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April 2009

Retracted confession : No reliance can be placed on the retracted statement, unless the same was corroborated substantially in material particulars by some independent evidence : FERA, 1973.

By Dr. K. Shivaram, Ajay R. Singh, Advocates
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5 Retracted confession : No reliance can be placed on the retracted statement, unless the same was corroborated substantially in material particulars by some independent evidence : FERA, 1973.

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)

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