtained from him. He was not even examined in this case to substantiate the case of Directorate of Enforcement. 13. It is pertinent to note here that no statement was obtained from Mohamed Hilal, on whose instructions the above said amount was said to have been given to the appellant by an unknown person. In fact, the said Mohamed Hilal was also not examined in this case. Who is that unknown person?. What is his identity?. Which is the residential place of that man?. No material is forth coming from the Directorate of Enforcement. The vacuum existing in respect of the answer of these questions would lead us to conclude that the said person might be fictitious. 14. We have carefully perused the records including the alleged statement dated 30.04.1991, said to have been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oposed to prove against him to establish an offence. For such a purpose, a confession might be inadmissible, which yet for other purposes would be admissible as an admission under section 18 of Evidence Act. 19. As defined by the Apex Court in Aghnoo Vs. State (AIR 1966 Supreme court 119), it would thus appear that a confession is a species of which admission is the genus. In other words, all admissions are not confessions but all confessions are admissions. Only voluntary and direct acknowledgement of guilt is a confession. But when a confession falls short of actual admission of guilt, and is not taken down according to law, it may nevertheless be used as evidence against the person who made it, as an admission under Section 21. 20. We also find it expedient that the decision of the Apex Court in Pyare Lal Bhargava Vs. The State of Rajastan (AIR 1963 Supreme Court 1094, (volume 50, C 164) would be of much helpful to arrive at a fair conclusion in this case. In the above case a four Judges Bench of the Apex Court has observed as under: ''Under S.24: a confession would be irrelevant if it should appear to the court to have been caused by any inducement, threat or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In R.Rajagopal Vs. Assistant Director, Enforcement Directorate, Madras another cited second supra, it is observed 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 and that no hard and fast rule can be laid down regarding the necessity of corroboration in the case of a retracted confession in order to base a conviction thereon. 23. On coming to the present case on hand, it is apparent that the alleged confessional statement dated 30.04.1991, said to have been recorded from the appellant by the Officers of the Directorate of Enforcement has not been corroborated by any independent witness. Further, neither Mohamed Hilal of Kuwait, nor Jahubar Nissar, from whose residence the alleged document was said to have been seized was examined in this case. Their statements were also not recorded. 24. It is apparent that neither the copy of the seized document (document serial No.35, sheet No.11 of bunch A) was furnished to the appellant nor its contents wer ..... X X X X Extracts X X X X X X X X Extracts X X X X
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