TaxTMI 
TaxTMI 
2009 (5) TMI 530
X X X X Extracts X X X X
X X X X Extracts X X X X
....under section 9(1)(a) of FERA and imposing upon him a penalty of Rs. 3,00,000 (Rupees Three lakhs). 3. Section 9(1)(a) of FERA reads as under :- "9. Restrictions on payments.-(1) Save as may be provided in and in accordance with any general or special exemption from the provisions of this sub-section which may be granted conditionally or unconditionally by the Reserve Bank, no person in, or resident in, India shall- (a )make any payment to or for the credit of any person resident outside India;" 4. Briefly stating the facts of the present case are :- (i)That on receiving information that NRE accounts were being misused for deriving benefits under the Income-tax Act an enquiry was initiated by Directorate of Enforcement, which revealed that NRE account of Shri N.N. Gupta resident of Dubai maintained with American Express Bank Ltd., New Delhi was wrongly used for deriving the aforesaid benefit. The scrutiny of the said account revealed that a cheque of Rs. 5 lakhs dated 29-7-1993 was issued in the name of the appellant from the said account. (ii)According to the respondent, the appellant in his statement recorded under section 40 of FEMA on 4-1-1995 had stated that ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....order dated 21-8-1996, held the appellant guilty and imposed a penalty of Rs. 11,000 on him. However, against the aforesaid adjudicating order appellant filed an appeal before the Appellate Tribunal and the Tribunal vide order dated 30-6-1997 set aside the Adjudicating order and remanded the matter back for fresh adjudication proceedings to the Adjudicating Officer. This time vide order dated 27-12-2004 the appellant was acquitted of the charge. (vi)It was against the said order, the respondents filed a revision for examining the legality, proprietary and correctness of the adjudication order under section 52(4) of FERA, read with section 19(6) of FEMA. The Tribunal vide its order dated 30-11-2006 held the appellant guilty of the contravention of section 9(1)(a) of FERA and imposed a penalty of Rs. 3,00,000. 5. It has been submitted by the appellant that the Appellate Tribunal passed the impugned order mechanically and without application of mind to the factual and legal position as pleaded by the appellant. It is also submitted that the Tribunal failed to appreciate that the adjudicating authority has itself mentioned in its order exonerating the appellant and that there is ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... made to a police officer. Section 26 goes a step further and prohibits proof of confession made by any person while he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate. Section 24 lays down the obvious rule that a confession made under any inducement, threat or promise becomes irrelevant in a criminal proceeding. Such inducement, threat or promise need not be proved to the hilt. If it appears to the court that the making of the confession was caused by any inducement, threat or promise proceeding from a person in authority, the confession is liable to be excluded from evidence. The expression 'appears' connotes that the Court need not go to the extent of holding that the threat, etc., has in fact been proved. If the facts and circumstances emerging from the evidence adduced make it reasonably probable that the confession could be the result of threat, inducement or pressure, the court will refrain from acting on such confession, even if it be a confession made to a Magistrate or a person other than police officer'. (34) A person accused of commission of an offence is not expected to prove to the hilt that confession had been obt....
X X X X Extracts X X X X
X X X X Extracts X X X X
....essions recorded on 2-8-1997 and 4-8-1997 were provided by an officer of the Customs Department roughly and later the same were written by him under threat, duress and under gun point and had, thus, not been voluntarily made. 99. The High Court should have considered the question having regard to the stand taken by the appellant. Only because certain personal facts known to him were written, the same by itself would not lead to the conclusion that they were free and voluntary. 100. Clause (3) of Article 20 of the Constitution provides that no person accused of any offence shall be compelled to be a witness against himself. Any confession made under section 108 of the Customs Act must give way to Article 20(3) wherefore there is a conflict between the two. A retracted confessional statement may be relied upon but a rider must be attached thereto namely if it is made voluntary. The burden of proving that such a confession was made voluntarily would, thus, be on the prosecution. It may not be necessary for us to enter into the question as to whether the decisions of this Court that a Customs Officer is not a Police Officer should be revisited in view of the decision of this Cour....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e 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." 9. On the other hand, the respondents in their counter-affidavit have submitted that the order passed by the Tribunal is detailed one and a reasoned order. It is stated that the appellant had in fact purchased NRE cheque for Rs. 5 lakhs against the payment of Rs. 5.60 lakhs and the statement tendered by the appellant is a voluntary statement and without any duress and coercion. It is stated that confessional statement does not require any corroboration. However, it is their case that the cheque number and account number is an independent evidence which corroborates after the confessional statement though it is regarding the cheque of Rs. 5 lakhs and not about repayment. It is also stated that the alleged impugned order passed by the Appellate Tribuna....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tement before the Enforcement Directorate, the confessional statement cannot be ousted from consideration. The pleaded duress is required to be narrated and explained in sufficient details that how and in what circumstances, such duress came into existence. The retraction of a confessional statement is experienced daily by Courts and Tribunals. The retraction letter does not disclose the type and nature of duress. The bare statement alleging duress cannot exclude that confessional statement altogether from consideration. The appellant was telling a lie at one occasion either when confession was made or when retraction brought to light. The bare statement of retraction with no details of duress does not lead to credence to the appellant. On the other hand, there is corroboration in certain particulars to support the confessional statement. Hence the later is preferable in comparison to the former. Simultaneously, the legal position is quite clear that anybody working in Enforcement Directorate is not included among and is not a police officer under sections 25 and 26 of the Indian Evidence Act, 1872. Hence the plea of duress is liable to be rejected in particular circumstances of th....