Search action was undertaken at the office
premises of the appellant on 25-10-1994. He was detained for next two
succeeding days where he allegedly made two statements before the authorities
under the Act. He is stated to have confessed that he was responsible for
remittance of the foreign exchange.
On 28-10-1994, he was produced before the Chief
Metropolitan Magistrate, Bombay (CMM). Before the CMM he filed an application
retracting his confession. Thereafter the respondent initiated proceeding
u/s.8(3) of the Act. The appellant contended that no reliance should be placed
on the retracted confession statement unless the same was corroborated
substantially in material particulars by some independent evidence.
The authority on the basis of the confession
imposed a consolidated penalty of Rs.10 lacs. The Appellate Tribunal dismissed
the appeal and held that the onus of proof was on the appellant that the
confession was obtained from him by threat, coercion or force. On further
appeal the High Court upheld that finding of the Tribunal.
On further appeal to the Supreme Court, the Court
observed that indisputably, a confession made by an accused would come within
the purview of S. 24 of the Indian Evidence Act, 1872. The FERA Act is a
special Act, which confers various powers upon the authorities prescribed
therein. Even the salutary principles of mens rea and actus reus
in a proceeding under the Act may not be held to be applicable. It was now a
well-settled principle that presumption of innocence as contained in Article
14(2) of the International Covenant on Civil and Political Rights is a human
right, although per se it may not be treated to be a fundamental right
within the meaning of Article 21 of the Constitution of India.
It was a trite law that evidences brought on
record by way of confession which stood retracted must be substantially
corroborated by other independent and cogent evidences, which would lend
adequate assurance to the Court that it may seek to rely thereupon. In some of
the cases retracted confession has been used as a piece of corroborative
evidence and not as the evidence on the basis whereof alone a judgment of
conviction and sentence has been recorded.
A person accused of commission of an offence is
not expected to prove to the hilt that the confession had been obtained from
him by any inducement, threat or promise by a person in authority. The burden
is on the prosecution to show that the confession is voluntary in nature and
not obtained as an outcome of threat, etc. if the same is to be relied upon
solely for the purpose of securing a conviction. With a view to arrive at a
finding as regards the voluntary nature of a statement or otherwise of a
confession which has since been retracted, the Court must bear in mind the
attending circumstances which would include the time of retraction, the nature
thereof, the manner in which such retraction has been made and other relevant
factors. Law does not say that the accused has to prove that retraction of
confession made by him was because of threat, coercion, etc., but the
requirement is that it may appear to the Court as such.
In the instant case, the Investigating Officers
did not examine themselves. The authorities under the Act as also the Tribunal
did not arrive at a finding upon application of their mind to the retraction
and rejected the same upon assigning cogent and valid reasons therefor.
Whereas mere retraction of a confession may not be sufficient to make the
confessional statement irrelevant for the purpose of a proceeding in a
criminal case or a quasi-criminal case, but there cannot be any doubt
whatsoever that the Court is obligated to take into consideration the pros and
cons of both the confession and retraction made by the accused. It is one
thing to say that a retracted confession is used as a corroborative piece of
evidence to record a finding of guilt, but it is another thing to say that
such a finding is arrived at only on the basis of such confession although
retracted at a later stage.
The Court further observed that the appellant was
arrested on 27-10-1994; he was produced before the learned Chief Metropolitan
Magistrate on 28-101994. He retracted his confession and categorically stated
the manner in which such confession was purported to have been obtained.
According to him, he had no connection with any alleged import transactions,
opening of bank accounts, or floating of company export control, bill of entry
and other documents or alleged remittances. He stated that confessions were
not only untrue, but also involuntary.
The allegation that he was detained in the Office of
Enforcement Department for two days and two nights had not been refuted. No
attempt was made to controvert the statements made by the appellant in his
application filed on 28-10-1994 before the learned Chief Metropolitan
Magistrate. Furthermore, the Tribunal as also the authorities misdirected
themselves in law insofar as they failed to pose unto themselves a correct
question. The Tribunal proceeded on the basis that issuance and services of a
show-cause notice subserves the requirements of law only because by reason
thereof an opportunity was afforded to the proceedee to submit its
explanation. The Tribunal ought to have based its decision on applying the
correct principles of law. The statement made by the appellant before
the learned Chief Metropolitan
Magistrate was not a bald statement. The inference that burden of proof that
he had made those statements under threat and coercion was solely on the
proceedee does not rest on any legal principle. The question of the
appellant’s failure to discharge the burden would arise only when the burden
was on him. If the burden was on the Revenue, it was for it to prove the said
fact. The Tribunal on its independent examination of the factual matrix placed before it did not arrive at any finding that the confession being free from any threat, inducement or force could not attract the provisions of S. 24 of the Indian Evidence Act.
In view of the above the appeal was allowed.
[Vinod Solanki v. UOI & Anrs., Civil Appeal No. 7407 of 2008, dated 18-12-2008, Supreme Court. (source: itatonline.org), 2009 (233) ELT 157 (SC)
