2004 (8) TMI 781

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....other foreign exchange which he purchased and sold within 3-4 months equivalent to Rs. 27 lakhs without any general or special permission from RBI in contravention of provisions of section 8(1) of FERA, 1973. The appellant has deposited Rs. 15,000 in accordance with order dated 21-5-2004 as pre-deposit and Dr. Shamsuddin, DLA confirms the same. 2. The admitted facts as discussed in the impugned order are that foreign exchange amounting to US $ 568, Can. $ 600, Pound 1627, DM 550, S. Rls. 101 and Dhs. 470 is recovered and seized from the possession of the appellant whereupon he made a confession that he was carrying this foreign exchange and had also been selling and purchasing during the past 3-4 months foreign exchange amounting to Rs. ....

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....lay whose initial burden of proof lies on appellant. 5. On the question of burden of proof of inducement, threat or promise which can vitiate the confessional statement, the Supreme Court has observed in K.T.M.S. Mohd. v. UOI [1992] 3 SCC 178 as under:- "We think it is not necessary to recapitulate and recite all the decisions on this legal aspect. But suffice to say that the core of all the decisions of this Court is to the effect that the voluntary nature of any statement made either before the Customs authorities or the officers of Enforcement under the relevant provisions of the respective Acts is a sine qua non to act on it for any purpose and if the statement appears to have been obtained by any inducement, threat, coercio....

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....ant leads some evidence wherefrom inference of inducement, threat, coercion or promise can be drawn then Respondent will necessarily have to prove, with strong evidence, their absence. Otherwise the inculpatory concession is acceptable as true, voluntary and without any threat or coercion. In the factual scenario of this appeal and in absence of any proof of coercion etc. by appellant, it can be accepted that the confessional statement of appellant even during custody are voluntary, true and correct. 7. However, the appellant worked as carrier for somebody. Hence it can be assumed that he might have earned somewhat little amount. The penalty in this circumstance is required to be reduced otherwise it will be harsh and excessive. The amou....