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2010 DIGILAW 202 (CAL)

Pawan Poddar v. Deputy Director

2010-02-25

KALIDAS MUKHERJEE, KALYAN JYOTI SENGUPTA

body2010
JUDGMENT 1. THE order dated August 8, 2008, passed by the Appellate Tribunal of Foreign Exchange is impugned in this appeal at the instance of the appellant, Pawan Poddar who is one of the co-accused in this matter. 2. IT is made clear that this judgment will be confined to this case only and will not be applicable in other cases. The fact of this case is that by the impugned judgment and order, the learned Tribunal had upheld the order of adjudication dated January 3, 2002, passed by the Deputy Director, Enforcement Directorate, imposing penalties upon the appellant to pay a sum of Rs.2.70 lakhs for alleged contravention of section 9(l)(f)(i) of the Foreign Exchange Regulation Act, 1973 (then subsisting). The appellant was served with a show cause notice along with the other notices who are not before us, of course with a charge that he was alleged to have made payment to one Sri Ratan Jasarasaria. This payment, along with other payment, was to be utilised in foreign countries through conversion of foreign currency. 3. THERE is no dispute that if the charges are proved, the contravention automatically follows. 4. THE adjudicating authority, while imposing penalty as above, has relied on the statement of the said Mr. Jasarasaria which is said to be a confessional one. The statement was obtained by the official concerned under section 40 of the said Act. It appears that it is the only evidence. It is the grievance of the appellant before us that the show cause notice is a vague one and there is no definite charge against him so that he could answer the same. However, we feel that when he replied to the show cause notice and participated in the adjudicating proceedings, it has got no force on this point at this stage. However, Mr. Mehta fairly submits that he is not emphasising that point very much. As such, we overrule this point. 5. THE entire focus has been made on the question whether with given material, namely the alleged confessional statement made by a co-accused, should be the basis for recording conviction and for imposition of penalty. 6. UPON going through the records, particularly the judgment and order of the learned Tribunal as well as the adjudicating authority, we find that the only material is Mr. 6. UPON going through the records, particularly the judgment and order of the learned Tribunal as well as the adjudicating authority, we find that the only material is Mr. Jasarasaria's statement which consists of two parts, self-incriminating as well as mcrirninating the others including the appellant. It is settled position of law that confession is one of the species of admission which in its turn is so described statement of a person admitting his fault; but making statement of fault of other persons cannot be said to be admission. In other words, unless a person concerned makes it, this cannot be an admission. It is merely a statement and this can be used as evidence as permissible under the law and not otherwise. 7. MR. Mehta, appearing for the appellant, submits that the confessional statement made by the co-accused when he retracted cannot be used a substantive evidence. In this context he has placed an authority, decision of the Supreme Court reported in (2007) 8 SCC 254 . He has also brought a decision of the Supreme Court of Larger Bench, reported in 2009 Cri LJ 2407, on the proposition of law that the conviction cannot be based merely on the basis of the statement made in a case of this nature without any independent corroboration. Hence, he submits that the entire judgment in both these cases are based on no evidence. 8. MR. L.K. Chatterjee, appearing for the respondent, counters this submission contending that the confession made by the co-accused can be used as substantive evidence and is admissible for the embargo under section 24 of the Evidence Act is not applicable because the officials under the FERA are not police authorities. The statement recorded by non-police persons can be used as evidence here. In order to support his submission, he has brought two decisions of the Supreme Court, reported in (2007) 8 SCC 254 and 1996 SCC (Cri) 76 respectively. We have already recorded our findings with regard to the facts of the case as above. In the context of the submission made by the learned counsel, we are to decide whether the imposition of penalty by recording conviction by two authorities can be upheld by this Court or not. 9. FROM the records, we have already noticed that the only evidence is the statement of the said accused. In the context of the submission made by the learned counsel, we are to decide whether the imposition of penalty by recording conviction by two authorities can be upheld by this Court or not. 9. FROM the records, we have already noticed that the only evidence is the statement of the said accused. It appears from the records that the said person Mr. Jasarasaria was also placed for cross-examination and in the cross-examination he has denied having made any voluntary statement, rather he said that this confession was extracted. According to us, it is not a confession in legal sense. His statement incriminating himself can be said to be confession, but statement incriminating others can be a statement and may be used in evidence in certain circumstances. Therefore, when in cross examination he in no uncertain terms denied of having made certain statements voluntarily, it is always unsafe to rely on such statement to record conviction. Absence of voluntariness or volition in any statement obviously can only be termed as being no statement for any purpose. Besides, confession of a co-accused is not evidence of a substantial character. It could have been supported by citing a witness, namely the official who obtained the statement to counter his testimony that it was a voluntary statement and the testimony given before the adjudicating authority was an untrue one. When this was not done, obviously the evidence by way of statement made by the said person is of no value at all. 10. THE decision cited by Mr. Chatterjee, being 1996 SCC (Cri) 76, in our view, cannot be taken note of in view of the observation of the Larger Bench of the Supreme Court in the case reported in 2009 Cri LJ 2407 while taking note of the said Naresh J. Sukhani's case (supra), wherein it has been held that the aforesaid decision has not laid down any law. Therefore, it cannot be accepted to be a precedent. We therefore respectfully accept the ratio decided in the case reported in 2009 Cri LJ 2407 that a conviction should not be based merely on the basis of a statement made under section 67 of the Act without any independent corroboration, particularly when such statement has been retracted. Mr. Chatterjee then brought our attention to paragraph 19 of the judgment reported in (2007)8 SCC 254 . Mr. Chatterjee then brought our attention to paragraph 19 of the judgment reported in (2007)8 SCC 254 . The said paragraph says that a confession of a co-accused cannot be treated as a substantive evidence and can be pressed into service only when a Court is inclined to accept other evidence and feels the necessity of seeking for an assurance in support of the conclusion deducible there from. It is true that admissibility of the confession of the co-accused is not rejected always. It can be accepted when there has been a corroboration. 11. AS we have noted, the statement made by a co-accused in this case is not a confession and the question of retracted confession does not and cannot arise. 12. UNDER the circumstances, we hold that the impugned order is based on no evidence and hence the same is set aside. This appeal is accordingly allowed. There will be no order as to costs. Appeal allowed.