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2015 (11) TMI 77 - MADRAS HIGH COURT

2015 (11) TMI 77 - MADRAS HIGH COURT - TMI - Confiscation of amount seized from appellant premises - amount was obtained by any unfair means - offence under Section 9(1)(b) of the Act - Held that:- 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 reside .....

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orcement. - alleged statement was subsequently retracted by the appellant in his reply. - retracted 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 a .....

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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, learned counsel appearing for the first respondent. 3. It is manifested from the records that the order of adjudication was passed by the first respondent on 12.11.1992. The appellant appears to have filed his appeal before the second .....

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corded by the Officers of the Directorate of Enforcement. The first respondent also had been heavily banking on the document(document serial No.35, sheet No.11 of bunch A) alleged to have been seized from the premises of one Mr.Jahubar Nissar. 5. The appellant's main contention is that the alleged statement dated 30.04.1991 was obtained under duress and threat of arrest, coercion and intimidation of family members. According to the appellant, he had retracted the above statement at the earli .....

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orm basis for initiating proceedings under the provisions of the Foreign Exchange Regulation Act. 6. This appeal came to be admitted on the following substantial questions of law: (1) Whether the respondents are justified in ordering confiscation of entire amount seized from the appellant's premises and imposing penalty in the absence of any independent material to show that the said amount was obtained by any unfair means? (2) Whether, in the facts and circumstances of the case and material .....

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ng 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 Off .....

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05.01.1991 and another sum of ₹ 1,20,000/- in the first week of February. The appellant had totally received a sum of ₹ 2,20,000/-. It is also stated that out of ₹ 2,20,000/-, he had spent a sum of ₹ 90,000/- and the remaining balance was kept in his residence, which was said to have been seized by the Officers of the Directorate of Enforcement Wing on 30.04.1991. 8. A show cause notice dated 07.06.1991 was issued to the appellant. In this notice, it is alleged that the a .....

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been seized from the premises of one Jahubar Nissar. 9. That on 17.06.1991, the appellant had given a reply disowning the statement dated 30.04.1991, saying that the statement was obtained from him under duress, threat of arrest, coercion and intimidation of the family members. In his reply, the appellant had specifically refuted the alleged acquaintance with any person including Jahubar Nissar and also denied any knowledge of the documents seized from his residence. 10. According to the appell .....

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dated 30.04.1991, which was subsequently retracted by the appellant in his reply dated 17.06.1991 could be trusted or found basis for maintaining the charge that the appellant had contravened the provisions of Section 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 .....

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se. 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 recorded from the appellant. It is inculpatory in nature. 15. Mr.M.Dhandapani, learned couns .....

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Hilal from Kuwait. 16. In this regard, we would like to point out much of the confusion relative to the exact meaning of the word ''confession'' is the result of failure to distinguish between ''admission'' and ''confession''. A statement or a declaration of an independent fact from which guilt may be inferred is not a confession. It is an admission of a particular fact pertinent to the issue and evidence of that fact, but it is not ''conf .....

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ied in criminal law, is not a technical refinement, but based upon substantive differences of the character of the evidence deduced from each. A confession is a direct acknowledgement of guilt on the part of the accused, and , by the very force of the definition, excludes an admission, which, of itself, as applied in criminal law, is a statement by the accused, direct or implied of facts pertinent to the issue, and tending, in connection with proof of other facts, to prove his guilt, but of itse .....

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9. 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 .....

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l word is the expression ''appears''. The appropriate meaning of the word ''appears'' is ''seems''. It imports a lesser degree of probability than proof. The standard of a prudent man is not completely displaced, but the stringent rule of proof is relaxed. Even so, the laxity of proof permitted does not warrant a court's opinion based on pure surmise. A prima facie opinion based on evidence and circumstances may be adopted as the standard laid .....

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ate of Karnataka Vs. A.B.Nagaraj and another (AIR 2003 Supreme Court 666), the Apex Court has observed that: "it is unsafe to base the conviction on a retracted confession unless it is corroborated by trustworthy evidence. There is no definite law that a retracted confession cannot be the basis of the conviction but it has been laid down as a rule of practice and prudence not to rely on retracted confession unless corroborated''. 22. Mr.J.Raja Kalifulla, learned Senior Counsel appea .....

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ct, 1872. The proceeding under the Foreign Exchange Regulation Act, 1973 is quasi-criminal in nature. It is a trite law that evidence brought on record by way of confession which stood retracted must be substantially corroborated by other independent and cogent evidence, which would lend adequate assurance to the court that it may seek to rely thereupon. In R.Rajagopal Vs. Assistant Director, Enforcement Directorate, Madras & another cited second supra, it is observed that, "a confessio .....

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nfessional 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 .....

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