TaxTMI 
TaxTMI 
2009 (1) TMI 952
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.... (b) Rs. 25 lakhs against appellant in appeal No.455/03 (in brief 2nd appellant) for contravention of Section 9(1)(f)(1), 9(1)(d) and 14 read with Central Government Notification No.F-10/22/90/NRI-Cell dated 17.7.1992 and 8(1) FER Act on the reasons that he made payment of Rs. 45 lakhs to 1st appellant (appellant in appeal No. 420/03) in consideration of receipt of foreign currency US Dollar 908598 and Pound 13000. (c) Rs. 25000/- against appellant in appeal No.456/03 (in brief 3rd appellant) for contravention of Section 8(1) with 64(2) and thus abetting 2nd appellant on the reasons of having aided 2nd appellant to unauthorisedly acquire US Dollar 69973 and unauthorisedly to borrow US Dollar 28000. (d) Rs. 70000/- against appellant in appeal No.457/03 (in brief 4th appellant) for contravention of Section 9(1)(f)(1) read with 64(2) and thus abetted by aiding 2nd appellant in receiving foreign exchange of US Dollar 16723 in lieu of payment of Rs. 7 lakhs. (e) Rs. 25000/- against appellant in appeal No.458/03 (in brief 5th appellant) for contravention of Section 8(1) read with 64(2) for abetting 2nd appellant by aiding in borrowing of foreign currency of....
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....Opticals of Hongkong (2) M/s. Timmy Opticians of Hongkong (3) Manish Gathani of UK (4) M/s. Sunblokers of UK. (iii) second appellant during January, 1998, borrowed US dollars 28,000/- from Arun B. Bhatia of Dubai and Pound 640/- from one Parmar of UK. (iv) second appellant earned in 1997-98 the foreign currency equivalent to Rs. 2.5 lakhs as commission from M/s. Hilton of UK, which he failed to surrender to authorized dealer but deposited with M/s. Rinco Trading Co. of Dubai. (b) (i) the first appellant received payment of Rs. 45 lakhs from second appellant by order or on behalf of first appellant's brother Vijay @ Harish Bhai, resident of Dubai, in consideration of receipt of foreign currency of US dollars 90898/- and Pound 13,000/- by second and third appellants through aforesaid Vijay @ Harish Bhai of Dubai from second appellant. (ii) first appellant during January, 1998, till July, 1998, made payment of Rs. 45 lakhs to one Gopal, resident of India, by order or on behalf of first appellant's brother Vijay @ Harish Bhai of Dubai. (iii) first appellant, while on visits to foreign countries, acquired and brought in India UAE dirh....
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.... 6. Panchanama dated 19.8.1998 in respect of the search of residential premises of Shri Navin H. Java and foreign currency seized therefrom. 7. Statement dated 19.8.1998 of Shri Navin H. Java. 8. Statement dated 28.8.1998 of Sushil J. Jagasia. 9. Statement dated 31.8.1998 of Hemant A. Tanna. 10. Statement dated 1.9.1998 of Vijay M. Parikh. 7. The appellants controverted the allegations contained in Show Cause Notice and filed reply but not agreeing the adjudication proceedings are held and the impugned order is passed. 8. The contentions are made that the impugned order is passed after repeal of Foreign Exchange Regulation Act, 1973, w.e.f. 31.5.2000 whereafter the adjudicating officer has no authority or jurisdiction to pass the adjudication order. Further, cross examination of the co-appellants is not allowed despite repeated demands so violation of principles of natural justice has occurred. Moreover, the admissional statements, though retracted, are not supported from the contents of the recovered documents. Therefore, passing of the impugned order without corroboration is totally bad in law, especially when invoice of the spectac....
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.... from consideration. The retracted confession can also be made basis of conviction as held in K.I. Pavunny v. Assistant Collector (HQ), Central Excise Collectorate, Cochin, [1997] 3 SCC 721 where the Hon'ble Supreme Court observed as follows :- "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 and circumstances to corroborate the retracted confession. It is not necessary that there should be corroboration from independent evidence adduced by the prosecution to corroborate each detail contained in the confessional statement. The court is required to examine whether the confessional statement is voluntary; in other words, whether it was not obtained by threat, duress or promise. If court is satisfied from the evidence that it was voluntary, then it is required to examine whether the statement is true. If the court on examination of the evidence finds that the retracted confession i....
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....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 a police officer. Confessions leading to discovery of a fact which is dealt with under section 27 is an exception to the rule of exclusion of confession made by an accused in the custody of a police officer. Consideration of a proved confession affecting the person making it as well as the co-accused is provided for by section 30. Briefly and broadly, this is the scheme of the law of evidence vis a vis confessions. The allied provision which needs to be noticed at this juncture is section 162 Cr. PC. It prohibits the use of any statement made by any person to a police officer in the course of investigation for any purpose at any enquiry or trial in respect of any offence under investigation. However, it can be used to a limited extent to contradict a witness as provided for by section 145 of the Evidence Act. Subsection (2) of Section 162 makes it explicit that the embargo laid down i....
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....the police. 31. Before we turn our attention to the more specific aspects of confessions under POTA, we should have a conspectus of the law on the evidentiary value of confessions which are retracted, which is a general feature in our country and elsewhere. 32. As to what should be the legal approach of the court called upon to convict a person primarily in the light of the confession or a retracted confession has been succinctly summarized in Bhart v. State of U.P. [[1971] 3 SCC 950:1972 SCC(Cri)198] Hidayatullah, C.J., speaking for a three judge Bench observed thus: (SCC p. 953 para 7). "Confessions can be acted upon if the court is satisfied that they are voluntary and that they are true. The voluntary nature of the confession depends upon whether there was any threat, inducement or promise and its truth is judged in the context of the entire prosecution case. The confession must fit into the proved facts and not run counter to them. When the voluntary character of the confession and its truth are accepted, it is safe to rely on it. Indeed a confession, if it is voluntary and true and not made under any inducement or threat or promise, is the most pate....
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.... "A retracted confession may form the legal basis of a conviction if the court is satisfied that it was true and was voluntarily made. But it has been held that a court shall not base a conviction on such a confession without corroboration. It is not a rule of law, but is only rule of prudence. It cannot even be laid down as an inflexible rule of practice or prudence that under no circumstances can such a conviction be made without corroboration, for a court may, in a particular case, be convinced of the absolute truth of a confession and prepared to act upon it without corroboration; but it may be laid down as a general rule of practice that it is unsafe to rely upon a confession, much less on a retracted confession, unless the court is satisfied that the retracted confession is true and voluntarily made and has been corroborated in material particulars". 35. As to the extent of corroboration required, it was' observed in Subramani Goundan case that each and every circumstance mentioned in the retracted confession regarding the complicity of the maker need not be separately and independently corroborated. The learned Judges observed: (SCR pp. 440-41) "It ....
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.... or partly in which case it loses much of its evidentiary value. 19. In order to be assured of the truth of confession, this Court, in a series of decisions, has evolved a rule of prudence that the court should look to corroboration from other evidence. However, there need not be corroboration in respect of each and every material particular. Broadly, there should be corroboration so that the confession taken as a whole fits into the facts proved by other evidence. In substance, the court should have assurance from all angles that the retracted confession was, in fact, voluntary and it must have been true." 12. The admissional statement of both the appellant can be termed as voluntary and true. Further, in a recent judgment of Hon'ble Supreme Court in Kanhaiyalal v. Union of India 2008 (1) Scale 165, the following is observed in para 37:- "The law involved in deciding this appeal has been considered by this Court from as far back as in 1963 in Pyare Lal Bhargava's case [1963] Supp. 1 SCR 689. The consistent view which has been taken with regard to confessions made under provisions of Section 67 of the NDPS Act and other criminal enactments, such as the ....
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....s absolute certainty is a myth, and as Prof. Brett felicitously puts it - "all exactness is a fake". El Dorado of absolute proof being unattainable, the law, accepts for it, probability as a working substitute in this work-a-day world. The law does not require the prosecution to prove the impossible. All that it requires is the establishment of such a degree of probability that a prudent man may, on its basis, believe in the existence of the fact in issue. Thus, legal proof is not necessarily perfect proof; often it is nothing more than a prudent man's estimate as to the probabilities of the case. 31. The other cardinal principle having an important bearing on the incidence of burden of proof is that sufficiency and weight of the evidence is to be considered -to use the words of Lord Mansfield in Blatch v. Archer [1774] 1 Cowp. 63 at p. 65 "according to the proof which it was in the power of one side to prove, and in the power of the other to have contradicted". Since it is exceedingly difficult, if not absolutely impossible for the prosecution to prove facts which are especially within the knowledge of the opponent or the accused, it is not obliged to prove them as pa....