Calcutta High Court
Raj Kumar Damani vs Union Of India & Ors on 24 February, 2010
Author: I.P. Mukerji
Bench: I.P. Mukerji
1
WP No.498 of 2007
IN THE HIGH COURT AT CALCUTTA
ORIGINAL SIDE
In the matter of:
Raj Kumar Damani
Versus
Union of India & Ors.
Before:
The Hon'ble Justice
I.P. Mukerji
Date: 24.02.2010
Appearance:
Mr. Pradip Kr. Dutta Adv., for the petitioner.
Mr. Tilok Bose Sr. Adv., Mr. Joydeep Sen Adv.,
For the respondents.
The Court: Only the appellant no.1, in the appeal before the Tribunal, that is, Raj Kumar Damani is before me. He has challenged the order-imposing penalty upon him.
The impugned order of the appellate tribunal imposing penalty on the petitioner for violation of the Foreign exchange Registration Act, 1973 is dated 19th March, 2007.
In my opinion, the offending part is paragraph 7 of the order:
"There is nothing on record from which it can be gathered that inducement, torture, duress etc. has been practiced upon the witness by the officials of the Enforcement Directorate. In absence of any proof of torture, duress etc. inclupatory statement given by the 2 appellant corroborated with sufficient documentary and attended substantial evidence, is acceptable as true. The retracted confessional statements of the appellant are fully corroborated by seized documents and other evidence which are important factors to prove the charges against the appellant. The retracted confessional statement may also constitute substantial evidence when it is corroborated in material parts as it has been observed by the Supreme Court in K.I. Pavunny vs. Assistant Collector (HQ), Central Excise Collectorate, Cochin, (1997) 3 SCC 721 that retracted confessional statement may be sufficient ground for the conviction of the offender provided there is sufficient corroboration to prove the charge against the offender: 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 3 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 is true, that part of the inculpatory portion could be relied upon to base the conviction However, prudence and practice require that court would seek assurance getting corroboration from other evidence adduced by the prosecution."
It was on record that the appellant no.1 alleged that the statements, which the Enforcement Directorate used against him were obtained by practicing duress, torture and by offering inducement. It is also admitted that these statements were withdrawn. It is equally true that statements, even if with drawn can be used in these proceedings.
But the Tribunal has not exercised its jurisdiction properly. It was to decide whether the evidence sought to be used against the appellant no.1/writ petitioner was voluntary. It is not the other way round. When an objection is made that a statement is obtained unfairly, it is for the tribunal to first decide whether the statement was voluntary and this principle of law is quite settled and well known now. The Tribunal cannot say that the onus was on a person making the statement to show that there was duress, torture or inducement. This is exactly what the tribunal has done by saying there is nothing on record from which it can be gathered that inducement, torture, duress etc. have been practised upon the witnesses by the officials of the Enforcement Directorate. Further with regard to admission of statements that were subsequently 4 withdrawn, the prosecutor had the duty to prove that they were voluntary and that the withdrawal of those statements had no legal effect.
More possession of currency notesmay not prove any violation of the above statute. But some more evidence was required to establish violation of the above Act. I find there is absence of discussion of such evidence.
In that view of the matter, the order of Tribunal dated 29.3.2007 is set aside as against the writ petitioner. The Appellate Tribunal is directed to rehear the appeal on the basis of the above observations within a period of three months from the date of communication of this order.
All parties concerned are to act on a xerox signed copy of this order on the usual undertakings.
(I.P. Mukerji, J.) SP/